MAGNA CARTA AND OTHER ADDRESSES




  COLUMBIA UNIVERSITY PRESS
  SALES AGENTS

  NEW YORK
  LEMCKE & BUECHNER
  30-32 West 27th Street

  LONDON
  HUMPHREY MILFORD
  Amen Corner, E.C.




  MAGNA CARTA
  AND OTHER ADDRESSES

  BY
  WILLIAM D. GUTHRIE

  [Illustration: 1754

  Columbia University
  Press

  1893]

  New York
  COLUMBIA UNIVERSITY PRESS
  1916

  _All rights reserved_




  Copyright, 1916,
  By COLUMBIA UNIVERSITY PRESS.

  Set up and electrotyped. Published August, 1916.




CONTENTS


                                                                   PAGE

    I. MAGNA CARTA                                                   1

    Address before the Constitutional Convention of the State
    of New York at its celebration of the seven-hundredth
    anniversary of Magna Carta, Albany, June 15, 1915.

    II. THE MAYFLOWER COMPACT                                       27

    Response to the toast, "The Mayflower Compact," at the
    twenty-first annual banquet of the Society of Mayflower
    Descendants in the State of New York, held at the Hotel
    St. Regis, New York, November 23, 1915.

    III. CONSTITUTIONAL MORALITY                                    42

    Address before the Pennsylvania State Bar Association
    at its eighteenth annual meeting, held at Cape May,
    New Jersey, June 25, 1912.

    IV. THE ELEVENTH AMENDMENT                                      87

    Address before the New York State Bar Association at
    its thirty-first annual meeting, held in New York, January
    25, 1908.

    V. CRITICISM OF THE COURTS                                     130

    Read as a supplement to the report of a committee of the
    New York State Bar Association submitted at the thirty-sixth
    annual meeting of the Association, held at Utica,
    January 24, 1913.

    VI. GRADUATED OR PROGRESSIVE TAXATION                          159

    Address before the National Civic Federation at its
    annual meeting, held in New York, December 13, 1906.

    VII. THE DUTY OF CITIZENSHIP                                   178

    Address as temporary chairman of the New York Republican
    State Convention, Saratoga Springs, September
    25, 1912.

    VIII. NOMINATING CONVENTIONS                                   219

    Remarks before the Committee on Suffrage of the Constitutional
    Convention of the State of New York, Albany,
    June 16, 1915.

    IX. CATHOLIC PAROCHIAL SCHOOLS                                 247

    Remarks at the dedication of the Roman Catholic parochial
    school at Glen Cove, Long Island, New York,
    September 6, 1915.

    X. THE FRANCE-AMERICA COMMITTEE OF NEW YORK                    261

    Remarks as presiding officer at a luncheon given in honor
    of the members of the Anglo-French Credit and Finance
    Commission at the Hotel Knickerbocker, New York,
    October 1, 1915.

    INDEX                                                          271




MAGNA CARTA[1]


To the student of American institutions it must appear singularly
impressive and instructive that the members of the Constitutional
Convention of the state of New York have paused in their important
work to celebrate the seven-hundredth anniversary of the Great
Charter of English Liberties and to look back reverently through the
centuries to the sources of our constitutional law and to the days
when our ancestors were laying the foundations of civil liberty and
political justice. It is, indeed, no exaggeration to assert that
Magna Carta marked the greatest political epoch in the history of our
race, in that it saved England from becoming one of the arbitrary and
degrading despotisms which arose in Europe after the overthrow of the
feudal system, and that from its principles sprang representative and
constitutional government, with all that these terms have grown to mean
to Americans. This ceremony must again emphasize the great truth that
everything which has power to win the obedience and respect of men must
have its roots deep in the past, and that the more slowly institutions
have grown, so much the more enduring are they likely to prove.

Two hundred and eighteen years ago the royal governor of New York is
reported to have exclaimed to the legislature of the colony: "There
are none of you but are big with the privileges of Magna Carta." And
to-day, Mr. President, can it not be said with equal force and pride
that there are no Americans but are big with the privileges of Magna
Carta? Long may that continue to be true! To provide that the spirit
of these privileges shall endure forever, so far as lies in human
power, is the highest and noblest duty of every American constitutional
convention.

Other speakers will treat of the historical and political aspects of
Magna Carta and of its reissues and confirmations by king after king
and parliament after parliament. I am to speak of the legal value of
some of the cardinal features of the Great Charter as antecedents of
principles which are closely connected with our present political life
and which continue to invigorate our system of constitutional law. But
my treatment of this large and important aspect of the subject must
necessarily be inadequate, in view of the limited time at your disposal.

It is undoubtedly true that Magna Carta contained much that was old in
1215 and much that subsequently became antiquated because inapplicable
to changed conditions; yet it then crystallized and served to
perpetuate the fundamental principles of the liberties of Englishmen.
Solemnly confirmed no less than thirty-seven times by seven kings of
England, it naturally became in the eyes of Englishmen the embodiment
of their deepest and most firmly rooted rights and liberties and their
great and stirring battle-cry against tyranny. The reissue of 1225
still remains on the English statute books as in full force and effect,
so that, as an English historian has recently said, every act appearing
on the statute rolls is in a sense an act amending Magna Carta.

The spirit of Magna Carta, as it thus survived, has for centuries
inspired Englishmen and Americans, even though its letter may be dead
and most of its provisions may long ago have become obsolete and their
exact meaning hidden beneath the ruins of the past. Indeed, provisions
of the Great Charter were frequently violated by king and parliament
after 1215, and were allowed to fall into neglect for generations at a
time; but it cannot be doubted that, if the principles they embodied
had been observed, they would have secured permanent political liberty
and constitutional government to England long before the seventeenth
century, and that only disregard of those principles made possible the
five centuries of tyranny and oppression recorded by English history.

It may likewise be true, as some historians of the scientific school
are now contending, that the framers of the Great Charter and the
representatives of the English church, baronage and people gathered on
the meadows at Runnymede on the 15th day of June, 1215, had little or
no grasp of the science of politics or of constitutional principles
as we understand them. It is probably true that they had no very
definite conception of the theory of representative government, or of
the separation of governmental powers, or of those inalienable rights
of the individual which our Declaration of Independence was later to
proclaim, just as it is probably true that very few of them could even
read the language in which the charter was written. But statesmen and
lawyers, in dealing with the practical problems of constitutional
government, will not minimize the value of Magna Carta, and our debt
to the generation that forced it from King John, merely because the
underlying principles may not have been fully grasped by its framers
and its traditions may be based on legends and myths. It is enough that
the charter contained the germ and the spirit of civil liberty and
political justice.

It may be conceded that the framers of Magna Carta builded better than
they knew, and likewise that many of the traditions as to the intent,
meaning and scope of its provisions--traditions which were so potent
and inspiring during the seventeenth and eighteenth centuries--were
founded, as is now asserted, upon legends and myths. Yet, these legends
and traditions, growing up and clustering around Magna Carta, served
to keep alive and perpetuate its spirit. They generated the sentiment
which impelled men to patriotic and heroic sacrifice in the cause of
liberty; they sustained generation after generation in the recurring
struggles for political justice and equality before the law; they
formed and preserved a public morality which prevented violations of
the principles of the Great Charter, and they were of incalculable
inspiration and encouragement to Englishmen and Americans, if not to
the whole world. The great traditions of Magna Carta have made its
heritage peculiarly valuable and its service to humanity immortal. It
is because of these traditions that Magna Carta is doubly sacred to us,
as it was to our forefathers.

Many of us, however, venture to believe that the unknown author of the
original Articles of the Barons or of the Great Charter itself--if
it was not the learned Stephen Langton, who had been educated at the
University of Paris and was familiar with Roman and canonical law and
the charters of liberties which the kings of France had been granting
to their subjects--knew far more of the underlying and vivifying
principles of jurisprudence and politics than some of our modern
critics are willing to attribute to that generation. Be this as it
may, the political instinct of our race must have guided the framers
to the eternal truths upon which the Great Charter of Liberties was
based, even though they imperfectly comprehended these truths, or
did not comprehend them at all. A single phrase like "the law of the
land" in a political document is often wiser than is realized, not
merely by the masses who acclaim it, but even by the leaders who write
it. It may happily serve to preserve and compress into very small
compass the relics of ancient wisdom, notwithstanding the fact that
later generations are frequently puzzled to decipher the contents
and discover the meaning. Such a phrase, as has been well said of
the language of a nation, "sometimes locks up truths which were once
well known, but which in the course of ages have passed out of sight
and been forgotten. In other cases it holds the germs of truths, of
which, though they were never plainly discerned, the genius of its
framers caught a glimpse in a happy moment of divination, ... and often
it would seem as though rays of truths, which were still below the
intellectual horizon, had dawned upon the imagination as it was looking
up to heaven."[2]

First and foremost among the cardinal principles of Magna Carta was
the idea, then beginning again to germinate throughout Europe, that
the individual has natural rights as against the government, and that
those rights ought to be secured to him by fundamental laws which
should be unalterable by king or council. No one can study the history
of European politics during the great constructive thirteenth century
without being impressed by the fact of the revival of this conception
in men's minds, not only in England, but on the Continent, where it
manifested itself in varying forms and in different connections. I say
revival, because the same conviction had prevailed hundreds of years
before in both Greece and Rome; but it had been lost for centuries.

The idea that the fundamental laws of the land--the pious and good old
laws of Alfred and of Edward, as the English called them, or _les lois
fondamentales_, as the French were then calling them--were unalterable
and that any governmental regulation, or edict, or statute to the
contrary should be treated as void and null, is plainly enunciated in
the first chapter of Magna Carta, where King John grants to the freemen
of the kingdom "all the underwritten liberties, to be had and held by
them and their heirs, of us and our heirs forever," and in chapter
sixty-one, where the king covenants that he "shall procure nothing from
any one, directly or indirectly, whereby any part of these concessions
and liberties might be revoked or diminished; and if any such thing
has been procured, let it be void and null." It is certain that during
the thirteenth and fourteenth centuries the theory generally prevailed
in England that the concessions and liberties of the Great Charter
had been granted forever and were unalterable by the king, or even by
parliament. Thus, we find parliament enacting in 1369, with the consent
of Edward III., that the Great Charter of Liberties should be "holden
and kept in all points, and if any statute be made to the contrary,
that shall be holden for none."

One of the scholarly critics of Magna Carta suggests that this
enactment of 1369 was quite an "illogical theory" on the part of
parliament, because, to quote his language, "if parliament had power
to alter the sacred terms of Magna Carta, it had power to alter the
less sacred statute of 1369 which declared it unalterable."[3] The
conclusive answer to this kind of reasoning, at least as it must
seem to statesmen and lawyers, is that Magna Carta was then regarded
as something very different from and much higher than any ordinary
statute. The people of that day would have protested, if the logic
of parliament had then been challenged by the learned, that Magna
Carta was a permanent charter of liberties and as such not subject to
amendment or nullification by mere statute. But logical or illogical
as the act of 42 Edward III. may have been at the time, or may seem to
be to the logicians of the twentieth century, it serves to show that
in the fourteenth century the English people understood and intended,
and the king and parliament expressly agreed and conceded, that the
liberties guaranteed by the Great Charter, then being again and again
confirmed, were unalterable, and that any statute to the contrary
should be "holden for none."

The spirit of that declaration still lives in every American
constitution. We certainly have here the antecedent of the great
controlling principle underlying the whole structure of American
constitutional law, that any statute in conflict with the fundamental
laws, so far as we see fit to perpetuate them in constitutional
provisions, shall be void and null, in the language of the Great
Charter, or holden for none, in the language of the time of Edward III.
Chief Justice Marshall in the great case of Marbury _vs_. Madison, in
1803, was but following these ancient declarations when, speaking for
the Supreme Court of the United States, he settled--we hope for all
time--the beneficent and indispensable doctrine that a statute contrary
to an American constitution must be treated by the courts as void and
null and holden for none.

I do not overlook the fact that this idea of fundamental laws
unchangeable by statute long slumbered in England, and that the
contrary--the legal supremacy of parliament--was subsequently
established. In studying this aspect of the Great Charter, we must
recall that the conditions of life in England during the thirteenth and
fourteenth centuries were very much simpler than those existing later,
and that it was not then realized, or at most only vaguely and dimly,
that the legislative power could change the laws regulating the rights
and duties of individuals as among themselves or in their relation to
the government. The modern habit of imagining that in legislation is to
be found the panacea for all ills and of measuring the efficiency of
a government by the number of statutes it has produced was unthought
of. Probably the only legislative function in the minds of Englishmen
during the thirteenth and fourteenth centuries was taxation, and as yet
men hardly realized the necessity for broader regulative or legislative
powers.

Nevertheless, the doctrine that the permanent fundamental principles of
the law of the land guaranteed by Magna Carta were inviolable prevailed
in England long after the fourteenth century, and in fact was declared
in the English courts as late as the seventeenth century. Bonham's case
is the most familiar instance of the recognition of that doctrine. The
views of English lawyers, judges and statesmen have changed in this
respect, and it is now settled that parliament is supreme and that it
can amend or repeal Magna Carta in any respect it may see fit. The
changed view undoubtedly met with ready acquiescence, partly because of
the necessity for amendments of the law in order to cope with changing
conditions, partly because of the unwillingness of the English people
to leave questions of constitutional power to the courts, in view of
the dependence of the judges upon the crown, but principally because
of the confident belief that parliament existed primarily for the very
purpose of upholding and protecting the rights and liberties secured to
the people by the Great Charter of Liberties, and that the people could
rely upon parliament never to consent to the violation of those rights
and liberties.

Repeatedly from the seventeenth century to our own day legislation
has been criticized in Great Britain and Ireland on the ground that
it was in conflict with Magna Carta, and always the strongest and
most effective argument against proposed legislation has been that
it would violate the principles of the Great Charter of Liberties.
During the past thirty years thoughtful observers of English politics
have remarked that private property in England is, on the whole, less
secure from attack on the part of the government in our day than
it was at the time of the Stuarts. Whenever the increase of class
legislation and attacks on private property shall lead Englishmen to
place checks and restraints upon the power of temporary majorities, so
as more effectively to protect personal and property rights--an event
which, I believe, must inevitably come to pass sooner or later--then
the stirring battle-cry will again be Magna Carta, and the result
may be a return to the spirit of the declarations of Magna Carta and
of the statute of Edward III., that any statute contrary to the law
of the land guaranteeing the fundamental rights and liberties of the
individual shall be void and null and holden for none. And to make that
ancient, sound and honest principle really an effective protection to
the individual and to minorities, the courts of justice of England may
at last be empowered, as they are with us, to refuse to give force
and effect and to hold for none any statute in conflict with the
fundamental law of the land.

Of an importance no less vital than the idea of a permanent law of
the land safeguarding the fundamental rights and liberties of the
individual, was the express declaration in the first chapter of Magna
Carta that the English church, _Anglicana ecclesia_, should be free
from interference on the part of the crown and that her rights should
be entire and her liberties inviolable. In this provision we have the
germ of an independent church and the idea of the separation of Church
and State.

It is reasonable to assume and, in view of the surrounding
circumstances and the language then employed, it is highly probable
that, under the lead of Langton, who was born of English parents and
intensely patriotic, probably himself the author of the clause, the
churchmen of that day conceived that the religion of the English people
ought to be free from governmental control, and that the English church
had interests and privileges independent of the crown and independent
likewise of the interests and policies of Rome. At that very time
the English churchmen, in cooperating with the barons and people of
England to secure Magna Carta, were acting against the will of Rome;
indeed, as we know, the Pope promptly denounced the Great Charter
and the patriot primate, because the Pope considered that the Great
Charter was derogatory to the dignity of King John as a vassal of the
Holy See. In this provision of Magna Carta relating to the English
church, even though it was disregarded for centuries, we recognize
the idea of religious liberty and the American political principle
of the separation of Church and State, as also, though vaguely, the
great principle underlying the noble declaration in our own state
constitution that "the free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall
forever be allowed in this state to all mankind."

The provisions of the Great Charter relating to the administration
of justice were undoubtedly those which were of chief concern to
the people at large, as they were certainly, if observed, those most
essential for the security of their liberties. The framers knew that
it was in the courts that the king of England would keep his promises,
if at all, and that the king's government would only be as good as his
judges were learned, independent and impartial. In these provisions of
Magna Carta we find the principle of the separation and independence
of the judicial power and the soundest and highest conceptions of the
administration of justice, conceptions far in advance of those to be
found in any other document or enactment of that age.

The framers had grasped the great truth that jurisprudence is a
science, that the law must be administered by men learned in that
science and bound to obey its rules and follow its precedents, that
uniformity and certainty are essential to the administration of
justice, and that the highest political liberty is the right to justice
according to law and not according to the will of the judge or the
judge's master, or according to the judge's individual discretion, or
his notions of right and wrong. They had also arrived at the conclusion
that every Englishman was entitled as of absolute right to a day in a
court which would hear before it condemned, which would proceed upon
notice and inquiry, and which would render judgment only after a fair
trial. The plain people of England knew full well that the struggle
for their old laws--the laws of their land, pious, good, fixed and
permanent, as they devoutly believed them to be--would be fruitless
unless they secured permanent courts and learned, independent and
impartial judges; and they instinctively felt, if they did not clearly
perceive, that the law is infinitely wiser than those who may be called
upon to administer it, and that, as Aristotle had declared fifteen
hundred years before, "to seek to be wiser than the laws is the very
thing which is by good laws forbidden."

It was Magna Carta that established in England the doctrine of the
rule of law administered in fixed courts by learned and independent
judges bound to obey the law; and it was Magna Carta that established
the greatest of all the English constitutional doctrines, that of
the supremacy of the law over every official however high. When the
Great Charter was being translated and explained in the cathedrals,
churches and monasteries of England, the people fully understood the
tremendous significance and value to them, determined as they were to
establish a rule of law and put an end to arbitrary decrees, of the
famous covenant in chapter forty-five that the king would "appoint as
justices, constables, sheriffs, or bailiffs only such as know the law
of the realm and mean to observe it well," and of the covenants in
chapter seventeen that the "common pleas shall not follow our court,
but shall be held in some fixed place"--in chapter eighteen that the
petty assizes should be held in the county court--in chapter thirty-six
that the writ of inquisition should be freely "granted, and never
denied"--in chapter forty that "to no one will we sell, to no one
will we refuse or delay, right or justice," which in time came to be
interpreted as a universal guaranty of free and impartial justice to
all classes high and low.

For many generations in England and in America it was believed that
the writ of habeas corpus, justly esteemed the great bulwark of
personal liberty, had its direct guaranty or at least its antecedent
in Magna Carta. Such was the contention of counsel in the Five Knights
case of 1627, and such was the declaration of the Petition of Right
of 1628. This view is now being challenged on the ground that the
exact procedure subsequently developed was not provided for in Magna
Carta and was not in the minds of its authors. Even if this be so,
the underlying principle of chapter thirty-six and its promise that
the writ of inquisition should be freely "granted, and never denied"
naturally led in time, after the passing of trial by combat, to the
right of speedy inquisition by grand jury and trial by petit jury.
At all events, the principle of the writ of habeas corpus was for
centuries assumed to be embodied in Magna Carta.

Professor Dicey lecturing at Oxford on "The Law of the Constitution"
has well remarked that, although the English Habeas Corpus acts declare
no principle and define no rights, they are for practical purposes
worth a hundred constitutional articles guaranteeing individual
liberty. As in England, so with us. Without the writ of habeas corpus
there would be no liberty worthy of the name and no rights of personal
freedom of any practical value. We have only to read the leading cases
in our courts to realize how great a part the writ has played and still
plays in securing and rendering effective the fundamental principles of
American liberty.

Chapters twelve and fourteen of Magna Carta dealt with the subject of
taxation, and they laid the foundation of our representative system
and of the separation of the legislative from the executive power. As
has been suggested, the only legislative function that the people of
England in the thirteenth century contemplated as closely affecting
them or as likely to create any pressing grievance was that of
taxation. It was, therefore, expressly provided in the Great Charter
that, aside from the three existing feudal aids, more or less fixed,
the power to impose taxes should not be exercised without the consent
of the _commune consilium_. This common council is the body that fifty
years later developed into the famous parliament of Simon de Montfort
of 1265.

In the controversies in regard to taxation subsequently arising,
whether in parliament, in the courts, or in the forum of public
opinion, it was always insisted that Magna Carta prevented taxation
without the consent of parliament, just as in the eighteenth century
our ancestors contended that Magna Carta prevented taxation without
representation, that is, prevented the imposition of taxes except by
a legislative body in which the taxpayers were represented. We have
only to refer to the arguments in the great constitutional cases before
the courts of England in the seventeenth century, such as the famous
case of Impositions in the reign of James I. and the still more famous
case of Ship-Money in the reign of Charles I., to realize how much
the people relied upon Magna Carta as establishing the doctrine that
parliament alone could impose taxes.

The counsel for Bate in the former case and for Hampden in the
latter case may not have apprehended the philosophical theory of the
separation of governmental powers elaborated by Montesquieu in the next
century, and they may not have contended that taxation was essentially
a legislative function and, therefore, could not be exercised by the
king; but in final analysis they affirmed these principles when they
asserted that parliament alone could impose taxes. The judgment of a
majority of the court in the Ship-Money case, as had been the judgment
in the case of Impositions, was in favor of the crown, but the appeal
to the country cost Charles I. his head and ultimately resulted in
vesting in parliament the exclusive power to legislate and hence to
tax. If England had then had an independent judiciary charged with
the duty of enforcing the fundamental law of the land, the levying of
the taxes in both of these cases would have been held contrary to the
letter, as it was certainly contrary to the spirit, of Magna Carta.

It is no answer to say that the parliament of to-day finds its
prototype not in the old common council referred to in Magna Carta,
but in the parliament of 1265, nor is it an answer to say that the idea
of taxation in its abstract form is essentially modern and was quite
unknown in 1215. I do not suggest that the people of England in 1215 or
even in 1265 understood the virtues of the representative system, or
the principles of taxation or of the separation of powers. The point
is that the direct consequence of the provisions of Magna Carta was a
parliament based, theoretically at least, on the representative idea as
well as on the principle that there could be no legislation without the
consent of parliament.

The most famous of all the chapters of Magna Carta and the most
important and far-reaching from a juridical point of view is
undoubtedly the thirty-ninth, which provides that "no freeman shall be
taken or imprisoned or disseised or exiled or in any way destroyed, nor
will we go upon him nor send upon him, except by the lawful judgment of
his peers or by the law of the land."

The substance of this provision as to "the law of the land," or its
equivalent "due process of law," is of universal application throughout
the United States as a constitutional limitation upon the powers of
government, and it is to be found not only in the Constitution of the
United States but in the constitution of every state of the Union. It
is now firmly established in American and English constitutional law,
and it is familiar knowledge, that the terms "the law of the land" and
"due process of law" are exactly equivalent in meaning and in legal
force and effect. The earliest use of the phrase "due process of law"
in American constitutions seems to have been in the fifth amendment to
the Constitution of the United States, ratified in 1791. None of the
state constitutions then in existence contained that term, but nearly
all of them used the phrase "the law of the land." The phrase "due
process of law" will be found in the New York bill of rights of 1787.

Until recent years, it had been assumed that the term "the lawful
judgment of his peers" in Magna Carta meant trial by jury according
to the modern understanding of that term, and that the term "the law
of the land" meant laws conforming to those fundamental principles of
justice which protect every individual in the full enjoyment of life,
liberty and property secure from the arbitrary exercise of the powers
of government. That is still the technical legal meaning of these
two terms both in England and in America, although their practical
effect and operation are different with us, because of our system of
written constitutions which the legislative branch may not disregard or
violate. Both of these meanings, however, are now challenged by certain
critics as being without foundation in either the provisions or the
history of the Great Charter.

Some historians contend that the familiar provision of Magna Carta
could not have meant trial by a jury of twelve and a unanimous verdict,
because such a jury, according to our present knowledge, did not
exist until the second half of the fourteenth century. But it is
quite immaterial whether the exact form of our jury-trial existed in
England in 1215, or when the Great Charter was subsequently reissued or
confirmed, provided that the foundations of the system had then been
laid. It is sufficient for us that the antecedents of the modern jury
system in all its three forms of grand jury, criminal jury and civil
jury existed at the time of Magna Carta and were preserved by it. As
the jury system developed, with the changes inevitably attending all
such institutions of legal procedure and machinery, the form for the
time being, whatever its exact nature, became "the lawful judgment of
his peers" within the intent and meaning of the Great Charter. In any
event, the latest confirmations of that instrument occurred at a time
when the jury system as now in force was being firmly established.
It is, therefore, easy to understand how the provision "the lawful
judgment of his peers" in the course of time came to be regarded as
intended to guarantee the common-law jury of twelve with unanimity in
verdict.

Thus many, if not most, of our constitutional provisions now apply to
conditions not at all contemplated by their framers although clearly
within the principle enunciated and the spirit of the language used.
Much of the efficacy of our federal and state bills of rights, or of
any similar provisions which this Convention may embody in the new
constitution, would be practically nullified if the language used
were to be interpreted as being limited to the particular conditions
existing when they were adopted. It is the spirit and the expanding
principles of constitutional provisions which should always control.
The letter killeth.

A charter of liberties, a bill of rights, or a constitution is not
an ephemeral enactment designed to meet only the conditions existing
at the time of its adoption. It embodies and perpetuates permanent
principles. It is designed to endure "forever," in the language
of Magna Carta, and "to approach immortality as nearly as human
institutions can approach it," in the lofty phrase of Marshall, the
great Chief Justice of the United States. Under any other rule of
interpretation, Magna Carta would have become antiquated long before
the discovery of America.

By the phrase "the law of the land," in chapter thirty-nine, the
fundamental principles and axioms of the existing law were perpetuated.
Exactly what those fundamental principles and axioms were then
understood to be is not now capable of accurate exposition. The
judges and the people of those days certainly had some definite
ideas of reasonably just and fixed rules of conduct adequate for the
solution of the simple questions arising in the controversies then
being submitted for adjudication. Had the judges been pressed for a
comprehensive or philosophical definition of "the law of the land,"
they might have said that they would not attempt to define the term
any more than they would attempt to define justice itself, and that,
as the Supreme Court of the United States declared only a few years
ago, it is better to ascertain the intent of such an important phrase
in a great constitutional document by the gradual process of judicial
inclusion and exclusion as practical experience may dictate and as
the cases presented for decision may require; in other words, that
their decisions would in time sufficiently declare and perpetuate the
principles of the law of

  "A land of settled government,
  A land of just and old renown,
  Where freedom slowly broadens down
  From precedent to precedent."

The phrase "the law of the land," as used in Magna Carta, must have
been intended at the time to include procedure as well as substantive
law, but the term "due process of law," now its current equivalent,
originally related only to procedure. A very early, if not the
earliest, use of the term "due process of law" will be found in a
statute of the year 1354, 28 Edward III., in which it was provided that
no person should be condemned without being first brought to answer by
due process of the law, the exact wording in the quaint Norman-French
of the day being "_saunz estre mesne en respons par due proces de
lei_." As at the same time the Great Charter was being expressly
confirmed "to be kept and maintained in all points," the provision
in regard to _due proces de lei_ in the act of 1354 was undoubtedly
intended to be supplemental to the provisions of the Great Charter
and to apply only to persons being brought to trial in a court of
justice. It is true that in the seventeenth century Lord Coke used the
phrase "due process of law" as the equivalent of "the law of the land,"
but in the contemporaneous Petition of Right of 1628 mention is made
specifically of the "Great Charter of the Liberties of England" and its
provision as to "the law of the land," and reference is made separately
to the act of 28 Edward III. and its provision that no man should be
prosecuted "without being brought to answere by due process of lawe."

The same distinction in the use of these terms will be found in the
history of the Plymouth colony as early as 1636 and also in the early
history of the state of New York. The New York charter of liberties and
privileges of 1683 speaks of "being brought to answere by due course
of law," the words evidently being taken either from the act of Edward
III. of 1354, or from the Petition of Right of 1628. The New York
constitution of 1777 used the term "the law of the land" but did not
use the term "due process of law." In the New York bill of rights of
1787, we find the phrases "the law of the land," "due process of law"
and "due course of law," and in one section the phrase "due process
of law according to the law of the land." Both terms, "the law of
the land" and "due process of law," are used with evidently the same
meaning in the present constitution of the state of New York, that
is to say, "the law of the land" is used in section I of Article I.
and "due process of law" in section 6. The separate history of each
section, the former first appearing in the constitution of 1777 and the
latter in the constitution of 1821, will account for the difference in
terminology.

It would be interesting to trace the varying uses of these terms in
our forty-eight state constitutions, but that must be left for some
other occasion. A majority of the state constitutions, including most
of the recent constitutions, now contain the term "due process of law."
As that term is the one used in the fourteenth amendment, which is
applicable to all the states, it might be preferable, for the sake of
uniformity and certainty, to adopt that form as less likely to confuse.
Moreover, the phrase "due process of law" lends itself readily to a
more comprehensive and inclusive definition if we define the word
"due" to mean _just and appropriate_ and the word "process" to mean
_substantive provision_ as well as procedure.

Finally, it may be of interest to notice the sanction and security
devised for enforcing the covenants of Magna Carta. A body or tribunal
of twenty-five barons, called executors, was created by chapter
sixty-one, who were to "be bound with all their might, to observe
and hold, and cause to be observed, the peace and liberties we have
granted and confirmed to them," and who were to have power to compel
the king himself, even by force, to keep the promises he had made.
The clause providing this security or legal sanction was crude, but
it was not necessarily an impracticable innovation. Although the
plan utterly failed, it remained of immense value in principle. That
principle established the right of the subjects to compel the king of
England to obey a body of fixed laws outside and beyond his will; it
justified revolution for just cause, and it inspired our forefathers
in their struggle against George III. The influence of this idea upon
public sentiment as justifying revolution, particularly during the
seventeenth and eighteenth centuries, cannot well be over-estimated.
The ineffectiveness of this provision of Magna Carta served also to
demonstrate the futility of such a tribunal and security, and to lead
the English people to look thereafter solely to the courts of justice
and to parliament for the protection of their rights and liberties.
The founders of our own republican governments may have been warned
by the failure of this sanction that it would be unwise to create any
political body with power to enforce constitutional provisions, and
it may have been for this reason that they left the enforcement of
constitutional limitations and the protection of the individual and
minorities to an independent non-political forum composed of impartial
judges learned in the law and meaning "to observe it well," according
to the spirit of Magna Carta.

In closing his great commentaries on the Constitution of the United
States, Mr. Justice Story admonished the American people that,
although the whole structure of our constitutional liberty was erected
by architects of consummate skill and fidelity, with its defences
impregnable from without, it might nevertheless perish in an hour by
the folly or corruption or negligence of its only keepers, the people.
It cannot, indeed, be too often declared that, if constitutional
government and fundamental rights are to endure, they must be
maintained and preserved by competent leaders and representatives of
the people constantly teaching the value of the traditions of Magna
Carta and the necessity of adhering to constitutional principles and
observing constitutional morality. The members of this Convention are
not likely to disregard the living spirit of the Great Charter of
English Liberties and its enduring value to Americans. It was Lincoln
who said that "as a nation of freemen we must live through all time,
or die by suicide." But we shall perpetuate free government and civil
liberty only as we adhere to two essential conditions: the one, that
our fundamental rights shall continue to be inviolable by the state,
the other, that they shall be equal. "If not inviolable, they are not
rights, but only enjoyments on sufferance; if not equal, they are but
the privileges of a class, whatever that class may be."[4]

FOOTNOTES:

[Footnote 1: Address before the Constitutional Convention of the state
of New York at its celebration of the seven-hundredth anniversary of
Magna Carta, Albany, June 15, 1915.]

[Footnote 2: Guesses at Truth, 1st series, 3d ed. (1847), pp. 324-325.]

[Footnote 3: W.S. McKechnie, _Magna Carta_, 2d ed. (1914), p. 159.]

[Footnote 4: Edward J. Phelps, Orations and Essays (1901), p. 127.]




THE MAYFLOWER COMPACT[5]


Wherever Americans gather, at home or abroad, those who can claim
the proud heritage of descent from the Pilgrims on the Mayflower are
accustomed annually to join in thanks-giving for all that they owe
to their ancestors. The spirit which prompts these celebrations is
singularly wholesome, and indeed holy. Among the natural instincts of
the heart, common to all races, is a longing for communion with the
past, which manifests itself in the worship of ancestors. That this
spirit of reverence has been from the earliest ages a most powerful
religious and patriotic force is a fact familiar to us in the history
of the Egyptians, the Greeks and the Romans. We readily recall the
beautiful ceremonial of pagan Rome on the _dies parentales_, when
violets and roses and wine, oil and milk were offered and _aves_ were
chanted to the spirits of their dead.

An impressive example of the survival of this instinct in modern times
is afforded by the Japanese, who daily, at innumerable household
shrines and public temples erected to Shintō, worship their ancestors
as the gods of the home and of the nation. When, twenty-years ago,
Japan so easily defeated the Chinese Empire with ten times the
population of Japan, the surprise and marvel of the world impelled one
of the most brilliant writers of our generation to seek the source of
the fortitude, the indomitable spirit and the military valor of the
Japanese. He did not expect to find it in their form of government
or in their laws, for he realized the great truth that mere forms of
government and laws possess no magical or supernatural virtue and are
of little moment in nations in comparison with the moral character of
their leaders and their people. He discovered, as he believed, that the
secret of the civil and martial power of the Japanese and the source
of their moral energy and virtue--I use virtue in the Latin sense of
valor--lay in the vital and all-pervading worship of their ancestors,
based upon the deep-rooted belief that all things are determined by the
dead. He found that this homage excited at once the deepest emotion
and the most powerful inspiration of the race, shaping their national
character, directing their national life, teaching them reverence,
obedience, self-restraint, temperance, loyalty, courage, devotion and
sacrifice, and making them ever conscious of the prodigious debt the
present owes to the past, as well as keenly sensible of the duty of
love and gratitude to the departed for their labors and suffering.
"They," the dead, he eloquently wrote, "created all that we call
civilization,--trusting us to correct such mistakes as they could not
help making. The sum of their toil is incalculable; and all that they
have given us ought surely to be very sacred, very precious, if only
by reason of the infinite pain and thought which it cost." And then he
added, "Yet what Occidental dreams of saying daily, like the Shintō
believer: '_Ye forefathers of the generations, and of our families,
and of our kindred,--unto you, the founders of our homes, we utter the
gladness of our thanks_'?"[6]

In the reverential spirit so beautifully expressed by this Japanese
prayer, I venture upon a necessarily brief and imperfect review of a
subject of transcendent and enduring interest to Americans--the debt
that American constitutional government, under which we enjoy the
blessings of civil and religious liberty and of just and equal laws,
owes to your ancestors of the Mayflower.

In these days of superlative comfort and affluence, it is difficult for
us assembled in this palatial hall, feasting better than the Cæsars
feasted and served as not even princes were served three hundred years
ago--difficult, if not impossible, is it to carry our minds from this
gorgeous and almost oppressive luxury back through the centuries to
November, 1620, to the Mayflower covered with snow and ice and buffeted
by fierce winter winds off the bleak and desolate coast of Cape Cod.
Equally difficult is it to picture to ourselves and in imagination to
breathe the air of that first American constitutional convention, in
the cramped and chilling cabin of the Mayflower, when the Pilgrim
Fathers were assisting, as Bancroft says, at "the birth of popular
constitutional liberty," and were discussing the provisions of what
has since been called the first written constitution ever framed by
a people for their own government from the time history began to
record human politics and human successes and failures. I need not
stop to read the contents of the completed draft of that constitution,
conceived in the then vague prompting, which one hundred and fifty-six
years later was to be proclaimed in our Declaration of Independence
as a self-evident truth, that all governments must derive "their just
powers from the consent of the governed." Nor shall I read the names
of the forty-one immortals who executed that compact in order to
evidence their covenant of due consent and promise of obedience to its
provisions and spirit. Surely, if there be one constitutional document
which should be familiar to all Americans, and particularly to the
descendants of the Pilgrims, it is the Mayflower Compact of November
21, 1620.[7]

Many of us believe that the compact thus entered into was the prototype
of the Constitution of the United States, that the government it
established was the beginning of the republican form of government
now guaranteed alike to nation and state, and that the covenant it
contained for just and equal laws was the germ from which has since
developed our whole system of constitutional jurisprudence. This
covenant reads: "We ... doe by these presents solemnly & mutualy in
ye presence of God, and one of another, covenant & combine our selves
togeather into a civill body politick, for our better ordering &
preservation & furtherance of ye ends aforesaid; and by vertue hearof
to enacte, constitute, and frame such just & equall lawes, ordinances,
acts, constitutions, & offices, from time to time, as shall be thought
most meete & convenient for ye generall good of y Colonie, unto
which we promise all due submission and obedience." Surely, this
simple, comprehensive and lofty language, in the style of the Bible
open before the Pilgrims, embodies the true and invigorating spirit of
our constitutional polity as it flourishes to-day.

In order to appreciate the political greatness and the moral grandeur
of the work of the Pilgrims, we should recall that, when the Mayflower
Compact was framed, in no part of the world did there exist a
government of just and equal laws, and that in no country was there
real religious liberty or the complete separation of Church and State.

In fact, the great and now fundamental principle of the separation
of Church and State was first made a living reality by the Pilgrims,
although, in theory at least, it antedated the voyage of the Mayflower.
It was the essence of their holy covenant of congregation entered into
years before. And to the Pilgrims chiefly are due the credit and honor
of incorporating this principle into Anglo-American polity. A wide gulf
separated the Pilgrims from the Puritans in this respect. The Pilgrims,
first known in England as the Separatists and Brownists--hated alike
by Puritan and Cavalier--advocated religious liberty and the complete
separation of Church and State. The Puritans, however, when they
secured power in England and later in New England, were intolerant in
religion and opposed both to religious liberty and to the separation of
Church and State. They were determined that the state should dominate
in religious as well as in civil affairs and that it should regulate
the religion of all; in truth, they sought to impose a dominant
theocracy as completely as Henry VIII. and Elizabeth were determined to
have a state church under their own spiritual supremacy and to abolish
all "diversity of opinions," if necessary by rack, fire and the
scaffold. The Pilgrim, personifying him as you love to in the lofty and
generous spirit of Robinson at Leyden, believed in religious freedom,
or, as it is differently phrased, in liberty of conscience; the Puritan
was determined that all should be coerced by legislation and the sword
to conform to his religious views as the only true faith. Although the
Puritan theocracy found its most complete development and tyranny in
Massachusetts, the colony of Plymouth remained liberal and tolerant.
Notwithstanding the terrible record of sanguinary persecutions among
other religious denominations of that age, no instance is recorded of
religious persecution by the Pilgrims or in the Plymouth colony.[8]
You will recall that the famous Pilgrim captain, Myles Standish,
never joined the Plymouth church, that no witches were ever burned
in Plymouth, and that when a malicious woman accused a neighbor of
witchcraft, she was promptly convicted of slander and thereupon fined
and publicly whipped. The excesses and fury of religious persecution
by Protestants and Catholics alike were the products of the fierce,
intolerant and blind spirit of that age. We should judge them not by
the standards of the twentieth century, but by those of the sixteenth
and seventeenth centuries, and must not overlook the fact that in many
cases these persecutions were as much political as they were religious.

In the history of New England the Pilgrim is often confused with the
Puritan, undoubtedly because the Puritan soon dominated and ultimately
absorbed the Pilgrim. Nevertheless, the differences between them on
this question of religious tolerance and the separation of Church and
State were implacable, to adopt the word of a great American historian.
Yet, in differentiating between Pilgrim and Puritan and in recalling
the facts as to the origin of religious freedom and the separation of
Church and State, the greatest of all the blessings we now enjoy--in
giving most of the glory to the Pilgrims, notwithstanding the claims
of Catholic Maryland--I am not at all unmindful that in religion and
in politics the Pilgrim and the Puritan had many views in common, that
our debt to both is quite inseparable, and that our gratitude to them
should be eternal.

It is certainly impossible to exaggerate the debt we owe to the Puritan
spirit--fierce, indomitable and undaunted, even if intolerant, for it
was that spirit which cemented the foundations of our nation. It was
the Puritan spirit that gave to England her noblest figures and her
most inspiring traditions of battlefields. Towering above all other
Englishmen is the lofty figure of the Puritan Cromwell, and second
only to him are the Puritans Hampden, Pym, Selden, Milton, Vane, Hale.
Hampden--the highest type of English gentleman, with a nobility and
fearlessness of character, self-control, soundness of judgment and
perfect rectitude of intention, to which, as Macaulay declared, "the
history of revolutions furnishes no parallel or furnishes a parallel in
Washington alone." If to-day England is to preserve her empire, upon
which she boasts the sun never sets, she must appeal to the energy and
fortitude and courage of the Puritan. She must invoke the spirit of
Oliver Cromwell, whose mighty arm made the name of England terrible
to her enemies and laid the foundations of her empire, who led her to
conquest, who never fought a battle without gaining it, whose soldiers'
backs no enemy ever saw, who humbled Spain on the land and Holland on
the sea, and who left a tradition of military valor which is now the
inspiration of the splendid courage, heroism and sacrifice of England's
soldiers on the continent of Europe.

A most important aspect of the Pilgrims' contribution to our political
institutions is the provision for just and equal laws contained in
the Mayflower Compact, for, as I have already suggested, in that
provision is embodied the essence of our whole constitutional system.
It has become a truism that the characteristic of the American system
of constitutional government is equality before the law. We Americans
accept this doctrine as of course. But we should appreciate that civil
equality or equality before the law was practically unknown in Europe
when the Mayflower Compact was written. In this country its development
sprang in great measure gradually from the seed first sown by the
Pilgrims. Neither the phrase "equality before the law," so familiar to
us as expressing a fundamental and self-evident truth, nor the term
"the equal protection of the laws," now contained in the fourteenth
amendment, is to be found in the English common law. Nor was either
term, or any equivalent, in legal use in America at the time of the
adoption of the Constitution of the United States. Indeed, the phrase
"equality before the law" is said to be a modern translation from the
French. Nevertheless, equality in duty, in right, in burden and in
protection is the thought which has run through all our constitutional
enactments from the beginning.

The Pilgrim Fathers perceived, long before it was generally
appreciated, that equal laws might fall far short of political justice
and liberty, and hence they provided for "just and equal laws." They
realized, perhaps indistinctly, that equality in itself, without other
elements, is not sufficient to guarantee justice, and that, under a
law which is merely _equal_, all may be equally oppressed, equally
degraded, equally enslaved. They well knew that equality is one of
the pervading features of most despotisms, and that a law may be
equal and yet be grossly arbitrary, tyrannical and unjust. Obviously,
a law confiscating all property of a certain kind would be equal if
it applied to all having that particular kind of property. The laws
of England then in force providing for one form of worship, "for
abolishing diversity of opinions," as the title of the act of 31 Henry
VIII. recited, or compelling all to attend the same church and to take
the same oath of religious supremacy and the sacraments of the same
religious denomination, were all equal laws, because they applied to
every one, no matter what his conscience might dictate. In the cabin of
the Mayflower, the Pilgrim Fathers seem to have had a vision revealing
to them the fundamental and essential political truth that equality is
but an attribute of the liberty they were then seeking at the peril of
their lives and the sacrifice of their fortunes, and that true liberty
requires _just_ as well as _equal_ laws. To repeat, it was the Pilgrims
who first sowed in our soil the seed of just and equal laws, and that
seed has grown into the fixed rule of the American constitutional
system, a rule which has spread through all our political and civil
rights and duties until it reaches, pervades, unites and invigorates
the whole body politic.

The history of the Plymouth colony from 1620 until its absorption
by the colony of Massachusetts in 1691, teaches us many lessons in
political philosophy. There are two which I desire to recall to you
to-night: one as to the right to private property, the other as to pure
democracy.

The Pilgrims began government under the Mayflower Compact with a
system of communism or common property. The experiment almost wrecked
the colony. As early as 1623, they had to discard it and restore the
old law of individual property with its inducement and incentive to
personal effort. All who now urge communism in one form or another,
often in disguise, might profitably study the experience of Plymouth,
which followed a similarly unfortunate and disastrous experiment in
Virginia. History often teaches men in vain. Governor Bradford's
account of this early experiment in communism in his annals of "Plimoth
Plantation" is extremely interesting. The book is rich in political
principles as true to-day as they were three hundred years ago. After
showing that the communal system was a complete failure and that as
soon as it was abandoned and a parcel of land was assigned in severalty
to each family, those who had previously refused to work became "very
industrious," even the women going "willingly into ye feild" taking
"their litle-ons with them to set corne, which before would aledg
weaknes, and inabilitie," Bradford proceeds as follows:

"The experience that was had in this com̅one course and condition,
tried sundrie years, and that amongst godly and sober men, may well
evince the vanitie of that conceite of Platos & other ancients,
applauded by some of later times;--that ye taking away of propertie,
and bringing in com̅unitie into a comone wealth, would make them happy
and florishing; as if they were wiser then God. For this comunitie
(so farr as it was) was found to breed much confusion & discontent,
and retard much imployme̅t that would have been to their benefite and
comforte. For ye yong-men that were most able and fitte for labour
& service did repine that they should spend their time & streingth
to worke for other mens wives and children, with out any recompence.
The strong, or man of parts, had no more in devission of victails &
cloaths, then he that was weake and not able to doe a quarter ye
other could; this was thought injuestice. The aged and graver men to
be ranked and equalised in labours, and victails, cloaths, &c., with
ye meaner & yonger sorte, thought it some indignite & disrespect unto
them.... Let none objecte this is men's corruption, and nothing to ye
course it selfe. I answer, seeing all men have this corruption in them,
God in his wisdome saw another course fiter for them."[9]

Although the colony of Plymouth began as a pure democracy under which
all the men were convened to decide executive and judicial questions,
the increase of population and its diffusion over a wider territory
necessarily led to the transaction of official business through chosen
representatives. The representative system was thus established by
the Pilgrims in New England perhaps more firmly than elsewhere, and
it became the cardinal principle of whatever efficiency, strength and
stability our republican governments now have. This system is menaced
by the enthusiasm for change and by the fads of recent years, such
as the initiative, the referendum, the recall and direct primaries.
In these political nostrums has been revived the crude notion that
the masses, inexperienced as they are in the difficult and complex
problems of government, are instinctively better qualified to guide
than the educated few who are trained, instructed and competent, and
who, acting as the representatives of all, are bound in good conscience
and sound policy to consider and protect the rights of the minority, of
the individual, of the humble and weak, against the arbitrary will or
selfish interest or prejudice of the majority.

There is no time to-night, even if your patience would bear with me
longer, to trace the growth of the political principles which we find
in the history of the Plymouth colony and underlying the experiment
in republican government there initiated under the Mayflower Compact.
If the tree is to be judged by its fruit, the framing of that compact
in 1620 was one of the most important events in the history of the
American people, and the document itself is one of the most interesting
and inspiring of American constitutional documents. But I feel that
I may appropriately suggest to you questions which are of immediate
and urgent concern to us all, and they are whether the quickening
and stirring message of the Mayflower has really endured--whether
the sterling qualities of the Pilgrim and the Puritan have
survived--whether the descendants of the Pilgrims have inherited and
can perpetuate the invincible spirit, the unconquerable moral energy,
the indomitable steadfastness of their ancestors--and whether these
qualities are available in our own day to guide the nation safely and
wisely through the inevitable crisis which we are approaching as the
whole civilization of Europe is being daily more and more engulfed in
the abyss of this awful war. These are problems which our generation
must face sooner or later. And who should be better qualified to guide
us--for it is leadership that we need--than men who inherit the spirit
and the traditions of the Pilgrim and the Puritan?

In this crisis, the greatest in our national affairs since 1861, I
hope we shall profit by the example of the founders of Plymouth, who,
as Palfrey wrote, "gave diligent heed to arrangements for the military
defence of the colony." It may be also that Providence will give us, in
the descendant of a Pilgrim, the captain who shall be both our shield
and our weapon as Myles Standish was the shield and the weapon of your
ancestors.

FOOTNOTES:

[Footnote 5: Remarks responding to the toast, "The Mayflower Compact,"
at the twenty-first annual banquet of the Society of Mayflower
Descendants in the State of New York, held at the Hotel St. Regis, New
York, November 23, 1915.]

[Footnote 6: Lafcadio Hearn, _Kokoro_, pp. 289-290.]

[Footnote 7: The original manuscript of the Mayflower Compact has been
lost or destroyed. The text, as preserved by Governor Bradford in his
annals entitled "Of Plimoth Plantation," is as follows:

"In ye name of God, Amen. We whose names are under-writen, the loyall
subjects of our dread soveraigne Lord, King James, by ye grace of
God, of Great Britaine, Franc, & Ireland king, defender of ye faith,
&c., haveing undertaken, for ye glorie of God, and advancemente of
ye Christian faith, and honour of our king & countrie, a voyage to
plant ye first colonie in ye Northerne parts of Virginia, doe by
those presents solemnly & mutualy in ye presence of God, and one of
another, covenant & combine our selves togeather into a civill body
politick, for our better ordering & preservation & furtherance of
ye ends aforesaid; and by vertue hearof to enacte, constitute, and
frame such just & equall lawes, ordinances, acts, constitutions, &
offices, from time to time, as shall be thought most meete & convenient
for ye generall good of ye Colonie, unto which we promise all due
submission and obedience. In witnes wherof we have hereunder subscribed
our names at Cap-Codd ye 11. of November, in ye year of ye raigne
of our soveraigne lord, King James, of England, France, & Ireland
ye eighteenth, and of Scotland ye fiftie fourth. Ano: Dom. 1620."
Printed in the Collections of the Massachusetts Historical Society, 4th
series, vol. III, pp. 89-90. See also the text in Bradford's History of
Plymouth Plantation, ed. W.T. Davis (1908), p. 107.]

[Footnote 8: The legislation against the Quakers as enforced in the
Plymouth colony seems to have been essentially political. The records,
so far as we have them, indicate that the Quakers were proceeded
against because of their attempts to disturb the peace and overthrow
established law and order, and not because of their religious beliefs.]

[Footnote 9: Collections of the Massachusetts Historical Society, 4th
series, vol. III, pp. 134-136.]




CONSTITUTIONAL MORALITY[10]


The text of this address is taken from Grote's "History of Greece." The
historian, reviewing the state of the Athenian democracy in the age
of Kleisthenes, points out that it became necessary to create in the
multitude, and through them to force upon the leading men, the rare and
difficult sentiment which he terms constitutional morality. He shows
that the essence of this sentiment is self-imposed restraint, that few
sentiments are more difficult to establish in a community, and that its
diffusion, not merely among the majority, but throughout all classes,
is the indispensable condition of a government at once free, stable
and peaceable. Whoever has studied the history of Greece knows that
the Grecian democracy was ultimately overthrown by the acts of her own
citizens and their disregard of constitutional morality rather than by
the spears of her conquerors.

We American lawyers would be blind, indeed, if we did not recognize
that there is at the present time a growing tendency throughout the
country to disregard constitutional morality. On all sides we find
impatience with constitutional restraints, manifesting itself in many
forms and under many pretences, and this impatience is particularly
strong with the action of the courts in protecting the individual and
the minority against unconstitutional enactments favoring one class
at the expense of another. However worded and however concealed under
professions of social reform or social justice, the underlying spirit
in most instances is that of impatience with any restraint or rule of
law.

We are meeting again the oldest and the strongest political plea of
the demagogue, so often shown to be the most fallacious and dangerous
doctrine that has ever appeared among men, that the people are
infallible and can do no wrong, that their cry must be taken as the
voice of God, and that whatever at any time seems to be the will of
the majority, however ignorant and prejudiced, must be accepted as
gospel. The principal political battle-cry to-day seems to be that,
if the people are now fit to rule themselves, they no longer need any
checks or restraints, that the constitutional form of representative
government under which we have lived and prospered has become
antiquated and unsatisfactory to the masses, and that we should adopt a
pure democracy and leave to the majority itself the decision of every
question of government or legislation, with the power to enforce its
will or impulse immediately and without restraint.

We find many political and social reformers advocating an absolute
legislative body, whose edicts, in response to the wishes, interests,
or prejudices of the majority, shall at once become binding on all,
no matter how unjust or oppressive these edicts may be. Those who
are loudest in thus demanding the supremacy of the legislative power
are equally loud in charging that our legislatures are inefficient or
corrupt and in proclaiming distrust of the people's representatives in
legislative bodies. In one breath we are asked to vest legislatures
with power and discretion beyond the control of the courts, and in the
next breath we are told that legislative bodies are not to be trusted
by the people, and hence that we must have the initiative and the
referendum.

Other reformers would vest greater power in the executive, so as to
enable him to dictate to legislatures whatever he deemed or professed
to think best for the common welfare or for social progress. In the
final analysis this would, of course, reduce us to a despotism pure and
simple, and place Congress and the state legislatures in the condition
of the Roman senate in the second century. Argue as we may from the
admonitions and experience of the past, the defiant answer is that
the people will select the executive and are prepared to trust him,
an answer that singularly disregards the fact that they now select
the legislators whom they no longer trust, and that practical reform
in legislation is ready to their hand if they will only insist upon
character and ability in their representatives.

Others again would deny to the courts the power and duty to declare
unconstitutional and void any enactment of a legislative body that was
in conflict with the constitution, or, if not going quite so far,
would give the courts power to disregard constitutional limitations
whenever the judges found or fancied that an enactment was in
consonance with prevailing morality or the opinion of the majority in
respect of matters relating to the police power or social progress or
social justice. They would have the judiciary interpret and enforce a
constitution not according to the mandate of the people who adopted it,
nor according to the true meaning and intent of the language employed
by the framers, nor according to settled general rules and principles,
but according to the ever-changing desires or notions or opinions
of the majority and the personal ideas of so-called progressive or
sympathetic judges. Many of those who charge the judiciary with having
usurped the power to determine whether a particular enactment does or
does not conflict with the fundamental and supreme law as established
by the people themselves, would now place a far greater power in
the hands of the courts by authorizing them to expand or contract a
constitution by judicial construction, and would thus in reality vest
in the judges an arbitrary discretion. Under this doctrine, practically
every constitutional restraint could be readily circumvented,
perverted, or nullified; constitutional rights could be frittered away,
and great landmarks of human progress could be undermined.

We should then have government by the judiciary with a vengeance. Our
constitutional system would be no longer reasonably fixed and stable,
no longer regulated by the justice of necessary general rules, but
would be subject to constant uncertainty and change as judges might
think the moral atmosphere of the moment or the will or opinion or
interests of the majority required. It would, of course, be better to
have no constitutional restraints at all, and to vest supreme power
and corresponding responsibility in the legislative branch of our
government. It is of the essence of judicial power that judges in
deciding cases shall be bound by principles, rules and precedents, that
they shall not be permitted to exercise arbitrary discretion, and that
they shall be required to give reasons for their decisions. A court
bound by no rules or principles at all would not be exercising judicial
power as we understand that term. If we were to vest in legislatures
or courts the discretion to obey or disobey constitutional restraints
according as the prevailing moral or political sentiment might seem
to dictate, we would at once deprive such restraints of all practical
force and effect, and would have a constitution only in name and form
and not in substance. As the late Chief Justice Fuller, _clarum et
venerabile nomen_, so well said in the Lottery case, "our form of
government may remain notwithstanding legislation or decision, but, as
long ago observed, it is with governments as with religions, the form
may survive the substance of the faith."[11]

The limited time at my disposal compels me to confine this address
to the aspect of constitutional morality which is presented by the
criticism of the courts for refusing to enforce unconstitutional
statutes. This seems to me to be the most dangerous of all the lines
of attack. I regret that I have not time to deal with other important
aspects of my subject, such as the movement for the recall of judges
and judicial decisions, the agitation for the initiative and the
referendum, and the growing practice on the part of legislatures and
executives of abandoning the consideration of constitutional questions
and leaving this duty to the courts, thus casting upon the judges the
sole responsibility and frequently the unpopularity and even odium of
enforcing constitutional restraints.

Few of us, I assume, would seriously suggest that the judicial
department is to be above criticism, or that it is to be deemed
sacrosanct so that we must bow and submit in silence, without the right
of challenge, criticism, or censure, to whatever the courts declare to
be law. Such a view would be absurd. Of course, judges make mistakes
as the wisest and best men make mistakes. They are not infallible. But
neither are our legislative bodies infallible, nor is the crowd. There
must be the fullest liberty of criticism and if need be of censure of
our judges as of all other public officials. Fair and just criticism,
however, would be distinctly educational, and it could tend only to
restore the courts to public favor and confidence. The danger is not in
freedom of criticism, but in unfair and unfounded criticism supported
by distorted or false statements. Our judicial system is inherently
sound enough and strong enough to withstand and overcome any fair
criticism. We should, therefore, encourage the fullest discussion of
judicial decisions in constitutional cases in order that constitutional
principles may be adequately explained and the necessity for the
observance of constitutional morality brought home to the people.
Let us, however, insist that the facts be truthfully stated. If the
reasons and principles of justice which support most of the decisions
criticized could be explained to all classes in simple language and
in terms intelligible to laymen as well as to lawyers, much of the
misapprehension of judicial decisions and prejudice against the courts
and constitutional restraints would be dispelled. To tell the man in
the street or in the workshop that a statute is in conflict with the
guaranty of due process of law or of the law of the land, conveys no
meaning to his mind; yet, if he understood the fundamental principles
involved and the consequences of disregarding them, he might be
persuaded of the justice and propriety of the decision under discussion.

I shall call your attention to a few examples of alleged abuse or
usurpation of power by the judiciary, and endeavor to show the
characteristics of much of the criticism of the judges and the manner
in which the masses are being constantly prejudiced and inflamed
against the courts.

The case in the New York courts which probably is being more criticized
and misrepresented than any other is known as the Tenement House
Tobacco case (Matter of Jacobs),[12] decided in January, 1885.
The courts then held unconstitutional an act which forbade the
manufacture of tobacco products in certain tenement houses in New
York and Brooklyn, because the statute unwarrantably and unreasonably
interfered with the liberty of the individual. The enactment was an
attempt on the part of the owners of large tobacco factories to destroy
the competition of cigar manufacturers who worked at home. It was
not an honest health measure at all; it was not in fact designed to
protect the health of tobacco workers, and it did not contain a single
provision tending in any degree to secure sanitary conditions of work
or living. Not one word in the opinions of the courts in the Jacobs
case prevented the legislature from adopting regulations to secure
wholesome conditions in the manufacture of any article. Since that
decision, the New York constitution has been carefully revised by a
constitutional convention in 1894, and in addition has been repeatedly
amended, no less than nineteen separate amendments having been adopted
by the people, whilst a large number of additional proposed amendments
have been rejected. But in neither the revision nor in any of the
amendments, whether adopted or rejected, was any change suggested in
the rule of constitutional law declared in the Tenement House case,
although the subject was directly called to the attention of the
convention. For more than a quarter of a century, the people of the
state of New York have acquiesced in the decision of the Court of
Appeals as fair, just and satisfactory.

Jacobs with his wife and two children lived in a tenement house in the
city of New York and occupied an apartment of seven rooms in a building
where there were only three other apartments, all of equal size. In
this apartment he carried on the trade of manufacturing cigars, and
the rooms in which he did so were separated from the sleeping and
cooking-rooms. The testimony showed that there was no odor of tobacco
in these sleeping and cooking-rooms. The conditions under which he was
carrying on his trade in his own home for the support of himself and
his family were much more healthful than if he and his assistants had
been compelled to work in a crowded factory, particularly in 1884, when
there were no such sanitary conditions in factories as now prevail
under the beneficent operation of our present public health and labor
laws. It was shown that, when this legislation was enacted, 840,000,000
cigars were being manufactured annually in the city of New York, of
which about 370,000,000, or 44 per cent., were made in the homes of
dwellers in tenement or apartment houses, and that about two thousand
artisans were supporting themselves and their families by thus working
at home. The board of health of the city of New York had officially
declared, after careful investigation, as set forth in the brief of
Mr. Evarts, then the leader of the American bar, "that the health of
the tenement-house population is not jeopardized by the manufacture
of cigars in those houses; that this bill is not a sanitary measure,
and that it has not been approved by this board." It also appeared
from this brief that while the death-rate in the city of New York
generally was 31 in each 1,000, it was only 9 in each 1,000 in the
tenement houses where cigars were being manufactured. The act, if valid
and enforceable, would have crushed the competition of home workers
with the tobacco factories; it would have deprived the tenement-house
dweller of the liberty to exercise his trade of cigar-making at home
even under the most sanitary conditions, and it would have driven
every such workman and the working members of his family into crowded
and generally unhealthful factories, to be harassed and oppressed by
strikes and lockouts and the other troubles which attend modern labor
conditions, to say nothing of being exposed to all the mischiefs,
physical and moral, that are inseparable from crowded workshops. The
court held that the statute was not a legitimate health regulation and
released Jacobs from imprisonment. The principle of constitutional
law recognized and applied was that an individual cannot be made a
criminal for working at a lawful trade in his own home under sanitary
conditions, and cannot be compelled by discriminatory legislation to
labor in a crowded factory. If the provisions of the act had not been
declared to be in conflict with the constitutional guaranty of personal
liberty, similar statutes could have been passed with respect to all
kinds of home work, and all artisans, whether men or women, could
have been driven into factories at the dictation of factory owners
or trade-unions having sufficient political influence to secure the
necessary legislation.

I digress here a moment to point out that people urging particular
enactments too often overlook the effect of disregarding a principle
and establishing a precedent. Constitutions declare general rules or
principles of justice, which sometimes do not coincide with the justice
of particular cases. The framing of general rules of conduct so as to
bring about practical justice in the greatest number of cases and with
the fewest exceptions, constitutes the science of jurisprudence, of
which constitution-making is but a branch, and the application of these
general rules to practical affairs is the duty of legislatures and
courts. The statutes before the courts are frequently recognized and
conceded to be only entering wedges and experiments, and, if sustained,
are certain to be followed by others far broader and more radical. If
legislative power exists to regulate a subject, the extent or degree
of its exercise is essentially for the legislature to determine in its
discretion and cannot be controlled by the courts. Hence, a court must
always consider, in determining the constitutionality of a statute, not
merely the features of the particular statute before it and not merely
the justice or merits of the particular case as between man and man or
between the state and the individual, but what might be done under the
same principle if the statute before it were upheld and a precedent
established. Thus, if we once grant the power of a legislature to
prohibit work at home under sanitary conditions in one trade, then
every trade becomes subject to the same power of regulation and
prohibition, and all working men and women can be driven into crowded
factories.

In the Jacobs case, Presiding Justice Noah Davis, speaking for the
intermediate appellate court sitting in the city of New York, and
undoubtedly acquainted with conditions then and there existing, used
the following language: "A careful study of the act has satisfied us
that its aim was not 'to improve the public health by prohibiting
the manufacture of cigars and preparation of tobacco in any form in
tenement houses in certain cases, and regulating the use of tenement
houses in certain cases,' as declared in the title, but to suppress
and restrain such manufacture in the cases covered by the act for
the purpose of preventing successful competition injurious to other
modes of manufacturing the same articles.... If the act were general
and aimed at all tenement houses, and prohibited for sanitary reasons
the manufacture of cigars and tobacco in all such buildings, or if it
prohibited such manufacture in the living-rooms of all tenants, another
case would be presented. But in the form in which it comes before us it
is so unjust in its inequality, so harsh and oppressive upon the labor
of poverty, so keenly discriminative in favor of the stronger classes
engaged in the same occupation, that it certainly ought not to have
been enacted; but, being enacted, ought to be held invalid because it
deprives the appellant of his right and liberty to use his occupation
in his own house for the support of himself and family, and takes
away the value of his labor, which is his property protected by the
Constitution equally as though it were in lands or money, without due
process of law."[13]

Discussing the Jacobs case, Mr. P. Tecumseh Sherman of the New York
bar, who is reputed to be one of the best informed men in our state
upon the subject of labor conditions and labor legislation and who was
at one time a state commissioner of labor, said in a letter published
a few weeks ago that the tenement-house statute, although purporting
to be for the public health, was not a reasonable regulation for that
purpose, because it arbitrarily selected one article and forbade its
manufacture under certain conditions not generally unsanitary, and he
added that "as matter of fact, the act was not designed to protect
health but to put out of business one set of competitors in a trade
war."

Now let me call your attention to two examples of the manner in which
this decision is being criticized. In an address delivered at Yale
University last month, the mayor of the city of New York, who for many
years had been a justice of the state supreme court, criticized the
courts and derided the administration of justice in his own state.
He referred to the Jacobs case in the following language: "The first
case I shall call your attention to is known in my own state as the
Tenement House Tobacco case.... You know what a condensed population
we have in a part of the city of New York. Well, benevolent men and
women in going around there found in little rooms in these crowded
tenements certain things being manufactured that were not wholesome.
They found tobacco being manufactured into its various products in the
living-rooms of these poor tenements. Benevolent people who helped the
poor saw it and they saw the evils of it. They saw little children born
into this world and brought up in bedrooms and kitchens in the fumes
and odors of tobacco. They also saw longer hours of work than would be
the case if workers left their work at the shop and went home. So they
went to the legislature and got a law passed forbidding the manufacture
of tobacco in the living-rooms of these tenements." Mayor Gaynor
then proceeded to criticize and condemn the Court of Appeals for its
reasoning and decision.

The facts, however, were that the statute was not limited to "the
living-rooms of these tenements," but applied to every room, and that
the promoters of this legislation were not the benevolent men and
women who visit and help the poor, as Mayor Gaynor imagined, but the
owners of tobacco factories who desired to crush the competition of
independent workers. Nor was there anything in the case before the
courts to support the statement that any one had seen "little children
born into this world and brought up in bedrooms and kitchens in the
fumes and odors of tobacco." No such conditions were before the courts,
and the contrary was proved by unimpeached evidence in the Jacobs case,
as any one reading the record could see. But, even if the picture
had been true, the decision in this case did not in any way whatever
prevent proper legislation prohibiting the manufacture of tobacco
products in the bedrooms and kitchens of crowded tenement houses or
under unsanitary conditions.

Ex-President Roosevelt is equally inaccurate in his criticism of
the Jacobs case. He is reported as having said in one of his recent
speeches that "the decision of the court in this case retarded by at
least twenty years the work of tenement-house reform and was directly
responsible for causing hundreds of thousands of American citizens now
alive to be brought up under conditions of reeking filth and squalor,
which measurably decreased their chance of turning out to be good
citizens." The truth is that the decision did not retard tenement-house
reform by a single day, and did not prevent the enactment of a single
provision for securing sanitary conditions for those who work at home.
In fact, the necessary legislation has since been readily secured and
enacted in New York without any amendment of the state constitution.
Our public health and labor laws now regulate the manufacture of
tobacco and other articles in homes and require and secure sanitary
conditions, and licenses authorizing manufacturing at home are issued
subject to cancellation at any time if the surroundings become
unsanitary.

Mr. Sherman characterized as absurd the statement made by Mr. Roosevelt
in regard to the effect of this decision, and added that "so far, then,
from having done harm in the way of sanitary reform, the decision in
the Jacobs case has done good by giving the reform a proper direction
and object. Mr. Roosevelt's criticism receives a ready chorus of
approval from a large body of ill-informed reformers who seek to
prevent some of the evils of 'sweating' by arbitrarily forbidding all
home manufacture in tenements. But the vast majority of tenement houses
in New York are of a class better described as apartment houses, which
are perfectly sanitary, and in such houses there is much home work
of a good kind, such as fine sewing, art work, &c., and under good
conditions; and it would be a deplorable and unnecessary interference
with liberty to forbid such work as an incident to the prevention of
home work in unsanitary slums."

Another New York case which is being similarly criticized and
misrepresented is what is known as the Bakers case, or People
_vs._ Lochner.[14] The decision in this case declaring a statute
unconstitutional was that of the Supreme Court of the United States
and not of the New York Court of Appeals; in fact the latter court
sustained the act, although by a divided court. Mayor Gaynor explained
this decision to his audience at Yale, composed largely of law
students, in the following language: "The next case in order was the
bake-oven case in my state. A bake-oven, you know, is underground. And
if any of you ever were in a bake-oven I do not need to say another
word about bake-ovens. It is the hottest and most uncomfortable place
on the face of the earth. It is a hard place to work in. It is hot and
unhealthy, and no one can stand it without injury to health. So in the
same way in the state of New York we had an act passed prescribing
sanitary regulations for the bakeries.... These bake-ovens are
exceptional. They are underground and as hot as Tophet, if I may use
such an expression here.... The law was passed prescribing regulations
for them. One of the regulations was that ten hours a night was all
that a baker should work in these places." And Mr. Roosevelt is
reported in the newspapers as criticizing this decision and stating to
his audiences that "this New York law prevented the employment of men
in filthy cellar bakeries for longer than ten hours a day."

The statute in question applied to manufacturers of bread, biscuits and
confectionery. Taken in connection with the then existing Public Health
Law, it contained adequate provisions for securing the best conditions
of sanitation and ventilation and for safeguarding bakers from the
effects of heat and of breathing flour or other particles. There was no
distinction drawn in the act as to hours of labor between sanitary and
unsanitary conditions of work, or between bakers and other employees,
or between night and day work. The power of the legislature to prevent
the manufacture of bread or other articles of food in cellars or in
underground bake-ovens or in filthy and unsanitary places, whether
above or below ground, was not challenged. The provisions of the act
tending to secure sanitary conditions were not interfered with or set
aside by the courts, and they have ever since been enforced as valid
for all purposes. The act was not confined in its operation to workmen
compelled to labor at night underground, but applied to everyone
employed day or night in factories, above or below ground, in which
bread, confectionery, or biscuits were manufactured. It is true that
medical authorities were cited to the courts in support of the view
that the trade of a baker was injurious to health, but such authorities
were based upon statistics gathered under conditions of labor which
could not have existed then and cannot exist now in New York if the
elaborate regulations of our public health and labor laws be duly
enforced. There were, however, conflicting medical authorities cited to
the court, which asserted that the trade was not unwholesome.

Lochner owned a bakery at Utica in which he worked himself and
employed three or four workmen. There was only one oven, and it was
above ground. The building was clean, especially well ventilated and
sanitary. The only question before the court in the case was whether
Lochner could be made a criminal and imprisoned for permitting his
workmen to labor more than ten hours in any day under the best
sanitary conditions, and the Supreme Court held that this could not be
done without violating his constitutional rights. Had the conditions
of work in bread, biscuit, or confectionery factories in the state of
New York been shown to have been unusually dangerous and necessarily
unwholesome, the law would undoubtedly have been sustained by the
Supreme Court, as was the Utah miners' act in Holden _vs._ Hardy.[15]
No one who has studied the decisions of the New York courts or of
the Supreme Court of the United States can doubt that any statutory
provision reasonably tending to protect the health of bakers and other
workmen and to prevent labor in unhealthful places would be upheld as
clearly within the police power of the legislature.

The act, moreover, was one-sided and discriminatory in that it made the
employer a criminal but left the workman free to do as he saw fit. A
baker working for A for ten hours in one day was left at liberty to go
next door to B, A's competitor, and, if he saw fit, work another ten
hours for B. In fact, as I am told, the informer on whose testimony
Lochner was convicted frequently worked ten hours a day for Lochner and
a number of hours additional in another bakery. If the act had been
honestly conceived in a desire to safeguard the health of bakers, it
would, of course, have provided some punishment for any violation of
the law on the part of the workmen, and not have left them at liberty
to disregard its spirit whenever they saw fit to do so.

The principle involved in this Bakers case was universal, and if
employers in bread, biscuit, or confectionery factories could be made
criminals for permitting their employees to labor more than ten hours
in any one day, the legislature could enact similar legislation as to
every other employment. No court would then have power to regulate
the degree of the exercise of legislative discretion in such cases.
The provision, which at first limited the workday to ten hours, could
thereafter be changed to eight hours, or even to six hours, as was
advocated in More's "Utopia."

In February of this year, Mr. Roosevelt delivered an address before
the Ohio constitutional convention, in which he discussed the decision
of the Supreme Court of the United States in the Employers' Liability
cases,[16] decided while he was President. The court then held that
the act of Congress of June 11, 1906, sometimes erroneously called
the National Workmen's Compensation Act, attempted to regulate the
internal affairs of the several states as well as interstate commerce,
that it consequently included a subject not within the constitutional
power of Congress, and that the two matters were so blended that they
were incapable of separation unless the court made a new statute in
the place of the one enacted by Congress. Conscientiously entertaining
this view, the majority of the court would have been guilty of the
plainest constitutional immorality if they had not declared that the
act was beyond the power of Congress and declined to give it effect. No
honest men, believing as the majority did, could have done otherwise
than obey the constitutional mandate expressly reserving to the states
the legislative powers not delegated to Congress. In the light of
the long-established and wise rule that courts should avoid judicial
legislation and not revise or give effect to a statute in a manner
not clearly intended by the legislative body, the justices could not,
of course, have upheld and enforced the statute simply because the
individual cases before them excited their sympathy or involved the
claims of widows. The remedy was obvious and simple. Congress was
then in session, and within a few days an amended statute could have
been enacted so as to limit the act to interstate commerce, which
alone was within the constitutional power of Congress to regulate.
After the lapse of three months, such a law was enacted, and being
plainly confined to interstate commerce, as the original statute should
have been, and would have been if properly and competently drafted,
the amended act was unanimously sustained by the Supreme Court as
constitutional in the Second Employers' Liability cases, decided this
year,[17] when it was held that Congress had power to change the
common law rules as to assumption of risk, contributory negligence and
fellow-servants' acts in connection with the regulation of interstate
commerce.

Speaking of the first decision, Mr. Roosevelt said: "When I was
President, we passed a National Workmen's Compensation Act. Under it
a railway man named Howard, I think, was killed in Tennessee, and his
widow sued for damages. Congress had done all it could to provide
the right, but the court stepped in and decreed that Congress had
failed. Three of the judges took the extreme position that there was
no way in which Congress could act to secure the helpless widow and
children against suffering, and that the man's blood and the blood
of all similar men when spilled should forever cry aloud in vain for
justice. This seems a strong statement, but it is far less strong than
the actual facts; and I have difficulty in making the statement with
any degree of moderation. The nine justices of the Supreme Court on
this question split into five fragments. One man, Justice Moody, in
his opinion stated the case in its broadest way and demanded justice
for Howard, on grounds that would have meant that in all similar cases
thereafter justice and not injustice should be done. Yet the court,
by a majority of one, decided as I do not for one moment believe the
court would now decide, and not only perpetuated a lamentable injustice
in the case of the man himself, but set a standard of injustice for
all similar cases. Here again I ask you not to think of mere legal
formalism, but to think of the great immutable principles of justice,
the great immutable principles of right and wrong, and to ponder what
it means to men dependent for their livelihood, and to the women and
children dependent upon these men, when the courts of the land deny
them the justice to which they are entitled."

Now, if this argument meant anything it certainly meant that, in
the opinion of the speaker, an ex-President of the United States,
the justices of the Supreme Court should have disregarded the
Constitution as they understood it in order to allow a widow to
recover notwithstanding the unconstitutionality of the act under and
by virtue of which she was suing. You will not find a single word of
reference by Mr. Roosevelt in his whole address to the only point
upon which the majority, speaking by Mr. Justice White, decided the
cases. Of course, the statement of what was actually decided would have
been tame and unsensational. The criticism in form and substance was
based upon a distorted and unfair statement of what was decided, and
it was calculated to create in the minds of the members of the Ohio
constitutional convention, as well as in the minds of the uninformed
public, the belief that the justices of the Supreme Court of the United
States had "set a standard of injustice for all similar cases" and
had denied to Congress the power to pass a fair and just employers'
liability statute properly limited to interstate commerce. The contrary
was plainly the truth, as the subsequent decision of the court had
clearly shown, for this latter decision was rendered and published
before Mr. Roosevelt made his address.

Another example of distorted statement and unfair criticism of the
courts will be found in the same address. It related to the decision of
the New York Court of Appeals in the case of Ives _vs._ South Buffalo
Railway Company,[18] decided last year, in which the court held that a
statute concededly novel and revolutionary, creating liability on the
part of an employer to his workmen although the employer and his agents
were wholly free from negligence or fault of any kind and had neglected
no duty of care, supervision or selection, was unconstitutional because
taking the property of the employer and giving it to the workman
without due process of law. Ives was a brakeman employed by the
defendant railway company. While walking on the top of the cars of a
very long train, he gave a signal to the engineer to close up a space
or slack and was thrown to the ground by the resulting jar, concededly
without any negligence on the part of the railway company, and probably
through his own carelessness. The injury consisted of a sprained ankle
and slight bruises. There was no claim in the complaint that the injury
was in any sense permanent, and as matter of fact Ives sued for loss of
wages during only five weeks, claiming fifty dollars as the measure of
his damage. I am informed that the injury was not serious, that Ives
entirely recovered and resumed his work within four weeks after the
injury, that the railroad company ultimately paid him for his loss of
time, that he has since been continuously employed by the same company
at similar work, and that in no sense whatever was his ability to earn
his livelihood impaired.

Let us turn to the picture drawn by Mr. Roosevelt in describing this
case for the instruction and guidance of a constitutional convention.
"I am not thinking of the terminology of the decision, nor of what seem
to me the hair-splitting and meticulous arguments elaborately worked
out to justify a great and terrible miscarriage of justice. Moreover,
I am not thinking only of the sufferers in any given case, but of the
tens of thousands of others who suffer because of the way this case was
decided. In the New York case, the railway employee who was injured
was a man named, I believe, Ives. The court admits that by every moral
consideration he was entitled to recover as his due the money that the
law intended to give him. Yet the court by its decision forces that
man to stagger through life maimed, and keeps the money that should be
his in the treasury of the company in whose service, as an incident of
his regular employment and in the endurance of ordinary risks, he lost
the ability to earn his own livelihood. There are thousands of Iveses
in this country; thousands of cases such as this come up every year;
and while this is true, while the courts deny essential and elementary
justice to these men and give to them and the people in exchange for
justice a technical and empty formula, it is idle to ask me not to
criticize them. As long as injustice is kept thus intrenched by any
court, I will protest as strongly as in me lies against such action."

To repeat, as a matter of fact, Ives was not maimed; he was not
permanently injured; he was not deprived of the ability to earn his
livelihood. Nor did the Court of Appeals admit that by every moral
consideration Ives was entitled to recover as his due the money that
the law intended to give him. Had that point been before a court of
justice, however sympathetic and sentimental, I doubt very much whether
it could have held that Ives was entitled, by any moral consideration
whatever, to compel the railway company to compensate him for the
four or five weeks' loss of wages resulting from no fault on its
part but from his own carelessness. The statements that "the court
by its decision forces that man to stagger through life maimed" and
that "he lost the ability to earn his own livelihood" were simply so
much fiction, but, of course they were very effective with emotional
audiences and highly calculated to inflame Mr. Roosevelt's hearers
and readers against the courts. I venture to assert that it would be
difficult to find or indeed to conceive a more unwarranted and unfair
misrepresentation of the facts actually before a court.

Another current misrepresentation is that the Supreme Court of the
United States in the Second Employers' Liability cases upheld as
constitutional a statute of Congress identical with the statute held
unconstitutional by the New York Court of Appeals in the Ives case.
The people are being told that the New York courts hold the provision
requiring due process of law in the fourteenth amendment to mean one
thing, whilst the Supreme Court of the United States holds exactly
the same provision in the fifth amendment to mean the contrary. But
those who will take the trouble to read the two statutes will at once
perceive that the act of Congress differs radically from the New York
Workmen's Compensation Act. The act of Congress, although abolishing
or restricting the rules as to fellow-servants' acts, assumption of
risk and contributory negligence, imposes liability on common carriers
by railroad only for "injury or death resulting in whole or in part
from the _negligence_ of any of the officers, agents, or employees of
such carrier, or by reason of any defect or insufficiency, _due to
its negligence_, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment." On the other hand,
the New York statute created liability not in one dangerous employment,
such as the business of common carrier by railroad, but in many other
employments not necessarily dangerous, and wholly irrespective of
negligence or fault on the part of the employer or any of his officers,
agents, or employees. In fact, there is nothing in the New York
decision or in the opinions of the judges which would invalidate a
statute identical with the act of Congress if now enacted by the New
York legislature. The Ives case, far from preventing such a statute,
would be an authority in its support.

I regret that we have not time to consider further these particular
decisions. In my opinion they correctly and wisely applied established
principles of constitutional law and constitutional justice and were
morally right and just. I am now pleading for fairness and temperance
in discussing the decisions of our courts and for the imperative
necessity of founding these discussions upon the truth. Ambassador
Bryce said in a recent address: "To counsel you to stick to facts
is not to dissuade you from philosophical generalizations, but only
to remind you ... that the generalizations must spring out of the
facts, and without the facts are worthless." In other words, a regard
for fact, which is but another term for truth, is or should be as
indispensable in law and politics as it is in philosophy.

The criticisms of which the above are fair samples must be refuted
because they find constant repetition and have the authority of
distinguished leaders of public opinion, who at the present time seem
to have the confidence of the people. Their statements are naturally
accepted as true. The judges are being similarly misrepresented and
assailed on all sides, and they cannot defend themselves. Thus far
the bar at large has seemed indifferent, and a misconception of what
constitutes good taste imposes silence upon the counsel engaged in the
cases which are criticized. The people are being misled, prejudiced
and inflamed by false statements and unfair criticism. If the courts
are not defended, they may bend before the storm of undeserved censure.
Constituted as humanity is, there is grave danger that the judges will
be unconsciously intimidated and coerced by this abuse and clamor.
Is it not high time that the members of our profession should charge
themselves with the task of defending the courts by placing the facts
before the people? The bar associations of the country will never be
called upon to render a greater service to the profession and to the
community than that of stemming this tide of misrepresentation and
intemperate abuse and striving to restore confidence in the learning,
impartiality and independence of our judges, in the justice of their
decisions, and in the necessity of their enforcing constitutional
restraints.

Not only are the decisions of the courts constantly distorted and
misrepresented, but the people are also being taught that the courts
have usurped the power to declare void any statute in conflict with the
constitution, and that no such power was ever intended to be conferred
by the framers of national or state constitutions. Surely by this time
it ought to be manifest that if the courts may not adjudge invalid and
refuse to give force and effect to unconstitutional enactments, it
is of little or no use to declare in constitutions that legislatures
shall not pass bills of attainder, or ex post facto laws, or laws
abridging the freedom of speech, or of the press, or prohibiting the
free exercise of religion, or denying the right to trial by jury, or
imprisoning without trial, or suspending the writ of habeas corpus, or
confiscating private property.

Speaking on this subject of judicial power and duty, Hamilton in the
"Federalist" used language which cannot be too often repeated. He
clearly showed that in 1788 it was understood and contemplated that the
courts should exercise the power to adjudge invalid any statute which
was in conflict with the Constitution. In fact, such power had then
already been exercised by state courts. He said that constitutional
limitations "can be preserved in practice no other way than through the
medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without this,
all the reservation of particular rights or privileges would amount to
nothing.... There is no position which depends on clearer principles
than that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this would be to affirm that the deputy is greater than his principal;
that the servant is above his master; that the representatives of
the people are superior to the people themselves; that men acting by
virtue of powers may do not only what their powers do not authorize,
but what they forbid.... The interpretation of the laws is the proper
and peculiar province of the courts. A constitution is, in fact, and
must be regarded by the judges, as a fundamental law. It therefore
belongs to them to ascertain its meaning, as well as the meaning of
any particular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the two, that
which has the superior obligation and validity ought, of course, to be
preferred; or, in other words, the Constitution ought to be preferred
to the statute; the intention of the people to the intention of their
agents. Nor does this conclusion by any means suppose a superiority
of the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that
of the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate
their decisions by the fundamental laws, rather than by those which are
not fundamental."[19]

Equally conclusive and equally worthy of constant repetition is the
reasoning of Chief Justice Marshall in Marbury _vs._ Madison, where
he said: "To what purpose are powers limited, and to what purpose is
that limitation committed to writing, if these limitations may, at any
time, be passed by those intended to be restrained? The distinction
between a government with limited and unlimited powers is abolished, if
those limits do not confine the persons on whom they are imposed, and
if acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested, that the Constitution controls
any legislative act repugnant to it; or, that the legislature may
alter the Constitution by an ordinary act. Between these alternatives
there is no middle ground. 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 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
constitutions are absurd attempts, on the part of the people, to limit
a power in its own nature illimitable."[20]

This decision of the Supreme Court to the effect that it is the duty
and within the power of the courts to construe constitutions and to
refuse to enforce unconstitutional enactments was rendered in 1803.
Yet, notwithstanding that the Constitution of the United States has
been amended four times since that decision, and that every state
constitution has been again and again remodeled or amended, no American
constitution has ever denied to the courts the power to construe
constitutions or the duty to refuse to enforce statutes which are in
conflict with constitutional limitations. If the power to declare void
any statute in conflict with the Constitution of the United States
was deemed necessary in 1788 when Hamilton was writing his famous
essays, it certainly ought to be far more necessary in our day of
multiform legislation, vast increase in the functions of the state, and
incompetent, reckless and oppressive class legislation interfering in
almost every conceivable manner with the rights and liberties of the
individual.

Moreover, the Constitution of the United States would probably never
have been adopted if the people had understood, as is now pretended,
that Congress was to be at liberty to disregard constitutional
limitations and guaranties and that there would be no way whatever of
preventing a violation by Congress of the constitutional rights of the
individual except at the polls. All students of our history know that
the Constitution was accepted by the people upon the distinct pledge
that amendments embodying a bill of rights to protect the individual
against Congress would be immediately adopted. And one of the first
acts of the First Congress in September, 1789, was to submit the ten
amendments known as the federal bill of rights, which were thereupon
ratified by the states and became an integral part of the Constitution.
But of what avail or benefit were these amendments if Congress was not
to be effectively restrained and bound by them? It is no exaggeration
to say that if the courts should now be deprived of the power to
protect litigants who invoke constitutional guaranties and should
be compelled to enforce, as valid laws, statutes which violate the
limitations upon legislative power which the people have deliberately
embodied in their fundamental law, our constitutions would become
dead letters, and we might as well turn to the pure and unrestrained
democracy of Greece and await her fate.

In an inspiring address delivered this year before the New York State
Bar Association on the subject of judicial decisions and public
feeling, Senator Root eloquently said: "A sovereign people which
declares that all men have certain inalienable rights, and imposes
upon itself the great impersonal rules of conduct deemed necessary
for the preservation of those rights, and at the same time declares
that it will disregard those rules whenever, in any particular case,
it is the wish of a majority of its voters to do so, establishes
as complete a contradiction to the fundamental principles of our
government as it is possible to conceive. It abandons absolutely the
conception of a justice which is above majorities, of a right in the
weak which the strong are bound to respect. It denies the vital truth
taught by religion and realized in the hard experience of mankind, and
which has inspired every constitution America has produced and every
great declaration for human freedom since Magna Carta--the truth that
human nature needs to distrust its own impulses and passions, and to
establish for its own control the restraining and guiding influence of
declared principles of action."

In many of the current assaults upon the judicial department,
in support often of schemes having their birthplace on the
continent of Europe, we find the complaint that in declaring
statutes unconstitutional the courts in this country--state and
federal--exercise greater power than the courts of other countries are
authorized to exercise. As if that were an argument against American
institutions! Every schoolboy knows that the framers intended that our
government should differ from every other government in the world. The
founders not only intentionally departed from the examples of existing
governments, but anxiously sought to establish a new form of republican
government, which would perpetuate the spirit of the Declaration of
Independence, secure the inalienable rights of the individual, and
protect the minority against the oppression or tyranny of the majority.
It was because these rights of the individual against majorities and
every form of governmental power were to be made secure and sacred, as
the founders believed, that we were to differ from other governments.
And the essential and effective feature of that difference was to lie
in the power vested in the judicial department to uphold and protect
these rights. High sounding declarations of the rights of man would
mean very little if they were not to be enforceable by the courts.

When our form of government is compared with that of other countries,
and we are told that in England or in France or elsewhere so-called
progressive measures have been forced into immediate operation by
the will of the majority, and that the courts there were powerless
to interfere, is it seriously intended to suggest to the people
of the United States that they should, therefore, cast aside all
constitutional restraints, all their ancient and honest constitutional
principles, and leave the protection of life, liberty and property
wholly in the hands of the legislative branch? Are there not still
certain rights which even those who are assailing our institutions,
under the protection of the very Constitution they deride, would want
to have protected by our courts? When it is urged that the courts
should not have power to declare an act unconstitutional, but should
be compelled to enforce all legislative enactments although some of
them might conflict with the Constitution, is it realized that the bill
of rights would then be left to the arbitrary discretion or caprice
of the legislature, and that consequently it would be of no more
practical protection to the individual than the paper constitutions
of some of the South American republics which, too, contain eloquent
declarations of the rights of the individual? Is it forgotten or
overlooked that in England and France and all the other countries with
whose systems of government ours is being compared, the legislative
power is practically supreme, and that it can outlaw or disseize or
imprison at its mere will--that it can deny religious liberty, abridge
the freedom of speech or of the press, pass bills of attainder and ex
post facto laws, suspend the writ of habeas corpus, impose cruel and
unusual punishments, deny to the individual accused of crime the right
to a jury-trial or even any hearing at all, confiscate private property
without compensation, and impair the obligation of contracts?

Let us, for example, suppose that Congress or a state legislature saw
fit to imprison those who did not profess the religion of the majority,
or observe its forms and tenets. Who could then protect the minority
against such tyrannical enactments except the courts, and how could
the courts shield them save by declaring the statute unconstitutional
and void and refusing to enforce it? We have only to go back a few
generations to find just such laws in England and in the American
colonies, and it is the repetition of them that our constitutions seek
to prevent. Suppose again that Congress or a state legislature should
pass a statute abridging the freedom of speech or of the press and
making those who violated the statute subject to criminal prosecution
and imprisonment. How could the individual be then protected except
by the judiciary, and how could the judiciary protect him unless by
exercising the power to declare the statute unconstitutional?

Do the agitators who are attacking our constitutional system explain
to their listeners that in the foreign governments with which they
are making comparisons the legislative power could compel workmen
in any trade to work as many hours a day, at such rates of wages,
and under such conditions as the majority saw fit to enact? Suppose
that the Pennsylvania legislature should pass a statute compelling
laborers in coal mines to labor twelve or more hours a day for a
compensation fixed by it and providing that refusal should constitute
a crime. Or similarly in the case of railroad employees. In doing so,
the legislature would find a precedent in the famous English Statute
of Labourers as well as in numerous other European enactments. The
Pennsylvania legislature might pass an act, similar to that enacted by
the British parliament in 1720 and again in 1800, making it a crime
for laborers to combine to obtain an advance of wages or to lessen or
alter their hours of work. Is it inconceivable that the time may come
when the majority of the voters in Pennsylvania will believe that it is
imperative thus to regulate labor in coal mines and on the railroads,
both of which industries are indispensable, serve every household in
the state, affect every individual, rich or poor, and compel all to pay
tribute? Might not prejudice and self-interest tempt or impel to such
a statute, and might not the majority enact it, particularly if those
affected were aliens without political power? Is it inconceivable that
the owners of the coal mines and the railroads may some day control a
majority in the legislature? But how could these miners and railroad
employees be protected from such enactments and criminal prosecutions
thereunder unless the courts had the power to declare statutes
unconstitutional and to refuse to enforce them because depriving the
individual of his constitutional rights?

In nine cases out of ten the answer to these suggestions by those who
to-day are assailing the judicial department would undoubtedly be
that no one intends to go to any such extreme, and that no one wishes
to be placed or to place any one else entirely at the mercy of the
legislature. Thus, they would concede that some rights should still be
safeguarded by the courts. But does not this answer contain the gist of
the whole problem and the whole principle and virtue of the American
system of constitutional restraints? If the critics of our system
would have some rights, and particularly their own, protected by the
courts, must they not then confess that in truth they only wish changes
where the rights of others are concerned, and that they would cling
to the Constitution and invoke the protection of the judicial power
in all those respects in which their own personal liberty and their
own personal and property rights are affected? Chief Judge Cullen of
the New York Court of Appeals recently said that "the great misfortune
of the day is the mania for regulating all human conduct by statute,
from responsibility for which few are exempt, since many of our most
intelligent and highly educated citizens, who resent as paternalism
and socialism legislative interference with affairs in which they are
interested, are most persistent in the attempt to regulate by law the
conduct of others."[21]

I do not doubt that if we could have an exhaustive debate before
a great tribunal of American public opinion and could step by
step analyze and sift the arguments against the judicial power in
constitutional cases, we would find in the final analysis that those
who are so fiercely charging the courts with usurping power by refusing
to enforce unconstitutional enactments would still want the continued
protection of the courts so far as their own constitutional rights and
liberties were concerned, and that they were only asking modification
and curtailment in respect of the rights and liberties of others. I
am confident that if it were left to the people of the United States
to determine by their votes the simple question whether they would
place in the hands of Congress or of their state legislatures the
fundamental, elemental, inalienable rights which every American citizen
now enjoys--the inalienable rights proclaimed in the Declaration of
Independence--an overwhelming vote would be cast against any such
change. Indeed, support for this conviction may be found in the recent
experience of Australia, that hotbed of radicalism. An attempt by
constitutional amendment to curtail the power of the judiciary in
labor controversies and to confer upon the Australian parliament all
power necessary to deal with labor matters was there the subject of a
referendum and met with a decisive defeat at the polls. Are we likely
to be less conservative than the Australians, or to be less mindful of
the necessity for wise constitutional guaranties and restraints?

The truth is that our constitutions, national and state, do not stand
in the way of any fair and just exercise of what is called the police
power, or of measures for social progress or social justice, and
that they do not prevent reasonable and just regulations tending to
secure the health and promote the welfare of the community at large,
or the enactment of proper and reasonable factory laws or proper and
reasonable workmen's compensation acts. The main source of trouble is
that the statutes which the courts are compelled to refuse to enforce
are very often hastily and crudely drawn, and are often inherently
unreasonable and unjust.

But, even if this be not so; even if the people, after full statement
of the facts and thorough explanation of the effect of the change, upon
mature consideration desire to vest greater power in our legislatures,
or to curtail the power of the courts, the means are within their
reach. In New York and in other states, the Constitution can be easily
amended within two years.

It has been repeatedly asserted that the Constitution of the United
States has become practically unamendable, when as a matter of fact its
amendment does not involve any greater difficulties than were intended
or than would seem reasonably necessary, or than would be provided
if we were now framing a new national constitution. The prescribed
machinery of a vote by two-thirds of both houses of Congress and
ratification by three-fourths of the states simply compels deliberation
and prevents hasty and unconsidered action. If the people of the
country really desire a particular amendment to the Constitution of the
United States, it ought to be readily obtainable within less than two
years.

Thus, the first ten amendments were proposed by Congress in September,
1789, and were adopted in those days of slow travel and difficult
communication by eight states within six months and by the requisite
three-fourths within two years. The twelfth amendment, proposed in
1803, was ratified in nine months. The thirteenth amendment, proposed
by Congress in 1865, was ratified by the legislatures of twenty-seven
out of the then thirty-six states within ten months; and the fifteenth
amendment, the latest, proposed in February, 1869, was ratified by
twenty-nine out of the thirty-seven states within one year. The delay
in the adoption of the proposed sixteenth amendment authorizing
Congress to levy an income tax is due wholly to the fact that there is
a serious difference of opinion as to whether or not this power should
be conferred, although the advocates of the amendment confidently
proclaimed the existence of an almost universal desire on the part of
the people for such an amendment to the Constitution.[22]

One of the most insidious suggestions that can possibly be made to
the people at large is that there is an insurmountable difficulty
in securing amendments to our constitutions, just as misleading and
dangerous as it is for them to be told that their desires are being
thwarted by the judiciary and that they must accomplish reforms either
by coercing the courts or by undermining the foundations of their
constitutions. The future contentment of the people requires that
they shall feel that the governments, state and federal, are their
governments, that they themselves are ultimately the sovereign power,
and that they are at liberty to amend the organic law from time to
time as their mature and deliberate judgment shall deem necessary
or desirable. All that the conservatives can ask or do ask is that
the people shall act deliberately and under circumstances calculated
to afford time and opportunity for full explanation and a full
understanding of the scope and tendency of the proposed changes, to
the end that errors may be discovered and exposed, that theorizing,
sentimentalism, clamor and prejudice may exhaust themselves, and that
the sober second thought of every part of the country may be asserted.
If it be then determined to amend our constitutions, even to the extent
of placing life, liberty and property at the unrestrained discretion
and mercy of our legislators, the will of the sovereign people will
have to be obeyed. Let us hope and pray, however, that when amendments
are adopted, they will be conservative and wise, that the rights of the
minority as against the majority will not be heedlessly sacrificed for
the temporary advantage of one class over another, and that it will
be appreciated that individual liberty should be the vital concern
of every man, rich or poor, as being essential to the perpetuation
of the institutions which we cherish as peculiarly and preeminently
American. Let us especially try to avoid permitting any class to make
use of constitutional amendments or of statutory enactments for its own
special purposes. Let us, whilst meeting in full sympathy, generosity
and charity the legitimate demands of the laboring classes and of
the poor and humble, nevertheless keep our eyes open to prevent any
such vicious results as would arise from constitutional or statutory
provisions framed nominally for the benefit of labor but really for the
purpose of serving the interests of a particular class against another,
as we have seen was the case in the New York tenement-house legislation
of 1884. In the meantime, pending such amendments in the due, orderly
and reasonable course prescribed by our constitutions, let us be
faithful and devoted to our constitutional system, which for more than
a century has carried us through every storm and so often "in spite of
false lights on the shore." Let us also be truthful and fair and, if
possible, temperate in our criticism of all public officials, whether
legislative, executive, or judicial.

Finally, a word about the special duty of our profession. It is not
the pulpit nor the press, but the law which reaches and touches every
fibre of the whole fabric of life, which surrounds and guards every
right of the individual, which grasps the greatest and the least of
human affairs, and which comprehends the whole community and every
human right. We lawyers, if worthy of our profession, are in duty
bound not merely to defend constitutional guaranties before the courts
for individual clients, but to teach the people in season and out of
season to value and respect the constitutional rights of others and to
respect and cherish the institutions which we have inherited. It is our
duty to preach constitutional morality to the rich and to the poor, to
all trades and to all professions, to all ranks and to all classes, in
the cities and on the plains. It is for us to convince the members of
every class that, in the long run, disregard of the fundamental rights
of others would be in conflict with their own permanent welfare and
happiness, and cannot be permitted if we are to remain a free people.
What higher duty, what nobler task could engage us than to teach the
value and sacredness of the ancient and honest principles of justice
embodied in our constitutions, immortal as the eternal truths from
which they derive their origin, and to preach to all classes the virtue
of political justice and self-imposed political restraints, without
which there can be no true constitutional morality.

FOOTNOTES:

[Footnote 10: Address before the Pennsylvania State Bar Association at
its eighteenth annual meeting, held at Cape May, New Jersey, June 25,
1912.]

[Footnote 11: 188 United States Reports, p. 375.]

[Footnote 12: 98 New York Reports, p. 98.]

[Footnote 13: 33 Hun's Reports, pp. 380, 382, 383.]

[Footnote 14: 177 New York Reports, p. 145; 198 United States Reports,
p. 45.]

[Footnote 15: 169 United States Reports, p. 366.]

[Footnote 16: 207 United States Reports, p. 463.]

[Footnote 17: 223 United States Reports, p. 1.]

[Footnote 18: 201 New York Reports, p. 271.]

[Footnote 19: The Federalist, Ford's edition, pp. 520, 521, 522.]

[Footnote 20: 1 Cranch's Reports, pp. 176-177.]

[Footnote 21: 204 New York Reports, p. 534.]

[Footnote 22: Since this address was delivered, the sixteenth amendment
has been ratified. It was proposed by Congress July 16, 1909, and
declared effective February 25, 1913. The seventeenth amendment was
proposed by Congress May 15, 1912, and declared effective May 31,
1913. In view of this demonstration, it should certainly not be any
longer urged that the Constitution of the United States is practically
unamendable.]




THE ELEVENTH AMENDMENT[23]


Of the important questions of constitutional law now before the
country, none more vitally affects the peace and harmony of our dual
system of government than that of the power of a federal court to
enjoin a state officer from enforcing the provisions of a state statute
which is in conflict with the Constitution of the United States.
This question usually arises in connection with the eleventh article
of amendment, which provides that "the judicial power of the United
States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens
of another state, or by citizens or subjects of any foreign state."
Serious controversies regarding the issuance of injunctions by federal
courts against state officers have arisen in New York, North Carolina,
Alabama, Missouri, Kansas, Minnesota, and other states. A convention
of attorneys-general from a number of states, held at St. Louis in
September and October, 1907, adopted a memorial to the President and
Congress praying that the jurisdiction of the circuit courts of the
United States might be curtailed in respect of suits brought to
restrain state officers from enforcing state laws or the orders of
state administrative boards. The President in his annual message to
Congress called the matter to the attention of that body, and stated
that discontent was often expressed with the use of the process
of injunction by the courts where state laws were concerned. The
assembling of Congress was marked by the introduction of numerous bills
to curtail the power of the federal courts to issue injunctions and by
the offering of several joint resolutions to amend the Constitution
of the United States, which had the same object. The question will,
perhaps, figure prominently in the next presidential campaign. It may,
therefore, be appropriate to review at this time the history of the
eleventh article of amendment to the Constitution of the United States
in order to see what light that history throws upon the purpose of its
framers. Did they intend, in prohibiting suits by an individual against
a state, to deny to the courts of the United States the power to enjoin
a state officer from enforcing a state statute in conflict with the
Constitution of the United States?

In 1787 and 1788, when the adoption of the Constitution was under
consideration by the people of the United States, conflicting views
were entertained as to the suability of a state by an individual for
the recovery of claims against it. Hamilton, Madison and Marshall
expressed the opinion that a state would not be suable by an
individual under the Constitution as drafted. A number of prominent
men, conspicuous among whom were Edmund Pendleton, Patrick Henry and
George Mason, were of opinion that the language of the judicial clause
conferred jurisdiction to entertain and determine such a suit. Some
urged this as an objection to the Constitution. Others, including
James Wilson of Pennsylvania and Edmund Randolph of Virginia, two of
the most distinguished lawyers and publicists of the day and members
of the Constitutional Convention, contended not only that jurisdiction
was conferred but that it was wise and necessary that such jurisdiction
should exist. Wilson urged that "when a citizen has a controversy
with another state, there ought to be a tribunal where both parties
may stand on a just and equal footing," and Randolph argued that the
jurisdiction would tend "to render valid and effective existing claims,
and secure that justice, ultimately, which is to be found in every
regular government." The Constitution of the United States was adopted
as submitted with the understanding that amendments would be promptly
proposed. The First Congress submitted twelve amendments, ten of which
were adopted, but the suability of a state was not mentioned in any of
them.

The question was presented for judicial decision in 1792 in an action
brought by Chisholm, a citizen of the state of South Carolina, against
the state of Georgia in the Supreme Court of the United States under
its original jurisdiction.[24] The action was in assumpsit to recover
a debt. The court then consisted of Chief Justice Jay and Justices
Cushing, Wilson, Blair, Johnson and Iredell. On February 18, 1793,
the court held, Mr. Justice Iredell alone dissenting, that under the
Constitution as originally adopted a state could be sued in that court
by a citizen of another state in an action of assumpsit to enforce
the payment of a contract debt. This decision, which was followed by
the commencement of the suit of Vassal _vs._ Massachusetts, created
irritation and alarm among the states, and particularly among those
which were heavily burdened with debt. The anti-Federalist prints were
loud in invectives against the decision, which was termed a violation
of the sovereignty of the states, and it was declared that the people
were "called upon to draw their swords against this invasion of their
rights." It has been said, though with some exaggeration, that "the
states fairly rose in rebellion against the decision." Four states
formally protested. Although Georgia had been the first state to
invoke the original jurisdiction of the Supreme Court, it nevertheless
refused to appear in the Chisholm suit, and filed a remonstrance and
protestation against the exercise of jurisdiction. After the decision,
it openly defied the authority of the national judiciary. Indeed, it
is stated by McMaster, Cooley and other writers that the legislature
of Georgia at once passed a law subjecting to death without benefit
of clergy any officer who should attempt to serve a process in any
suit against the state, but no record of any such statute can be
found. Probably, as some one has suggested, the supposed law was a
bill which passed only the lower branch of the legislature. At all
events, the legislatures of Virginia, Massachusetts and Connecticut
instructed their senators and representatives to secure the adoption of
an amendment to the Constitution which should prevent suits against a
state by an individual.

On February 20, 1793, two days after the opinions in Chisholm _vs._
Georgia were delivered, a resolution was offered in the United States
Senate proposing an amendment of the Constitution in the following
terms: "The judicial power of the United States shall not extend to
any suits in law or equity, commenced or prosecuted against one of the
United States by citizens of another state or by citizens or subjects
of any foreign state."

The proposed amendment was debated to some extent in the Second
Congress, but it was not passed. In the Third Congress, on January
2, 1794, Caleb Strong, one of the senators from Massachusetts, moved
the adoption of a resolution which changed the form of the proposed
amendment so as to read as follows: "The judicial power of the United
States shall not _be construed to_ extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of
another state, or by citizens or subjects of any foreign state."

The amendment was finally accepted in this form on March 4, 1794, and
was at once submitted to the legislatures of the several states for
ratification, but up to March, 1797, there were still eight states
which had not acted upon it, probably because the political clamor
had subsided, and there was no longer any demand for amendment. In
fact, Congress had to request the President to communicate with the
outstanding states upon the subject. Finally, in a message from
President Adams to Congress dated January 8, 1798, the proposed
amendment was declared to have been ratified by three-fourths of the
states, and it thereupon became the eleventh article of amendment to
the Constitution of the United States. New Jersey and Pennsylvania had
refused to ratify it, while South Carolina and Tennessee had taken no
action.

The unusual and peculiar wording of the amendment first attracts
attention. Instead of declaring how the Constitution shall read
in the future, it declares how it shall "not be construed." This
phraseology was used for political reasons and as a concession to the
susceptibilities of the advocates of state rights. Extremists wanted a
declaration that would not only overrule the recent construction of the
Constitution by the Supreme Court and deny that such a power had ever
existed, but would also oust all jurisdiction in pending as well as in
future cases. The amendment, therefore, does not purport to amend or
alter the Constitution, but to maintain it unchanged, while controlling
its scope and effect by authoritatively declaring how it shall not be
construed.

Speaking of the language of the amendment, Chief Justice Marshall said
in the case of Cohens _vs._ Virginia: "It is a part of our history,
that, at the adoption of the Constitution, all the states were greatly
indebted; and the apprehension that these debts might be prosecuted in
the federal courts formed a very serious objection to that instrument.
Suits were instituted, and the court maintained its jurisdiction.
The alarm was general; and, to quiet the apprehensions that were so
extensively entertained, this amendment was proposed in Congress,
and adopted by the state legislatures. That its motive was not to
maintain the sovereignty of a state from the degradation supposed to
attend a compulsory appearance before the tribunal of the nation, may
be inferred from the terms of the amendment. It does not comprehend
controversies between two or more states, or between a state and a
foreign state. The jurisdiction of the court still extends to these
cases: and in these a state may still be sued. We must ascribe the
amendment, then, to some other cause than the dignity of a state. There
is no difficulty in finding this cause. Those who were inhibited from
commencing a suit against a state, or from prosecuting one which might
be commenced before the adoption of the amendment, were persons who
might probably be its creditors. There was not much reason to fear that
foreign or sister states would be creditors to any considerable amount,
and there was reason to retain the jurisdiction of the court in those
cases, because it might be essential to the preservation of peace. The
amendment, therefore, extended to suits commenced or prosecuted by
individuals, but not to those brought by states.

"The first impression made on the mind by this amendment is, that
it was intended for those cases, and for those only, in which some
demand against a state is made by an individual in the courts of the
Union. If we consider the causes to which it is to be traced, we are
conducted to the same conclusion. A general interest might well be felt
in leaving to a state the full power of consulting its convenience in
the adjustment of its debts or of other claims upon it; but no interest
could be felt in so changing the relations between the whole and its
parts, as to strip the government of the means of protecting, by the
instrumentality of its courts, the Constitution and laws from active
violation."[25]

It will also be observed that the amendment does not refer to suits
against a state by one of its own citizens. This was undoubtedly
because the Constitution did not extend the judicial power of the
United States, when dependent upon the character of the parties,
to controversies between a state and its own citizens, but only to
controversies between a state and citizens of another state or citizens
or subjects of foreign states. The distinction between jurisdiction
dependent upon the nature or subject matter of the controversy
irrespective of the character of the parties, such as cases arising
under the Constitution, laws and treaties of the United States, and
jurisdiction dependent upon the character of the parties irrespective
of the nature or subject matter of the controversy, had probably not
then been as clearly recognized as was subsequently done by Chief
Justice Marshall. The failure of the eleventh amendment to mention
suits against a state by its own citizens gave rise nearly one hundred
years later to the contention that a state could be sued in a circuit
court of the United States by one of its own citizens in a case arising
under the Constitution. This was urged at the October term, 1889, in
Hans _vs._ Louisiana and North Carolina _vs._ Temple,[26] but the court
overruled the contention and held that a state could not be sued by
an individual in a United States court even in a case arising under
the Constitution. Mr. Justice Bradley delivered the opinion of the
court. He criticized the reasoning of the majority in Chisholm _vs._
Georgia, and upheld the dissenting opinion of Mr. Justice Iredell to
the effect that, under the Constitution as originally adopted, no suit
could be maintained against a state by an individual to enforce its
debts except by its consent. Mr. Justice Harlan, however, while he
concurred in holding that a suit directly against a state by one of its
own citizens to enforce a debt was not within the judicial power of
the United States, criticized the comments made by Mr. Justice Bradley
upon the decision in Chisholm _vs._ Georgia as not necessary to the
determination of the case, and expressed the opinion that the prior
decision was based upon a sound interpretation of the Constitution as
that instrument was then worded.

It has been stated in opinions of the Supreme Court that a state
can be sued in a court of the United States by an individual if it
waives its immunity and consents to be sued. But it is difficult to
perceive how the consent or waiver of a state can, in any case and
under any circumstances, confer upon the federal courts jurisdiction
of a suit against it by a citizen of another state or a citizen or
subject of a foreign state in the face of the imperative mandate of
the amendment that "the judicial power of the United States shall _not
be construed to extend_ to" any such suit. It is true that the court
in the case of Clark _vs._ Barnard said that the immunity of a state
from suit in a federal court was a personal privilege which it might
waive at pleasure and that its appearance as a party defendant in a
court of the United States would be a voluntary submission to its
jurisdiction,[27] but in that case the state intervened as an actor
and its intervention was such that it could be treated substantially
as a plaintiff and the jurisdiction sustained on the ground that a
state may sue an individual in a federal court. Although in the more
recent case of Gunter _vs._ Atlantic Coast Line,[28] Mr. Justice White,
delivering the opinion of the court, declared it to be an elementary
proposition that a state could waive its immunity, it will be observed
that in that case the suit was in fact against an officer of the
state of South Carolina, and that the state itself was not a party to
the record. It seems to me, with all deference, that the court has
not yet squarely passed upon the point, nor, so far as I know, has it
ever questioned the fundamental principle that a federal court cannot
exercise jurisdiction in any case to which the judicial power of the
United States, as delegated and defined in the Constitution, does not
extend. An entirely different question is presented when we consider
whether an officer of a state can consent or be authorized to consent
to be sued in a federal court; in other words, whether he can waive the
defense that the state is a necessary party to the suit. It does not
follow that, because a state cannot be sued, it may not authorize its
agent to defend on the merits without pleading the absence of the state
as the real party in interest, and the denial of jurisdiction over the
state as principal does not necessarily imply a denial of jurisdiction
over the officer when doing or attempting to do an illegal act as its
agent or representative. So, also, a different question is presented
under the later amendments, which may be held to have qualified the
eleventh amendment in authorizing Congress to enforce their provisions
by appropriate legislation. As to that point I am not now prepared to
express an opinion.

In construing the eleventh amendment for the purpose of ascertaining
its true intent and meaning, as indeed in construing most of the
provisions of the Constitution and its contemporaneous amendments,
reference to the history and to the common law of England is generally
the safest guide as to what was understood and intended at the time.
In that history will be found the true sources of our institutions,
for these are essentially and predominantly English. The legal and
political institutions of England were constantly in the minds of the
framers and of the people. The common law had long been regarded with
affection and reverence as the birthright of Americans and the guardian
at once of their private rights and their public liberties. Indeed,
the Continental Congress, assembled in October, 1774, had declared the
colonies entitled as of right to the common law.

The theory of the immunity of a state or of the United States from
suit by an individual without its consent is frequently asserted to
be analogous to the monarchical principle as to the immunity of the
king from suit without his consent commonly expressed in the maxim
that "the king can do no wrong." The idea seems to have been that in
England it would be considered an invasion of the sovereignty of the
crown and derogatory to its dignity to subject the king to a suit by
an individual except with his consent, to be granted or refused in his
arbitrary discretion. It is very doubtful whether any such idea finds
support in the common law or history of England, or in the traditional
usage and experience of that country to any such extent as is often
insisted upon.

On the contrary, it had long been regarded in England as settled law
that the subject was entitled to an effective legal remedy for any
invasion of his legal rights by the king or the government. He had a
right to sue the king for the restitution of property or money or for
the recovery of damages for breach of contract, and to sue officers
of the crown for any tortious acts. The practice established for
centuries had been to present to the king a petition praying leave to
sue him, and the custom had been for the king as of course to endorse
on the petition his fiat that right be done. Thereafter the action
proceeded as any other action between subject and subject. This right
was conceded to aliens as well as to subjects. Although the leave to
sue was nominally or theoretically granted as a matter of grace and not
upon compulsion, it was in fact the constitutional duty of the king to
grant it, and it was seldom denied. Under the common law, the subject
was entitled as a matter of right--as one of the immemorial liberties
of Englishmen--to inform his king of the nature of any grievance, and
thereupon, in the language of Blackstone, "as the law presumes that
to know of any injury and to redress it are inseparable in the royal
breast, it then issues, as of course, in the king's own name, his
orders to his judges to do justice to the party aggrieved."

The nature of the proceeding under a petition of right has been passed
upon by the Supreme Court of the United States in several cases, and
its decisions clearly show that the remedy is not to be regarded as
a mere matter of grace, but as a right to sue and obtain redress in
the class of cases to which it applies. Thus, Chief Justice Marshall,
delivering the opinion of the court in Marbury _vs._ Madison at the
February term, 1803, said: "In Great Britain the king himself is sued
in the respectful form of a petition, and he never fails to comply with
the judgment of his court."[29] In United States _vs._ O'Keefe the
court at the December term, 1870, examined the nature of the remedy
in construing the act of Congress of July 27, 1868, now section 1068
of the United States Revised Statutes. Mr. Justice Davis, speaking
for the court, said: "This valuable privilege, secured to the subject
in the time of Edward the First, is now crystallized in the common
law of England. As the prayer of the petition is grantable _ex debito
justitiae_, it is called a petition of right, and is a judicial
proceeding, to be tried like suits between subject and subject.... It
is of no consequence that, theoretically speaking, the permission of
the crown is necessary to the filing of the petition, because it is the
duty of the king to grant it, and the right of the subject to demand
it. And we find that it is never refused, except in very extraordinary
cases, and this proves nothing against the existence of the right....
If the mode of proceeding to enforce it be formal and ceremonious,
it is nevertheless a practical and efficient remedy for the invasion
by the sovereign power of individual rights."[30] And in the later
case of Carlisle _vs._ United States the court held that, under the
proceeding known as the petition of right, the government of Great
Britain accorded "the right to prosecute claims against such government
in its courts" not only to subjects but to aliens.[31] Later still in
the famous case of United States _vs._ Lee, which was an action at law
to recover the property known as the Arlington National Cemetery from
the possession of officers of the United States government, Mr. Justice
Miller, delivering the opinion of the court, said: "It is believed that
the petition of right, as it has been practised and observed in the
administration of justice in England, has been as efficient in securing
the rights of suitors against the crown in all cases appropriate to
judicial proceedings, as that which the law affords to the subjects of
the king in legal controversies among themselves."[32]

The remedy under the petition of right has continued unimpaired to the
present time. The procedure is now regulated by the statute 23 and 24
Victoria, ch. 34, passed July 3, 1860. The statute provides that the
king by means of this proceeding may be sued at law or in equity as
the particular case may require, and that the remedy afforded "shall
comprehend every species of relief claimed or prayed for in any such
petition of right, whether a restitution of any incorporeal right, or
a return of lands or chattels, or a payment of money or damages, or
otherwise." In granting or refusing the petition, the king acts under
the advice of the home secretary, and the latter is responsible to
parliament in case he shall arbitrarily or wrongfully advise a refusal.

The petition of right, however, is available only in cases in which it
is sought to obtain restitution of lands or goods, or, if restitution
cannot be given, compensation in money, or where the claim arises out
of a contract, as for goods supplied to the crown or to the public
service. It does not extend to cases of tort. If the king personally
should commit or threaten to commit a tort, such, for example, as a
trespass, he could not be proceeded against in either a civil or a
criminal court; the ordinary law courts have no means of restraining or
punishing him personally or affording redress against him for any wrong
done by him personally. Not only does the maxim that "the king can do
no wrong" prevent any ordinary court from granting relief against the
king himself, but the courts have no jurisdiction against him in cases
of tort.

Nevertheless, this ancient and fundamental maxim never meant that the
king was above the law or could violate the law with impunity, nor was
it ever understood in any such sense as that everything done by the
king was to be regarded as just and lawful. On the contrary, it was
fearlessly proclaimed in the days of Bracton that the king was below
the law and bound to obey it, and in his coronation oath he swears to
observe and respect it.

But whatever might have been the personal immunity of the king, it
had been settled at common law long prior to the adoption of the
Constitution of the United States that immunity from suit did not
extend to any officer or servant of the crown. The very exemption
of the king from responsibility before the courts in cases of tort
conclusively established the personal responsibility of some officer or
servant of the crown, and the direction or authority of the king did
not constitute any warrant or defense for a wrongful and illegal act
done by any officer or servant. As the Supreme Court said in the case
of Langford _vs._ United States: "The English maxim does not declare
that the government, or those who administer it, can do no wrong; for
it is a part of the principle itself that wrong may be done by the
governing power, for which the ministry, for the time being, is held
responsible."[33]

The boast of Englishmen for centuries had been that no officer of the
government was above the ordinary law. In his interesting lectures at
Oxford as a successor of Blackstone in the Vinerian professorship,
Professor Dicey says: "In England the idea of legal equality, or of the
universal subjection of all classes, to one law administered by the
ordinary courts, has been pushed to its utmost limit. With us every
official, from the prime minister down to a constable or a collector
of taxes, is under the same responsibility for every act done without
legal justification as any other citizen. The reports abound with
cases in which officials have been brought before the courts, and
made, in their personal capacity, liable to punishment, or to the
payment of damages, for acts done in their official character but in
excess of their lawful authority. A colonial governor, a secretary of
state, a military officer, and all subordinates, though carrying out
the commands of their official superiors, are as responsible for any
act which the law does not authorize as is any private and unofficial
person."[34] And Anson in his "Law and Custom of the Constitution"
points out that the English Constitution "has never recognized any
distinction between those citizens who are and those who are not
officers of the state in respect of the law which governs their conduct
or the jurisdiction which deals with them." In the famous case of
Entick _vs._ Carrington (1765), a secretary of state sought immunity
as an officer of the crown from a suit for damages by pleading reasons
of state for an unlawful act, but Lord Chief Justice Camden declared
that "with respect to the argument of state necessity or a distinction
that has been aimed at between state offences and others, the common
law does not understand that kind of reasoning, nor do our books take
notice of any such distinctions."[35] And one hundred years later,
in the case of Feather _vs._ The Queen, Lord Chief Justice Cockburn
declared that "no authority is needed to establish that a servant of
the crown is responsible in law for a tortious act done to a fellow
subject, though done by the authority of the crown, a position which
appears to us to rest on principles which are too well settled to
admit of question, and which are alike essential to uphold the dignity
of the crown on the one hand, and the rights and liberties of the
subject on the other."[36]

Moreover, the rule of _respondeat superior_ does not apply to the
king. The conclusive legal presumption is that the king can do no
legal wrong, and this leads to the further conclusive presumption
that, in the eye of the law, he cannot authorize or direct a wrong.
Every executive officer of the crown is, therefore, treated as if he
were a principal, and as such is held personally responsible whenever
any legal right of the subject has been invaded by him, although he
may have acted under the direct order of the king, by his command
and even in his presence. The civil irresponsibility of the king for
tortious acts could not have been maintained with any show of justice
if the officers and agents of the crown had not been held personally
responsible for any illegal acts committed by them, and if the king had
not been compelled to act through responsible agents. From the earliest
times it has been deemed essential that the king should always act
through an officer or servant, in order that there might be some one
upon whom responsibility could be fastened. Lord Coke declares in his
"Institutes" that "the king, being a body politique, cannot command
but by matter of record." Custom and statute early required that all
executive acts to which the sovereign was of necessity a party should
be done in certain forms and authenticated by the signature or seal
of some officer. The intervention of an officer was always necessary.
In fact, some minister or officer of the crown can be held fully
responsible for any illegal act. Anson states that "there is hardly
anything which the sovereign can do without the intervention of written
forms, and nothing for which a minister is not responsible."

Although the cases in England against officers of the crown were
generally at law, there can be no reasonable doubt that the Court of
Chancery, at the time when our Constitution was adopted, had full
power, by means of the writ of injunction, to restrain an officer of
the crown from violating the law where the remedy at law in a suit for
damages or for possession of property, real or personal, would have
been wholly inadequate and ineffective. The great state trial, known as
the case of the Bankers,[37] in which Lord Somers was overruled by the
House of Lords, left no doubt as to the principle and the jurisdiction
of the courts in suits against crown officers. As Professor Goodnow
has shown in his work on "Comparative Administrative Law," the English
courts had long been accustomed in one way or another to control
servants of the crown and executive officers of the government and to
compel them to obey the law. All the great writs, which were at first
prerogative writs, had been originally issued to control administrative
or judicial officers. Such was the original function of mandamus,
habeas corpus, quo warranto, prohibition. Injunctions, it is true, seem
rarely to have been made use of in England as a means of preventing
administrative action, and only a few cases can be found where they
were so used, but, on settled principles, any administrative or
executive officer threatening to do an illegal act which would injure
the individual in his property rights was amenable to the jurisdiction
of courts of equity in controversies requiring their intervention.

It is also true that no cases are to be found in England where
officers have been held responsible in damages for enforcing an act
of parliament or have been restrained from carrying its provisions
into effect, but this, of course, is the result of the legislative
sovereignty of parliament and of the fact that there are no
constitutional limitations imposed upon it. Nevertheless, the same
principles which make government officers in England subject to
the ordinary law and the ordinary courts for any illegal act done
or threatened would clearly authorize the issuance of injunctions
restraining the enforcement of an unconstitutional statute if there
were any constitutional limitations upon the legislative power of
the English parliament. Thus, for example, a colonial statute, or a
municipal or administrative rule, by-law, or ordinance in conflict with
an act of parliament would be illegal and void, and, within settled
principles, its enforcement could be restrained if other grounds of
equity jurisdiction existed.

In the light of the long-settled and well-known rules of the common
law, establishing the distinction between suits against the king
under the petition of right and suits against officers of the crown
for violating the legal rights of individuals, it is most significant
and persuasive, if not convincing, that the framers of the eleventh
amendment confined its language to suits directly against a state,
and did not attempt to prohibit suits against officers of a state
when acting as its representatives. They could hardly have intended
that such a principle as that "the king can do no wrong" should
have any place in our system of government to the prejudice of the
constitutional rights of individuals. We have no king to whom it can
be applied. They surely did not intend to afford less protection and
less redress against the invasion of the rights of citizens by those
in power than was afforded in monarchical England to the subjects of
the king. They could not have been ignorant of the famous cases which
had established the legal responsibility of all officers of the English
government and their subordination to the jurisdiction of the ordinary
courts of justice. They must have contemplated that state statutes
might be passed in conflict with the Constitution of the United States,
and that these statutes would necessarily have to be enforced or
attempts made to enforce them by state officers. And they must have
appreciated that if state officers, as agents of their respective
states, were granted immunity from suit in a court of the United
States because they were acting for and on behalf of their states, the
Constitution could in many respects be rendered wholly ineffective and
nugatory.

The failure to prohibit suits against officers of a state must,
therefore, have been intentional. Indeed, it is highly improbable that
any one at the time conceived that the language adopted was broad
enough to prohibit suits against officers of a state. On the contrary,
it is proper to assume that the framers of the eleventh amendment did
not intend to permit an officer of a state, while acting under the
color or excuse of an unconstitutional state statute, to invade or
deny any right guaranteed by the Constitution of the United States,
or that such a state officer should be immune from suit in a court of
the United States merely because he was acting in a representative
capacity as an agent of the state. The courts of the United States were
specially charged with the preservation of the Constitution, so far,
indeed, as it can be preserved by judicial authority. The "Federalist"
shows how clearly it was contemplated that the federal courts were to
have power to overrule state statutes in manifest contravention of the
Constitution. If state officers were withdrawn from the jurisdiction
of the national courts, their oath to support the Constitution of the
United States might become a mere empty ceremony of no enforceable
obligation or sanction. If officers of a state could not be sued in
equity in a federal court in an action to enjoin the enforcement
of unconstitutional state statutes, many of the provisions of the
Constitution, of equal authority with the eleventh amendment, might
not be effectually enforceable except by the grace of the states.
The prohibitions against the states, which existed when the eleventh
amendment was adopted, such as that no state shall emit bills of
credit, or make anything but gold and silver coin a tender in payment
of debts, or pass any bill of attainder, or any ex post facto law,
or any law impairing the obligation of contracts, or lay imposts or
duties on imports or exports, might to a great extent be nullified
and rendered practically ineffective, if officers of a state could
not be sued in a federal court. Indeed, the thirteenth, fourteenth
and fifteenth amendments would be deprived of a great part of their
intended effect if state officers enforcing unconstitutional state laws
and clothed with the power of the state could not be sued and enjoined
in a federal court.

As each of these subsequent amendments, however, provides that
"Congress shall have power to enforce this article by appropriate
legislation," it has been suggested that this provision may be
construed as limiting the prohibition of the eleventh amendment
and as empowering Congress to confer on the courts of the United
States jurisdiction of suits against states or state officers as an
appropriate means of enforcing the later amendments. Mr. Justice
Shiras referred to this view in the case of Prout _vs._ Starr and
said: "Much less can the eleventh amendment be successfully pleaded
as an invincible barrier to judicial inquiry whether the salutary
provisions of the fourteenth amendment have been disregarded by state
enactments."[38]

The courts of the United States and of the several states have
generally adopted and applied the English common law as to the
amenability of executive and administrative officers to the
jurisdiction of the ordinary courts and their personal responsibility
for any illegal acts done by them or under their direction. There
is no longer any question but that the eleventh amendment does not
shield state officers from suits at law in a court of the United
States to recover damages for any invasion of private rights under
the color of an unconstitutional statute, or to recover possession of
real property in the custody of such officers. The rule is axiomatic
that no officer in this country is so high that he is above the
Constitution of the United States, and that no officer of the law,
state or national, may violate it under the color or excuse of a
statute, national or state, in conflict with its provisions. The fact
that an officer has acted on behalf of a state under the direction or
authority of an unconstitutional statute, or under the orders of a
superior, constitutes no defense to an action at law for restitution
or for damages for any invasion of individual rights any more than the
command of the king or the prime minister would constitute a defense
in England. The alleged law is treated as a nullity and as absolutely
void for all purposes, except perhaps as negativing the existence of
malice or bad faith or criminal intent. But it confers no warrant or
authority and affords no defense or protection.

The fundamental reasoning upon which these conclusions are based is
that the state, the abstract political entity, can speak and act
only by valid laws, that an unconstitutional statute cannot be its
legal act, that it cannot, legally speaking, authorize any act in
conflict with the Constitution, that no officer of a state, not even
the governor, can have any legal duty or legal executive function to
disregard or violate the Constitution, and that whatever wrong is
attempted in its name is to be conclusively imputed to its officer, who
cannot plead his representative capacity. The distinction between the
government of a state and the state itself is elucidated by Mr. Justice
Matthews in the leading case of Poindexter _vs._ Greenhow.[39]

Most difficult, however, are questions which arise in connection
with suits in equity to restrain state officers from enforcing state
statutes alleged to be unconstitutional. The plainest principles of
justice would seem in many cases to require a preventive remedy, for
it might be of vital importance that an officer be restrained from
doing an unlawful act to the irreparable injury of the individual.
Manifestly, it would be unfair and unjust to tell the latter that
he must wait until his rights have been violated or his property
confiscated or destroyed. This point was first presented to the
Supreme Court in 1824 in the leading case of Osborn _vs._ Bank of
the United States.[40] It was then declared, in one of Chief Justice
Marshall's famous opinions, that, notwithstanding the eleventh
amendment, a circuit court of the United States had jurisdiction in
equity to restrain a state officer from executing or enforcing an
unconstitutional state statute when to execute it would violate rights
and privileges of a complainant guaranteed by the Constitution of the
United States, and would work irreparable damage and injury to him, for
which no plain, adequate and complete remedy could be had at law.

The general doctrine of the Osborn case has never been departed from,
and it has sustained innumerable suits which have protected property
rights from the enforcement of state statutes in conflict with the
Constitution of the United States. It is no exaggeration to say that
this doctrine, more than any other, has rendered the Constitution
an effective shield against oppressive, tyrannical and confiscatory
legislation, and compelled the states to obey the supreme law of the
Constitution. The reasoning of Chief Justice Marshall is very logical
and lucid, and it is most convincing. If, as was then conceded to be
indisputable, the privilege or immunity of the state as principal was
not communicated to the officer as agent, and if an action at law would
lie against the officer in which full compensation ought to be made
for a legal injury resulting from any unlawful act done in pursuance
of an unconstitutional and void statute, there existed no reason why
the preventive power of a court of equity should not equally apply to
such an officer or why it should not restrain him from the commission
of a wrong which it would punish him for committing. "If," continues
the Chief Justice, "the party before the court would be responsible for
the whole injury, why may he not be restrained from its commission, if
no other party can be brought before the court?" It was pointed out
that the very fact that the state could not be sued was a reason for
permitting the suit to proceed in its absence against the officer or
agent. We have here another example of how, in the evolution of legal
principles, the same causes produce the same results. As in England
the fact that the king could not be sued in the ordinary courts for a
wrong led to the rule that his immunity or irresponsibility was not to
be extended to his servants or agents and that the latter were to be
held personally liable for whatever they did under the king's orders
in violation of the legal rights of an individual, so with us the fact
that a state could not be sued in a federal court led to the rule that
its immunity or irresponsibility was not to be extended to its officers
and that they were suable as responsible principals, even when acting
under a state statute and as the agents or representatives of the state.

Chief Justice Marshall also said in the Osborn case that it might "be
laid down as a rule which admits of no exception, that, in all cases
where jurisdiction depends on the party, it is the party named in the
record. Consequently the eleventh amendment, which restrains the
jurisdiction granted by the Constitution over suits against states,
is, of necessity, limited to those suits in which a state is a party
on the record. The amendment has its full effect, if the Constitution
be construed as it would have been construed had the jurisdiction of
the court never been extended to suits brought against a state, by the
citizens of another state, or by aliens. The state not being a party
on the record, and the court having jurisdiction over those who are
parties on the record, the true question is not one of jurisdiction,
but whether, in the exercise of its jurisdiction, the court ought to
make a decree against the defendants; whether they are to be considered
as having a real interest, or as being only nominal parties." This
reasoning was reaffirmed by the Supreme Court as late as 1872 in the
case of Davis _vs._ Gray,[41] which was a suit against the governor of
the state of Texas. But in later cases it has been repudiated, and the
court has declared that "it must be regarded as a settled doctrine of
this court, established by its recent decisions, 'that the question
whether a suit is within the prohibition of the eleventh amendment is
not always to be determined by reference to the nominal parties on the
record.'"[42]

It may, nevertheless, be now interesting and valuable to re-examine
the doctrine enunciated by Chief Justice Marshall and to inquire
whether, after all, it does not embody the true and sound rule which
should govern this question, particularly in view of the fact that
the decisions which have departed from his reasoning have failed to
indicate any definite criterion to guide us in determining when a suit
against a state officer is and when it is not to be deemed a suit
against the state within the true meaning of the eleventh amendment.
The question must be considered as if the jurisdiction of the federal
courts had never been extended to suits by an individual against a
state. The controlling inquiry in a suit against a state officer ought
logically to be whether the relief or remedy sought can properly be
granted in the absence of the state as a party defendant; in other
words, whether the state is or is not a necessary and indispensable
party; and this inquiry should be determined by the result or burden
of the judgment which may be entered. If, for example, the suit is
to enjoin the enforcement of an unconstitutional statute regulating
rates or imposing taxes, it must be presumed that the state has not
authorized the wrong, that it can have no legal concern or interest in
a void enactment of its legislature, and that it cannot be heard to
assert any right to have its officers violate the Constitution of the
United States for its benefit. If, on the other hand, the relief or
remedy sought will affect the property rights or funds of the state,
or compel it to pay its debts, or require the specific performance of
a contract by the state, or the doing or omitting to do any act by the
state itself, the court must needs hold that it is a necessary and
indispensable party, and that, as it cannot be sued in a federal court
for want of jurisdiction over it, the suit must be dismissed. This
dismissal, however, would not be for want of jurisdiction or judicial
power over the individual state officer as defendant, nor because the
suit was against the state--for the state was not a party and its
presence was sought to be dispensed with--but because the state was an
indispensable party defendant and the suit could not proceed in its
absence. The result of recurring to this view would be to simplify the
consideration of many cases and reconcile much conflicting reasoning.
We should then have a definite and logical criterion to guide us in
cases against state officers. If the court found that the state was not
a necessary and indispensable party, the issue in such cases would be
narrowed to the inquiry whether the relief should be granted against
the officer within established principles of equity, jurisprudence and
procedure.

There remains the question as to enjoining criminal prosecutions.
Should the jurisdiction of a court of equity be ousted simply because
the state has authorized its officers to enforce unconstitutional
regulations affecting property rights by a criminal instead of a
civil action? The Supreme Court has held that, notwithstanding the
general principle that a court of equity has no jurisdiction of a
bill to stay criminal proceedings, it may nevertheless enjoin a state
officer from instituting such proceedings where property rights
are about to be invaded and destroyed through the instrumentality
of an unconstitutional statute providing for its enforcement by
criminal proceedings. The nature of an essentially civil question or
controversy, such as one between shippers or passengers on the one
side and a railroad company on the other as to the reasonableness of
rates, cannot be changed by legislative fiat. The exercise of such a
jurisdiction to restrain criminal proceedings has been found necessary
in many recent cases where a defense on a criminal trial before a jury
would afford no fair or adequate protection to those whose property
rights were affected. The litigation, for example, under a bill in
equity to restrain the enforcement of an unconstitutional criminal
statute regulating rates presents a controversy of a civil nature with
the officer and not with the state, and the only question is, whether
a court of equity should intervene, or should leave those against
whom criminal proceedings are threatened to their defense by demurrer
to the indictment or trial on the merits. The latter will always be
done when a defense at law will afford reasonably fair and adequate
protection. But when a defense at law will not afford due protection
and irreparable injury to property is threatened, there exists no
reason why a court of equity should not intervene in such a case and
grant protection and relief.

It may seem to many doubtful whether the two leading cases which are
now attracting so much attention, namely, In re Ayers[43] and Fitts
_vs._ McGhee,[44] necessarily presented any question under the
eleventh amendment, and whether they should not have been disposed
of solely upon the ground that a court of equity ought not to have
enjoined the threatened suits or prosecutions. Probably neither of
the suits in equity discussed in these two cases would have been
maintainable under the general principles of equity jurisprudence even
if the state had been suable in a court of the United States, for no
irreparable injury was threatened and the opportunity of defense at law
seemed to afford reasonable protection.

The question of the right to sue a state officer to restrain the
enforcement of an unconstitutional statute regulating the rates and
charges of railroad companies is now pending in some of its aspects
before the Supreme Court in important cases involving statutes of
Minnesota and North Carolina. These cases have been fully and ably
argued and are under advisement, and they may lead to a reconsideration
of some of the reasoning in the prior cases. A comprehensive decision
may, therefore, shortly be delivered which will remove some of the
reasons for the existing misunderstanding and conflict between the
states and the federal courts.[45]

The time at our disposal renders it impossible to consider the many
noteworthy and interesting cases which have arisen under the eleventh
amendment and which frequently carry us into the realm of public
law and statesmanship. The leading decisions are, of course, in the
Supreme Court, but many instructive opinions will be found in the lower
federal courts. The constant increase of governmental functions and
of interference with individual liberty and action is certain to be a
fruitful source of litigation in the future and will call for frequent
consideration of the scope of the eleventh amendment.

In discussing the subject of suits to restrain the enforcement of
state statutes alleged to be unconstitutional, we should not overlook
or pass unnoticed the attempts made in recent enactments regulating
rates and charges to coerce or intimidate railroad and other public
service corporations into immediate obedience and abandonment of
their constitutional right to appeal to the courts, by imposing upon
them enormous and unreasonable fines and penalties, or by threatening
them with the forfeiture of the protection of the government. Heavy
fines or penalties are attached to violations of the law; and, as
the transactions of these corporations are generally very numerous,
disobedience of a statute, if only in good faith for the purpose
of testing its validity, would in a few days involve the risk of
bankruptcy. The avowed or ill-concealed purpose of these fines and
penalties and of the resort to the criminal law is to prevent any
interference by courts of equity. The idea, advanced in many quarters
and under many disguises, seems to be that corporations shall be
outlawed unless they consent to abandon their right to appeal to
the courts for protection against unconstitutional statutes and void
and oppressive enactments. This unfair spirit is widespread. For
example, while the Federal Employers' Liability Act, recently declared
unconstitutional by the Supreme Court of the United States, was under
advisement by that court, President Roosevelt in his Jamestown speech
criticized the railroad companies for having contested the validity of
the statute and suggested that "the law should be such that it will be
impossible for the railroads successfully to fight it without thereby
forfeiting all right to the protection of the federal government under
any circumstances."

The courts have repeatedly pointed out that the owners of property
devoted to a public use are entitled to a fair and adequate judicial
investigation if they contend that the rates or charges prescribed by a
legislature are unreasonable and confiscatory. This is but recognizing
that the owners of railroads and other property are entitled to a
day in court, just as the humblest person is entitled to his day in
court when his constitutional and vested property rights are invaded
by the government. If the private property of the individual is to
be taken for a public use, it would, of course, be obviously unfair
and unjust to permit the legislature to say conclusively what should
be paid to him, and deny him any adequate opportunity in the courts
to review the legislative fiat. The same principle applies to public
service corporations. They are entitled to appeal to the courts to
pass upon the validity of any legislation which attempts to compel
them to render services at a rate fixed by the legislature if they
contend that such rate is unreasonably low and confiscatory; and,
pending the judicial investigation, they ought not to incur the risk
of accumulating and ruinous penalties. The New York Public Service
Commissions Act of last year recognizes this in principle. But, instead
of granting a fair hearing or providing for any judicial proceeding
in which the reasonableness of the statutory rates may be promptly
investigated, the constant effort seems to be to render resort to the
courts so dangerous that property owners will abandon their right
to a day in court rather than take the risks involved in allowing
penalties to accrue and accumulate, which might subject their property
to confiscation. Thus, in the recent New York gas statute, declared
unconstitutional by the United States circuit court, no judicial
investigation was afforded and the penalties imposed were at the
rate of $1,000 for each overcharge or violation of the law. As the
Consolidated Gas Company alone had upwards of 390,000 customers, an
overcharge on only one month's bills, pending an attempt to test the
law in good faith, would involve the fabulous total of $390,000,000 in
penalties, or nearly five times the value of the whole property of the
company. In fact, if the New York statute, at least in this respect,
is not nullified by the Supreme Court on the pending appeal,[46] the
Consolidated Gas Company may be absolutely ruined for having asserted
its legal right to a fair judicial investigation before being compelled
to accept what it insisted and what the court has so far held was a
confiscatory and unreasonable rate; that is to say, for daring to
insist upon a fair judicial hearing before being condemned. The Kansas
statute regulating stockyards, which was declared unconstitutional by
the Supreme Court,[47] imposed penalties which might have aggregated
$15,000,000 in one day, or nearly twice the value of all the property
of the stockyards company. The recent railroad statute in North
Carolina imposes fines which would amount to $2,500,000 per day, and
in a few days would bankrupt the railroad companies. The Minnesota
railroad statute imposes penalties which in one month might aggregate
several hundred million dollars.

Speaking of these penalties, United States Circuit Judge Lochren justly
said: "There is no question but that such legislation is vicious,
almost a disgrace to the civilization of the age, and a reproach upon
the intelligence and sense of justice of any legislature which could
enact provisions of that kind."

If any such policy of coercion and intimidation can possibly be
enforced by the state or national governments, in any form or under
any subterfuge whatever, we shall no longer be living under a
constitutional government with effective guaranties of individual
rights and liberties. If Congress or a state legislature can compel
any class of persons to submit to an unconstitutional statute by
imposing ruinous fines and penalties, or other provisions intended
to operate _in terrorem_, or by threatening to deprive that class of
the protection of the government, then the constitutional limitations
imposed by the people can be readily circumvented and nullified,
and our supposed rights and liberties will exist only in the grace
or self-restraint of legislatures. One class is selected to-day,
but another class will be selected to-morrow, depending only on the
interest or prejudice or temptation or caprice of the temporary
majority. Such an exercise of arbitrary and irresponsible power is in
utter conflict with the whole theory of our institutions and in utter
disregard and defiance of those fundamental and immutable principles of
justice under which alone free governments can exist. As Chief Justice
Marshall said in the great case of Marbury _vs._ Madison--and the court
was then facing a hostile executive, a hostile Congress and a hostile
public opinion--"The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the laws
whenever he receives an injury. One of the first duties of government
is to afford that protection.... The government of the United States
has been emphatically termed a government of laws and not of men. It
will certainly cease to deserve this high appellation if the laws
furnish no remedy for the violation of a vested legal right."[48]

Some of the bills now pending before Congress propose to deprive the
federal courts of the power to issue preliminary injunctions in these
cases. This would be a policy fraught with immeasurable danger to
property interests as well as to personal liberty. It would frequently
amount to a complete denial of justice. The delay of litigation might
readily be attended by ruin. But, undoubtedly, some reform is called
for. There can be no question that preliminary injunctions against the
enforcement of state statutes regulating public service corporations
should never be granted without prior notice to the representatives of
the people, and full opportunity for them to be heard, and then only
upon the clearest showing of threatened irreparable injury pending the
delay of a full hearing on the merits. Such cases ought not only to
be given the earliest possible hearing, but the courts should insist
that both sides proceed with the utmost expedition in the taking of
testimony. A hearing in open court and not before a master would
greatly facilitate this result. The people are entitled to a speedy
determination of the questions involved in order that they may promptly
have the benefit of the statute if it be constitutional, or that they
may at once amend it if it be unconstitutional. There is no reason why
in the majority of cases such a suit should not be ready for final
hearing and actually be heard within sixty days, or why it should
not be finally disposed of in the appellate courts within less than
a year. It should have preference on all calendars. The Expedition
Act of Congress, applicable to cases arising under the Anti-Trust
and Interstate Commerce laws, would furnish a good model for cases
involving the validity of state laws.

The conditions which now confront the people in many states, where
statutes regulating public service corporations are often tied up
for years by litigation, tend to create discontent, impatience
and dissatisfaction with the courts and to engender a desire for
revolutionary change from an intolerable situation. Laws regulating
public utilities are often essential for protection against those who
otherwise would have the power to make a prey of the necessities of the
people, and it is disgraceful that the enforcement of such laws can be
delayed by litigation for years after their enactment. As the delays
in our criminal procedure are crying for remedy, so the delays in this
class of litigation are crying for immediate and effective relief. It
is of paramount importance that the people should be convinced that
they can obtain in the courts, and especially in the federal courts,
a prompt determination of all litigation affecting the validity of
legislation regulating public service corporations which they or their
representatives have deemed necessary for their protection against
extortion or oppression. In most cases, however, it will be found that
the representatives of the state are as much to blame for the delays as
are their adversaries.

But, above all other considerations, stands the necessity for
maintaining the absolute confidence of the people at large in the
wisdom and impartiality of the federal judges, who are so often
called upon to determine the validity of state statutes alleged to
conflict with the Constitution of the United States and in so doing
to administer justice as between the state and the individual--as
between the majority and the minority. It should be a matter of
profound concern to us as lawyers to make all laymen appreciate
that the exercise of this jurisdiction by the federal courts is
necessary for the preservation and perpetuation of the Constitution,
and that it is right and just that every citizen should have the
privilege of appealing to the national courts for the protection of
rights and liberties guaranteed to him by the national Constitution.
Equally important is it that the people should appreciate that in
entertaining suits to restrain the enforcement of state laws alleged
to be unconstitutional, the federal judges are only performing their
duty according to their oath of office, which in the noble language
prescribed in 1789 pledges them "to administer justice without respect
to persons," to "do equal right to the poor and to the rich," and
to "faithfully and impartially discharge and perform" their duty
"agreeably to the Constitution and laws of the United States." An
examination of the cases in which injunctions have been granted against
the enforcement of state laws must satisfy any candid mind that in the
great majority of cases the power has been impartially exercised, with
tact and wise discretion, and that such injunctions have been granted
only when property rights seemed to be threatened with irreparable
injury. It would be too much to expect infallibility in all these
cases. But errors are corrected on appeal.

Assaults upon our judiciary and unwarranted and unjust criticism of
our judges undermine the people's trust in the courts and threaten
the whole structure of our civilization. The United States judges
are justly sensitive to public opinion and distressed by unjust and
ignorant criticism. They know how important it is that they should
retain public confidence. They realize, as their opinions constantly
show, that "next to doing right, the great object in the administration
of public justice should be to give public satisfaction." But they
cannot sacrifice truth to popularity, the Constitution to present
expediency. Those who assail the federal judges should bear in mind
that the founders in their wisdom constituted the judicial power our
bulwark against unadvised, hasty and tyrannical action on the part of
those in power and our shield against "those sudden and strong passions
to which we are exposed," and which, if unchecked and unrestrained,
may lead to ruin. However unpopular and disagreeable the task may be
of setting aside an act of Congress or of a state legislature, however
painful it must be to any just man to become the subject of calumny,
a federal judge has no choice, no discretion, no will of his own, but
must hear and decide according to his conscience every case submitted
to him within the jurisdiction of his court as conferred and imposed
by the Constitution and laws of the United States. Let us always bear
in mind the lofty words of the great Chief Justice in the case of
Aaron Burr, in the decision which excited so much public prejudice and
clamor one hundred years ago, when, speaking of the duty of a judge,
he said: "If he has no choice in the case; if there is no alternative
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
indignation of his country who can hesitate which to embrace."[49]

FOOTNOTES:

[Footnote 23: Address before the New York State Bar Association at its
thirty-first annual meeting held in New York, January 25, 1908.]

[Footnote 24: 2 Dallas' Reports, p. 419.]

[Footnote 25: 6 Wheaton's Reports, pp. 406-407.]

[Footnote 26: 134 United States Reports, pp. 1, 22.]

[Footnote 27: 108 United States Reports, p. 447.]

[Footnote 28: 200 United States Reports, pp. 283, 284.]

[Footnote 29: 1 Cranch's Reports, p. 163.]

[Footnote 30: 11 Wallace's Reports, p. 183.]

[Footnote 31: 16 Wallace's Reports, p. 156.]

[Footnote 32: 106 United States Reports, p. 205.]

[Footnote 33: 101 United States Reports, p. 343.]

[Footnote 34: The Law of the Constitution, 8th ed., p. 189.]

[Footnote 35: Reported by Hargrave, 19 Howell's State Trials, pp. 1030,
1073.]

[Footnote 36: 6 Best and Smith's Queen's Bench Reports (1865), p. 297.]

[Footnote 37: Reported in 14 Howell's State Trials, pp. 1-114.]

[Footnote 38: 188 United States Reports, p. 543.]

[Footnote 39: 114 United States Reports, p. 270.]

[Footnote 40: 9 Wheaton's Reports, p. 738.]

[Footnote 41: 16 Wallace's Reports, p. 220.]

[Footnote 42: In re Ayers, 123 United States Reports, p. 487.]

[Footnote 43: 123 United States Reports, p. 443.]

[Footnote 44: 172 United States Reports, p. 516.]

[Footnote 45: Ex parte Young (Attorney General of Minnesota), reported
in 209 United States Reports, p. 123, and the case of Hunter (Sheriff
of Buncombe County, N.C.) _vs._ Wood, 209 United States Reports, p.
205.]

[Footnote 46: Willcox _vs._ Consolidated Gas Co., 212 United States
Reports, p. 19.]

[Footnote 47: Cotting _vs._ Kansas City Stock Yards Co., 183 United
States Reports, p. 79.]

[Footnote 48: 1 Cranch's Reports, p. 163.]

[Footnote 49: 4 Cranch's Reports, Appendix, pp. 507-508.]




CRITICISM OF THE COURTS[50]


The attacks upon our courts which are constantly being published in the
press throughout the country disclose a feeling of hostility towards
the present system of administering justice that is probably the most
portentous sign of our times. That the lawlessly inclined, who are
fortunately still in the minority, should be hostile to those who are
charged with the duty of enforcing and compelling obedience to the laws
of the state or nation is not at all surprising and is perhaps almost
inevitable in populous communities. But it is indeed surprising, and
a legitimate cause for profound anxiety and misgiving, that thousands
of honest, industrious, moral and law-abiding citizens should believe
that the laws are not being impartially or justly administered, and
that this erroneous belief should be inculcated, not only by the press
and unprincipled demagogues and politicians but by reputable leaders
of American labor and American public opinion, and even by educators.
This belief has become so widespread and so fixed in the minds of vast
numbers of our people of all classes, educated and uneducated, that
only the most exhaustive consideration and discussion of the subject
would be now adequate. Numerous letters received by the sub-committee
of the New York State Bar Association, some of which are submitted with
its report, show the intensity of the hostility towards the courts and
the extent to which it is based upon ignorance, prejudice and malice.
The fact that the writers of most of these letters are sincere need not
be challenged, but, this being conceded, many of the statements show an
utter failure to investigate the facts and an entire indifference to
the truth, and some are obviously puerile, or inexcusably inaccurate
and reckless. On the other hand, the spirit shown in letters from some
of the labor leaders must inspire the hope of their loyal assistance in
an impartial and thorough investigation. A great amount of good might
be accomplished by cooperation with them. Such a letter, for example,
as that recently received from Mr. Hugh Frayne, the general organizer
of the American Federation of Labor, indicates that exchange of views
might lead to desirable results. However irksome and laborious the
task may be, it would be a great service to the country at large if
some joint committee appointed by the New York State Bar Association
and the other bar associations of the state would undertake to
investigate all cases affecting labor or social legislation and publish
a report showing the true facts and the principles of law involved in
each case. The pity is that many of the critics of our courts are
lamentably ignorant of the subjects about which they write or declaim,
and--unconsciously and unintentionally in some instances--misrepresent
and distort the facts.

It will be practicable at the present time to review only a few of the
points suggested by the investigations of your sub-committee.

The subject of just compensation to employees for injuries received
in the course of their work is one of the most important and
far-reaching of those discussed by our correspondents, and its
increasing difficulties and complexities call for much more study than
we have been able to give it. The revolution wrought by machinery,
the inevitable dangers attending its use, the crowding of men, women
and children into factories and workshops require modifications
in the rules of law governing the duties and responsibilities of
employers. The rules of the common law, which are now condemned by
so many and sought to be cast aside, were originally dictated by the
soundest considerations of public policy, of practical affairs and
government, and of justice as between man and man. The duties of the
master toward the servant, as regulated by these rules, were humane
and commensurate with the needs of the times that evolved them, and
the rules themselves are still proper and just in the great majority
of cases. Under them, the master is required to exercise the same
degree of care for his servant that he should for his own safety, and
he is bound to furnish a reasonably safe place in which his servant
is to work, supply reasonably safe implements and machinery, select
fellow-servants reasonably competent and prudent, and, where the nature
of the business requires an overseer or superintendent, appoint one who
is reasonably competent and prudent. The application of these rules
regulating the conduct and duties of the master, in conjunction with
the rules regulating the conduct and duties of the servant--such as the
assumption of the ordinary risks of the employment, the fellow-servant
doctrine, and the rule as to contributory negligence--unavoidably
creates extremely difficult and complex questions. These rules are
still proper and just in their application to such cases as involve
the domestic relation between the farmer and his farm hands, the small
contractor and his workmen, the householder and his house servants,
the butcher, painter, carpenter, or blacksmith and his workmen. In all
these cases it is, it seems to us, as true on principle to-day as it
was half a century ago that the master is not bound to take more care
of his servant than he may be reasonably expected to take of himself,
and that a servant has better opportunities than his master of watching
and guarding against the conduct and preventing the negligence of
his fellow-servant. It is as true now as it ever was that, so long
as liability is based on the theory or principle of negligence, a
servant ought, generally speaking, to be held to assume the ordinary
and obvious risks of the employment upon which he enters and for which
he presumably stipulates for adequate and satisfactory compensation.
Likewise, in the majority of cases, it is as true to-day as it ever
was that the servant who has been guilty of contributory negligence
should not be allowed to charge his master with responsibility for the
injury. The reasoning of the judges establishing and maintaining these
doctrines at the common law has never been refuted. Nevertheless, they
are mere rules of law, subject to change, not by the judiciary, but
by the legislature; and, in the opinion of the writer, there is no
provision in the state or national constitution which would prevent
their abrogation if this were deemed necessary or desirable by a
legislative body.

But modern industrialism, the development of machinery, the employment
of large numbers of men and women in crowded factories, and work
in connection with dangerous instrumentalities of manufacture and
transportation, etc., have changed conditions, so that what is still
true of the farm, the household, the small artisan, the carpenter, the
painter, the butcher, the grocer, etc., is not true of the busy hives
of manufacture, of transportation by steam or electricity, or of other
hazardous industries. The increase in accidents, the apparent certainty
that many casualties are inevitable, the recklessness engendered by
the modern struggle for existence, the increasing difficulty in many
employments of measuring degrees of fault, the pressing necessities
and improvidence of the poor: these and other considerations well
warrant the interposition of the legislature as the lawmaking power
of the state, in order to make changes in the law--changes which the
courts should not attempt to make, for their duty or function is not
to legislate but to declare what the law has been or now is. Instead,
then, of abusing the courts, how much wiser and more decorous would
it be for labor organizations, labor leaders, or social reformers to
petition the legislature to amend the law, and to abandon the attempt
to intimidate and coerce the judiciary into making the desired change.
One of our correspondents speaks of "the venomous fellow-servant
doctrine." Yet the responsibility for the continuance of that doctrine,
if it has become undesirable in any employment or in all employments,
rests wholly with the legislature and not with the courts. We should
be surprised if any lawyer or student professing the slightest
knowledge of American constitutional law would seriously assert that
the legislature could not change that doctrine without amending or
tinkering our constitutions.

It is, however, fit and proper to add that many lawyers and laymen
are convinced that to abolish the existing rules indiscriminately in
every case where the relation of master and servant may exist would be
a mistake from the standpoint of public policy and practical justice,
and that such a radical measure would do more harm than good. Certainly
that is the judgment of competent observers of the operation of the
British statute. A change in the law which would be wise if confined
to large factories and hazardous employments, to labor in connection
with dangerous machinery, to service on railroads, in large electrical
works, etc., etc., might be extremely unwise, unjust and oppressive if
applied, for example, to the small farmer, the artisan, the mechanic,
or the householder. A rule concededly wise and just in the one case
might be the extreme of folly and oppression in the other. An accident
on a farm caused by the negligence or drunkenness of a farm hand
might, under some of the proposed reforms or innovations, bankrupt
the most prudent farmer for causes quite beyond his control; and a
similar disaster might easily overtake the small artisan, mechanic, or
householder, and sweep away the savings of years. It is, of course, no
answer to say that the farmer, the artisan, the householder employing
men or women can insure. Why should this form of taxation be levied
upon slender earnings, which are frequently insufficient to make
both ends meet? Why should the farmer or artisan of limited means
be compelled to pay tribute to private insurance companies so often
engaged in combinations to extort the highest possible premiums?

Let every master be responsible for his own negligence, but let
the line be drawn short of making every master--every employer of
another--the insurer of the safety of his servant to the extent of
rendering the master liable for injuries resulting from no fault of his
own but from the carelessness and negligence of the servant himself or
of a fellow-servant.

An interesting example of the operation of a statute in connection
with established rules of law will be found in the case of Knisley
_vs._ Pratt.[51] The legislature had prescribed certain devices for the
protection of women and children, including a provision that cogs on
machinery should be properly guarded. In enacting this provision, as
the courts were bound to assume by the settled rules of construction,
the legislature was fully aware of the existing law in the state of
New York in regard to the assumption of obvious and ordinary risks of
employment by men and women of full age and capacity. The plaintiff
in the Knisley case was a woman of full age and capacity, and she
was well aware of the danger she was running in approaching too near
machinery in operation. Had the statute been competently drawn, it
would have provided--_assuming, of course, the draftsman and the
legislature so intended_--that the rule of assumption of risk should
not apply to cases within its purview; in other words, it would have
provided that the master should be liable for any injury to a servant
arising from the master's neglect to furnish the protection required
by the statute whether or not the servant knew of such neglect or
contributed in any way to his own injury. No provision of state or
federal constitution prevented the legislature from enacting that the
employer should be absolutely liable for the consequence of his own
deliberate neglect to obey a statutory provision intended to protect
human life and particularly the lives of women and children. There
is not the remotest intimation by the court in the Knisley case that
the legislature could not so alter the law. After the decision in that
case had been announced, a change in the law could have been readily
made within a week, for the legislature was then in session--February,
1896. Yet seventeen years have passed without such an enactment, and in
the meantime the Court of Appeals has been assailed before the whole
country for its lack of sympathy with the poor and helpless and with
social progress as evidenced among other things by this decision!

It is true that the doctrine of the Knisley case has been recently
overruled by the Court of Appeals in the case of Fitzwater _vs._
Warren.[52] But many lawyers believe that the court might better have
left this change to the legislature, which could have made it seventeen
years ago if it had so desired, and not have furnished additional
ground for the criticism that our courts are resorting to judicial
legislation. Despite the Fitzwater case, it would still be wise for
the legislature, _if it deems that the rule of law should be as now
announced_, to enact a properly drawn statute declaring that whenever
a statutory provision requires a master to supply guards or other
protection for his servants in hazardous employments or in connection
with the use of dangerous machinery, his neglect to do so shall render
him liable irrespective of the doctrines of assumption of risk,
fellow-servant's fault, or contributory negligence.

The manner in which nominations have been made in recent years for
judicial office and particularly for the Court of Appeals has also
invited very serious criticism on the part of our correspondents.

As is well known, the bar of the state of New York, with almost entire
unanimity, has been endeavoring for many years to separate nominations
for judicial office from other nominations, and thereby to divorce
the bench from politics. It was the bar that has urged and forced the
renomination of judges for the Court of Appeals on a non-partisan
basis. It was the bar that urged and forced the renomination and
election of Judge Gray and Chief Judge Cullen and other members of
our highest court. It is simply slanderous to charge that any of the
present judges of that great court were nominated at the request or
dictation of what our correspondents call "the interests." The contrary
is the truth; and the whole history and conduct of the court refute an
accusation which is as contemptible as it is unfounded.

The bar of the state was practically unanimous in urging the passage
last year of the measure known as the Judicial Candidates Bill, which
proposed that the names of judicial candidates should no longer be
printed in the party column on the general and official ballot, but
on a separate ballot, or in a separate column of the voting machines,
without party designation in either case, to the end that candidates
for judicial office might be voted for as individuals and not as
members or candidates of any political party. There was then an
excellent opportunity for the professed social reformers and labor
leaders who are so vehemently assailing our judicial system to aid in
a movement to eliminate from politics the election of judges. But it
was not availed of. The bill was defeated. It had little support from
the press and very little, if any, support from social reformers or the
representatives of labor. It will undoubtedly be introduced again this
year; it has been once more approved by the Association of the Bar of
the City of New York, and it will probably be again approved by the
state association and by the bar of the state at large. Let the labor
organizations now assist and cooperate in procuring the enactment of
this law, and help to secure the election of judges on their own merits
and personal character apart from considerations of political service
or the favor or support of political leaders or bosses, or of any
particular class.

A few years ago in the city of New York an earnest attempt was made
by the bar to secure the election of justices of the Supreme Court on
a non-partisan and non-political basis. A committee of members of the
bar nominated lawyers of the highest standing in their profession, of
recognized ability and learning and of unimpeachable character. These
nominees were defeated, and to that defeat the labor organizations
greatly contributed. These organizations then gave no support whatever
to the movement to secure a separation of the courts from politics, and
they were quite indifferent to the nomination of men of the highest
character and of the highest qualifications for judicial office.

The plain truth on this point may serve and be useful as an object
lesson. The least competent and the least experienced of the justices
of the Supreme Court in the county of New York and elsewhere throughout
the state are generally those who have been nominated because they were
endorsed by labor organizations or were supposed to be acceptable to
them. Everywhere throughout the country it is said that whenever labor
organizations dictate or control the nomination of judges, they select
lawyers of inferior education and talents and not of superior character
and independence. It is high time that this truth was well pondered by
labor.

One of the real causes for the discontent with the administration of
justice in our state courts, and particularly in the larger cities,
is that judges are nominated and elected not because of their legal
ability and personal character, but because of their party affiliations
or their supposed friendship or sympathy for or inclination to favor
one class as against another. If the personnel of our Court of Appeals
and Appellate Divisions has thus far been kept uniformly high and
pure, it is because of the constant efforts of the bar. If labor
organizations and the people at large will now cooperate with the
bar, who in this matter are the proper leaders of public opinion,
there will be infinitely less occasion for complaints of delay or
incompetency or partiality in the administration of justice. The
multiplication of incompetent judges means the multiplication of the
causes of delay, new trials, denial or miscarriage of justice, expense,
discontent and suspicion. The cure for these evils is with the people
themselves, and it will be brought about only when they shall insist
upon the nomination and election of lawyers of learning, character and
independence.

It must be plain to all who have studied the facts and reflected upon
existing tendencies that during the past twenty years the amendments
to the laws regulating nomination and election to public office have
served to strengthen and perpetuate the control of political leaders
and political machines. Many bills introduced and loudly acclaimed as
reforms have in truth proved to be not reforms at all, but steps in the
dark and backward.

Some of our correspondents blame the courts for the "law's delay,"
yet there is no defect in our system for which competent judges
are less responsible. In most instances of delay in civil cases,
the blame belongs to the lawyers. Nothing has done more to bring
the administration of justice into disrepute than the practice of
adjourning cases term after term and year after year on excuses which
sometimes are not well founded. There need be no unreasonable delay
even in the city of New York, and would not be, if lawyers were ready
to try their cases when they are first reached on the calendars. The
judges are constantly complaining of the dilatoriness of the bar.
Another cause of delay is the practice of bringing suits and taking
appeals for the purpose of coercing settlements. A higher sense of
professional responsibility ought to be cultivated, and there should
be some severe penalty or professional ostracism for lawyers who abuse
the process of the courts of justice and disregard the ethics of their
profession.

In like manner, in criminal cases the real cause of delay in nearly
every case is the failure or inability of prosecuting officers to press
their cases diligently; and the frequent change in the personnel of our
officeholders is likewise a cause of much delay. Whenever one official
succeeds another, the period during which the new incumbent is learning
what occurred before he came into office and familiarizing himself
with the pending cases is so much time lost. Greater permanency in the
tenure of office of prosecuting officers would probably conduce to
greater speed and greater efficiency in the enforcement of the law. Nor
can it be doubted that many public officials and their assistants do
not feel the same degree of responsibility for the prompt dispatch of
public business that they would feel if representing private clients.
The remarks of Mr. Justice Scott in the recent case of People _vs._
Turley are indeed timely, and should be commended to the attention of
all prosecuting officers throughout the state. He used the following
language: "There is much well-justified complaint at the present
time of the slowness with which the criminal law is enforced, and
especially of the great length of time which is frequently permitted
to elapse between a conviction and the review of the conviction by
the appellate courts. Among persons not conversant with the rules of
criminal procedure, the courts are not unnaturally, but most unjustly,
charged with a large share of responsibility for this condition. The
blame rests elsewhere. The appellate courts are powerless to act until
the appeal is brought before them by those charged with that duty. When
the matter is brought up for a hearing, the delay is ended, and the
appeal is invariably promptly decided. The present is a particularly
flagrant case. The defendant was convicted in March, 1909, and was
almost immediately released on bail pending an appeal, under a
certificate of reasonable doubt. The record is not voluminous, and the
questions of law involved are neither difficult nor intricate, and yet
the defendant has been at large for three years and a half before the
appeal is brought on for argument. Of course under such circumstances
the defendant was quite satisfied and was in no haste to have his
appeal argued. The duty to bring it on promptly rested, as it rests in
every case, upon the district attorney, who had it in his power at any
time to force a hearing of the appeal by moving to dismiss it. This
court has never shown itself to be unwilling to support and cooperate
with the district attorney in compelling appeals in criminal cases to
be argued with all reasonable promptness. The remedy for unreasonable
delays in the final disposition of criminal appeals lies in his
hands."[53]

A number of important murder cases will be readily recalled where years
have elapsed between the conviction of the accused and the argument
in the Court of Appeals. Not only does this unnecessary delay deprive
the judgment of conviction of much of its effect as an example and
deterrent precedent, but in cases of reversal and new trials evidence
is sometimes lost, and the guilty thus escape. In the latest reported
murder case from New York county, People _vs._ Lustig,[54] the
defendant was convicted of murder in the first degree in June, 1910,
but the appeal was not brought on for hearing in the Court of Appeals
until June 14, 1912, when it was decided and reversed within two weeks
after the argument, viz., on June 29, 1912. In the meantime, as we are
informed, material witnesses had disappeared, and the defendant is now
at large on his own recognizance, and probably will not be tried again!

Another case of apparently inexcusable delay is People _vs._
Koerner.[55] The crime of murder was committed in September, 1896. The
defendant was indicted within a month thereafter, and was convicted of
murder in the first degree on March 1, 1897. The appeal was argued in
the Court of Appeals within four court months, on October 22, 1897,
and the judgment was reversed on November 23, 1897. The case was
then re-tried, and resulted in a judgment of guilty of murder in the
second degree on March 15, 1898. The records of the courts show that
the appeal from this judgment was not brought on for argument in the
Appellate Division until December 12, 1906, and then resulted in an
affirmance by that court on January 11, 1907, and that the appeal was
not argued in the Court of Appeals until February 19, 1908, when the
judgment was affirmed without opinion in less than three weeks!

Yet for the delays in these and similar cases the courts are criticized
and their administration of criminal justice intemperately assailed
by the press and other critics, notwithstanding the diligence of
the judges in disposing of appeals when duly presented for their
consideration.

It may be true that the pressure of innumerable cases compels the
district attorney in New York county to delay the argument of appeals;
but the remedy is to provide him with additional competent assistants
and certainly not to indulge in indiscriminate criticism or unfounded
abuse of the courts, or to resort to panaceas of reform in criminal
procedure, which too often only multiply technicalities, deprive the
individual of necessary protection, and create more or less confusion.

I shall now ask attention to the subject of injunctions in connection
with strikes. I shall not argue the proposition that strikers in
industrial controversies, or labor and labor organizations should not
be above the law, or a law unto themselves. I assume that this is
still a self-evident proposition in this state and may still be taken
for granted. History certainly teaches us that in a free country no
class can safely be released from the duty of obeying the laws, and
that if disobedience be permitted in favor of the laboring classes, the
industrious, honest and law-abiding laborer will be the worst sufferer
in the long run. Nor will time be taken to point out that no civilized
community can long permit any class to maim, or murder, or destroy
property, or violently prevent others from earning their living, in
order to coerce compliance with the demands of that class.

There would, of course, never be occasion for the use of injunctions
in labor disputes if there were no threats of violence and no danger
of injury to persons or property. If the labor organizations of this
country will now earnestly, effectively and sincerely cooperate with
the bar in the endeavor to put an end to violence and riots, which
are the unfortunate but apparently inevitable attendants of every
protracted modern strike, there will no longer be any occasion for
condemning the courts on account of the issuance of injunctions, for
there will then be no necessity for injunctions.

One aspect of the injunction problem is emphasized in the
correspondence now submitted, and should be dealt with here. It is the
matter of giving notice to the defendants before an injunction order
is granted. Recently, when the United States Supreme Court adopted its
new rules, including one as to injunctions, Mr. Gompers and other labor
leaders loudly proclaimed that they had secured a great victory. Thus,
Mr. Gompers is reported in the "Literary Digest" of November 16, 1912,
as calling the new rule a reform and "a step in the right direction,
and one of the things labor has long been fighting for." But, as
every one familiar with the subject well knows, there is nothing in
the new rules that materially changes the pre-existing practice in
regard to injunctions. The authoritative treatises on federal equity
procedure by Mr. Foster and Mr. Street conclusively show this. No
case has been cited to us and we have found none where the defendants
enjoined were not granted by the courts as much facility in moving to
dissolve or modify injunction orders as is provided for in the new
rule. The learned and impartial editor of the "New York Law Journal"
well said in the issue of December 11, 1912: "The only portion of the
new procedure which has attracted the attention of the daily press is
the rule regarding preliminary injunctions. This, however, is no more
than an adoption of good New York practice, and, indeed, of good equity
practice everywhere, viz.: that no _ex parte_ injunction shall go out
except as a stay-order to show cause why a preliminary injunction
should not issue."

The case most often cited by labor leaders is known as the Debs
case growing out of the Pullman strike at Chicago in 1894. If any
fair-minded critic of the courts will take the trouble to read the
unanimous, patriotic and inspiring opinion of the Supreme Court of the
United States in the Debs case,[56] or what ex-President Cleveland
wrote on the subject in his book on "Presidential Problems," published
in 1904, he will at once realize that the issuance of the injunction
order and the subsequent punishment of Debs and his associates for
deliberately and defiantly disobeying it were both proper and necessary.

For nearly twenty years and since the Debs case in 1894-1895, the labor
leaders, agitators and demagogues of the country have been assailing
the courts and denouncing "government by injunction" on the pretense,
among others, that the judges denied the defendants in that case
any opportunity to be heard, when as a matter of fact, they had the
fullest notice and opportunity to be heard, but deliberately elected
to disobey and defy the court. Indeed, in no jurisdiction is it true
that a defendant is denied the right to a hearing upon the matter of an
injunction against him, and the sub-committee has been unable to learn
of a single case in which a judge has refused to give the defendant a
hearing either upon an application to grant or continue an injunction,
or to set one aside. A permanent injunction order is never granted
without notice to those affected and an opportunity to be heard; nor
is even a temporary restraining order issued without notice of hearing
unless the danger of irreparable injury from delay be very grave, and
then the order is made returnable at the earliest practicable date,
so as to afford the defendants an opportunity to be promptly heard.
If a temporary restraining order should be granted improvidently on
insufficient papers and upon an _ex parte_ application, it is well
known that the order may be and frequently is vacated immediately on
the _ex parte_ application of the defendants. Most lawyers are familiar
with such cases. The fact is that laboring men have always been
afforded a hearing and a day in court in connection with injunction
orders, and that no man has ever been punished for contempt by an
American court without due notice to him and full opportunity to
present his excuse or defense. Indeed, were any man punished without
notice and opportunity to be heard, the order for his punishment would
be without jurisdiction and utterly void.

I may add that the lawless and violent among the members of labor
organizations will not in the end gain any real liberty or advantage
for the laboring classes, even if they succeed in abolishing the writ
of injunction in labor disputes and with it the power of the courts to
punish disobedience as a contempt of court. Destruction of property
and assaults upon peaceful workingmen cannot permanently be tolerated
in any civilized community. Sooner or later, the government must
afford protection in one form or another; otherwise chaos, anarchy and
barbarism are inevitable. If injunctions cannot be issued to restrain
the violent and protect the property of the innocent and law-abiding
citizen, simply because he is an employer or property owner, then
resort will finally have to be had to the club of the policeman or
the bayonet of the militiaman or regular. It is no use blinking this
certainty. That was plainly the alternative presented by the Pullman
strike; and President Cleveland then wisely preferred the orderly and
peaceful procedure of a court of justice to the police power of the
army. Under military rule, the laboring man may receive no hearing at
all, and martial law with its arbitrary practices and despotic power
will have to be substituted for the regular procedure of impartial
courts of justice acting upon full notice to all affected and affording
full opportunity to be heard.

The New York Code of Civil Procedure in sections 602-630 has long
protected the rights of a striker as adequately as any other system
of procedure, state or federal, domestic or foreign, and even better
than the recent rule of the United States Supreme Court, which some
labor leaders are acclaiming as a boon. Lest we forget, it may be
useful to recall the exact language of section 626, which has been the
statutory law since 1895. It is as follows: "Where the injunction order
was granted without notice, the party enjoined may apply, upon the
papers upon which it was granted, for an order vacating or modifying
the injunction order. Such an application may be made, without notice,
to the judge or justice who granted the order, or who held the term
of the court where it was granted; or to a term of the appellate
division of the supreme court. It cannot be made without notice, to any
other judge, justice or term, unless the applicant produces proof, by
affidavit, that, by reason of the absence or other disability of the
judge or justice who granted the order, the application cannot be made
to him; and that the applicant will be exposed to great injury, by the
delay required for an application upon notice. The affidavit must be
filed with the clerk; and a copy thereof, and of the order vacating or
modifying the injunction order, must be served upon the plaintiff's
attorney, before that order takes effect."

As is well known to all lawyers, a restraining or injunction order is
never granted by a state or federal court in New York without notice
to the defendants except when proof is submitted to the judge by
affidavit or verified complaint which shows that, unless the defendant
be immediately enjoined, irreparable loss or damage will result to the
applicant before the matter can be heard on notice. If the court has
sworn proof thus submitted to it that the defendants are threatening
immediate injury to person or destruction of property, it is the duty
of the judge--and may it ever be the duty of every American judge--to
issue an injunction without delay, for delay in such a case would in
most instances work a complete denial of justice.

If our system of equal laws impartially administered is to endure,
the courts must continue to shield and protect the individual by
means of injunction orders, and they should not be deprived of the
power of exercising one of the most beneficent remedies afforded by
any system of laws and one indispensable to the due and satisfactory
administration of distributive and equal justice.

Some typical examples of misrepresentation of our courts by leaders of
public opinion will be recalled in connection with the Tenement House
Tobacco case, the Bakers case, the Ives case, and other cases involving
so-called social legislation.[57]

When Mr. Roosevelt's statements in regard to the Tenement House case
were recently challenged by four lawyers, including Senator Root, Mr.
Milburn and Mr. Marshall, as being inaccurate and likely to mislead
the voters of the state, he made no correction whatever, but urged
the people to accept his statements and those of a settlement worker
instead of the record of the case before the Court of Appeals. This
incident will serve to show the difficulty of combating such inaccurate
statements, which are given the utmost publicity by the press
throughout the country, whereas the refutation is generally ignored.
A report of Mr. Roosevelt's public comments, when his attention was
called to his manifestly incorrect statement of the decision in the
Tenement House case, quotes him as saying:

"I am informed that these four gentlemen attacked the statements as
being contrary to both the facts and the law. The first was the case
of the tenement-house cigar manufacturers. Now I will read to you what
is said by one of the women who knows the conditions of tenement-house
life as few other women, and as hardly any man, knows them, by Florence
Kelly in a book called 'Some Ethical Gains through Legislation,' and
I cordially commend to Mr. Root and his associates who signed his
protest to study that book and to ponder what is meant by the word
'ethical' in connection with legislation. Of the Jacobs case, to
which I referred, Mrs. Kelly says: 'To the decision of the Court of
Appeals in the case In re Jacobs is directly due the continuance of the
tenement manufacture and of the sweating system in the United States
and its present prevalence in New York.' That is the statement of a
woman who, as regards knowledge of tenement-house conditions, knows so
much more than those four great corporation lawyers that her little
finger is thicker than their loins when you come to study what they
know and what she knows of the subject of which they have ignorantly
presumed to speak."

And yet all that these lawyers did was to point out the inaccuracy
of Mr. Roosevelt's statements as to what the courts had held, and to
suggest that this inaccuracy would be demonstrated by reference to
the records of the courts, which are open to all who care to take the
trouble to ascertain the truth.

It should be recalled in connection with any fair and candid
consideration of the Tenement House case that the constitutional
convention of 1894 had ample opportunity to change the rule in that
case if it had then been thought to interfere with the attainment of
"social justice." Although the subject was called to the attention of
the convention, it was deemed advisable to make no change. The rule
is reasonable and well-settled in the interpretation of constitutions
and it was well known to the distinguished members of that convention
that "where a clause or provision in a constitution, which has
received a settled judicial construction, is adopted in the same words
by the framers of another constitution, it will be presumed that the
construction thereof was likewise adopted."

Another judicial decision denounced by Mr. Roosevelt a few days before
the last election is the Knisley case discussed above. Speaking of
this case, he told his audience, and through the press told the whole
country, that "the Court of Appeals threw out the case and declared
the law unconstitutional on this ground: that the legislature could
not interfere with the liberty of that girl in losing her arm.... The
trouble was that they knew law but didn't know right, and still more,
as I have stated, that they had arrogated to themselves the right that
the people should have--the right to decide what the common sense and
justice of the people demand." Yet there was not one word anywhere in
the record or in the opinion of the Court of Appeals which suggested
that the act was unconstitutional or that the legislature did not
have full power to change the common law rule in such cases and make
the employer liable to his injured workmen or workwomen if he failed
to comply with a statute prescribing guards or other protection for
employees. The most superficial investigation would have disclosed
the fact that the Court of Appeals has never intimated in any case
that such a statute would be unconstitutional, and that in the Knisley
case it neither had before it nor decided any question concerning the
constitutionality of an act of the legislature.

Shortly before the election, Mr. Roosevelt caused to be published in
the "Saturday Evening Post" of Philadelphia, under the title of "The
Deceitful Red Herring," the following statement: "Our platform demands
an eight-hour law for women in industries.... But the Court of Appeals
of New York has said that the ten millions of people of my state have
not got that right if they wish to exercise it. In New York the people
did not ask for an eight-hour day--asked for only a ten-hour day for
women. Then the Court of Appeals said that under their interpretation
of the Constitution the small sweat-shop keeper or the big factory
owner may work haggard women twelve, fourteen or sixteen hours a day,
if he chooses, and we cannot stop it."

As a matter of fact, however, as the slightest investigation would have
disclosed, the New York Court of Appeals had never decided anything of
the kind. Moreover, there was in our state when Mr. Roosevelt published
this statement a statute limiting the hours of labor for women to nine
hours per day and fifty-four hours per week,[58] and for thirteen
years prior to the recent amendment there had been a statute limiting
the hours of labor of women to ten hours per day and sixty hours per
week. These statutes had been regularly enforced for years, and their
constitutionality had never been even questioned, so far as I have been
able to ascertain.

Immediately after the publication of this article in the "Saturday
Evening Post," a communication was addressed to the publisher by a
well-known and reputable member of the New York bar, Mr. Alfred E.
Ommen, pointing out the misstatement in regard to the Court of Appeals
and conclusively showing its error; but this important periodical, with
perhaps the largest circulation of any American weekly, saw fit to
leave uncorrected this untrue and grossly misleading statement, and it
has not yet withdrawn it, and probably never will do so.

Such is the tenor of the criticisms of the courts to be found in public
speeches and in all forms of publication. They find constant repetition
in the press, and carry the authority of distinguished leaders of
public opinion and of men who at the present time have the ear and the
confidence of the people. The statements of such men are naturally
accepted as accurate and true. Who would believe it possible that any
such statements as the above could be made by an ex-President of the
United States unless they were true? As the draft of this report is
being revised, an advertisement proclaims a renewal by Mr. Roosevelt
of his attack on the courts, and a new assailant and critic appears
in the person of Mr. William Randolph Hearst, who seems desirous to
emulate Mr. Roosevelt in his abuse of the courts. The press at large
continues to give the fullest publicity to all attacks on the courts
and little or no space to any refutation of them. The judges are
being misrepresented and assailed on all sides. They cannot defend
themselves. The bar at large so far has seemed indifferent; and in the
great forum of public opinion judgment is going by default.

If these misleading criticisms are not refuted, and the courts are not
defended, they may bend before the storm of undeserved censure and
the clamor of the crowd. There is grave danger that the judges will
be unconsciously intimidated and coerced by this abuse. Indeed, some
recent decisions are ominous. Is it not then fit and proper that the
members of our profession should charge themselves specially with the
task of defending the courts and placing the facts before the people?
The bar associations of the country will never be called upon to render
a greater service to the profession and to the community at large
than that of stemming this tide of misrepresentation and intemperate
abuse, and of restoring confidence in the learning, impartiality and
independence of our judges, in the justice of their decisions, and in
the necessity of their enforcing constitutional restraints.

FOOTNOTES:

[Footnote 50: Read as a supplement to the report of a committee
appointed by the New York State Bar Association submitted at the
thirty-sixth annual meeting of the Association held at Utica, January
24, 1913.]

[Footnote 51: 148 New York Reports, p. 372.]

[Footnote 52: 206 New York Reports, p. 355.]

[Footnote 53: 153 N.Y. Appellate Division Reports, p. 674.]

[Footnote 54: 206 New York Reports, p. 162.]

[Footnote 55: 154 New York Reports, p. 355; 117 N.Y. Appellate Division
Reports, p. 40; and 191 New York Reports, p. 528.]

[Footnote 56: 158 United States Reports, p. 564.]

[Footnote 57: See discussion _supra_, pp. 48-70.]

[Footnote 58: See the New York Labor Law, sec. 77.]




GRADUATED OR PROGRESSIVE TAXATION[59]


The recent message of the President to the Congress has strikingly
brought to the attention of the American public the subject of
graduated or progressive taxation upon inheritances and incomes. Acting
upon the suggestions contained in the message, bills providing for such
taxes have already been introduced in the House of Representatives.
Amendments to the Constitution have also been proposed, one of which
is to authorize Congress to tax inheritances amounting to or exceeding
$50,000 and to levy an income tax without apportionment. The pending
bills provide that successions of $10,000 and under and incomes of
$4,000 and under are to be wholly exempted from the proposed taxes. The
proposed graduated scales are to run from three-quarters of one per
cent. on inheritances or successions over $10,000 and not exceeding
$25,000 up to twenty-five per cent. on inheritances or successions
exceeding $30,000,000, and from two per cent. on incomes exceeding
$4,000 per annum and not exceeding $8,000 up to six per cent. on all
incomes over $64,000. It is also suggested that Congress by means of
such taxes should seek, not merely to raise revenue for the support of
the national government, but also to solve social problems by breaking
up fortunes assumed to be swollen to an unhealthy size and thus bring
about a redistribution of wealth.

In considering these proposed measures, it should be borne in mind
that, if they or any similar propositions become laws, the result will
be--and such undoubtedly is the intention--to exempt the majority of
property owners from this form of taxation and to cast the burden
upon a very small minority. It should also be realized that this
proposed progressive taxation, particularly as to inheritances, is
conceded to be only a first step, and that increases in the scale of
progression are contemplated and will certainly follow. Indeed, the
President declares that "at first a permanent national inheritance tax
... need not approximate, either in amount or in the extent of the
increase by graduation, to what such a tax should ultimately be." As
the states have full power to levy taxes on inheritances and at the
present time are deriving probably as much as $10,000,000 per annum
from this source, it must be manifest that, if the scale adopted by
Congress be high, the resources of the states will be correspondingly
curtailed. In case of conflict, national taxes would take precedence
over state taxes. We should also bear in mind that the power to tax is
the strongest of all governmental powers, that it involves the power to
destroy, that it generally knows no limitation except the discretion
and moderation of the lawmakers, and that of all powers it is the one
most liable to abuse.

From the time of the Declaration of Independence to the present hour,
the distinctive feature of the American system of government has been
equality before the law, not merely equality of rights but equality
of duties and equality of burdens. Equality has been demanded in all
things including especially taxation. The few exceptions in taxation,
particularly in times of war, do not affect the general rule that has
been followed. The courts have declared that according to American
ideals "common justice requires that taxation, as far as possible,
should be equal." Experience has shown that the only effectual
protection against injustice and discrimination in taxation lies in the
observance of some rule of equality and apportionment; and, although it
is true that absolute equality is not always attainable, nevertheless
an approximation to equality should be regarded as indispensable. As
Hamilton said, "The genius of liberty reprobates everything arbitrary
or discretionary in taxation." And Judge Cooley in his famous work
on "Constitutional Limitations" said: "It is of the very essence of
taxation that it be levied with equality and uniformity, and to this
end, that there should be some system of apportionment. Where the
burden is common, there should be common contribution to discharge it.
Taxation is the equivalent for the protection which the government
affords to the persons and property of its citizens; and as all are
alike protected, so all alike should bear the burden, in proportion to
the interests secured."[60]

In proportional or equal taxation, whereby every property owner
contributes toward the expenses of the common government according to
the amount of property he owns or inherits, or according to the income
he enjoys, we find a perfectly safe and consistent rule and a definite
and logical principle upon which to work. Proportional taxation
subjects to the burden of government fairly and equally all property
owners without distinction and without discrimination. Nothing is left
to mere discretion or to the play of arbitrary and irresponsible power,
and no class is likely to be unjustly singled out or discriminated
against. Where property is as generally distributed as it is in this
country, a proportional tax ordinarily reaches in one form or another a
majority of the constituents of those who vote the taxes, and the sense
of responsibility to these constituents operates as a conservative
force and as a check upon unfair and unjust taxes, as well as upon
improvident and extravagant expenditures. A proportional tax generally
creates a large body of tax-paying voters whose property interests
impel them to watch their representatives closely and to hold them to
strict accountability. We then have taxation in its practical operation
going hand in hand with representative responsibility, which was the
cardinal principle for which our War of Independence was fought.
A legislator who is conscious of the fact that a large, if not a
controlling, number of his constituents will feel the burden of any tax
he votes, is necessarily more careful, more prudent, more economical
and more inclined to be just than if no such sense of responsibility
exists.

On the other hand, where the great majority of voters are to be
exempted from taxation, and where, accordingly, they will feel that
they have no personal interest in governmental expenditures, they
will be likely to take little or no pains to see that there is a
fair apportionment of taxes which others must pay, or any economy in
governmental expenditures for which others must provide. Their sense of
justice and civic duty will become blunted. It will follow that, if the
lawmakers are at liberty to enact laws which exempt the great majority
of their constituents from taxation and cast the burden and expense
of government on the few rich, frequently less than two or three per
cent. of the voters in their respective districts, there will exist
no practical restraint upon expenditure, but, on the contrary, every
temptation to extravagance, wastefulness and injustice.

A graduated or progressive tax is necessarily arbitrary, for there
is no definite rule or principle to apply to the scale. The rate,
reasonable at first, may ultimately become confiscatory. There is
nothing to check or stop the ascending scale. One act of injustice will
lead to another. The appetite will grow and produce fresh injustice. If
a tax of twenty-five per cent. on large fortunes now seems to some but
a moderate beginning, where will the tax stop, and who is to determine
what is or is not reasonable and beyond what point a legislative body
shall not go? A few advocates of progressive taxation have already
suggested fifty per cent. as a maximum applicable to the so-called
surplus of large fortunes, but others more radical and less responsible
may readily advocate a tax of one hundred per cent. upon the surplus
they regard as superfluous or unhealthful. There is, indeed, no limit
to the possible ascent in the scale of progression, and no power to
prevent abuse and oppression on the part of temporary and irresponsible
majorities. The rich would then be completely at the mercy of mere
numbers.

During the French Revolution, the experiment was tried under the name
of compulsory loans. These loans finally absorbed fifty per cent. of
such incomes as the majority of the legislative assembly saw fit to
consider as _abondants_, and one hundred per cent. of all incomes which
they thought were _superflus_.

The late W.E.H. Lecky, one of the most eminent historians of our day,
wrote as follows of progressive taxation in his work on "Democracy and
Liberty": "When the principle of taxing all fortunes on the same rate
of computation is abandoned, no definite rule or principle remains. At
what point the higher scale is to begin, or to what degree it is to be
raised, depends wholly on the policy of governments and the balance
of parties. The ascending scale may at first be very moderate, but it
may at any time, when fresh taxes are required, be made more severe,
till it reaches or approaches the point of confiscation. No fixed line
or amount of graduation can be maintained upon principle, or with any
chance of finality. The whole matter will depend upon the interests
and wishes of the electors; upon party politicians seeking for a cry
and competing for the votes of very poor and very ignorant men. Under
such a system all large properties may easily be made unsafe, and
an insecurity may arise which will be fatal to all great financial
undertakings. The most serious restraint on parliamentary extravagance
will, at the same time, be taken away, and majorities will be invested
with the easiest and most powerful instrument of oppression. Highly
graduated taxation realizes most completely the supreme danger of
democracy, creating a state of things in which one class imposes on
another burdens which it is not asked to share, and impels the state
into vast schemes of extravagance, under the belief that the whole cost
will be thrown upon others."

In McCulloch on "Taxation," for fifty years the standard treatise in
England on the subject, the following language is used: "It is argued
that, in order fairly to proportion the tax to the ability of the
contributors, such a graduated scale of duty should be adopted as
should press lightly on the smaller class of properties and incomes,
and increase according as they become larger and more able to bear
taxation. We take leave, however, to protest against this proposal,
which is not more seductive than it is unjust and dangerous.... If it
either pass entirely over some classes, or press on some less heavily
than on others, it is unjustly imposed. Government, in such a case, has
plainly stepped out of its proper province, and has assessed the tax,
not for the legitimate purpose of appropriating a certain proportion
of the revenues of its subjects to the public exigencies, but that it
might at the same time regulate the incomes of the contributors; that
is, that it might depress one class and elevate another. The toleration
of such a principle would necessarily lead to every species of abuse."

The well-known French political economist and scientist Leroy-Beaulieu
in his works, _Traité d'Economie Politique_ and _Science des Finances_,
discusses at length the whole subject of graduated or progressive
taxation, and condemns it as vicious in theory and unwise and unjust in
practice. Among other things he says: "Progressive taxation constitutes
actual spoliation. It violates, besides, the rule, established by all
civilization, that taxation ought to be imposed with the full consent
of the taxpayer; for, it is quite clear, that in this case, it is
the mass of the voters who relieve themselves of the heavy weight of
the tax and cast it upon the few, and these few do not consent, even
tacitly, to the excess with which the government wishes to burden
them. When the rate of the tax is equal for all, we can consider that
the vote for the tax by the legislature carries with it the implied
acquiescence of all the assessable; otherwise not.... Every system of
progressive taxation, however attenuated, is iniquitous and dangerous."

And the same conclusions have been reached by a number of other
distinguished French scholars and statesmen, among whom may be cited
Thiers, Beauregard and Stourm.

The right of the states to levy progressive and unequal taxes on
inheritances and testamentary dispositions is frequently sought
to be upheld upon the theory that the power of our legislatures
over successions to the property of decedents is unlimited, that
the right to succeed is a mere statutory privilege, and that our
lawmakers may arbitrarily grant or withhold that privilege at their
will and discretion. It is, however, far from established that
any such arbitrary and unrestrained power is vested in our state
legislatures as that of denying wholly the right of inheritance or
of testamentary disposition, or of discriminating in the regulation
or grant of the privilege. The power to regulate the exercise of any
right does not necessarily imply the power to deny it altogether.
All rights of property as well as of personal liberty are subject to
reasonable regulation, but this does not involve the power absolutely
or arbitrarily to destroy such rights. The right of inheritance by
children was not originally the creation of statute law at all,
although the contrary is often assumed. It was a customary right long
before the Conquest and prior to any statute of which we have record.
It is treated by legal historians as "our common law of inheritance."
In the latest authoritative history of the English law, that by Pollock
and Maitland, the authors say that "in calling to our aid a law of
intestate succession, we are not invoking a modern force," and that
"the time when no such law existed is in strictest sense a prehistoric
time." We find that it was a right already established in every one of
the thirteen original states at the time the national government was
founded; that it has always existed in civilized countries, so far as
we have any knowledge; that it was recognized in the Twelve Tables as
a right among the Romans; that it was a right long before among the
Egyptians, and that it pervades the Mosaic law. A distinguished writer
declares it to be the general direction of Providence itself. And
Chancellor Kent said that "nature and policy have equally concurred to
introduce and maintain this primary rule of inheritance in the laws and
usage of all civilized nations."

The power of testamentary disposition undoubtedly developed
as a limitation upon the right of inheritance and in order to
prevent escheat for want of heirs. But however originating or
evidenced--whether in old customs or in the practice of _post-obit_
gifts--the right has been recognized from time immemorial. As
Blackstone said in his "Commentaries," "in England this power of
bequeathing is coeval with the first rudiments of the law, for we have
no traces or memorials of any time when it did not exist."

Whatever may be the general language to be found in some judicial
decisions, and whatever may be the extreme power of our state
legislatures in the abstract, it is hardly conceivable that any state
would attempt to escheat or confiscate all the property of decedents to
the exclusion of children and near relatives, or that it would wholly
deny the right of testamentary disposition. At any rate, if escheat or
confiscation were ever decreed, it would have to be by laws applying
equally to all decedents, and not merely to a selected class. The
guaranties of the fourteenth amendment would prevent any discrimination.

But, however unlimited the power of the states may be in this regard,
there can certainly be no doubt that it was not the intention of
the framers of the Constitution of the United States to delegate to
Congress the power to regulate successions to the estates of decedents
or the privilege of testamentary disposition or inheritance. No one has
yet seriously claimed that any such authority is within the legitimate
sphere of the national government as contemplated by its founders.
The power of regulating successions to the property of decedents was
reserved to the states, and the courts would undoubtedly hold that any
direct attempt on the part of Congress to regulate successions as such,
or the ownership or transfer of property, was in excess of its powers.
In dealing with successions, therefore, Congress can only exercise the
power of taxation.

Yet it is urged that, as Congress has the power to tax successions, it
may under the guise of exercising that power regulate inheritances and
thereby break up large fortunes and force a redistribution of wealth.
In other words, the argument is that Congress may, under the cover or
pretense of a tax law, accomplish indirectly an object which, for want
of power, it could not accomplish directly, although the accomplishment
of this object would constitute a deliberate encroachment upon the
reserved rights of the states.

There is great danger in this view, and it opens the door to abuse by
Congress of the power of taxation. If a federal statute purports on
its face to be a tax measure, and in fact to some extent operates to
that end, the courts cannot ordinarily set it aside, even though the
motive for its enactment be to accomplish an object not entrusted to
the national government. The jurisdiction of the courts is limited.
Legislation which seeks to effect illegitimate ends cannot always
be nullified. The power of Congress to levy a graduated inheritance
tax as a revenue measure would be practically unlimited unless,
in the particular instance, the law were so extravagant, and its
unconstitutional object so plain, as to establish beyond doubt an
unauthorized purpose. It is not within the province of the judicial
power to determine whether a given tax which raises revenue is
reasonable or unreasonable, or to inquire into the motives of Congress
in enacting the law. The courts might not, therefore, be able to set
aside an inheritance tax law passed by Congress even if it absorbed
fifty per cent. or more of successions, although it might be quite
apparent that the real object of the law was to invade the province
of the states and to regulate inheritances in clear violation of the
spirit of the Constitution.

Nothing could be better calculated ultimately to undermine our whole
system of constitutional government than the idea that the courts alone
are the guardians of the Constitution and that Congress may rightfully
enact any statute which the courts cannot properly nullify. The truth
is that the duty of preserving and defending the Constitution in all
its integrity is vested in Congress and the President far more than in
the courts, and that if Congress and the President do not observe the
restraints and limitations imposed by the Constitution, Congress may
pass many statutes which are unconstitutional in substance but which
the courts cannot set aside. It is often urged that all questions of
constitutionality should be left to the courts and not be passed upon
by Congress or the President. The true doctrine, however, is that
Congress should not enact and the President should not approve any
statute which they, as the agents and representatives of the people,
are not satisfied seeks to accomplish a legitimate end within the scope
of some power delegated to Congress and not reserved to the states or
to the people. They should first determine, as their oath of office
requires, whether, according to their best judgment, the act is or is
not constitutional. It was the distinct intention of the framers of
the Constitution, and they so provided in express words, that every
member of Congress, every senator and every representative, should be
bound by oath or affirmation to support the Constitution, and that the
President, especially, should be charged with the duty of preserving,
protecting and defending it to the best of his ability. This duty
extends not only to the letter but to the spirit of the Constitution.
It will be a lamentable exhibition of a lack of what may well be
termed constitutional morality if, in the debates on the pending
measures, we shall again hear the suggestion that objects concededly
outside the scope of any power delegated to the national government
may nevertheless be accomplished indirectly by means of a federal
inheritance tax, in violation of the reserved rights of the state
governments.

If, in framing an inheritance tax law, Congress will bear in mind
that the regulation of successions to the property of decedents is a
matter solely within the jurisdiction of the states and ought not to
be usurped by the federal government, the object of raising revenue
alone may lead to fair and reasonable taxes levied impartially upon
all who should be called upon to pay for the support and maintenance
of the common government whose protection they enjoy. It would then,
perhaps, be better appreciated that the states have important and
extensive governmental functions to perform; that they need inheritance
taxes for the support of their governments, schools, charities, police
and public improvements, and that any heavy federal succession taxes
would embarrass and cripple them. It is, of course, one thing to
resort to a federal inheritance tax as a temporary war measure, when
patriotism inspires ready acquiescence and willing sacrifice, and
quite a different thing to establish such a tax as a permanent method
of raising national revenue in times of peace and prosperity when the
effect may be to withdraw that source of revenue from the states.

The subject of federal income taxes remains to be considered. There is
no doubt that any state may levy income taxes. Nor is there any doubt
that, under the federal Constitution as it now stands, Congress may
levy an income tax provided it be apportioned according to population
as required in regard to all direct federal taxes. There is also no
doubt that Congress, by means of an excise tax, may reach income
derived from any business or profession, and that any such tax, being
essentially an excise tax on business, need not be apportioned but
need merely be uniform throughout the United States. For example, a
tax on the earnings of railroads and manufacturing businesses could be
levied without apportionment, and it would produce a large revenue. It
would also have the advantage of tapping income at the source. A tax by
Congress on lands and personal property as such would, no one disputes,
be a direct tax and subject to the rule of apportionment, and a tax on
the income of property is in substance and practical and legal effect
the equivalent of a tax on the property itself.

As Chief Justice Fuller said in the Income Tax cases: "The acceptance
of the rule of apportionment was one of the compromises which made the
adoption of the Constitution possible, and secured the creation of that
dual form of government, so elastic and so strong, which has thus far
survived in unabated vigor. If, by calling a tax indirect when it is
essentially direct, the rule of protection could be frittered away, one
of the great landmarks defining the boundary between the nation and the
states of which it is composed, would have disappeared, and with it one
of the bulwarks of private rights and private property."[61]

Nor is the rule of apportionment in itself unfair, even under the
conditions existing to-day. If a direct income tax were now levied and
duly apportioned among the states according to population as required
by the Constitution, the smaller states would pay comparatively
little and the more populous and richer states would have to bear
what would seem to be their full share of national taxation. New
York would then have to pay approximately ten per cent. of such a
tax, Pennsylvania eight per cent., Illinois six per cent., Ohio five
per cent., whilst Nevada would pay only one-twentieth of one per
cent. and Delaware one-quarter of one per cent., although these two
states have a representation in the Senate equal to that of New York
and Pennsylvania. Indeed, ten states would have to pay more than
one-half of any direct tax, leaving the balance to be divided among
the remaining thirty-six states according to their population. On the
other hand, if a graduated income tax such as is now proposed were
levied without regard to apportionment, and all incomes of $4,000 and
under were exempted, the effect would be to cast more than ninety per
cent. of the entire tax upon the inhabitants of less than one-third of
the states.

Nearly twelve years have passed since the decision of the Income Tax
cases, and there has been ample time to amend the Constitution if
the people had so desired. But, instead of submitting an amendment
such as was introduced in the House of Representatives last week, it
is suggested by some that an attempt should be made to disregard or
circumvent the Constitution as interpreted by the Supreme Court and to
speculate on the change of its personnel and the chance of different
views on the part of new incumbents. Surely, the simpler and wiser
course would be to ascertain the wishes of the people in the manner
provided by the Constitution. Assuming, as is so frequently asserted,
that the people generally want a federal income tax, ratification of an
amendment can be readily secured. The Congress, by a vote of two-thirds
of both houses, can at once propose the necessary amendment, which will
become effective when ratified by three-fourths of the states. The
ratification can probably be secured in less than six months if there
really exists any general sentiment in favor of such an amendment, for
more than three-fourths of the state legislatures meet this winter. If
deemed necessary, conventions could be called to meet within a few
months. In any event, the delay ought not to exceed fourteen months.

No student of our institutions can doubt that amendments to the
Constitution will soon be thought necessary, and that such amendments
will be submitted to the people. Our political system has not ceased
to grow. Conditions are constantly changing, and powers which were
adequate for the government of a federation of agricultural states may
become insufficient for the necessities of the national government of a
highly commercial and manufacturing people, with world-wide interests.
Mr. Root's eloquent speech last night before the Pennsylvania Society
has shown us how inevitably and irresistibly we are tending toward
centralization. But it is mischievous and dangerous for the people to
be taught that there is great or insurmountable difficulty in securing
amendments to the Constitution in order to supply its defects or to
meet changed conditions and that they must therefore accomplish their
wishes by indirect means or by perverting delegated powers. The future
contentment of the American people requires that they shall feel that
they may readily, and are at liberty to, amend their organic law
according to their mature judgment whenever they deem it necessary to
do so. All that can be asked is that they shall act deliberately in the
manner provided by the Constitution and under circumstances calculated
to afford time and opportunity for error to be exposed, for theorizing
and clamor and prejudice to exhaust themselves and "for the sober
second thought of every part of the country to be asserted." If, then,
it be determined to give to the national government the power to levy
income taxes without apportionment, or to control successions to the
estates of decedents, or any other power, the will of the sovereign
people will have to be obeyed. But let us hope that when amendments are
adopted they will be conservative and wise, that the reserved powers
of the states will not be heedlessly curtailed to the embarrassment of
the states, and that it will be appreciated that local self-government
is still essential to the perpetuation of our republican and federal
institutions.

FOOTNOTES:

[Footnote 59: Address delivered before the National Civic Federation at
its annual meeting held in New York, December 13, 1906.]

[Footnote 60: Constitutional Limitations, 7th ed., p. 705.]

[Footnote 61: 157 United States Reports, p. 583.]




THE DUTY OF CITIZENSHIP[62]


At the outset of our deliberations, Republican delegates, it may be
interesting to recall the circumstances of two prior national campaigns
in which political symptoms and dissensions were quite analogous to
those existing to-day. When the Republican state convention met in
1880, and again in 1896, the outlook for the success of the Republican
party had for a time been discouraging. In each of these campaigns
there were many who feared that the party had been disrupted and that
its usefulness might be coming to an end. In each campaign a wave
of false doctrine, sentimentality and prejudice threatened to drown
reason amid the prevailing excitement, clamor and declamation. But in
each courage and soberness came before November, and the common sense,
honesty, sanity and patriotism of the American people supported the
sound principles and policies of national and constitutional government
for which the Republican party stands.

During the first three months of the political campaign of 1880,
it seemed as though the Democratic candidate would be elected.
The nomination of General Hancock had been received with great
demonstrations of enthusiasm. He was personally attractive and
popular, and at the outset little attention was paid to the fact that
the platform of his party was radical and had declared in favor of
"a tariff for revenue only" with the consequent abandonment of the
protective system. The Republicans were not united; in some states they
were hopelessly divided. The defection was certain to be large. In many
Republican states the Greenback party, with its financial and social
heresies, had increased enormously in strength, and it had nominated a
national ticket. Maine had been carried in September by a combination
of Greenbackers and Democrats. In November the Republican party was
to lose New Jersey, California and Nevada, and, for the first time
since the Civil War, it would fail to receive any electoral votes from
the states south of Mason and Dixon's line. Yet Garfield was elected
by 214 electoral votes against 155 for Hancock. New York, which had
gone Democratic in 1876 with a plurality of 32,700, went Republican in
1880 with a plurality of 21,000. Thus we see that, although there was
then schism and dissension in the Republican ranks, and although the
party lost Maine in September and New Jersey, California and Nevada in
November, as well as every southern state, its candidates nevertheless
were elected.

A consideration of the circumstances of the campaign of 1896 will
prove even more instructive and encouraging. The Republican party was
then divided and threatened with ruin by defections. The leaders in
the national convention at St. Louis had courageously refused to bend
to the demands and threats of a numerous minority, who were urging a
radical platform and a radical candidate. A large number of Republicans
had bolted, and they were loudly proclaiming that they alone
represented the true and overwhelming sentiment of the party. According
to them all else was fraudulent, and all who did not agree with them
were accused of having been corrupted by the moneyed interests. It was
evident that this faction had set out to rule or ruin their party,
and, having failed to coerce it, were determined to overthrow it. They
organized a new party, which they called the National Silver party;
they assembled in convention at St. Louis amid excitement and posing
and virtuous homilies about reformation and social uplift quite similar
to those which we have heard during the past summer; they prophesied
the death of the Republican party for its alleged betrayal of the
people, and they proceeded to endorse the candidacy and views of Mr.
Bryan. The Populist party, likewise largely composed of dissatisfied
and discontented Republicans, held its national convention at St.
Louis, went through similar political performances and emotional
displays, and endorsed the Democratic candidate.

It would be difficult to exaggerate the enthusiasm in 1896 for Mr.
Bryan. I comment upon it now in order that comparisons may be made and
the lesson appreciated. Wherever he moved, immense and excited throngs
pressed about him and wildly cheered his utterances. Much of the
character of the present campaign was then in evidence. Bryan preached
a social reformation and a crusade against established institutions,
constitutional government and the supremacy of the law. He played
upon envy, discontent and cupidity. He attracted to his standard the
remnants of Coxey's "army," which two years before had marched to
Washington, calling itself the "Army of the Commonweal of Christ." In
our country such movements frequently mask in the robes of religion.
Bryan denounced the President then in office. He assailed our judicial
system, including the Supreme Court of the United States. He posed as
a knight-errant and crusader who sought to uplift the poor and redress
the wrongs of the nation. He repeated all the exploded claptrap of
demagogues. And his eloquence, together with his apparent sincerity,
made him a most dangerous candidate, far more dangerous than are our
opponents of to-day.

The combination of Democrats and former Republicans in 1896 was more
formidable than if their vote had been divided and the discontented
Republicans, Populists and Silverites had nominated a separate ticket.
It would have been easier to defeat a divided enemy. Plurality and not
majority in each state determines the choice of presidential electors,
although a majority of the electors is necessary to elect a President.
The situation was very critical because the times were hard, many good
reasons for discontent existed, thousands of workmen in every state
were unemployed, and agitators and demagogues found ready response to
their appeals in the hearts of men who were suffering from hunger.

Yet, even under such conditions, the defense of constitutional
government and established institutions was safe in the hands of the
thoughtful, sober and patriotic people of the country. A complete
revulsion of public feeling took place before November. The Democratic
party, which four years before had carried the nation with a plurality
of 381,000 and the state of New York with a plurality of 45,500, was
defeated by the Republican candidate with a plurality of nearly 604,000
in the nation and over 268,000 in the state. McKinley received 271
electoral votes against 176 for Bryan. That great success was secured
in the face of the fact that ten western states which are normally
Republican went Democratic; in other words, the Republican candidates
were triumphantly elected in 1896 although Colorado, Kansas, Idaho,
Montana, Nebraska, Nevada, South Dakota, Utah, Washington and Wyoming
all cast their electoral votes for Mr. Bryan.

The task of the Republican party in these prior campaigns was to bring
home to the people the vital importance to them of the issues of
those campaigns. Similarly our task in this campaign is to convince
the voters of the country that they are again called upon to preserve
the industrial system upon which the wages, income and property of
millions of American citizens are based, as well as to defend the
constitutional representative government under which for more than a
century we have maintained political, religious and individual liberty
and have prospered beyond all nations.

At the beginning of this campaign and until recently many Republicans
were disheartened. The menace to our institutions and future in the
possible success of the Progressive party and the re-election of
ex-President Roosevelt seemed as portentous as was the menace of
Bryanism in 1896, in 1900 and in 1908. To some, therefore, it seemed
at first as if it might be their patriotic duty to vote the Democratic
ticket. Patriotism is ever more than party. But these Republicans now
realize the folly of that course and the certainty that the Republican
party will maintain its solidarity. We see clearly that the candidacy
of Mr. Roosevelt is doomed to defeat, and that only a desire to work
injury to the Republican party continues the campaign of the so-called
Progressives.

I have examined the published record as to contested seats in the
national convention of the Republican party at Chicago, and I have
endeavored to ascertain all of the facts. I believe that I have done
so. In my judgment no fair-minded person who will take the trouble to
read the evidence, who will look impartially at the facts and candidly
seek to discover the truth, can doubt the fairness of the procedure
or the correctness of the decisions. Most of the contests were wholly
unjustifiable, if not fraudulent, and had to be abandoned. Indeed,
it was shamelessly boasted by a well-known newspaper that the great
majority of the contests had been gotten up in order to create a
psychological effect, which, I take it, among plain people would mean
the deliberate creation of a false impression. I will read you the
language of one of the exemplars of the class of reformers who are too
virtuous to remain in the Republican party and who profess to teach
the people of this country political morality. The "Washington Times"
contains the following in its issue of June 9, 1912: "For psychological
effect as a move in practical politics it was necessary for the
Roosevelt people to start contests on these early Taft selections in
order that a tabulation of delegate strength could be put out that
would show Roosevelt holding a good hand. In the game a table showing
Taft 150, Roosevelt 19, contested 1, would not be very much calculated
to inspire confidence, whereas, one showing Taft 23, Roosevelt 19,
contested 127, looked very different. That is the whole story of the
large number of southern contests that were started early in the game.
It was never expected that they would be taken very seriously. They
served a useful purpose, and now the national committee is deciding
them in favor of Taft in most cases without real division."

Of the 238 contests finally filed on behalf of ex-President Roosevelt,
164 were abandoned. The contests which were not abandoned were decided
on their merits. After studying the facts, I am convinced that the
Taft delegates were legally and morally entitled to their seats.
Unfortunately, the record is voluminous, and few will take the time or
trouble to read the evidence. The cry of fraud is misleading many. But
surely when such men as Senator Root and the presidents of Columbia
and Cornell universities declare their conviction of the integrity of
the procedure and of the decisions, we may well rest satisfied. In
his speech notifying President Taft of his renomination, Senator Root
said that neither in the facts nor in the arguments produced before
the national committee, the committee on credentials, the convention
itself, or otherwise, did there appear to be any just ground for
impeaching the honesty and good faith of the decisions of the national
committee. He further declared to President Taft that his title to
the nomination was "as clear and unimpeachable as the title of any
candidate of any party since political conventions began." Senator
Root's high character, his great services to the nation and to the
party, and his lofty sense of personal honor and responsibility,
entitle him to have his word and his opinion under such circumstances
unqualifiedly accepted by the people of the state of New York.

The preference of the majority of the national convention being
clearly for President Taft, should this majority nevertheless have
cast him aside and nominated Mr. Roosevelt because of threats of
disruption of the party similar to those of 1896, or because in a few
states ex-President Roosevelt had secured a larger primary vote than
President Taft in hasty contests in which misrepresentation undoubtedly
had led many astray? What course did patriotism dictate to the majority
of the delegates? Ought they to have surrendered, and, because of
clamor and threats of disruption of the party, put aside their own
preferences and instructions for President Taft and nominated Mr.
Roosevelt? There were reasons why this course would have been an act of
folly as well as of injustice.

In the first place, the nomination of an ex-President of the United
States for a third term would have been in violation of an unwritten
rule established by Washington, Jefferson, Madison and Monroe, and
followed ever since. The Republican party which, as a matter of sound
principle and political ethics, had refused in 1880 to nominate
ex-President Grant for a third term, notwithstanding his transcendent
claims to the gratitude of the nation, could not stultify itself in
1912 by nominating ex-President Roosevelt for a third term.

The wisdom of maintaining this unwritten rule should be evident. The
common sense of thoughtful, candid and patriotic men must convince them
that nothing could be more dangerous than to permit any individual,
however popular or eloquent, to wield the power of the presidential
office for more than two terms. The New York convention of 1788, which
ratified the Constitution of the United States, proposed an amendment
to the effect "that no person shall be eligible to the office of
President of the United States a third time," and this undoubtedly has
ever since been the sentiment of the people of this state, although it
was defied in 1880 when an attempt was made to force the nomination of
ex-President Grant for a third term, notwithstanding the fact that only
five years before the Republican state convention had declared in its
platform "our unalterable opposition to the election of any president
for a third term."

There is not time to discuss the genesis or wisdom of this unwritten
rule of political policy, which had never been violated by any
political party until the nomination of ex-President Roosevelt by the
Progressives. It is now pretended that there never was any such rule or
principle of political policy and that Washington and Jefferson were
governed solely by considerations of their own personal convenience.
Three quotations from Jefferson's writings ought to be sufficient to
explode this pretense. I take Jefferson because he is now one of the
patron saints of the Progressive as well as of the Democratic party.

In January, 1805, shortly after his re-election, Jefferson declared as
follows: "General Washington set the example of voluntary retirement
after eight years. I shall follow it. And a few more precedents will
oppose the obstacle of habit to any one after awhile who shall endeavor
to extend his term. Perhaps it may beget a disposition to establish
it by an amendment of the Constitution. I believe I am doing right,
therefore, in pursuing my principle." Again in 1807 he wrote to the
legislature of Vermont: "I should unwillingly be the person who,
disregarding the sound precedent set by an illustrious predecessor,
should furnish the first example of prolongation beyond the second
term of office." And fourteen years afterwards, in 1821, he published
his "Autobiography," in which he said: "The example of four Presidents
voluntarily retiring at the end of their eighth year, and the progress
of public opinion that the principle is salutary, have given it in
practice the force of precedent and usage; insomuch, that, should a
President consent to be a candidate for a third election, I trust he
would be rejected on this demonstration of ambitious views."

But aside from all principle and precedent, the promises deliberately
made by ex-President Roosevelt to the people of the United States
rendered his candidacy impossible without what seems to many a breach
of faith. The facts speak for themselves.

On the 8th of November, 1904, President Roosevelt expressed to the
people of the United States gratitude for his election, and appealed
to them for their support and confidence during his second term,
undoubtedly having in mind President McKinley's example in 1901, when
he had declared that he would not accept a nomination for a third term
if it were tendered him, and had pointed out that there were "questions
of the greatest importance before the administration and the country,
and their just consideration should not be prejudiced in the public
mind by even the suspicion of the thought of a third term." President
Roosevelt's language in 1904 was as follows: "On the 4th of March
next I shall have served three and one-half years, and this three and
one-half years constitutes my first term. The wise custom which limits
the President to two terms regards the substance and not the form.
Under no circumstances will I be a candidate for or accept another
nomination." In December, 1907, he reiterated this declaration, and
added the following words: "I have not changed and shall not change
the decision thus announced." Yet on February 24, 1912, he gave to the
press a letter in which he said: "I will accept the nomination for
President if it is tendered to me, and I will adhere to this decision
until the convention has expressed its preference."

The statesman who had thus pledged his word could not break his promise
to the people without sacrificing the good opinion of many citizens.
And if the Republican national convention had joined ex-President
Roosevelt in a repudiation of these solemn promises, it would have
alienated a large body of voters who still hold in reverence the names
and examples of Washington, Jefferson, Madison and Monroe, and who
still believe in political consistency and morality, and it would have
put the party on the defensive throughout the campaign upon an issue
of plain and simple morals. The Republican party, moreover, could not
afford--in fact it would have been hopeless--to ask for the continued
support of the country on any such terms.

Another reason why the majority in the Chicago convention should not
have cast aside President Taft and nominated ex-President Roosevelt
was because to have done so would have been an act of political
treachery, ingratitude and dishonor. President Taft had earned and
deserved renomination for great and faithful service to the nation and
to the party. The custom generally followed had been to renominate
a President who had served well and capably. The Republicans of New
York had unanimously proclaimed in their platform of 1910, when
ex-President Roosevelt himself controlled the state convention and
dictated its policy: "We enthusiastically indorse the progressive
and statesmanlike leadership of William Howard Taft, and declare our
pride in the achievements of his first eighteen months as President of
the United States. Each succeeding month since his inauguration has
confirmed the nation in its high esteem of his greatness of character,
intellectual ability, sturdy common sense, extraordinary patience and
perseverance, broad and statesmanlike comprehension of public questions
and unfaltering and unswerving adherence to duty." And nothing had
occurred during the months intervening between this state convention
and the national convention to shake that high and just estimate of
the character and ability of President Taft. He had consented to
run when he believed he could rely on the loyalty of Mr. Roosevelt
as his friend, and subsequent withdrawal would have been a personal
humiliation.

In practical achievements, President Taft's administration had been
notably successful and efficient, although not spectacular. It may
be asserted with confidence that the laws enacted by Congress never
had been administered more effectively, honestly and impartially
than under President Taft. Without turmoil or agitation, and without
threatening Congress, he had accomplished more in three and one-third
years than his immediate predecessor in seven and one-half years. He
had shown a consistent policy of real progressiveness and constructive
statesmanship. In every branch of government he had confirmed President
Roosevelt's panegyric of 1908, when he urged the American people to
elect Mr. Taft because of his pre-eminent qualifications for the office
of President of the United States.

It may be true that after eighteen years of unselfish devotion and
conspicuously efficient and faithful service to the American public,
as solicitor general, United States circuit judge, governor of the
Philippines, secretary of war and President of the United States,
Mr. Taft had failed to secure popularity with the thoughtless, the
discontented and the revolutionary, and with that part of the press
that lives on sensationalism and muck-raking. But such popularity
should hardly be the test of qualification for the great office of
President of the United States. We know that Lincoln was so unpopular
with the unthinking and impatient in 1864 that he despaired of
re-election and that he expected defeat at the polls unless the army
could save the day and change public opinion by some striking successes.

Popularity with the unreasoning and discontented was easily within the
reach of President Taft had he sought it. In view of the prestige of
his high office and the reverence it commands, he had only to practice
the well-known arts of the demagogue by which crowds are stirred and
led astray--as well known to him as to all who read history. He had
only to issue from time to time high-sounding declarations about his
staunch patriotism, his own virtue, his uncompromising veracity, his
self-sacrificing loyalty to duty, the infallibility of his judgment,
the purity of his motives, and the corruption and mendacity of his
adversaries. He had only to rail at corporations, at the builders of
the industries of the country and at bankers and capitalists, in order
to secure the applause of envy and discontent. He had only to inveigh
against predatory wealth to become at once the idol of predatory
poverty. But his self-respect would not allow him to stoop so low and
to pander to what is weakest, if not basest, in human nature, and his
sense of duty would not permit him thus to degrade the great office of
President of the United States.

The ingratitude of republics is proverbial; yet surely it would have
been an unparalleled act of ingratitude for President Taft's own party
to refuse him the renomination he had earned and deserved. The lesson
that the repudiation of President Taft by his own party would have
taught the country and future generations would have been demoralizing.
It would have constituted a warning to all our present and future
public officers that with us Americans conspicuously efficient and
faithful public service goes for naught, and that Republican public
officers, from the President of the United States down to the lowest,
must not expect to be judged by their acts, ability and character, but
as they have succeeded in cultivating the applause of the unthinking.

The great issues before the people in the present critical campaign,
however, are far more important than the personal qualifications,
claims, or merits of the candidates. These issues are: (1) the
constitutional right and power of Congress to protect American
industries and to preserve our present industrial system; (2) the
threatened overthrow of the representative system of government in
state and nation by the introduction of the initiative, the referendum
and the recall, and (3) the assault upon the administration of justice
in American courts.

Upon the tariff question, there is an irreconcilable difference between
the principles of the Republican party and those of the Democratic
party. The one insists that it is the legitimate duty and function of
Congress in levying taxes to protect American industries and wages,
whilst the other insists that Congress has neither the right nor the
power under the federal Constitution to do so. I shall assume that
political platforms, although they may not be binding programmes,
certainly are intended to embody a declaration of the political faith
and principles in which the respective candidates believe and which
they intend to represent. If this be not so, then why are platforms
adopted?

The platform of the Republican party unqualifiedly pledges the party
and its candidates to a protective tariff with duties so adjusted
as adequately to protect American industries and wages. It concedes
that readjustments must be made and that excessive rates should be
reduced, but it insists that, in order to do so intelligently and
fairly, correct information is indispensable. It favors securing
this information by an expert commission and a non-partisan tariff
board. It seeks the withdrawal of the tariff from politics in order
that each industry may be dealt with on its merits by non-partisan
commissions. It indicts the Democratic party for its refusal to
provide funds for the continuance of such a tariff board and for the
reckless and sectional tariff bills passed by the Democratic House
of Representatives which wholly disregard the protection of American
interests.

Senator Root declared at the national convention that the Democratic
party did not want to ascertain the facts upon which a just protective
measure could be framed, but intended that there should be no
protection for American industries, and he further declared that the
Democratic House of Representatives had framed and passed a series
of tariff bills for revenue only with complete indifference to the
absolute destruction that their enactment would bring upon great
American industries. He asserted that "the American people have now
to pass, not upon the abuses of the tariff, but on the fundamental
question between the two systems of tariff-making."

This challenge the Democratic party met and answered in the first
and cardinal plank adopted by its national convention at Baltimore,
which pledged the party and its candidates to the ultimate attainment
of the principles of free trade, because of the absence of power
in the Congress of the United States to protect American labor and
American industries. The plank reads as follows: "We declare it to
be a fundamental principle of the Democratic party that the federal
government, under the Constitution, has no right or power to impose or
collect tariff duties except for the purpose of revenue." And there can
be no doubt that this declaration was assumed not only to represent the
present free-trade policy of the Democratic party but to be in full
accord with Governor Wilson's personal views as an out-and-out free
trader.

The people of the United States are, therefore, now asked by the
Democratic party to vote in favor of the proposition that, no matter
what foreign competition there may be, even from Asiatics, the American
national government has neither the _right_ nor the _power_ to protect
a single industry or a single workman. Such a proposition may well
amaze and delight foreign countries, and no wonder they all desire the
success of the Democratic party. Every other national government not
only has the power to protect its industries, but has again and again
exercised that power whenever the interests of its people demanded
protection. The power in one form or another is being exercised to-day
against American products by almost every government in the world,
including the colonies of England, as witness Canada. The power would
be exercised by England again to-morrow if it should appear to be for
her interest to do so. Yet, no matter that our factories may be closed
and our wage-earners thrown out of work as in 1894, 1895 and 1896,
no matter how easily Europe and Asia could make our country their
dumping-ground and could make a prey of our necessities after closing
our workshops and destroying our industries, no matter how beneficial
to all classes it may be to have a diversity of industries--the
Democratic party, nevertheless, proclaims that our national government
is powerless, and that there is neither the _right_ nor the _power_ to
enact a tariff except for revenue.

We Republicans firmly believe that if there be one feature or element
of right and power within the spirit and scope of the Constitution of
the United States, and clearly vested in Congress, it is the right
and power to impose duties for the purpose of protecting American
industries and American labor. The very first tariff act, approved
July 4, 1789, one hundred and twenty-three years ago, declared that
one of its purposes, one of its objects, one of its inducing motives,
was "the encouragement and protection of manufactures." Washington
approved and signed that bill. Presidents Washington, Jefferson,
Madison and Monroe--all of them of the generation that framed the
federal Constitution--recognized the existence of the power to protect
and recommended the protection of American industries. But the American
people are now asked in 1912 to vote for a party and a platform which
repudiate both the _right_ and the _power_ of Congress to protect
American workmen, farmers and manufacturers.

It is impossible in this outline of issues adequately to discuss
the principles and policy of a protective tariff. The details of
that important and vital subject must be taken up and analyzed at
other times. Generalizations would be of little value. The facts are
readily at hand, and they demonstrate that the material welfare of the
country and of nearly every class and section has been promoted by the
protective policy, and it will continue to be so promoted. Although we
may now be willing to face free competition with Europeans, we cannot
be blind to the menace and danger of free competition with Asiatics.
Just across the Pacific ocean, with constantly cheapening freight and
passenger rates, are populations of 50,000,000 in Japan, 450,000,000 in
China, 300,000,000 in India--800,000,000--who will furnish efficient
labor at wages ranging from 10 to 30 cents a day for twelve hours' work
on the same kind of machines at which American men and women are now
working. Shall we open the flood-gates? Shall we elect as President
the historian who, but a few years ago in the quiet and impartial
atmosphere of his study, declared to the world his sympathy for needy
Asiatics and his opinion that "the Chinese were more to be desired,
as workmen if not as citizens, than most of the coarse crew that came
crowding in every year at the eastern ports"?

This generation has had one bitter experience of Democratic tariff
legislation. In 1892, the Democratic party was, for the first time in
thirty-two years, placed in control of both houses of Congress and the
presidency. It came into office committed to free trade, as it would
now again come into office pledged to free trade. It passed the Wilson
bill in August, 1894, and thereby took its first step towards the
abandonment of the policy of protection for American industries. There
followed, principally as the direct result of this Democratic tariff
legislation and the antecedent menace, an acute period of industrial
and financial depression. I had supposed that the fateful years 1894,
1895 and 1896 would never be forgotten by those who suffered through
them. As Governor Wilson himself well said in his "History of the
American People," in describing this period of misery: "Men of the
poorer sort were idle everywhere, and filled with a sort of despair.
All the large cities and manufacturing towns teemed with unemployed
workingmen who were with the utmost difficulty kept from starvation
by the systematic efforts of organized charity." This was also a time
of unprecedented social unrest and discontent and of Coxey's ragged
"Army of the Commonweal of Christ" crying for food and work. It was a
period of misery and depression, of popular discontent and disturbance,
of strikes, riots, destruction of property, murder and maiming in
industrial disputes. No one could deny, as the historian pointed out,
that the country had fallen upon evil times and that American workmen
found it harder than ever to live.

We have only to recall to the people's minds the conditions of
unemployment, poverty and misery which followed the last tariff
legislation of the Democratic party, and compare conditions as
they exist to-day. The people of this country will make a terrible
mistake and a frightful blunder if they now vote to run the risk of a
repetition of those days under the delusion that the currency system of
the government was the cause of the business depression and misery that
followed immediately upon the election of Cleveland in 1892 and the
passage of the Wilson tariff law in 1894.

Many are now telling the people that the tariff is solely responsible
for the high cost of living and for the prevalence of social unrest
and discontent. Such phenomena are world-wide and exist abroad as
much as, if not more than, they exist here. In England, which has
no protective tariff, the complaint against the high cost of living
has been even louder than here. The real causes of the increase in
the cost of living with us undoubtedly are: (1) enormous increase in
the world's supply of gold, necessarily diminishing the purchasing
value of the dollar, for the world's gold production, which from
1850 to 1890 averaged $120,000,000 per annum and was $130,650,000 in
1891, increased to fully $461,000,000 in 1911, (2) rapid increase of
population without a corresponding increase of the production of food
and other necessaries of life, (3) flocking to the city and abandoning
the farm, (4) appreciation in land values, (5) increase in the price
of raw materials, (6) higher rates of wages and decrease in the number
of hours of work, (7) better standards of living, (8) exhaustion of
some sources of supply, (9) extravagance in public expenditures, and
(10) withdrawal of armies of civil servants from productive industry.
These are the principal and controlling causes that tend to the higher
cost of living; they are world-wide, and, if explained, they will be
easily understood and recognized by intelligent and candid business
men and workmen, who will at once perceive that these causes will not
be removed in any degree by free-trade legislation. Last year serious
disturbances occurred in Europe as a result of the prevailing high cost
of food supplies there, and the British board of trade is now making an
investigation into the cost of living, not only in England but also in
Germany, France and Belgium. In fact, an international commission is at
this moment inquiring into these causes. How preposterous it would be
to say that the American protective tariff was the cause of the high
cost of living in free-trade England or elsewhere in Europe!

Nor is the protective tariff in any sense responsible for the spirit of
social unrest and discontent except, perhaps, in so far as prosperity
begets discontent and multiplies appetites. Throughout the civilized
world in recent years there has developed a spirit of social unrest and
discontent, of disregard of law, and of disrespect for moral principles
and religious beliefs. To those who look below the surface, it is more
and more evident that this world-wide symptom is due, in greatest
measure, to the spread of Socialism. According to the teachings of
the Socialists, avowed or unavowed (for many who are preaching its
doctrines would resent being called Socialists), our entire social
system and the system of laws under which we live are unjust and should
be upset, property rights should be destroyed, and religious beliefs,
which are the principal source of our respect for law and order and the
rights of property, should be broken down. As an American student and
writer has said, a single passage from Liebknecht stands fairly for
opinions that may be quoted from twenty authoritative socialist sources
in Europe. That passage is as follows: "It is our duty as Socialists
to root out the faith in God with all our zeal, nor is any one worthy
the name who does not consecrate himself to the spread of atheism." I
believe that few American Socialists have gone to any such extreme,
but such has certainly been the tendency and teaching of Socialism in
Europe.

Unfortunately the atmosphere of the present campaign is calculated
to obscure and hide the true issues in controversy and the real
danger that lurks under so much noise, declamation and enthusiasm.
An avowed assault and an open declaration of war on society, on our
form of government, or on our courts of justice would bring the points
so clearly before the American people that none of us could for a
moment doubt the outcome. We Republicans would hail and welcome an
open attack, because we know that the people would then quickly and
overwhelmingly rally to the support of our party. The more openly
constitutional government and our social system are attacked, the more
strongly will they become cemented in the affection and reverence of
the people.

Most of our political and social institutions which are now being
assailed as antiquated are founded on truths which ought ever to be
self-evident. These truths sound trite, but "trite truths are often the
most valuable truths, though sometimes divested of force by their very
triteness." We are constantly hearing talk about the principles of the
Constitution being antiquated in the eyes of these modern iconoclasts,
and the other day a leader of the Progressives in this state, who is
himself a lawyer, referring to the Progressive judicial nominations
boasted that they had selected men who did not believe in a "dead
constitution." Yet these candidates are ready to accept a judicial
office which they could not rightly fill for a minute without taking
an oath to support the Constitution in which they do not believe.

When a truth, be it political, moral, or religious, is once discovered
and established, it is eternal; it loses none of its vitality because
it has grown old; it never dies. If some religious Progressive--and our
political Progressives affect much of the religiously emotional--should
now preach a new religion and proclaim that existing religions and
their restraints should be cast aside simply because they are old,
the dullest man would readily see the utter fallacy and wickedness
of such an argument. Imagine any one seriously arguing that the Ten
Commandments are worthless and dead as rules of human conduct and
self-restraint because they are four thousand years old and were first
enunciated in an age not so rapid as our own--in an age when there
were no printing presses, no steam engines, no electricity and no
talking machines! Yet, so long as our civilization endures, so long
as human intelligence lasts, so long as religion shall continue to
comfort and sustain and uplift men and women, so long will the Ten
Commandments be sound and true rules of conduct and the fundamental
basis of all religions. Likewise as to the great political documents
evidencing the progress of the human race upward towards liberty, like
Magna Carta, the Bill of Rights, the Declaration of Independence, the
Constitution of the United States: they embody and declare principles
of political justice and fundamental truths which are eternal; and
whilst majorities at times may ignorantly and recklessly disregard
them or cast them aside for temporary objects, they are as eternal and
imperishable as are the Ten Commandments.

Of the many revolutionary schemes in the Progressive platform, both
national and state, one of the most dangerous and far-reaching is the
proposal to destroy the representative character of our government
by substituting direct action by the people in place of action by
legislatures and officers elected by the people. This is to be
accomplished through the initiative and the referendum. The movement
is doubly important at the present time because, as is well known,
the Democratic candidate for the presidency, after teaching directly
the contrary for many years, has become a recent convert to these
ideas. Although such a scheme might be beneficial or harmless in the
little town meetings of New England, in small municipalities, or in
agricultural states having a homogeneous population less in number
than some of the counties of the state of New York, the initiative
and the referendum would be wholly unsuited to an empire such as ours
with a population of nearly 100,000,000, or to a state such as New
York with a population of nearly 10,000,000. Would it not be absurd
and preposterous to have the thousands of bills annually introduced
in Congress passed upon by the people at large, and would it not be
equally absurd and preposterous for a state like New York, passing
hundreds of bills every year, to give a small minority the right to
compel the submission of every statute to the vote of the people? Would
it not be little short of calamitous to have those least qualified to
understand and appreciate the changes they were making pass upon and
control legislation? The result would be chaos.

The great men who founded our system of constitutional government were
thoroughly familiar with the theory and operation of pure democracy
or direct action by the people, as distinguished from representative
government. They saw the past failures of pure democracy and the danger
of any such system, and they deliberately declined to adopt it. In
speaking of "the equal rights of man," Jefferson declared that "modern
times have the signal advantage, too, of having discovered the only
device by which these rights can be secured, to wit,--government by
the people, acting not in person, but by representatives chosen by
themselves."

The plain truth is that the trouble with our legislatures and with
Congress is the character of many of the men whom the people elect. The
remedy is in the hands of the voters. If they will elect capable and
honest men to legislative, executive and judicial office, we shall have
a cure at once. We need a remedy, not a poison.

Those who urge the introduction of the initiative, the referendum
and the recall base their argument on the ground that some of our
legislators and elective officers are incompetent or dishonest, and
that, therefore, the people should reserve the right to control
their actions and remove them. But if our legislators or other
elective officers are incompetent or dishonest--if they are not
truly representative of the people who elect them--then obviously
the fault lies with those who choose them, and the remedy is to
take such measures as will ensure the election of competent, honest
and representative men. If the people are now too busy to concern
themselves with the selection of honest and capable representatives,
is it reasonable to expect that they will concern themselves about the
merits of hundreds of statutes which they do not half understand, or
about the qualifications of the officers they have elected and would
recall? The fault is not with our representative system of government,
but either with the party organizations that often nominate incompetent
or dishonest men, or with the voters who tolerate such nominations
and elect such candidates. Our system of government, as every system
of free government, is based on the assumption that the people will
conscientiously exercise the elective franchise, and unless we can
depend upon an honest, sober-minded and patriotic majority to exercise
that franchise, our system of government must ultimately prove a
complete failure. The conscientious exercise of the elective franchise
is not merely a privilege--it is the highest duty of citizenship.
With the great increase in population, political parties and party
organizations undoubtedly have become a practical necessity, and
leadership is equally necessary; but it has also become indispensable
that these party organizations shall be conducted honestly so as to
represent truly the wishes of their party constituents. The urgent
duty of citizenship is to see to it that these party organizations are
conducted honestly and in a representative manner; but this is not to
be accomplished by disrupting or destroying the great parties. Instead
of pulling down the temple, we should drive out the money-changers.
Instead of killing we should cure. What we urgently need is legislation
providing for fair and honest party primaries and facilitating
independent candidacies, and then we should go farther and impose a
penalty or tax upon all qualified citizens who fail to cast a ballot at
the annual primaries and elections prescribed by law.

The initiative, the referendum and the recall would not cure present
evils, but would in fact only intensify and perpetuate them. The power
and control of unrepresentative and irresponsible party machines would
be largely increased instead of being curtailed. Better men would not
be nominated and elected, but quite the contrary; the self-seeker,
advertiser and manipulator alone would be nominated. The exercise of
the initiative, the referendum and the recall would be determined by
exactly the same people who now control our nominations and elections.
It is absurd to suppose that the very men who so often choose incapable
or dishonest representatives or neglect to vote at all would exercise
greater efficiency in supervising legislation, in recalling public
officers and judges, or in setting aside judicial decisions.

Equally absurd is the idea of legislation by popular vote. The
importance of framing laws and constitutional amendments in clear and
exact language and the impracticability of doing so without careful
consideration and discussion and comparison with existing provisions,
as in legislative committees, must be recognized by all thinking men.
Our system of laws is becoming more and more complex every year, and
unavoidably so. The people at large cannot be expected to know and
understand a great and extremely complex system of laws, and it is
no reflection on them to say that they cannot grasp the details of
legislation any more than it would be to say that there are few men
in the community competent to administer as judges the unavoidably
intricate system of laws under which we live.

We have only to look at recent experience in the state of New York
in regard to the adoption of constitutional amendments, the most
important function that can be exercised by a voter, to appreciate the
folly of the proposed remedies. The total vote for and against these
amendments has frequently been less than one-half--and at times barely
one-quarter--of those who actually voted at general elections. Thus,
to take three recent experiences: the total vote cast in 1909 on an
important constitutional amendment was only 477,105 as against a total
vote the year before of 1,638,350; the total vote in 1910 on another
important constitutional amendment was 664,892 as against 1,445,249
votes for the gubernatorial candidates, and seven amendments submitted
in 1911 were defeated with an average total vote of 621,678. Similar
and even more striking experiences will be found in other states. Is
it likely that there would be a fuller or more representative and
intelligent expression of public understanding in regard to complex
legislative enactments, or in regard to the recall of judges or other
public officers, or of judicial decisions than we find now in the case
of important constitutional amendments?

To render judges subject to recall would be utterly destructive of
the character and independence of our judiciary. No self-respecting
lawyer would serve on the bench under such conditions. An upright
judge should fearlessly declare and enforce the law without regard
to popular agitation or political pressure. Frequently he is called
upon to decide between the individual on the one side and a clamorous
majority on the other side of a case before him. Take, for example,
our situation in New York with Tammany Hall controlling a majority of
the voters of the city. The legislature at the dictation of Mr. Murphy
passes another infamous Levy Election Law avowedly intended to prevent
independent nominations even for the bench. The judges declare the act
unconstitutional and protect the minority in their rights, just as we
saw them protecting the Progressives a few weeks ago. According to Mr.
Roosevelt and Mr. Straus, however, Tammany Hall should have the power
to punish these judges by recalling them and should have the right to
pass such disgraceful and tyrannical legislation by resort to the
initiative and the referendum! Indeed, it is impossible to conceive
of a scheme more surely calculated to shatter all our constitutional
rights, as well as all certainty in the law. Chief Justice Marshall
would have been repeatedly recalled for unpopular decisions which
are now universally applauded even by the Progressives. Imagine the
spectacle of recalling a Cullen or a Gray because he had dared to
decide against the clamor or wishes of a majority controlled by Tammany
Hall!

I have nowhere seen a stronger statement of the objections to the
recall of judges than in John Stuart Mill's work on "Representative
Government," published in 1861, where he said: "If a judge could
be removed from office by a popular vote, whoever was desirous of
supplanting him would make capital for that purpose out of all his
judicial decisions; would carry all of them, as far as he found
practicable, by irregular appeal before a public opinion wholly
incompetent, for want of having heard the case, or from having heard
it without either the precautions or the impartiality belonging to
a judicial hearing; would play upon popular passion and prejudice
where they existed, and take pains to arouse them where they did not.
And in this, if the case were interesting, and he took sufficient
trouble, he would infallibly be successful, unless the judge or his
friends descended into the arena, and made equally powerful appeals on
the other side. Judges would end by feeling that they risked their
office upon every decision they gave in a case susceptible of general
interest, and that it was less essential for them to consider what
decision was just, than what would be most applauded by the public, or
would least admit of insidious misrepresentation."

Probably no more crude, impracticable, or absurd scheme was ever
proposed by any one claiming to have the first and elemental ideas
of American constitutional government than the proposition to render
subject to recall or reversal by a majority vote all decisions in
constitutional cases affecting statutes passed under the police power.
The term "police power" is the most comprehensive that could have been
employed. Most of our individual rights are covered by that term; and
when the Progressives say that a statute passed under the police power
shall be valid and enforceable, notwithstanding the courts may declare
it to be arbitrary, unjust and unequal and hence unconstitutional,
if a temporary majority see fit to overrule the courts, they
propose that practically all the most vital and cherished of our
supposed inalienable individual rights--our personal and religious
liberty--shall in final result be at the mercy of any temporary
majority. In ultimate analysis, the proposition for the recall of
judicial decisions would mean that the majority should act as umpire in
any dispute as between themselves and the minority.

The hatred of the courts which the Progressives now share in common
with the Socialists, Anarchists and Populists, and that part of
organized labor and labor unions typified and represented by such men
as the McNamaras, the Debses and the Parks (who in truth shamefully
misrepresent the great majority of law-abiding and patriotic members
of these organizations), has forced into this campaign an unparalleled
attack upon our judicial system and the administration of justice.

When the New York state Progressive platform was first given to the
press on September 3rd, the judiciary plank read as follows: "We
heartily indorse the declarations of our national platform respecting
the judiciary and favor their embodiment in the organic law of the
state. We condemn the past attitude of the New York Court of Appeals
toward various important and humane measures of social legislation."

The unprecedented indecency of this attack upon the Court of Appeals
immediately produced such a storm of indignation throughout the
state that the clause appears later to have been amended so as to
eliminate that sentence. The final form given to the public omits this
denunciation of the highest court of our state, and confines the plank
to the proposals of the national platform. I have time now to discuss
only two of these planks.

The Progressives declare in their extraordinary and revolutionary
platform: "We believe that the issuance of injunctions in cases arising
out of labor disputes should be prohibited, when such injunctions would
not apply when no labor disputes existed." This should be compared
with substantially the same declaration in the Bryan platform of 1908,
in which the Democratic party declared: "We deem ... that injunctions
should not be issued in any cases in which injunctions would not issue
if no industrial dispute were involved."

It must seem incredible that the cultured and talented man who now
stands on the Progressive platform soliciting the votes of the people
was the President of the United States who in a formal message to
Congress on January 31, 1908, on the subject of injunctions in labor
disputes, used the following language: "Even though it were possible,
I should consider it most unwise to abolish the use of the process
of injunction. It is necessary in order that the courts may maintain
their own dignity, and in order that they may in an effective manner
check disorder and violence. The judge who uses it cautiously and
conservatively, but who, when the need arises, uses it fearlessly,
confers the greatest service upon our people, and his pre-eminent
usefulness as a public servant should be heartily recognized."

During the campaign of 1908, President Roosevelt fiercely denounced
Mr. Bryan and Mr. Gompers for the plank above quoted but which he
has now adopted. He then wrote a long letter to Senator Knox in
which he exposed the danger and dishonesty of this plank. It would
be necessary to read the whole of the letter in order to appreciate
President Roosevelt's indignation and horror that Bryan and Gompers
should favor such a proposition. I shall quote only a few sentences as
samples of the whole. President Roosevelt then wrote as follows: "This
is the plank that promises the 'remedy' against injunctions which Mr.
Gompers asked of Mr. Bryan's party. In actual fact, it means absolutely
nothing; no change of the law could be based on it; no man without
inside knowledge could foretell what its meaning would turn out to be,
for no man could foretell how any judge would decide in any given case,
as the plank apparently leaves each judge free to say when he issues
an injunction in a labor case whether or not it is a case in which an
injunction would issue if labor were not involved." Later the President
continued: "Mr. Gompers, now Mr. Bryan's open and avowed ally, has,
in the letter here quoted, attacked the federal courts in unmeasured
terms of reproach because, by a long line of decisions, the equity
courts have refused to make an outlaw of the business man, because his
right to carry on a lawful business under the peace of the law has
been protected by the process of injunction, because in a word one of
the most vital and most fundamental rights of the business world--the
right of a business man to carry on his business--has been sustained
and not denied by the processes of the courts of equity. This sweeping
attack of Mr. Gompers upon the judiciary has been made in a frank and
open effort to secure votes for Mr. Bryan." Mr. Roosevelt concluded the
letter as follows: "But there is another account against Messrs. Bryan
and Gompers in this matter. Ephraim feedeth on wind. Their proposed
remedy is an empty sham. They are seeking to delude their followers by
the promise of a law which would damage their country solely because
of the vicious moral purpose that would be shown by putting it upon
the statute books, but which would be utterly worthless to accomplish
its avowed purpose. I have not the slightest doubt that such a law as
that proposed by Mr. Bryan would, if enacted by Congress, be declared
unconstitutional by a unanimous Supreme Court, unless, indeed, Mr.
Bryan were able to pack this court with men appointed for the special
purpose of declaring such a law constitutional."

The Progressive plank against the power of the courts to punish for
contempt is equally revolutionary. It declares in favor of depriving
the courts of the power to punish for contempt except after a trial by
jury.

The crusade to deprive the courts of the power to punish for contempt
began at the time of the Chicago strike of 1894 when Eugene Debs and
his fellow-conspirators were found to be guilty of open, continued and
defiant disobedience of an injunction order of the United States court
which had been duly served upon them. It will be recalled by most of
you that if the courts had not then had power to punish for contempt
without a prior conviction by a jury--and imagine the chance of an
impartial jury-trial during the continuance of a great riot--the Debs
party would have had the city of Chicago and the great railway commerce
passing through it completely at its mercy. All who want to know the
facts and to realize the danger from the condition of affairs then
existing should read Mr. Cleveland's account of the strike in his book
on "Presidential Problems," published in 1904, and the opinion of the
Supreme Court of the United States unanimously upholding the punishment
of Debs and his associates for contempt.

The power of the courts to punish for contempt has, from the earliest
history of jurisprudence and as far back as the annals of our law
extend, "been regarded as a necessary incident and attribute of a
court, without which it could no more exist than without a judge," and
"a court without the power effectually to protect itself against the
assaults of the lawless or to enforce its orders, judgments, or decrees
against the recusant parties before it, would be a disgrace to the
legislature, and a stigma upon the age which invented it." The Supreme
Court of the United States declared in the Debs case that "this is
no technical rule. In order that a court may compel obedience to its
orders it must have the right to inquire whether there has been any
disobedience thereof. To submit the question of disobedience to another
tribunal, be it a jury or another court, would operate to deprive the
proceeding of half its efficiency."[63]

The bait now offered to the lawless and misguided among the laborers
of America by Mr. Roosevelt is the abolition of the only effective
means of preventing violence and the destruction of property in labor
disputes, first, by taking away from the courts the power to issue
injunctions and, secondly, by emasculating the power to enforce
obedience to their orders and judgments. Of course, if any such
revolutionary and anarchistic measures were now embodied in the organic
law of this state, as proposed by the Progressive state platform,
the community would be placed completely at the mercy of the violent
and the lawless. Is it not lamentable and humiliating to see an
ex-President of the United States and an ex-member of his cabinet and
ex-ambassador thus pandering to the mob spirit for votes?

In conclusion, I want to add that the American people know where
President Taft and Vice-President Sherman stand on every great question
before the people. They have been tried and not found wanting. These
candidates can be trusted and relied upon to keep every pledge of their
party's platform. If anybody can now tell where Governor Wilson stands,
except as a free trader, a radical and an opportunist, he is much
more discerning than most of us are. The glory of our party is that
for fifty-six years, in victory and in defeat, it and its candidates
have stood consistently and uncompromisingly for the principles of
human liberty and human progress. It is still the party of principle
and of progress, as it is the party of protection for American labor
and industry. President Taft would be entitled to the gratitude of
the whole nation, irrespective of party, if the only service of
his administration had been his attempt in good faith to withdraw
the tariff from party politics, to introduce some system in fixing
the amount of necessary protection to be determined by experts and
non-partisan boards, and to establish business-like methods of economy
and efficiency in every department. Great honor, too, will the future
historian record to his credit when recounting that in a period of
political upheaval, of social unrest and discontent, of impatience with
law, of pandering to revolutionary instincts, he stood as President of
the United States firmly, uncompromisingly and sturdily for the right,
and put all his trust and confidence in the sober second thought and
profound patriotism of the American people, in their attachment to law
and orderly progress, and in their determination that the American
system of constitutional representative government "shall not perish
from the earth."

FOOTNOTES:

[Footnote 62: Address as temporary chairman of the New York Republican
State Convention, at Saratoga Springs, September 25, 1912.]

[Footnote 63: 158 United States Reports, p. 594-595.]




NOMINATING CONVENTIONS[64]


The Direct Primary Law of 1911[65] abolished all political conventions
except the state convention, but the Direct Primary Law of 1913[66]
went further and abolished the state convention, striking the article
on conventions and even the definition of a convention from the text
of the law. Although the new law contains in section 45 a provision
that nothing therein contained shall prevent a party from holding
a party convention, to be constituted in such manner and with such
powers in relation to formulating party platforms and policies and
the transaction of business relating to party affairs, as the rules
and regulations of the party may provide, not inconsistent with the
Election Law, it was clearly the intention of its framers that such
party conventions should not deal with the most important subject
which parties had theretofore dealt with, namely, the nomination
of candidates for public office. Indeed, section 46, as amended in
1913, expressly provides that designations of candidates for party
nominations shall be "by petition only" in the manner provided in the
Election Law.

The privilege of nominating elective state officers by means of
delegate conventions thus denied by the Election Law of the state
of New York ought, in my judgment, to be recognized as essentially
a constitutional right, which the legislature should not be at
liberty to abridge. The right to assemble peaceably for the purpose
of nominating candidates is certainly a political right of permanent
importance and vital concern to all citizens, and it should be
guaranteed by constitutional provision and not left to abridgment or
denial by the legislature. The present state constitution regulates
the qualifications of voters, the registration of citizens entitled to
vote, and the creation of registration and election boards. But it does
not contain a single provision in regard to nominations for office,
even for the office of governor, although nominations for state offices
are of far greater importance to the body politic than many of the
matters now regulated by constitutional provision or recited in the
bill of rights. I desire to urge upon your careful consideration the
value of nominating conventions as a constitutional right.

The constantly increasing functions of the modern state have made
the executive and administrative departments the most important and
powerful branches of government, and the increasing complexity of
governmental machinery has rendered it absolutely essential that
competent and trained public officials should be chosen. Government
has become an extremely difficult and scientific business, and special
capacity, training and expert knowledge are more and more required
in executive and administrative office. The test of a good government
is more than ever its ability to produce good administration. If we
are to have efficient and avoid wasteful administration, the greatest
care must be exercised in selecting candidates. As Governor Throop
said nearly a century ago, "there is perhaps no part of the duties
of citizenship which requires more sound judgment and honesty and
singleness of purpose than those relating to the nomination and
election of executive and administrative officers." Indeed, good
government depends in final results much more on the ability and
character of the men who administer it than upon laws or institutions.
The maxim, constantly on the lips of so many, that a government of
laws and not of men is the controlling desideratum, may be grossly
misleading, for the best system of laws in the hands of incompetent,
inefficient and dishonest administrators will produce far worse results
than an inferior system in the hands of competent, efficient and honest
public officials. The most difficult task and the highest duty that our
electorate are ever called upon to perform is, therefore, the selection
of candidates for elective state office. In order to perform that duty,
it is imperative that there should be adequate and reliable means
of information, full opportunity for conference, exchange of views,
debate and criticism as to the capacity and character of candidates,
and effective methods of cooperation and organization in support of
qualified candidates.

The selection of a governor for the great state of New York,
containing more than 10,250,000 inhabitants and comprising a political
constituency larger than any other in this country, is certainly a
matter of vital and profound concern to the whole body politic, to
every citizen, to every community, to every party, to every class, to
every interest. If the short ballot be now adopted, the successful
administration of the whole state government will practically be staked
upon the selection of qualified candidates for governor. All hope of
governmental reform, efficiency and economy will then necessarily
depend upon the statesmanship and character of one man, who will be
vested with full executive and administrative powers over a population
and a territory larger than some of the nations of the world. A wise
and safe choice will be infinitely more essential and more difficult
than in the past. In fact, if the views of certain advocates of the
short ballot prevail, we are to vest all this power in the governor for
a term of four years, without restraint of any kind except his sense
of responsibility to the people, and without any effective check upon
his will or caprice. We should have to trust him absolutely. We should,
in truth, have precisely the definition of an elective despotism and
tyranny--beneficent if we are so fortunate and blessed as to secure an
exceptionally able and high-minded statesman for governor, baneful if
an incompetent, untrained, or scheming politician or demagogue should
be elected. The governor would then have it immediately within his
power to become an absolute state boss through the use of an enormous
and constantly increasing patronage, directly or indirectly reaching
and touching every election district in the state. He would be able to
break party lines asunder, to promote the interests of any group or
faction, to punish adversaries, to cater to any class, to sacrifice
the rights of minorities, to substitute his will or caprice for the
policy of his party, to permit waste and extravagance, to dictate who
should be his successor. A competent candidate for governor who would
be so well known and tested as to be safely relied upon to resist this
temptation would indeed be a phenomenon. If history teaches us that
there is anything certain in human nature, if experience, which is of
far more value than any mere reasoning or theorizing, has again and
again demonstrated any practical and eternal truth in politics, it is
that unrestrained power inevitably leads sooner or later to abuse and
tyranny, and that no one official, be he emperor, king, president, or
governor, can safely be entrusted with any such power.

We should bear in mind that the extreme advocates of the short ballot,
by eliminating all requirements for the approval and consent of the
senate in regard to the appointment of heads of the great state
departments, would make the governor supreme and independent of the
legislature, even more independent and powerful than is the President
under the Constitution of the United States. I sincerely hope that
the Convention will not make this grave mistake. The number of state
elective officers should not be reduced to less than four, namely,
governor, lieutenant-governor, comptroller and attorney-general. The
comptroller should be made an auditing officer charged with supervision
as such over the various departments of the state and independent of
the appointing power. The attorney-general should be made the head of a
department of justice and the responsible legal adviser of the governor
and of every state official. And the heads of all the great departments
should be appointed by the governor with the approval and consent of
the senate. No governor should be given the unrestrained power to
appoint or to remove the heads of all departments. The requirement of
the consent of the senate is a necessary and salutary restraint upon
all governors, good or bad. It is better and safer that governors
should be compelled to submit to some restraints than that absolute
power should be vested in even the best and ablest and purest of men.
The principle of a short ballot is the decrease of elective offices,
but not necessarily the placing of absolute and unrestrained power in
the hands of one man.

It is quite true that a state constitution should deal only with
permanent and fundamental provisions and should not attempt to regulate
matters of detail which can be adequately dealt with by ordinary
legislation and which are in their nature and operation readily
changeable. I am in full accord in this, as in other respects, with
the state platform adopted by the Republican party last year and on
which the Republican delegates to the Constitutional Convention were
elected. Subordinate and non-essential matters of mere regulation
and detail ought not to be embodied in constitutions. But I venture
to assert that in reason and sound policy there can be no more
important, permanent, or fundamental constitutional provision than
one relating to the manner of selecting the highest state officers
in whom all the executive and administrative powers of our state
government are to be vested. This is a subject eminently fit and
proper for a constitution to regulate. If this convention cannot
solve the problem of establishing a sound system of nomination for
elective state offices, at least in outline and cardinal features,
no legislature can be expected to do so. In any event, the new
Constitution should emphatically declare that the right peaceably to
assemble in a political convention composed of duly elected delegates
or representatives for the purpose of nominating candidates for public
office, state or local, should not be abridged, as it is abridged by
the present Election Law.

I further venture to assert that the question of nominating candidates
by delegate conventions involves in its essence the perpetuation of
the fundamental principles of representative government and of the
republican form of government which the founders intended to establish
and to guarantee to each state of the Union.

The one great contribution which the English-speaking race has made
to the science of politics has been the representative principle. It
has been truly declared that every lasting liberty secured for the
individual, every lasting reform towards stability in government and
permanent effectiveness in administration, every lasting advancement
made in politics during the past two centuries, has been by and through
the representative system. The subordination of public officials to the
law, and their liability under the law for every illegal act, sprang
from the representative principle. The independence of the judiciary,
that great bulwark of liberty and of the rights of the individual, has
followed upon the growth and success of the representative principle.
The vivifying spirit or essence of the representative principle is the
determination of all questions of practical government by delegates or
representatives chosen by the people, who it is assumed can act more
intelligently and better discern the true interests of their country
than a multitude of voters dispersed over an extensive territory.
Government under the representative principle includes not merely
legislation by the chosen representatives of the people, but the
practical conduct of the executive department and its administrative
branches by officials selected or nominated by representatives of the
people. Despite all attacks upon our political institutions and all
instances of mistakes and maladministration, the sound common sense of
thoughtful citizens still confirms the judgment of the founders of our
government that the only safe course is to follow the representative
principle. This is as true to-day as it was when the "Federalist" was
written. The direct nomination of executive or judicial officers is in
utter disregard of that principle.

If the function of legislation is in the long run most satisfactorily
performed by a representative body composed of men from every locality
and every part of a state, and if it would be unsafe to vest the
lawmaking power in the executive branch, does it not likewise follow
that the equally important function of selecting candidates for
executive and judicial office and formulating party policies and
platforms will be better performed by a representative body, such as
delegate conventions, than by being left to the mass of voters? If
more intelligent legislation and wiser action are likely to result
from a representative body than from the confusion of a multitude of
voters, is it not also evident that more intelligent and discriminating
selection of executive officers will be made by chosen representatives,
as in nominating conventions, than by the people at large?

It should be borne in mind that our system of republican government
differs from other representative governments in the practical
and effective separation of powers. In England and in France the
legislators, that is the delegates or representatives elected by the
people, appoint and control all executive and administrative officers
and carry on the executive and administrative branches of government.
There the legislative and executive powers are practically united
in the same body. Under our system the legislators do not elect or
appoint executive officers. It is, therefore, essential, as I am
profoundly convinced, that executive officers should be nominated by
duly qualified representatives if the representative principle is to be
maintained.

Nomination of executive officers by direct primaries will inevitably
be subversive of the true spirit of the representative system, and the
secrecy of the vote in the nominating primaries will ultimately be
destructive of all sense of responsibility. The enrolled voter marking
his ballot in secret will frequently feel no sense of responsibility
or accountability to his neighbors and fellow-citizens, and will
frequently fail to appreciate that his vote is a sacred trust to be
exercised for the good of the community. The secrecy of the primary
vote thus does a great moral mischief in destroying the sense of
political responsibility and accountability. A public declaration
in connection with nominations for office, involving as it does a
recommendation to other voters of fitness and qualification for the
particular office, is a much more effective restraint on corruption
and perversion of the popular vote than any scheme of secrecy which
leaves no one publicly responsible for unfit and improper nominations.
In my judgment, the primary system tends to promote the nomination
of self-advertisers, demagogues and wire-pullers by irresponsible
minorities, groups, factions, cabals, or secret societies, generally
composed of persons acting in the dark and dominated or controlled by
leaders who cannot be held to any accountability, however much they may
abuse or prostitute the political power they exercise.

The nomination of candidates for public office, whether national,
state, or local, by means of party conventions, caucuses, or
conferences, was introduced and long existed without any statutory
regulation. The practice sprang up normally and from necessity as soon
as the increase of population rendered it impracticable for the voters
to come together in mass or town meeting. The body of voters, who could
not spend the time necessary to investigate as to the qualifications
of candidates, or attend political debates, and who could know little
or nothing of the competency and character of candidates, naturally
recognized that the best and safest course would be to elect delegates
or representatives from each neighborhood, who, meeting delegates or
representatives from other districts, could exchange views, criticize,
discuss and agree upon policies and nominations, and thus act more
intelligently, advisedly and wisely than would otherwise be possible.

The growth of constituencies, the multiplication of elective offices,
and the neglect of their political duties by the majority of electors
led to many abuses in the management of nominating conventions, and
legislation became necessary in order to prevent frauds in connection
with the conduct of primaries and conventions. In promoting this
legislation, it was argued that, if citizens were assured the right
to be enrolled in the party to which they desired to belong and to
vote at primaries and freely to exercise their choice for delegates to
conventions, they would be stimulated to take part in the primaries,
and that this would result in preventing party nominations for office
from being controlled by those who made politics their business or
used improper or corrupt methods. Hence the primary reform measures
introduced by legislation in our state in the nineties.

These measures, however, proved to be sadly disappointing to many of
their promoters. This was not because the statutes were in themselves
defective or inadequate, but because it was found to be impossible
by mere legislative enactment to induce a majority of the electors
to enroll in their parties or to take any active part or interest in
politics. Although under these primary laws the nominating conventions
could at any time have been readily controlled by the electorate at
large, had the voters only taken the trouble to enroll and vote at the
primaries, great dissatisfaction arose or was fomented or manufactured,
and a demand created for the total abolition of the convention and
the introduction of the experiment of a direct primary system, upon
the notion that this would stimulate greater political interest,
enable the enrolled voters to control and elect their own candidates,
bring nominations closer to the people, and curtail and ultimately
destroy the power of the politicians and bosses. The new experiment
was based upon the assumption that if enrolled electors could vote
directly for candidates instead of for representatives to nominating
conventions, they would thereby be induced to take a more active
interest in politics, to overthrow the control or domination of bosses
and professional politicians, and to make better selections than had
ever been made before. In a word, it was assumed in the face of all
experience to the contrary that, if the voters had the direct power,
they would perform their political duties, that better qualified and
more competent and independent candidates would offer themselves or
somehow would be brought to the attention of the electorate, and that
nominations would then represent the will or choice of the majority in
each party, and not the will of minorities, or the choice of bosses.
How the majority were to ascertain the qualifications of particular
candidates or cooperate to secure the nomination of the best qualified
was left in the air. It seemed to be thought, following the absurd
and exploded doctrines of Rousseau, that the people would always want
and, by a process of political inspiration, would intuitively and
instinctively select, the best men for public office.

The result so far has refuted all these assumptions, hopes and
promises. The people at large do not take part in the primaries, and
the political machines are more powerful than ever. Thus, in New York
county, the Republican vote for governor at the direct primaries of
1914 was only 23,305, out of a total enrollment of 56,108 and a vote in
November of 85,478; the Democratic primary vote was only 48,673 out
of a total enrollment of 132,693 and a vote in November of 90,666, and
the Progressive primary vote was only 6,972 out of a total enrollment
of 19,705 and a vote in November of 5,604. It will be readily perceived
from these figures that a small minority of the voters in each party
took the trouble to participate in the direct primary elections,
even in the case of the nomination for governor of our state, as to
which there was an exciting contest in each party. An examination of
the figures throughout the entire state will show that the voters in
nearly all districts took less interest in direct primary elections for
nominations than they were accustomed to take under the old convention
system and that the controlling power is still being exercised by the
organization, but now acting in secret and utterly irresponsible. For
example, the Republican primary vote for governor in Bronx county was
5,276 against a Republican vote of 29,865 in November, and in Richmond
county the Republican primary vote for governor was 984 against a
Republican vote of 5,477 in November. It is probably correct to assume
that not one-half of the Republican or Democratic voters now enroll,
and that, on an average, less than one-half of the enrolled voters
take the trouble to go to the primaries, even when there is a serious
contest, as was the case last year for governor. There were then
three proposed Republican candidates, Whitman, Hedges and Hinman, and
the result was that less than one-sixth of the Republican vote in
November might have been sufficient to carry the primaries, the total
Republican vote for governor having been 686,701 as against a total
primary vote of 226,037 for the three candidates. Under the present
direct primaries, the voters of a small portion of the state can put a
candidate in nomination by petition; any number of names may be put on
the official primary ballot, and a candidate may be put in nomination
by a very small minority vote confined to a single locality. In fact,
twenty or more names can be placed by petition on the official primary
ballot of any party as candidates for any elective office, and the
name of the person receiving the largest number of votes will be
that of the candidate of a great party, to whose support the party
will be committed and for whose conduct in office the party will be
responsible, although the successful candidate may be entirely unknown
to nineteen-twentieths of the voters at that particular primary. Under
the present primary system, in view of the small number of those
participating in primaries, an insignificant percentage of the voters
at a primary could nominate a candidate of whose qualifications and
personal character the majority of the party were wholly ignorant, or a
candidate whom an overwhelming majority would utterly repudiate. Sulzer
came very near carrying the direct primary of the Progressive party.
This shows how readily the direct primary system engenders factions
and irresponsibility, and how unfit it is for securing the expression
of the intelligent and instructed will of the majority of any party.
Moreover, there is no way of ascertaining for whom petitions are being
circulated; no publicity is required even after the time for filing
petitions, and the great majority of enrolled voters generally have no
idea of the candidates for office on the official primary ballot until
they open the official ballots at their polling-places. The press is
either uninterested or partisan, and it fails adequately to discuss the
qualifications and character of candidates.

I submit that it is absurd to claim that such a method of nominating
state officers to administer government for a population of over
10,000,000 is more likely to secure competent and trustworthy
candidates, or to express the real preference and the sober and
intelligent judgment of the majority of the voters of each party, than
the old method of nominating state officers by public conventions
composed of delegates and representatives of the voters from each
assembly or election district of the state, proceeding in the open with
full opportunity for investigation, discussion and criticism.

The conventions of the two great political parties held at Saratoga
last year, at which the party platforms in respect of the approaching
Constitutional Convention were adopted and fifteen delegates-at-large
"recommended," were wholly unofficial and unregulated by law. What
was practically the nomination by the conventions of candidates for
delegates-at-large was unauthorized and operated only as a mere
recommendation. They had to be nominated by petition as fully as
if the conventions had never met. These conventions thus nominated
delegates because they realized, and every thinking man in the state
appreciated, that it would be preposterous to leave the selection and
nomination of fifteen delegates-at-large to the mass of enrolled voters
who would have no opportunity for conference and exchange of views in
respect of the qualifications and character of the candidates. Some
informed, responsible and representative body of men had to act, and
therefore the conventions acted--in the very teeth of the law. They,
however, refrained from considering candidates for the great office
of governor, on the theory that it would be violating the spirit and
intent of the Election Law to take any action in regard to candidates
for that office! What inconsistency! The most important and vital
subject of the governorship was left to the hazard of petitions
circulated among the enrolled voters throughout the state. There were
no organizations of any kind among the voters, except what are known as
the political organizations, and no other means of communication and
exchange of views or debate. Of course, it was confidently anticipated
that the organization in each party would determine, or at least would
have it within its power to determine, who should be the candidates of
that party. Such proved to be the case. No candidate was nominated at
the direct primaries for a state office unless he was supported by the
regular organization or machine of his party. And that, I believe, will
be the practical result of direct primaries in nine cases out of ten,
and more readily and frequently and unsatisfactorily than under the old
convention system.

Careful observers of the operation of the primary law last year in this
state, and for several years in other states, have become convinced
that the result of this so-called reform has been not only to increase
the power of the regular organization or machine but to render it
utterly irresponsible. The organization now acts in secret behind
closed doors and without accountability to any one except its own
inner circle. The leaders have only to whisper their orders over the
telephone to the workers in each district, preserving no record, and
the desired result is accomplished. If an unfit and improper nomination
is made, the leaders can disclaim all responsibility and say that
such is the will of the sovereign people. As the vote at the primary
is secret, no one can be blamed; there is no individual or group of
individuals upon whom responsibility can ever be fastened. If it be
argued that there is actual responsibility and that everyone knows
it, then I answer that this is only by admitting that, after all, the
secret machine or boss is in fact responsible and still rules, and now
more effectively than ever.

As has been pointed out by many able writers, the convention system in
the past has been of inestimable service to this country. With all its
vagaries, it afforded the highest test of a political representative
institution in a democratic community and the soundest and purest
application of the principle of representation or delegated authority;
it operated to bind party elements firmly together; it afforded
full opportunity for exchange of views, criticism and debate, for
the propagation of principles, for the conciliation of factions;
it inspired enthusiastic party life. The convention, if honestly
conducted, was a thoroughly representative and deliberative body, and
it was the true cause of party success and of the maintenance and
perpetuation of party principles and policies, as well as political
faith and devotion. In a word, the convention was and still is the best
instrument ever devised for securing concert of choice and responsible
and intelligent action by large bodies of voters belonging to the same
political party and believing in the same political faith, principles
and policies.

I am not at all blind to the fact that there have been great abuses
in the convention system, and that conventions have been at times
corruptly organized or conducted. But I know of no form of abuse or
corruption which could not have been remedied by appropriate and
intelligent legislation, or which could not have been prevented in New
York by action of the voters if the legislation of the past twenty-five
years had been generally availed of by the majority in each party.
The control of all nominations was in the hands of the majority, if
they had only taken the trouble to enroll and vote for competent
representatives at primary elections. There is no practical remedy for
abuse of power, fraud, or corruption in nominations for office but
the participation in politics of all voters as a duty of citizenship.
The notion that the direct primary would eliminate the professional
politician and the boss has been shown to be false in every state
where the scheme has been tried. Indeed, quite the contrary has been
the result, and the last condition is worse than the first; for, to
repeat myself, manipulators, wire-pullers and political bosses now
work in secret and by underground channels without any responsibility
or accountability whatever, and are, nevertheless, able cynically to
point to the direct primary as the expression of the people's sovereign
will--a primary which may be carried by a very small minority of the
party.

I assume that all the members of this Constitutional Convention believe
that the existence of political parties is essential to the success
of free government and to permanence and stability of political
policy, and that the perpetuation of party government is desirable
for the welfare and best interests of this state. Men cannot secure
results and compass their ends in politics, any more than in most
other human concerns and matters requiring concerted action, except by
organization, cooperation, discipline and responsibility. The value
of the service rendered to the American people by the great political
parties is incalculable, and if these parties are to be disrupted
and their organization and cohesiveness undermined, the result must
inevitably be a most serious injury to the body politic. Whether we
regard political parties, on the one hand, as organizations of men
believing in the same political faith, principles and policies and
uniting to introduce or uphold those principles and policies, or, on
the other hand, merely as organizations to secure office and administer
government--both of which aspects present patriotic motives--it is
desirable for the permanent welfare of the people of every free country
that parties should be maintained, and particularly that there should
be two great responsible parties, each striving for control and ready
to assume the responsibility of government and of the adoption of
particular measures. A public official who belongs to a great political
party and owes his preferment to that party is under a double sense
of responsibility for efficiency, honesty and consistency in public
office. He has a sense of responsibility and duty to the state as a
whole, and he has a sense of responsibility and duty to his party, and
both are moral factors of inestimable worth in securing integrity,
efficiency and industry in public office.

In its real origin, the movement to abolish the convention system
and introduce direct nominating primaries sprang not from any hope
of reforming the existing political parties but from a desire to
subvert and destroy the American system of government by political
parties. The scheme was later taken up by men who sincerely desired to
reform party management and correct party abuses, who conscientiously
despaired of reform within the parties themselves, and who conceived
and finally came to believe that betterment could be brought about only
by uprooting and casting aside all the party machinery, organization
and discipline which had been built up by the practical experience of
over a century. The plea of bringing the government back to the people
was catching and plausible, and it found eager response in the deeply
rooted dislike of party machinery, party discipline and party constancy
on the part of those who habitually neglect all attention to politics
and the political duties of citizenship except during periods of
popular excitement and upheaval.

Although I am one of those who believe in independence in politics
and in the right and duty of every citizen to vote against his party
if in his judgment the public interests so require, I profoundly
believe that party government and party organization and machinery are
absolutely essential under our form of government. Political parties
in America have given stability to governmental policies and have
created the only effective restraint upon disintegration and individual
caprice or demagogism. There must be coherence in political forces;
there must be concentration and direction of the political energy of
communities; there must be some systematic and practical method of
investigating the qualifications of candidates and selecting competent
public officials; there must be stability, harmony and cooperation in
governmental policies. These can be secured in the long run only by
and through permanently organized and disciplined political parties. No
other method has yet been discovered by which effectively to express
political opinion, to secure stability in governmental administration
and policies, and to effectuate the real and permanent judgment of the
people and promote their best interests.

President Wilson some years ago, in referring to attacks upon party
government in the United States, used the following striking language,
which I think should be now recalled:

"I know that it has been proposed by enthusiastic, but not too
practical, reformers to do away with parties by some legerdemain of
governmental reconstruction, accompanied and supplemented by some
rehabilitation, devoutly to be wished, of the virtues least commonly
controlling in fallen human nature; but it seems to me that it would be
more difficult and less desirable than these amiable persons suppose
to conduct a government of the many by means of any other device
than party organization, and that the great need is, not to get rid
of parties, but to find and use some expedient by which they can be
managed and made amenable from day to day to public opinion." "Whatever
their faults and abuses, party machines are absolutely necessary under
our existing electoral arrangements, and are necessary chiefly for
keeping the several segments of parties together.... It is important to
keep this in mind. Otherwise, when we analyze party action, we shall
fall into the too common error of thinking that we are analyzing
disease. As a matter of fact the whole thing is just as normal and
natural as any other political development. The part that party has
played in this country has been both necessary and beneficial, and if
bosses and secret managers are often undesirable persons, playing their
parts for their own benefit or glorification rather than for the public
good, they are at least the natural fruits of the tree. It has borne
fruit good and bad, sweet and bitter, wholesome and corrupt, but it is
native to our air and practice and can be uprooted only by an entire
change of system."[67]

For these reasons I earnestly urge upon the Constitutional Convention
of the state of New York the restoration of nominating state
conventions for elective state offices. I do so because I believe
that they are the best means of maintaining political parties,
of formulating their principles and policies, of purifying and
disciplining their management, of stimulating political enthusiasm
and disinterestedness, and of selecting and nominating fit and
representative individuals as candidates for high public office. I
further urge that the nominees of any such convention should not
need any further designation than the filing of a certificate by the
proper convention officers. If it be concluded, however, that the
direct primary system should be continued for the purpose of party
nominations, then it should be provided that the name of the nominee
of the convention should be placed on the official primary ballot
with the designation "nominated by convention." This would enable the
enrolled voters to ratify or overrule the action of their convention.
I am, however, convinced that this nominating primary would impose
an unnecessary burden upon the electorate, and that it would be a
mistake to increase the number of elections. We should then have
three elections: first, the election of delegates to the nominating
convention; second, the official primaries, and third, the general
election. It seems to me that it would answer every purpose if adequate
provision were retained for independent nominations by petition and
if nominating primaries were dispensed with. This would enable voters
belonging to any party to place candidates in the field in opposition
to the nominees of the convention if they were dissatisfied with those
nominees.

Assuming that we are to continue the system of electing judges to our
highest judicial offices, that is, judges of the Court of Appeals and
justices of the Supreme Court, then I submit that candidates for these
very important offices should be nominated by conventions and not by
direct primaries. I regard this as even more essential in the case
of nomination for judicial office than in the case of nomination for
executive office.

The qualities required in a candidate for high judicial office are
knowledge of the law, love of justice, high personal character,
calmness, impartiality and independence. Mere popularity, or what so
often is necessary to popularity, good-fellowship, is the last quality
we look for in a judge. The self-seeker and self-advertiser is seldom
qualified by temperament or character for judicial office. It requires
the most thorough investigation as to the professional learning, career
and conduct of a candidate and the most sifting exchange of views
before a judicial candidate can be intelligently and wisely selected.
For want of adequate means of acquiring information, the public in
such large constituencies as the whole state of New York (in the case
of judges of the Court of Appeals) and the various judicial districts
(in the case of justices of the Supreme Court) cannot intelligently
estimate the qualifications of judicial candidates. It seems to me
nonsense to argue that in parties composed of hundreds of thousands
of enrolled electors dispersed throughout the state, the voters can
investigate, or exchange views, or intelligently act in regard to the
qualifications of lawyers who are proposed as candidates for judicial
office--almost as preposterous as if we were to select judicial
candidates by lot from the names placed on the official primary list.

The test of fitness for judicial office should indisputably be
higher and more technical than for other offices. That test should
require special capacity and character, to be ascertained by careful
investigation, exchange of views, open discussion and comparison of
merits by responsible delegates or representatives charged with that
particular duty and acting in public and personally accountable for
mistake, perversion, or corruption. This test can be best secured by
the convention system; practically it cannot be secured at all by any
system of secret direct primaries.

Reform in the selection of judges, if their selection is to be by
election, lies not in schemes to reform human nature by legislative
nostrums and to destroy publicity and responsibility, but in making the
voters appreciate that the government is theirs, that political power
is theirs, that theirs is the duty to send competent representatives
to conventions, that theirs is the responsibility of electing
competent men, and that they are vitally interested in having a
competent, impartial and independent judiciary. Political conventions
will be reliable and responsive if the people will only see to it
that competent, honest and patriotic men are elected to represent
them. There is no other course unless we uproot our whole system of
republican government.

Ten years of experimenting with our Election Law have produced the
present hodge-podge under which no election is conducted without error
and without inviting a lawsuit and from which all but experts and
professional politicians turn away in irritation and disgust. The net
result has been to complicate our elections and make them less and less
responsive to the best public opinion, and more and more subject to the
control of professional politicians, wire-pullers and bosses.

In conclusion, though repeating myself, I earnestly submit that
there can be no greater menace to our political institutions and
to government by the people than the prevailing tendency to weaken
and impair the representative principle in our state governments by
nominating executive and judicial officers through direct secret
primaries instead of through public conventions composed of delegates
or representatives duly chosen by the enrolled voters of the parties
and charged with the duty of selecting competent and honest candidates
and directly accountable to the locality they represent for the failure
to perform that duty. These delegates represent the people of the
various districts of the state; they come together in public; they
exchange and discuss views, or at any rate have full opportunity for
debate and criticism; they vote in public for this or that candidate,
and then they return to their neighbors, to those who sent them and for
whom they spoke and voted, and face accountability and responsibility.
Is not such a proceeding much more likely to secure competent and
honest candidates than the present system of leaving the voter at
large to slip into a dimly lighted booth and secretly place a cross on
an unidentifiable ballot? The convention system is sound and should
be preserved; it alone will perpetuate our parties and our form of
government, and in casting the representative principle aside, as is
necessarily done in the direct primary system of nominations for state
and judicial office, we are beginning a process which, if not checked,
will end in what Lincoln called political suicide.

FOOTNOTES:

[Footnote 64: Remarks before the Committee on Suffrage of the
Constitutional Convention of the state of New York at Albany, June 16,
1915.]

[Footnote 65: Laws of 1911, ch. 891.]

[Footnote 66: Laws of 1913, ch. 820.]

[Footnote 67: Congressional Government, p. 97, and Constitutional
Government in the United States, pp. 209, 210.]




CATHOLIC PAROCHIAL SCHOOLS[68]


The completion of this building, its dedication to education, and the
opening of its doors as a Catholic parochial school are matters of
no ordinary significance in this community. By means of the present
function we are publicly emphasizing the religious character of the
educational work to be undertaken here. Due respect for the opinion
of our neighbors and fellow-citizens seems to call for some statement
from the standpoint of the Catholic laity in explanation of the reasons
which have impelled a comparatively poor congregation to incur this
great expense and to assume an obligation of future maintenance which
year after year will constitute a very serious and increasing burden.
It is indeed a striking event that a congregation, very few of whom
have large means, should have erected and equipped such a building,
costing over $150,000, and should have pledged itself to support the
school and ultimately to discharge the remaining mortgage indebtedness
of $50,000.

There is unfortunately much misunderstanding and criticism among our
fellow-citizens of other denominations in regard to the attitude of the
Roman Catholic Church towards the important and far-reaching subject
of the education of children in the public schools, and the Catholic
point of view is frequently misrepresented.

In the first place, it is constantly asserted that Catholics are
opposed to the public school system of America. On the contrary,
Catholics approve and support the public schools, and willingly vote
and pay their share of the taxes necessary for the maintenance of
these schools. They believe that the state should provide free common
schools for the education of children, so that every American child
not only shall have an opportunity of securing a free education but
may be compelled to take advantage of the opportunity thus provided.
They recognize that in this country it is generally impracticable in
the common schools to teach the tenets of religious faiths, because
to compel children indiscriminately to study the doctrines of any
particular religion in which their parents do not believe would destroy
all religious freedom and would be contrary to fundamental rights.
They recognize further that to attempt to teach in the public schools
the tenets of the Catholic, the Jewish and the numerous Protestant
denominations, would be quite impossible and inevitably would lead
to religious chaos. They realize that absolute equality or religious
freedom can be secured only by making the public schools non-sectarian.
Catholics, therefore, favor the maintenance of the system of free
common schools; they have heretofore supported and will continue to
support the system, although they object to some of the details of
management, and they will send and do send their children to these
public schools wherever there are no Catholic schools. In fact, fully
one-half of the Catholic children of our country are now attending
public schools because of the lack of Catholic schools.

Thousands of well-to-do Protestants and Jews--many in our own immediate
neighborhood--send their children to private schools, whether day or
boarding schools, in many of which the Protestant faith is taught.
Yet no one suggests that, because these parents send their children
to private schools, they are in any sense acting in hostility to the
public schools, or to American institutions, or to the best interests
of their own children. As parents, they have and ought to have the
right to send their children to such schools as they think will afford
them an education more complete and more conducive to the formation of
moral character than they can secure at the public schools. Catholics
are but exercising the same common right, and what, moreover, they
believe to be their duty as parents, when they send their children to
the parochial schools which are erected, equipped and maintained at
their own expense.

Another misrepresentation, and one which Catholics resent, is the
statement that the parochial and other Catholic schools do not
inculcate patriotism, and that they teach anti-American doctrines.
Any candid investigator will readily find that this charge is wholly
unfounded. In Catholic schools, patriotism, obedience to the law and
loyalty to the Constitution are taught as a religious even more than
a civic duty; the best and highest ideals of American patriotism and
citizenship are exalted. No true American Catholic can be other than
a good and patriotic American citizen. Children are taught in these
schools that loyal obedience to the laws and religious tolerance are
the two essential elements of good Catholic citizenship, and in every
form and aspect they are impressed with the obligation as a religious
duty to render unto Cæsar the things which are Cæsar's and unto God the
things which are God's and to be ever thankful that in this country
these two separate obligations are wholly reconcilable.

The fundamental and controlling reason or motive for the establishment
and maintenance of parochial schools is the profound conviction on the
part of all Roman Catholics, in which conviction clergy and laity are
a unit, that the welfare of the state, the stability of the Union, the
continuance of civil and religious freedom, and the lasting happiness
of the individual depend upon the code and standards of morality,
discipline, self-restraint and temperance taught by religion. The
student of history well knows that social order and civilized society
have always rested upon religion; that there has never been a civilized
nation without religion; that free government has never long endured
except in countries where some religious faith has prevailed, and that
our own country for three centuries has been an essentially religious
country, by which I mean that the great majority of citizens have been
believers in God and in some Christian religion. When the Constitution
of the United States was established, the Americans were a truly
religious people, and as a whole held firmly to one form or another
of Christian faith. It has been recently pointed out by Archbishop
Ireland in the Cathedral of St. Paul that in those days, "to stay
away from religious service on Sunday was to invoke upon one's self
serious public criticism." It is quite true that the great majority of
Americans were then Protestants, but they were a religious majority.
The Catholics can never forget that they owe the blessing of the
religious liberty and tolerance which they now enjoy to a generation
that was overwhelmingly Protestant and that it was first granted at an
epoch when religious liberty and tolerance were practically unknown in
Europe, whether in Catholic or Protestant countries.

Lord Bryce in his great work on "The American Commonwealth" has
reviewed the influence of religion in this country, and has declared
that "one is startled by the thought of what might befall this huge
yet delicate fabric of laws and commerce and social institutions
were the foundation it has rested upon to crumble away." That
foundation he recognized to be religion, and he admonished us that
"the more democratic republics become, the more the masses grow
conscious of their own power, the more do they need to live, not
only by patriotism, but by reverence and self-control, and the more
essential to their well-being are those sources whence reverence
and self-control flow."[69] Catholics believe that those sources of
reverence and self-control are to be found in religion, and that if
we sow in irreligion we shall reap in irreligion. Hence the firm and
uncompromising determination of Catholic clergy and laity that thorough
and efficient religious instruction, so far as lies in their power,
shall be a vital and essential element in the education of every
American Catholic child.

I very much doubt whether any respectable number of sensible and
reflecting American citizens in our day would challenge the truth that
morality is essential to the maintenance of civilized society and
government, that the greatest influence for morality is to be found
in the churches of the various denominations throughout the country,
and that in teaching morality the churches are rendering a patriotic
service and promoting the best interests and the highest policy of
the state. I venture to assert that the only reasonable difference of
opinion possible among candid and just men is as to the best way of
inculcating religion in the young and the extent to which religious
instruction is essential as a part of the complete education of
children. On the one hand, there are those who conscientiously assert
and sincerely believe that their children can receive all the religious
training they need at home or at Sunday school and that they do not
require any religious instruction in the daily schoolroom; on the
other hand, there are those who conscientiously assert and sincerely
believe that religion is the most essential part of the education of
the child and of the forming of its moral character, that few parents
have the time or the ability to teach religion to their children, and
that religion can properly be taught only by making it part and parcel
of the early schoolroom and of every day's instruction and study, while
the mind and character of the child are plastic. The latter view is
that of Catholics and of constantly increasing numbers of Protestants
who send their children to private schools in which the doctrines of
their faith are taught.

In the Catholic view, the influence of the school upon the future
manhood and womanhood and citizenship of the country cannot be
over-estimated. The school is the nursery where the mind and heart
of the impressionable child are moulded into enduring form; the
subtle influence of daily religious surroundings, including example
and suggestion in the classroom, is as strong and pervading as it is
difficult to analyze; the lessons of the primary and elementary school
are those that endure and in time dominate the child's mind; and the
visible examples of daily discipline, uniformity of ideals, obedience,
self-control and disinterested devotedness to Church and country,
indeed the very atmosphere of the Catholic religious school, are of
themselves formative and educative elements. It is the classroom that
is the training field of character and good citizenship--of true
manhood and womanhood. Yet many would wholly exclude and banish its
most important and essential feature!

Catholics believe that religion and the philosophy of Christianity are
not to be taught haphazard, at odd moments, or by untrained persons,
and that a firm grasp of the truths of the Catholic religion--or in
fact of any religion--by the immature minds and hearts of children
cannot be secured by merely reciting abstract maxims of morality, or
without constant example and precept, daily lessons, long training and
thorough drilling. They further believe that, except in rare instances,
this cannot be done by home instruction or by attendance at Sunday
school once a week. The immense sacrifices that Catholics have made
and are making all over the country ought to demonstrate how sincere
is their conviction upon this point. We may form some idea of the
extent of this sacrifice from this building and from the fact that the
assessed valuation of the Catholic parochial schools in the city of New
York is now over $30,000,000.

The story of the heroic struggles and sacrifices of Catholics in
order to maintain their system of schools for the education of their
children ought to be known to every American Catholic, for it is the
most thrilling and inspiring page in the history of their church. The
time remaining to me will permit only a brief review of the results
accomplished. It is an accomplishment of which Catholics may justly
feel proud.

The greatest single religious fact in the United States to-day
is undoubtedly the Catholic school system maintained by private
individuals. The Catholic parish schools now number over 5,000, and
the academies and colleges over 900, with over 1,500,000 pupils in
attendance at these schools and colleges. More than 20,000 Catholic
men and women unselfishly devote their lives to the work of teaching
in these schools, academies and colleges. The system is crowned by a
great Catholic university at Washington with an attendance of nearly
1,500. This vast educational organization is maintained at a yearly
cost of millions of dollars without any public aid whatever, except the
exemption of school property from ordinary taxation. The efficiency
of the Catholic schools and colleges has long been demonstrated by
examinations and practical results, and it is at last generally
conceded. The Catholic schools teach everything that is taught in the
public schools and, in addition, they teach religion and religious
morality. The standards of education in all secular branches are equal
and in many instances superior to those of the neighborhood public
or private schools. In other words, Catholic children are as well
educated in the Catholic schools as in the public schools; they come
from them as well trained and as patriotic as the children coming
from any other schools, and in addition they are thoroughly grounded
in the doctrines of their great religion. I say "great" because it is
the great religion of all Christendom as well as of this country. When
the Constitution of the United States was framed at the Philadelphia
convention of 1787, there were only about 25,000 avowed Catholics in
the whole Union. To-day they number 17,000,000. More than one-third of
all who now attend Christian churches in the United States are Roman
Catholics. The Catholic Church has several times as many members as any
other religious denomination. The figures in the state of New York show
that about 65 per cent., nearly two-thirds, of all regular attendants
at Christian churches, are Roman Catholics, and that the remaining
attendants are divided among many separate Protestant denominations.
Hence the correctness of the assertion that the Catholic religion is
the great religion of this country.

It is true and should be added that Catholics hope that the day
will come when the people of all denominations will more adequately
appreciate the fact that religious instruction tends to promote the
best and the most loyal citizenship, that the Catholic parochial
schools are, therefore, rendering a public service, and that as such
they should be allotted a reasonable part of the public educational
fund raised from general taxation, measured by and limited to the
actual saving to that fund, provided also that a required standard
of education be maintained. In England, for example, the Catholic
parochial schools receive grants of public moneys if they fulfil
certain conditions of efficiency in secular instruction, staff
qualification and equipment, and the extent of these grants is
approximately the actual saving to the public fund. In the Catholic
diocese of Long Island, in which we live, there are now over 68,000
children being educated in the Catholic schools and colleges, and
in Greater New York there are more than 130,000 children attending
the parochial schools. All these children would have to be educated
in the public schools and at the expense of the taxpayers if the
Catholic schools did not educate them, and this Catholic education
involves an immense direct saving to the public school fund. Statistics
recently submitted to the Constitutional Convention sitting at Albany
showed that the immediate saving to the city of New York alone from
the parochial schools was fully $7,500,000 per annum, and that not
one penny of this saving was being contributed by the city or the
state to the cost of educating and training these Catholic children.
Consequently, it is not unreasonable to believe that justice and
tolerance will finally prevail, and that the day will come when it
will be recognized as equitable and as a wise and enlightened public
policy to provide that whenever any denomination, whether Catholic,
Protestant, or Jewish, is, in addition to giving religious instruction,
educating and training large numbers of children according to
satisfactory secular standards and tests, and is thereby relieving the
public educational fund, every such denominational school should be
granted out of the public funds some part of the actual saving so made,
because it is rendering a public service. A basis of adjustment will,
I am confident, be ultimately worked out, which will be fair and just
to all denominations. But in the meantime the private schools where
both secular and religious training are given to children, including
the Catholic parochial schools, must continue to be erected, equipped
and supported wholly by the members of the various denominations. There
are now numerous Protestant private schools where the Protestant faith
is being taught; and what is true of the Catholic parochial schools is
also true of the Protestant schools.

We are all so accustomed to the blessings of absolute religious
liberty that we really find it difficult to imagine that any other
condition could ever have been tolerated in the free air of America,
and we are very apt to overlook or minimize the value of the most
precious privilege we enjoy. Yet, it is only a few generations since
religious intolerance prevailed in the United States and Catholics were
mercilessly and barbarously persecuted. The first constitution of the
state of New York in 1777 discriminated against Catholics by permitting
only Protestants to become citizens of the state, and this was done
notwithstanding the fact that the Continental Congress had three years
before entreated the states to bury religious intolerance forever
in oblivion. At one time in the colony of New York Catholic priests
were hunted as criminals, were condemned to perpetual imprisonment if
apprehended, and were to suffer the death penalty if they broke prison
and were retaken. Catholics could not hold civil or military positions,
and could not even worship God according to their faith without
becoming criminals and liable to imprisonment. The only period of full
religious tolerance and liberty in our colonial history was for a short
time during the term of Governor Dongan, who was a Roman Catholic.

All this intolerance has happily passed away never to return, and
religious liberty is now firmly established. I recall the past only in
order to impress upon your minds that we should treasure this blessing
and be ever grateful to the generation of Americans, overwhelmingly
Protestant, which gave us religious freedom and in doing so went far
toward atoning for the past persecution of Catholics.

In conclusion, I must add that we Catholics of the Parish of St.
Patrick of Glen Cove should acclaim our appreciation of the great
service and unselfish devotion of the one person whose whole-hearted
energy has made this school possible and without whose example we
should despair of maintaining it. Long may this beautiful building
endure as a splendid monument to the faith and patriotism of a Catholic
priest, our beloved pastor, Bernard O'Reilly. We must also voice our
cordial welcome and pledge of support to the Sisters of Notre Dame,
worthy members of a great American Catholic sisterhood devoted to the
education of children, who are now about to take up among us the task
of teaching our children. They will labor week after week and year
after year, devotedly and unselfishly, for a pittance barely sufficient
to supply their absolute physical needs, with little or no expectation
of public recognition. They will seek and find their reward solely in
the inward satisfaction of the day's work and duty well done and in the
inspiring and quickening maxim of their order and of their whole daily
life that their holy task is ever

Pro Deo et Ecclesia et Patria.

FOOTNOTES:

[Footnote 68: Remarks at the dedication of the Roman Catholic parochial
school at Glen Cove, Long Island, New York, on September 6, 1915.]

[Footnote 69: The American Commonwealth, new edition (1912), vol. II,
pp. 793, 794.]




THE FRANCE-AMERICA COMMITTEE OF NEW YORK[70]


I ask you, Gentlemen, to rise and lift your glasses high to the joint
toast of his Excellency the President of the United States, his
Excellency the President of the Republic of France and his Majesty the
King of England.

I ask you again to rise and lift your glasses high to the joint
toast of the other Allies: to his Majesty the King of the Belgians,
whose valiant and heroic people have suffered frightfully and have
again shown, as Cæsar taught us, that "_horum omnium fortissimi sunt
Belgae_;" his Imperial Majesty the Czar of all the Russias, whose brave
soldiers have stood so much of the brunt of the battle and paid such an
awful toll, and to his Majesty the King of Italy, and his courageous
army and navy, whose help may yet prove decisive.

As the permanent object of the France-America Committee, which was
organized long before the present war, is to perpetuate the traditions
and bonds of friendship which bind the governments and peoples of
France and America together, our guests will readily appreciate why
France should seem, at the moment, to be foremost in our thoughts.

Monsieur Homberg, Monsieur Mallet: Le Comité France-Amérique de New
York éprouve un très vif plaisir à saluer en vous les délégués de la
République Française. Le Comité tient à vous témoigner l'amitié des
Américains pour la France, notre admiration de l'héroïsme que le peuple
français de toutes classes a montré pendant l'année affreuse qui vient
de s'écouler, nos ardentes sympathies pour vos souffrances, et nos
souhaits pour votre avenir.

Notre hospitalité est malheureusement imprégnée d'une tristesse
poignante, car un souci de tous les instants ne nous permet pas
d'oublier la guerre brutale et féroce qui a dévasté une grande partie
de la France et presque toute la Belgique, et qui menace non seulement
les libertés des peuples français et belge, mais la civilisation de
toute l'Europe. Il est vrai que notre gouvernement national, pour des
raisons d'état, se trouve forcé de maintenir une neutralité légale,
tâche si difficile et si complexe, mais le peuple américain ne saurait
être indifférent aux malheurs et aux détresses des Français. Un grand
Américain a bien dit que c'est en apprenant l'histoire de son pays
que l'enfant américain apprend à aimer la France. Nous ne pourrions
jamais oublier l'aide généreuse, la sympathie, le dévouement, et le
désintéressement que le peuple français nous a témoignés au début
de notre histoire. Le souvenir, Messieurs, en est ineffaçable.
Innombrables sont mes compatriotes qui prient de tout cœur qu'une
nouvelle Bataille de Poitiers contre les Sarrasins délivre bientôt la
belle et sainte terre de France de ses envahisseurs.

Le service que la France a rendu aux Etats-Unis est souvent méconnu et
quelquefois oublié. L'heure est venue de réfuter et les dénigrements et
les préjugés. Le Comité France-Amérique voudrait saisir cette occasion
pour rappeler hautement ce que nous devons à la France et exprimer
la reconnaissance profonde que le peuple américain ressent envers le
peuple français.

La plupart des historiens, cherchant leurs matériaux dans les archives
des gouvernements et dans les notes des rois et de leurs ministres,
ne voient trop souvent qu'un calcul ou un motif intéressé dans
l'aide que la France nous a apportée et dans l'amitié qu'elle nous a
témoignée pendant notre Guerre d'Indépendance. Mais ceux qui cherchent
consciencieusement à pénétrer jusqu'à l'âme du peuple français
pendant les années de 1776 à 1781, comme l'avait fait l'historien
Américain, James Breck Perkins, feu le président du Comité des Affaires
Etrangères de notre Congrès National, attestent que cette aide, qui
fut si efficace et qui seule a rendu notre succès possible, était
désinteressée et n'était inspirée que par sympathie pour un peuple
faible et par amour pour la liberté et la justice politique. La
Fayette, l'ami intime et dévoué de Washington et de Franklin, était
véritablement l'incarnation du sentiment d'enthousiasme exalté et de
sympathie ardente que les Français ressentaient alors dans toutes
les classes pour un peuple qui voulait être libre. Sans doute Louis
XVI. et Vergennes y voyaient des avantages incidentels et des raisons
d'état, mais c'était bien le peuple impatient et l'enthousiasme et
le sentiment public de la nation entière qui ont finalement forcé
le gouvernement du Roi à nous envoyer une armée disciplinée sous
Rochambeau et une flotte de guerre sous d'Estaing et de Grasse.
L'importance incalculable du service rendu par les Français peut être
estimée en nous rappelant que les deux tiers et les mieux équipées des
troupes alliées à Yorktown étaient français, et que ce fut à Rochambeau
que le commandant anglais avait cru devoir rendre son épée.

En prenant part à notre Guerre d'Indépendance, le peuple français
savait parfaitement que son aide lui coûterait un prix énorme et
que les impôts déjà trop lourds devraient être encore augmentés.
L'historien Perkins déclare que le montant des dépenses de la France
pour libérer l'Amérique s'est élevé à sept cent soixante douze millions
de dollars, c'est à dire, à plus de trois milliards huit cent millions
de francs.[71] De cette énorme dépense, qui a ruiné le trésor royal,
comme l'avait bien prêdit Turgot, pas un sou n'a été remboursé à la
France. Elle ne l'a jamais réclamé, et elle en refuserait fièrement
aujourd'hui le remboursement en nous rappelant qu'elle avait stipulé
dans le traité d'alliance avec les Etats-Unis d'Amérique du 6 Février,
1778, qu'elle ne recevrait aucune indemnité pour sa coopération et
ses sacrifices, et que même si le Canada était conquis, cette contrée
serait annexée aux Etats-Unis et non pas retournée à la France. Ce
traité, sans précédent en générosité dans l'histoire du monde, était
le premier de tous les traités que les Etats-Unis ont faits et le seul
traité d'alliance dans notre histoire.

Ne serait-il pas souverainement juste, si le peuple américain, cent
trente quatre ans après la bataille de Yorktown, reconnaissait ce
service--je me refuse à l'appeler dette--en offrant au peuple français
un crédit commercial du principal, c'est à dire, sept cent soixante
douze millions, remboursable quand la France le pourrait? Même en
francs, ce ne serait que l'équivalent d'une contribution insignifiante
par chaque citoyen des Etats-Unis, et bien moins en valeur que l'impôt
qui a été payé volontairement et de bon cœur par le peuple français
du dix-huitième siècle pour nous aider. Quelle noblesse, quelle
gloire, quelle splendeur de cœur, d'âme et d'esprit si les grands
banquiers américains avaient pu proclamer au monde qu'ils avaient
eux-mêmes offert le crédit en reconnaissance du passé! Nous serions
vraiment fiers de notre génération si elle pouvait écrire une page
aussi sublime, aussi impérissable dans l'histoire du monde. Alors,
Messieurs, nul doute ne subsisterait quant au succès éclatant de votre
mission, surtout si une parole éloquente pouvait toucher le cœur des
Américains et leur rappeler combien ils doivent à la France, à cette
république sœur et souffrante, et combien la question aujourd'hui n'est
pas seulement une affaire commerciale pour notre propre profit avec nos
meilleurs clients, mais aussi une question de gratitude pour un ami
loyal et dévoué et de sympathie effective pour un grand et noble peuple
qui souffre.

Au nom de cette reconnaissance et de cette sympathie américaines que
j'ai essayé d'exprimer en interprétant, j'en suis convaincu, la pensée
de tous les Américains réunis ici, je lève mon verre en l'honneur de
la République Française, de la France blessée mais si vivante, si
courageuse, si valiante, et de ses représentants distingués qui nous
honorent de leur présence, M. Octave Homberg et M. Ernest Mallet.
Messieurs, j'ai l'honneur de vous présenter M. Homberg.[72]

My Lord Chief Justice of England and Gentlemen of the British
Commission: After the eloquent tributes of last night at the Pilgrims,
I find it extremely difficult to express and convey to you the full
import and sincerity of our welcome.

Every tie that can bind one people to another binds the American
people to the English. Most of us are of the Anglo-Saxon race and have
the same blood coursing through our veins. To the great majority of
Americans, England has ever been the mother country. We speak the
same language, read the same literature, strive for the same ideals,
are governed by the same principles of politics and jurisprudence,
and entertain the same fundamental conceptions of right and wrong and
justice as among men and among nations. The greater part of England's
history is our history; her Magna Carta is our Magna Carta, and the
immortal deeds of valor of the English, Scotch, Irish and Welsh are
our heritage and the source of our inspiration. Our hearts, therefore,
cannot but beat faster day after day as we read of the splendid heroism
and noble self-sacrifice of your great race.

To our minds the noblest and the most truly glorious page in the
history of England was written by Sir Edward Grey when, on behalf
of your government, my Lord, he refused to break the plighted faith
of England to avoid involving his country in the greatest and most
disastrous war in the history of the world, a war for which England
was not prepared, for which Sir Edward and his colleagues knew she
was not prepared, and which threatened and might involve the ruin of
the British Empire. There is a nobility and sublimity, inexpressible
by mere words, in the act of sending that small but now immortal
British army to Belgium in August of last year, to face tenfold its
number, to die for strangers--for a mere "scrap of paper," as a treaty
was cynically and immorally called--solely that the honor of England
might be kept inviolate. England has never been grander or nobler than
on that day. The glory she then gained cannot fade. Gentlemen, the
Anglo-Saxon race never rose to higher renown than when the British
statesmen of to-day showed on such a grand scale that the spirit of the
Light Brigade at Balaclava still lives:

  "Their's not to reason why,
  Their's but to do and die."

And we Americans were then prouder than ever before to belong to the
Anglo-Saxon race.

England may prevail in this war, or she may fail. But whatever may
happen, whatever may be decreed by Providence, your magnificent and
unselfish heroism in springing to the defense of Belgium has added
to England's renown and to our race a glory which is priceless and
infinitely beyond the whole cost of the war, a glory worth dying for,
a glory that will thrill and uplift generations of men for all time,
a glory that will ever inspire acts of patriotic service and valorous
self-sacrifice, of chivalry and honor.

Although, Gentlemen of the British Commission, the deep sympathy of
the great majority of Americans is naturally with the Allies in the
present war, we want you to return to England appreciating why we must
loyally support the neutrality which the President of the United States
has proclaimed. The policy of this country in regard to European wars
was fixed in 1793. One of the most important and enduring of the many
services that President Washington rendered to the United States was
when he stood firm as a rock against the abuse and clamor of that day
in upholding and enforcing neutrality in favor of England as against
the demands of her then enemies. We have consistently adhered to that
principle for more than one hundred and twenty years. It has been our
fixed and constant policy, not a football of politics, or of newspaper
propaganda, or of temporary emotion or expediency, but the sober
judgment and conscience of the nation. The essence of this policy is
that it is the duty of our government, not only to the present but to
future generations, to avoid being drawn into European wars unless
our honor or our vital interests become involved. During more than
a century we have invited the inhabitants of every nation of Europe
to come here and become a part of our country, and we have impliedly
assured them of our adherence to this traditional policy of neutrality.
If, now, we also should draw the sword, out of heartfelt sympathy and
friendship for the Allies, or in indignation at the outrage of the
violation of Belgium, we might become hereafter constantly involved in
European conflicts in which we should have no other than a humanitarian
interest, and as a result find the devoted friends and relatives of
to-day the inflamed and bitter enemies of to-morrow.

My Lord and Gentlemen of the British Commission, we want you to return
to England realizing how difficult and complex is the task of our
President. Under our system of government, he alone can speak for
the nation and commit us in our foreign relations, upon him alone is
imposed the awful burden of responsibility and duty, and patriotism
commands us as Americans loyally to support him, whatever may be our
individual opinions or sentiments as to particular measures or grave
omissions. We want you to return profoundly convinced that in standing
by our policy of neutrality, we are not indifferent, or callous, or
pusillanimous, or mercenary; and that our President is striving on our
behalf to do what is right as God gives him to see the right, not only
by the Americans now living but by those future generations for whom we
are the trustees. Above all, we want you to return to England firmly
believing that we unqualifiedly approve and extol the noble and heroic
action of England in drawing her sword in defense of Belgium, and that
our heartfelt sympathy and good wishes are with you and your heroic
sailors and soldiers at the front.

Gentlemen, I ask you to rise and lift your glasses high and drain them
in honor of the distinguished representatives of England. I have the
pleasure of presenting to you the Right Honourable Lord Reading, the
Lord Chief Justice of England.

FOOTNOTES:

[Footnote 70: Remarks as presiding officer at a luncheon given in honor
of the members of the Anglo-French Credit and Finance Commission, at
the Hotel Knickerbocker, New York, October 1, 1915.]

[Footnote 71: France in the American Revolution, p. 498; see also the
introduction by Ambassador Jusserand, p. xv. The accuracy of these
figures has not been independently verified. An examination of the late
Mr. Perkins' papers does not disclose the source of his statement. The
French archives show a direct expenditure of 1,507,500,000 livres, but
these figures do not include payments made in and after the year 1783.
Professor Marion of the Collège de France is of opinion that the total
expenditure probably reached 2,000,000,000 livres. Marion, _Histoire
Financière de la France, 1715-1789_, vol. I, p. 303, Paris, 1914; see
also Gomel, _Les Causes Financières de la Révolution Française_, vol.
II, p. 36, Paris, 1893. Fiske, in his Critical Period, p. 35, states
the expenditure to have been 1,400,000,000 francs.]

[Footnote 72: M. Homberg replied in French, and Mr. Guthrie then
continued as above.]




INDEX


    American ideals, 37, 161, 267.

    Ancestor-worship, 27-29.

    Anglo-French Commission, 261.

    Anson, Sir William R., 104, 106.

    Aristotle, 14.

    Athens, 42.

    Australia, 81.

    Ayers, In re, 118.


    Bakers case, 57, 153.

    Bancroft, George, 30.

    Bankers, Case of the, 106.

    Bar, should defend the courts against criticism, 70, 127, 147, 158;
      duty to defend constitutional guaranties, 85, 86;
      efforts to secure proper judicial nominations, 139-141;
      professional responsibility, 142-143.

    Barons, Articles of the, 5.

    Bate's case, 17.

    Belgium, 261, 262, 267, 270.

    Bill of Rights, New York statute of 1787, 19, 23;
      permanent nature, 20, 21, 203;
      the federal bill of rights, 74, 83;
      must be enforced by the courts, 77-78;
      ineffective where legislative power is supreme, 77-78.
      _See_ Constitutions and Constitutional limitations.

    Blackstone, Sir William, 99, 168.

    Bonham's case, 10.

    Bosses, Political, their power increased by direct primaries, 142,
    236, 238;
      efforts to overthrow them, 230-231, 245;
      Woodrow Wilson on, 242.

    Bracton, Henry de, 102.

    Bradford, William, 30n, 38-39.

    Bryan, William J., 180-182, 213-215.

    Bryce, Viscount, 69, 251.


    Carlisle _vs._ United States, 101.

    Charter, _see_ Constitutions and Magna Carta.

    Chisholm _vs._ Georgia, 89, 95.

    Church and State, Separation of, germ of idea in Magna Carta, 11, 12;
      an American political principle, 12;
      opposed by Puritans, 32, 33;
      accomplished by the Pilgrims, 32, 34.

    Clark _vs._ Barnard, 96.

    Class legislation, may lead England to restrain temporary
    majorities, 11;
      masking as social reform, 43;
      dangers of, 74, 79, 85, 124;
      New York tenement law of 1884, 85;
      involved in graduated taxation, 165, 166.

    Cleveland, Grover, 149, 151, 216.

    Cohens _vs._ Virginia, 93.

    Coke, Sir Edward, 23, 105.

    Common law, silent as to the equal protection of the laws, 36;
      may be changed by the legislature, 68-69, 134-138, 155;
      the birthright of Americans, 98;
      soundness of common-law rules, 132-134.

    Commune consilium, antecedent of parliament, 16;
      power to impose taxes, 16.

    Communism, a conceit of Plato's, 38;
      failure of the experiment in Plymouth colony, 37-39;
      in the colony of Virginia, 38.

    Congress, decay through increase of executive power, 44;
      power to regulate interstate commerce, 61;
      cannot regulate internal affairs of the several states, 61;
      acts of, 61, 62, 68, 100, 121, 126;
      limitations upon, 74, 78, 81, 169-171;
      proposes amendments to the Constitution, 74, 89;
      attempts to curtail the federal courts, 88, 125;
      duty to enforce constitutional amendments, 110;
      duty to uphold the Constitution, 171-172;
      protection of American industries and wages, 193-197;
      dissatisfaction with, 205-206.

    Consolidated Gas Co. case, 122.

    Cooley, Thomas M., 90, 161-162.

    Constitutions, principles rooted in Magna Carta, 1;
      intended to endure forever, 20, 21, 203;
      unwise to create political body to enforce, 25;
      may be deprived of practical force by failure to observe
      constitutional restraints, 46, 75;
      explanation would dispel prejudice against the courts, 48;
      nature and purpose to declare general principles, 52;
      a rule of interpretation, 154-155;
      antiquated in the view of modern iconoclasts, 202;
      small vote on amendments, 208-209;
      should deal only with fundamentals, 224, 225.
      _See_ Magna Carta and Mayflower Compact.

    Constitution, Federal, sources of, 1, 31, 98;
      enforced by the courts, 25, 42 sqq., 70 sqq., 87 sqq., 109 sqq.;
      supremacy of, 71 sqq., 87, 111, 113;
      considered and ratified, 74, 88, 89;
      easily amended, 82-85, 89, 91-92, 175, 176, 208;
      necessity for deliberation in amending, 84-85, 176-177;
      rule for construing, 97-98;
      oath to support, 171-172;
      attempts to circumvent, 175;
      embodies eternal truths, 203.
      _See_ Constitutional limitations.

    Constitutional government, depends upon constitutional morality, 26;
      its debt to the Pilgrims, 29, 32, 35;
      characterized by equality before the law, 35.

    Constitutional limitations, idea in Magna Carta, 6-7;
      recognized in statute of 42 Edward III., 7, 8;
      common to every American constitution, 8, 73;
      not imposed upon parliament, 9-11, 76-77, 107;
      their enforcement left to the courts, 25, 45, 47, 70 sqq., 87, 109,
      113, 127;
      growing impatience with, 42, 43, 48, 124, 202;
      could be nullified if judges followed the prevailing
      morality, 45, 46;
      enforcement by the courts necessary, 70 sqq.;
      binding upon Congress, 74-75, 171-172;
      Elihu Root on, 75;
      make possible constitutional morality, 86;
      to be observed by the President, 171-172.
      _See_ Constitutions, Due process of law, Constitutional morality,
      Judiciary, and Fundamental laws.

    Constitutional morality, a condition of permanent free
    government, 26, 42;
      discussed generally, 42-86;
      growing tendency to disregard, 42;
      its disregard caused the overthrow of Grecian democracy, 42;
      its essence is self-imposed restraint, 42;
      its necessity should be taught, 48, 85-86.

    Conventions, Constitutional, their duty to secure the privileges
    of Magna Carta, 2;
      the first American, 29-30, 37;
      Ohio convention of 1912, 61, 64;
      the federal convention of 1787, 89, 256;
      in New York, 154, 186, 235, 257.

    Conventions, Nominating, discussed generally, 219-246;
      right to, should be guaranteed by the Constitution, 220, 225;
      their origin, 229;
      abuses of, 229, 237;
      movement to abolish, 230, 239-240;
      their merits and advantages, 236-237, 242-246.

    Cotting _vs._ Kansas City Stock Yards Co., 123.

    Courts, _see_ Judiciary.

    Coxey's Army, 181, 199.

    Criminal Procedure, delays in, 126, 143-146.

    Cromwell, Oliver, 34-35.

    Crown, power limited by Magna Carta, 11, 12, 24-25;
      former exercise of legislative power, 17;
      maxim that "the king can do no wrong," 98, 102, 105, 108, 114;
      sued under the Petition of Right, 99-102;
      not suable in tort, 102.

    Cullen, Chief Judge, 80, 139, 210.


    Davis _vs._ Gray, 115.

    Day in court, 13, 121, 150.

    Debs case, 148-151, 212, 215-216.

    Declaration of Independence, proclaimed the inalienable rights of the
    individual, 4, 81;
      relation to the Mayflower Compact, 30;
      its spirit perpetuated, 76;
      marked human progress towards liberty, 203;
      its truths eternal, 203.

    Demagogue, his plea that the people are infallible, 43;
      his well-known arts, 192.

    Democracy, the fallacies of absolute, 39-40, 43, 165;
      in Plymouth colony, 39;
      historical failures, 42, 75, 205.

    Democratic party, principles and recent campaigns, 178 sqq.;
      tariff legislation, 195-198;
      on use of injunctions, 213-214.

    Despotism, equal laws a feature of, 36;
      will result from increasing power of the executive, 44.

    Dicey, A.V., 15, 103.

    Dies parentales, 27.

    Due course of law, in New York bill of rights of 1787, 23.

    Due process of law, universal application in the United States, 18;
      equivalent of "law of the land" (q.v.), 18;
      substance of expression in Magna Carta, 18;
      history of expression in America, 18-19, 23-24;
      meaning, 19, 22-24;
      earliest use, 22-23;
      term meaningless to man in the street, 48;
      principle applied in the Tenement House case, 54;
      in the Ives case and Employers' Liability cases, 65, 68.


    Education, Catholic parochial schools, 247-260;
      primary and elementary, 253;
      the Catholic university, 255;
      public grants to private schools, 256, 257.

    Edward I., 100.

    Edward III., 7, 8, 11, 22, 23.

    Edward the Confessor, 7.

    Egyptians, 27, 168.

    Election Law (New York), 209, 219.

    Elections, primary elections a menace, 39, 142, 227-228, 231-236,
    238, 245-246;
      presidential, 178 sqq.;
      nomination of candidates, 207, 219-246;
      vote on constitutional amendments, 208-209;
      effect of the short ballot, 222-224;
      secret ballot objectionable, 228;
      some New York statistics, 231-233;
      origin of primaries, 239-240;
      to judicial office, 243-245.
      _See_ Conventions.

    Electorate, responsible for political evils, 205-206, 245;
      voting a duty, 206, 238, 245;
      indifference and negligence of, 207, 208, 209, 230-232, 237, 240;
      remedy for corruption, 237-238.

    Eleventh amendment, main treatment, 87-129;
      text, 91;
      possibly qualified, 97, 110.

    Employers' Liability cases, 61-64, 67-68, 121.

    English church, its part in Magna Carta, 3, 4, 11, 12;
      freed from the crown by Magna Carta, 11, 12.

    England, political thought in the 13th and 14th centuries, 6-9, 18-19;
      taxation, 9, 16-18;
      courts, 10, 17, 76, 77, 103-107;
      class legislation, 11;
      acts of Supremacy and Uniformity, 32, 36-37;
      debt to Puritanism, 34-35;
      in the World War, 35, 261, 267-270;
      labor legislation, 79;
      protective tariff, 196;
      cost of living, 199, 200;
      board of trade, 200;
      union of legislative and executive powers, 227-228;
      state aid to parochial schools, 256.
      _See_ English church and Parliament.

    Entick _vs._ Carrington, 104.

    Equality before the law, 31, 35, 152, 161.

    Europe, political ideas in the 13th century, 6;
      in 1620, 35;
      the great war, 35, 41, 267 sqq.;
      source of legislative schemes, 76;
      industrial competition with the United States, 196-197;
      high cost of living, 200.

    Executive, and legislative power in England, 17;
      power limited by Magna Carta, 24-25;
      increase in power threatens despotism, 44, 223-224;
      shifting responsibility to the courts, 47;
      duty to uphold the Constitution, 171-172;
      sentiment against a third term, 186-188;
      now most powerful branch of the government, 220;
      should not exercise the lawmaking power, 227;
      control of foreign relations, 269.


    Feather _vs._ The Queen, 104.

    Federalist, quoted on judicial power, 71-72, 109.

    Fifteenth amendment, 83, 110.

    Fifth amendment, 19, 68.

    Fitts _vs._ McGhee, 118.

    Fitzwater _vs._ Warren, 138.

    Five Knights case, 15.

    Fourteenth amendment, 24, 36, 68, 110, 111, 169.

    France, early charters of liberties, 5;
      _les lois fondamentales_, 7;
      legislative and executive powers, 76, 77, 227-228;
      forced loans, 164;
      French Revolution, 164;
      cost of living, 200;
      friendly relations with America, 261-266;
      in the World War, 261, 262-266;
      aid to American revolutionists, 262-264;
      treaty of alliance with America of 1778, 265.

    France-America Committee, 261.

    Fuller, Chief Justice, 46, 173.

    Fundamental laws, idea revived by Magna Carta, 6-7;
      in Greece and Rome, 6;
      in France, 7;
      a controlling principle of American constitutions, 8, 73;
      idea abandoned in England, 9;
      theory may yet be applied by English courts, 11.
      _See_ Constitutions.


    Gaynor, William J., 54, 55, 57.

    Georgia, 89, 90, 95.

    Glen Cove parochial school, 247, 259.

    Government, origin and importance of separation of powers, 4, 13, 16,
    17, 18, 227;
      depends more upon men than upon laws, 28, 206, 221;
      governmental powers derived from the consent of the governed, 30;
      government by the legislature preferable to government by the
      judiciary, 45, 46;
      the form may survive the substance, 46;
      constant extension of governmental functions, 74, 80, 120, 220;
      the American government different from others, 76, 161, 227;
      trend toward centralization in America, 176;
      local self-government essential, 177;
      need of trained experts, 220-221.
      _See_ Congress, Constitutional government, Democracy, Executive,
     Judiciary, Legislature, Minorities, Majorities, Representative
     government, and State governments.

    Graduated taxation, general discussion, 159-177;
      exempts the majority and burdens the minority, 160, 163, 166;
      a means to break up large fortunes, 160, 169-170;
      may amount to confiscation, 163-166;
      necessarily arbitrary, 163;
      as forced loans in France, 164;
      Lecky's views, 164-165;
      McCulloch's views, 165-166;
      views of Leroy-Beaulieu, 166.

    Great Britain, 10, 101.
      _See_ England.

    Great Charter, _see_ Magna Carta.

    Greece, fundamental laws in, 6;
      ancestor-worship, 27;
      Athenian democracy, 42, 75.

    Gunter _vs._ Atlantic Coast Line, 96.


    Habeas corpus, Writ of, the bulwark of personal liberty, 15, 16;
      its antecedent in Magna Carta, 15;
      in England, 15, 107;
      rendered effective by the courts, 77.

    Hamilton, Alexander, 71, 74, 88, 161.

    Hampden, John, 17, 34.

    Hans _vs._ Louisiana, 95.

    Hearn, Lafcadio, 28, 29n.

    Henry VIII., 32, 36.

    Holden _vs._ Hardy, 60.

    Hunter _vs._ Wood, 119n.


    Impositions, Case of, 17.

    Income Tax cases, 173, 175.

    Income Tax, 159, 173-175.

    Inheritance Tax, 159-160, 167-173.

    Initiative and Referendum, a menace to our republican form of
    government, 39, 193;
      origin in distrust of legislatures, 44;
      agitation for, 47, 204;
      in Australia, 81;
      a scheme of the Progressives, 204-209.

    Injunctions, as used to restrain state officers, 87-88, 97, 109-114;
      to restrain officers of the crown in England, 106-107;
      to restrain criminal proceedings, 117-119;
      to prevent the enforcement of unconstitutional state statutes, 120,
      125, 127, 128;
      use in connection with strikes and labor disputes, 146-152, 212-217;
      New York practice, 148, 151-152.

    Inquisition, Writ of, 14, 15.

    Institutions, the slower their growth the more enduring they are, 1;
      English source of American institutions, 98, 266-267;
      the Roman Catholic church and American institutions, 249-250.

    Intestate succession 167-169.

    Ives case, 65-69, 153.


    Jacobs case, 49-57, 153, 154.

    James I., 17, 30n, 31n.

    Japan, 27-29, 197.

    Jefferson, Thomas, 186, 187, 189, 197, 205.

    John, King, 4, 7, 12, 25.

    Judges, qualifications, 13, 14, 70, 142, 243-245;
      bound by principles, rules and precedents, 46;
      not infallible, 47;
      duty to enforce the law, 128, 129, 209;
      selection and tenure, 139-142, 243-245;
      should be defended against unjust criticism, 69-70, 126-128, 157-158.
      _See_ Judiciary and Recall.

    Judiciary, power to annul unconstitutional laws, 7-9, 25, 42 sqq.,
    70 sqq., 87 sqq., 109 sqq.;
      former dependence upon the crown, 10, 17;
      has no power over legislation in England and France, 11, 76, 77, 107;
      importance recognized in Magna Carta, 13, 14;
      defended against unjust criticism, 43 sqq., 130-158, 181, 193,
      211-212;
      government by, 45-46;
      rules for determining the constitutionality of a statute, 45, 46, 52;
      charged with having usurped power over legislation, 45, 70, 81;
      examples of alleged abuse of power, 48-68;
      cannot control legislative discretion, 52;
      should avoid judicial legislation, 62, 135;
      necessity of defending against unfair criticism, 69, 70,
      126-128, 158;
      must enforce the Bill of Rights, 77;
      control over executive and administrative officers, 103-107,
      111, 114;
      necessity for confidence in, 126-128;
      the bulwark of liberty, 128, 226;
      independence of, 141, 142, 226;
      not responsible for delays, 142-146.
      _See_ Judges, Constitutional limitations, Injunctions, and Recall.

    Judiciary, Federal, jurisdiction to enjoin state officers, 87,
    108-110, 113, 117, 119;
      efforts to curtail power of, 88, 125;
      jurisdiction limited, 97;
      power to annul state laws a necessity, 108, 109, 112, 116, 124-129;
      compels the states to obey the Constitution, 113;
      power to enjoin criminal prosecutions by the states, 117-119;
      causes of dissatisfaction with, 126;
      oath of office of judges, 127;
      constituted as a bulwark of liberty, 128;
      assaults upon, 128, 146-152;
      issuance of injunctions in labor disputes, 213-217;
      power to punish for contempt, 215-217.
      _See also_ Supreme Court.

    Jurisprudence, as a science, 13, 52.

    Jury-trial, origin in Magna Carta, 15, 19-20;
      early history, 19-20;
      a right assured by the judicial power, 78;
      not in cases of contempt, 215.

    Justice, political justice secured by Magna Carta, 1, 4, 13-15;
      the highest political liberty, 13;
      uniformity and certainty essential in its administration, 13;
      social justice, 43, 81-82;
      delays in its administration, 125, 126, 142-146.


    Knisley _vs._ Pratt, 137, 155.


    Labor, competition of foreign workmen, 196, 197, 198;
      conditions in 1896, 198-199.
      _See_ Master and servant.

    Labor laws, in New York, 50, 56, 58, 59, 137, 156.

    Labor unions, attitude toward the courts, 131, 140-141;
      some labor leaders, 131, 147, 212;
      opposition to injunctions, 146-152.

    Labourers, Statute of, 79.

    Langford _vs._ United States, 103.

    Langton, Stephen, 5, 12.

    Law, how to be administered, 13;
      wiser than those who administer it, 14;
      principle of the supremacy of the law, 14, 103-107, 111, 114;
      just and equal laws, 31, 35, 36, 37, 152;
      equality before the law, 35, 36, 161;
      growing disregard of, 43, 201;
      touches every individual, 85.
      _See_ Common law, Due process of law, Fundamental laws,
      Law of the land, Justice, Judges, and Judiciary.

    Lawlessness, manifested in alleged reforms, 43;
      and in labor organizations, 150, 217;
      its growth in connection with the spread of socialism, 201.

    Law of the land, a phrase wiser than those who wrote it, 5;
      the epitome of ancient and forgotten wisdom, 5-6;
      guaranteed by Magna Carta, 9, 18, 21, 22;
      the equivalent of "due process of law" (q.v.), 18;
      meaning, 18, 19, 21, 22;
      in American constitutions, 18-19, 23-24;
      in the Petition of Right, 23.

    Lawyers, _see_ Bar.

    Lecky, W.E.H., 164.

    Legislation, formerly not a panacea for all ills, 9;
      practical reforms needed, 44, 205-206;
      alleged social legislation, 49-54, 153, 154;
      particular legislation criticized as being arbitrary, crude,
      experimental, meddlesome, and oppressive, 52, 80, 82, 120-125,
      163, 245;
      a rule of construction, 154-155;
      necessity for exact language, 208;
      great volume of statutes, 204, 208.
      _See_ Class legislation and Social legislation.

    Legislature, taxation originally its chief function, 9;
      limitations upon, 43-46, 51, 70, 71, 78, 81, 124;
      corruption charged by social reformers, 44;
      abandoning constitutional questions to the courts, 47;
      duty to apply constitutional principles, 52;
      supreme in its sphere, 52;
      power to protect the public health, 59, 60.
      _See_ Constitutional limitations, Legislation, and Congress.

    Leroy-Beaulieu, Pierre Paul, 166.

    Liberty, Civil, guaranteed by Magna Carta, 1, 4, 5;
      Declaration of Independence, 4, 81;
      early charters of the French kings, 5;
      writ of habeas corpus its bulwark, 15, 16;
      conditions necessary for its perpetuation, 26, 36, 37;
      guaranteed by the Constitution, 51, 76;
      legislative interference with, 74, 80;
      of vital concern to everyone, 84;
      guarded by the common law, 98;
      its essence, 124;
      some political documents, 203;
      threatened by temporary majorities (q.v.), 211.

    Liberty, Constitutional, Justice Story on, 25;
      in the custody of the American people, 26;
      the Pilgrim Fathers assist at its birth in America, 30.

    Liberty, Religious, secured by the New York constitution, 12;
      idea of, in Magna Carta, 12, 13;
      established in America by the Pilgrims of Plymouth, 32, 34;
      our greatest blessing, 34;
      secured by the courts, 77-78;
      favored by non-sectarian public schools, 248;
      fostered in America by Protestants, 251, 259;
      formerly denied to Catholics in New York, 258;
      secured temporarily in New York by Governor Dongan, 259.

    Lincoln, Abraham, 26, 191, 246.

    Lottery case, 46.


    Madison, James, 88, 186, 189, 197.

    Magna Carta, general treatment, 1-26;
      marked our greatest political epoch, 1;
      saved England from despotism, 1;
      the source of representative government, 1-2, 16, 18;
      the foundation of liberty and justice, 1, 4;
      reissues and confirmations, 2, 3, 7, 8, 20, 22;
      extolled by the royal governor of New York, 2;
      crystallized and perpetuated English liberties, 2, 3, 5, 21;
      all Americans enjoy its privileges, 2, 3, 5;
      granted at Runnymede, June 15, 1215, 3;
      still on the English statute books, 3;
      a battle-cry against tyranny, 3, 11;
      modern criticism of, 3-4, 7, 8, 15, 19;
      the value of its traditions, 4-5, 26;
      based upon eternal truths and to endure forever, 5, 21, 203;
      established the rights of the individual as against the
      government, 6, 7;
      long regarded as an unalterable fundamental law, 6-10;
      limited the power of the king, 11, 12, 24-25;
      denounced by the Pope, 12;
      established the supremacy of the law, 14;
      translated and explained in the churches, 14;
      guaranteed the writ of habeas corpus, 15;
      separated legislative and executive power, 16;
      prevented taxation without the consent of parliament, 16-17;
      the law of the land, 18-22;
      jury-trial, 19, 20;
      supplemented by the statute of 1354, 22-23;
      justified revolution for cause, 25.

    Majorities, Temporary, may yet be restrained in England, 11;
      arbitrary action, 40, 124;
      their alleged infallibility a dangerous doctrine, 43;
      the proposal to free them from all restraints, 43;
      their ever-changing opinions and desires as a rule of constitutional
      construction, 45-46;
      oppressive class legislation, 74, 78-79;
      need to be restrained, 75;
      exercise of the taxing power, 165;
      would overrule the courts, 211.
      _See_ Minorities.

    Mallet, Monsieur, 262, 266.

    Marbury _vs._ Madison, 8, 72, 100, 124.

    Marshall, Chief Justice, his decision in Marbury _vs._
    Madison, 8-9, 72-73, 100;
      on the Constitution, 21;
      on the suability of a state, 88;
      on the eleventh amendment, 93-94, 95;
      on restraining state officers, 113-114;
      on civil liberty, 124;
      on the duty of judges, 129;
      unpopular decisions, 210.

    Martial law, as the alternative of injunctions, 151.

    Master and servant, three common-law rules changed by
    Congress, 62-63, 68;
      the common law to be changed by the legislature, not by the courts,
      68-69, 134-135, 137-138, 155;
      soundness of the common-law rules, 132-134.
      _See_ Workmen's Compensation.

    Mayflower, 27, 29, 30, 32, 37.

    Mayflower Compact, main treatment, 27-41;
      its interest to Americans, 29, 30, 31, 40;
      called the first written constitution, 30;
      text as preserved by Governor Bradford, 30n-31n;
      its covenant for just and equal laws, 31, 35-37;
      initiated republican government, 31, 40.

    Minorities, English courts may yet have to protect, 11;
      their protection entrusted by the founders to the
      courts, 25, 43, 75, 76, 78;
      secure under representative government, 40;
      threatened by the short ballot, 223.
      _See_ Judiciary.

    Monroe, James, 186, 189, 197.

    Morality, a condition of social welfare and individual
    happiness, 250, 252;
      taught in Catholic schools, 250, 255.
      _See_ Constitutional Morality.


    Natural rights, a cardinal principle of Magna Carta, 6.

    New York city, tobacco workers in tenements, 49-57;
      board of health, 50;
      death-rate, 51;
      tenement-house conditions, 55-57;
      courts, 141, 142;
      parochial schools, 254, 257.

    New York state, constitution, 12, 19, 23, 24, 49, 258;
      Court of Appeals, 50, 57, 65, 80, 138, 139, 141, 145, 146,
      154-156, 212;
      Bar Association, 75, 131, 140;
      conflicts with the federal courts, 87;
      practice as to injunctions, 148, 151-152;
      population, 204, 234;
      religious denominations, 256.

    North Carolina _vs._ Temple, 95.


    Officers, Public, responsibility of, 14, 103-106, 111, 114, 226;
      fair criticism desirable, 47;
      greater permanency of tenure advocated, 143;
      their selection important, 221;
      in New York, 222-224.

    Osborn _vs._ U.S. Bank, 112-114.


    Parliament, and Magna Carta, 3;
      its power formerly limited, 7, 8, 10;
      its supremacy, 9-11, 17-18, 76-77, 107;
      formerly believed to exist to uphold Magna Carta, 10, 25;
      its consent to taxation necessary, 16;
      parliament of 1265 developed from the _commune consilium_, 16;
      prototype in parliament of Simon de Montfort, 18;
      labor laws, 79;
      statute on the Petition of Right, 101.

    Parties, Political, essential to free government, 206, 238-242;
      should follow the representative principle, 207;
      effect of initiative and referendum upon, 207;
      corruption not cured by primaries, 236, 238;
      party government, 238-242.

    People _vs._ Koerner, 145.

    People _vs._ Lochner, 57-58, 153.

    People _vs._ Lustig, 145.

    People _vs._ Turley, 143.

    Perkins, James Breck, 263, 264.

    Persecution, Religious, in 16th and 17th centuries, 33-34;
      by Puritans in Massachusetts, 33;
      often really political, 33n, 34;
      in England, 36-37;
      of Catholics in America, 258-259.

    Petition of Right, relation to Magna Carta, 15, 23;
      procedure under, 99-102.

    Phelps, Edward J., 26n.

    Pilgrim Fathers, debt of America to, 29, 32, 34, 35;
      framed first written constitution, 30;
      their tolerance, 32, 33;
      their relation to the Puritans, 32, 34;
      hated by both Puritans and Cavaliers, 32;
      separated Church and State and established religious liberty, 32, 34;
      their experiment in communism, 37-39;
      established representative government in America, 39;
      military preparedness, 41.
      _See_ Mayflower Compact.

    Plymouth colony, government of, 23, 37, 39;
      Governor Bradford's annals of, 30n;
      freedom from religious persecution, 33;
      absorbed by Massachusetts in 1691, 37.

    Poindexter _vs._ Greenhow, 112.

    Police power, exercised by the legislature, 60;
      its just exercise not hindered by the courts, 81-82;
      very comprehensive, 211.

    Precedents, their value in the law, 22;
      judges bound by, 46;
      danger of establishing, 52.

    Primary elections, _see_ Elections.

    Progressive party, 183, 204, 211, 217.

    Prohibition, Writ of, 107.

    Prosecuting attorney, his work, 143, 144, 146.

    Prout _vs._ Starr, 110.

    Public service corporations, legislative oppression of, 120;
      right of appeal to the courts, 121-126;
      regulation necessary, 126.

    Puritans, their relation to the Pilgrims, 32, 34;
      their views, 32-33;
      our debt to them, 34;
      their influence in England, 34-35.


    Quakers, 33n.

    Quo warranto, Writ of, 107.


    Railroads, oppressed by legislation, 120, 121, 123.

    Recall, a menace to our republican governments, 39, 193,
    205-207, 209-211;
      agitation for, 47;
      applied to judicial decisions, 211.

    Referendum, _see_ Initiative.

    Religion, growing disrespect for, 201;
      impracticable to teach it in the public schools, 248;
      the foundation of our social order, 250-252;
      should be taught systematically to school children, 252-254, 256;
      religious denominations in the United States, 255-256.
      _See_ Liberty and Persecution.

    Representative government, foundation laid by Magna Carta, 4, 16, 18;
      synonymous with the republican form of government guaranteed by the
      Constitution, 31, 39, 75, 76, 227;
      first established in America by the Pilgrims, 31, 39, 40;
      a development from democracy, 39;
      menaced by modern political nostrums, 39, 43, 204-211, 228, 245-246;
      the form may survive the substance, 46;
      depends upon the electorate, 206;
      involved in nominating conventions, 225 sqq.;
      contribution of English-speaking race, 226.

    Republican form of government, _see_ Representative government.

    Republican party, campaigns, 178 sqq.;
      principles, 217-218;
      New York convention of 1914, 234.

    Revolution, American, 25, 162, 262-266.

    Roman Catholic church, parochial schools, 247-260;
      sacrifices for education, 247, 254;
      attitude toward public schools, 248-249;
      teaches character, good citizenship and morality, 250, 252,
      253, 255, 256;
      increasing strength in the United States, 256;
      formerly persecuted in America, 258-259.

    Rome, 6, 27, 44, 168.

    Roosevelt, Theodore, 56-67, 121, 153-156, 159-160, 183-189,
    209, 213-215.

    Root, Elihu, 75, 153, 176, 185, 194.


    Separation of powers, _see_ Government.

    Shintō, worship of, 27-29.

    Ship-Money, Case of, 17.

    Short ballot, _see_ Elections.

    Sixteenth amendment, 83, 83n.

    Socialism, tends to destroy religion, morality and law, 201;
      opposition of Socialists to the courts, 211.
      _See_ Communism.

    Social reform, as class legislation, 43;
      practical reform can be effected by electing legislators of
      character and ability, 44;
      not to be accomplished by exalting the legislature at the expense
      of the courts, 44, 45, 84, 140;
      not impeded by the courts or our constitutions, 56, 68-69,
      81-82, 135, 137, 155.

    Standish, Myles, 33, 41.

    State governments, American, reserved powers of the states, 61,
    62, 177;
      suability of a state, 87 sqq.;
      theory of immunity from suit, 98;
      prohibitions against, 110;
      compelled to obey the federal Constitution, 113;
      state officers are suable, 114;
      conflicts with the federal courts, 117-128;
      right to regulate inheritances, 160, 167-172;
      governmental functions, 172;
      threatened by primaries, 246.

    Strikes, use of injunctions to suppress, 146-152, 212-215;
      Pullman strike of 1894, 148, 151, 215-216.

    Supremacy and Uniformity, Acts of, 32, 36-37.

    Supreme Court, Federal, some important decisions, 8, 57, 60, 61,
    62, 72, 89, 93, 95, 96, 100, 101, 113, 173;
      view of due process of law, 21-22;
      attacks upon, 63, 64, 68;
      jurisdiction of suits against states, 93 sqq.
      _See_ Judiciary.


    Taft, William H., 184, 190-193, 217-218.

    Tariff, doctrine of protective, 193-201;
      non-partisan commissions, 194, 218;
      free trade favored by the Democrats, 195, 198;
      act of July 4, 1789, 196;
      evils of Democratic legislation, 198, 199;
      not responsible for the high cost of living, 199.

    Taxation, the chief legislative function in the 13th and 14th
    centuries, 9, 16;
      provisions in Magna Carta, 16;
      control of parliament over, 16, 17;
      early controversies in England, 16-18;
      and representation, 16-17, 162-163;
      essentially a legislative function, 17;
      inheritance tax, 159-160, 167-173;
      income tax, 159, 173-175;
      power to tax is the power to destroy, 160;
      conflict of state and federal, 160;
      should be equal and apportioned, 161;
      taxing power liable to abuse, 161;
      proportional taxation, 161-163;
      federal rule of apportionment, 173-174;
      excise tax, 173.
      _See_ Graduated taxation.

    Tenement case, _see_ Jacobs case.

    Throop, Governor, 221.

    Truth, indispensable even in political discussions, 69;
      trite truths often the most valuable, 202;
      eternal, 203.

    Turgot, Baron de L'Aulne, 264.


    Unconstitutional laws, American doctrine based upon the statute
    of 1369, 7, 8, 11;
      doctrine formerly recognized in England, 7-10;
      English courts may yet annul, 11;
      examples, 49, 57, 61, 65, 122, 123, 137, 209;
      Hamilton's views, 71-72;
      cannot always be annulled by the courts, 170-171.
      _See_ Constitutional limitations.

    United States of America, termed a government of laws and not
    of men, 124;
      population, 204;
      debt to France, 262-266;
      treaty of alliance with France, 265;
      policy of neutrality in European wars, 268-270;
      foreign relations in the hands of the President, 269.

    United States _vs._ Lee, 101.

    United States _vs._ O'Keefe, 100.


    Vassal _vs._ Massachusetts, 90.


    Washington, George, 35, 186, 187, 189, 197, 263, 268.

    Willcox _vs._ Consolidated Gas Co., 122.

    Wilson, Woodrow, 195, 198, 217, 241.

    Workmen's Compensation laws, federal enactments, 61-64, 67-68;
      New York statute, 65-69;
      legislation not prevented by the courts or the Constitution,
      68-69, 82;
      general discussion, 132-138;
      should be confined to hazardous employments, 134-136;
      the British act, 135.


    Young, Ex parte, 119n.