diff options
| -rw-r--r-- | .gitattributes | 4 | ||||
| -rw-r--r-- | LICENSE.txt | 11 | ||||
| -rw-r--r-- | README.md | 2 | ||||
| -rw-r--r-- | old/64197-0.txt | 8149 | ||||
| -rw-r--r-- | old/64197-0.zip | bin | 162900 -> 0 bytes | |||
| -rw-r--r-- | old/64197-h.zip | bin | 293769 -> 0 bytes | |||
| -rw-r--r-- | old/64197-h/64197-h.htm | 8615 | ||||
| -rw-r--r-- | old/64197-h/images/cover.jpg | bin | 115665 -> 0 bytes | |||
| -rw-r--r-- | old/64197-h/images/illus1.jpg | bin | 7717 -> 0 bytes |
9 files changed, 17 insertions, 16764 deletions
diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..a34c1c3 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #64197 (https://www.gutenberg.org/ebooks/64197) diff --git a/old/64197-0.txt b/old/64197-0.txt deleted file mode 100644 index 87ce509..0000000 --- a/old/64197-0.txt +++ /dev/null @@ -1,8149 +0,0 @@ -The Project Gutenberg eBook of Magna Carta and Other Addresses, by William -D. Guthrie - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: Magna Carta and Other Addresses - -Author: William D. Guthrie - -Release Date: January 06, 2021 [eBook #64197] - -Language: English - -Character set encoding: UTF-8 - -Image source(s): https://archive.org/details/magnacartaothera00guth/ - -Produced by: Sonya Schermann, Graeme Mackreth and the Online Distributed - Proofreading Team at https://www.pgdp.net (This file was - produced from images generously made available by The Internet - Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK MAGNA CARTA AND OTHER -ADDRESSES *** - - - - - -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 ShintÅ, 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 ShintÅ -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 CÊsars -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 comÌ
one 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 comÌ
unitie 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 imploymeÌ
t 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 CÊsar the things which are CÊsar'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 CÊsar 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 trÚs 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 cÅur qu'une -nouvelle Bataille de Poitiers contre les Sarrasins délivre bientÃŽt 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 -EtrangÚres de notre CongrÚs National, attestent que cette aide, qui -fut si efficace et qui seule a rendu notre succÚs 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 entiÚre 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 impÃŽts 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 fiÚrement -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 aprÚs 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'impÃŽt -qui a été payé volontairement et de bon cÅur par le peuple français -du dix-huitiÚme siÚcle pour nous aider. Quelle noblesse, quelle -gloire, quelle splendeur de cÅur, 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 succÚs éclatant de votre -mission, surtout si une parole éloquente pouvait toucher le cÅur des -Américains et leur rappeler combien ils doivent à la France, à cette -république sÅur 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 lÚve 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 CollÚge de France is of opinion that the total -expenditure probably reached 2,000,000,000 livres. Marion, _Histoire -FinanciÚre de la France, 1715-1789_, vol. I, p. 303, Paris, 1914; see -also Gomel, _Les Causes FinanciÚres 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. - - ShintÅ, 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. - - -*** END OF THE PROJECT GUTENBERG EBOOK MAGNA CARTA AND OTHER ADDRESSES *** - -***** This file should be named 64197-0.txt or 64197-0.zip ***** -This and all associated files of various formats will be found in: - https://www.gutenberg.org/6/4/1/9/64197/ - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for an eBook, except by following -the terms of the trademark license, including paying royalties for use -of the Project Gutenberg trademark. If you do not charge anything for -copies of this eBook, complying with the trademark license is very -easy. You may use this eBook for nearly any purpose such as creation -of derivative works, reports, performances and research. Project -Gutenberg eBooks may be modified and printed and given away--you may -do practically ANYTHING in the United States with eBooks not protected -by U.S. copyright law. Redistribution is subject to the trademark -license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country other than the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - This eBook is for the use of anyone anywhere in the United States and - most other parts of the world at no cost and with almost no - restrictions whatsoever. You may copy it, give it away or re-use it - under the terms of the Project Gutenberg License included with this - eBook or online at www.gutenberg.org. If you are not located in the - United States, you will have to check the laws of the country where - you are located before using this eBook. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that: - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from the Project Gutenberg Literary Archive Foundation, the manager of -the Project Gutenberg-tm trademark. Contact the Foundation as set -forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - -Section 3. Information about the Project Gutenberg Literary -Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non-profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's business office is located at 809 North 1500 West, -Salt Lake City, UT 84116, (801) 596-1887. Email contact links and up -to date contact information can be found at the Foundation's web site -and official page at www.gutenberg.org/contact - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without -widespread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine-readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our Web site which has the main PG search -facility: www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. diff --git a/old/64197-0.zip b/old/64197-0.zip Binary files differdeleted file mode 100644 index 8b5c6c4..0000000 --- a/old/64197-0.zip +++ /dev/null diff --git a/old/64197-h.zip b/old/64197-h.zip Binary files differdeleted file mode 100644 index 8570d62..0000000 --- a/old/64197-h.zip +++ /dev/null diff --git a/old/64197-h/64197-h.htm b/old/64197-h/64197-h.htm deleted file mode 100644 index 33ff1bb..0000000 --- a/old/64197-h/64197-h.htm +++ /dev/null @@ -1,8615 +0,0 @@ -<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" - "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> -<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> - <head> - <meta http-equiv="Content-Type" content="text/html;charset=utf-8" /> - <meta http-equiv="Content-Style-Type" content="text/css" /> - <title> - Magna Carta and Other Addresses, by William D. Guthrie—A Project Gutenberg eBook - </title> - <link rel="coverpage" href="images/cover.jpg" /> - <style type="text/css"> - -body { - margin-left: 10%; - margin-right: 10%; -} - - h1,h2,h3,h4,h5,h6 {font-weight: normal; - text-align: center; /* all headings centered */ - clear: both; -} - -p { - margin-top: .51em; - text-align: justify; - margin-bottom: .49em; -} - -.p2 {margin-top: 2em;} -.p4 {margin-top: 4em;} -.p6 {margin-top: 6em;} - -.ph1, .ph2, .ph3, .ph4 { text-align: center; text-indent: 0em; } -.ph1 { font-size: xx-large; margin: .67em auto; } -.ph2 { font-size: x-large; margin: .75em auto; } -.ph3 { font-size: large; margin: .83em auto; } -.ph4 { font-size: medium; margin: 1.12em auto; } -.ph5 { font-size: small; margin: 1.12em auto;text-align: center; } -.ph6 { font-size: x-small; margin: 1.12em auto;text-align: center; } - -hang { - text-indent: -2em; - padding-left: 2em} - -p.drop:first-letter { - font-family: "Times New Roman", Times, serif; - font-size: xx-large; - line-height: 70%} - -.uppercase { - font-size: small; - text-transform: uppercase} - - - - - -hr { - width: 33%; - margin-top: 2em; - margin-bottom: 2em; - margin-left: 33.5%; - margin-right: 33.5%; - clear: both; -} - -hr.tb {width: 45%; margin-left: 27.5%; margin-right: 27.5%;} -hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} -hr.full {width: 95%; margin-left: 2.5%; margin-right: 2.5%;} - -hr.r5 {width: 5%; margin-top: 1em; margin-bottom: 1em; margin-left: 47.5%; margin-right: 47.5%;} -hr.r65 {width: 65%; margin-top: 3em; margin-bottom: 3em; margin-left: 17.5%; margin-right: 17.5%;} - -div.chapter {page-break-before: always;} -h2.nobreak {page-break-before: avoid;} - - - -table { - margin-left: auto; - margin-right: auto; -} -table.autotable { border-collapse: collapse; } -table.autotable td, -table.autotable th { padding: 4px; } - -.tdl {text-align: left;} -.tdr {text-align: right; vertical-align: bottom;} -.tdc {text-align: center;} - -.pagenum { /* uncomment the next line for invisible page numbers */ - /* visibility: hidden; */ - position: absolute; - left: 92%; - font-size: smaller; - text-align: right; - font-style: normal; - font-weight: normal; - font-variant: normal; -} /* page numbers */ - - - -.blockquot { - margin-left: 5%; - margin-right: 10%; -} - - - -.bb {border-bottom: 2px solid;} - -.bl {border-left: 2px solid;} - -.bt {border-top: 2px solid;} - -.br {border-right: 2px solid;} - -.bbox {border: 2px solid; - margin-left: 30%; - margin-right: 30%; - text-align: center;} - -.center {text-align: center;} - -.right {text-align: right;} - -.smcap {font-variant: small-caps;} - -.allsmcap {font-variant: small-caps; text-transform: lowercase;} - -.u {text-decoration: underline;} - - - - - -.caption {text-align: center;} - - - - - - - - - - -/* Footnotes */ -.footnotes {border: 1px dashed;} - -.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} - -.footnote .label {position: absolute; right: 84%; text-align: right;} - -.fnanchor { - vertical-align: super; - font-size: .8em; - text-decoration: - none; -} - - -@media handheld, print { .poetry {display: block;} } - - -@media handheld { - .hidehand {display: none; visibility: hidden;} -} - - - - -/* Transcriber's notes */ -.transnote {background-color: #E6E6FA; - color: black; - font-size:smaller; - padding:0.5em; - margin-bottom:5em; - font-family:sans-serif, serif; } - - </style> - </head> -<body> - -<div style='text-align:center; font-size:1.2em; font-weight:bold'>The Project Gutenberg eBook of Magna Carta and Other Addresses, by William D. Guthrie</div> - -<div style='display:block; margin:1em 0'> -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online -at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you -are not located in the United States, you will have to check the laws of the -country where you are located before using this eBook. -</div> - -<div style='display:block; margin-top:1em; margin-bottom:1em; margin-left:2em; text-indent:-2em'>Title: Magna Carta and Other Addresses</div> - -<div style='display:block; margin-top:1em; margin-bottom:1em; margin-left:2em; text-indent:-2em'>Author: William D. Guthrie</div> - -<div style='display:block; margin:1em 0'>Release Date: January 06, 2021 [eBook #64197]</div> - -<div style='display:block; margin:1em 0'>Language: English</div> - -<div style='display:block; margin:1em 0'>Character set encoding: UTF-8</div> - -<div style='display:block; margin-left:2em; text-indent:-2em'>Produced by: Sonya Schermann, Graeme Mackreth and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)</div> - -<div style='margin-top:2em; margin-bottom:4em'>*** START OF THE PROJECT GUTENBERG EBOOK MAGNA CARTA AND OTHER ADDRESSES ***</div> - - - - - -<p class="ph1">MAGNA CARTA AND OTHER ADDRESSES</p> - - - -<div class="bbox" style="margin-top: 10em;"> -<p class="center" ><small> -COLUMBIA UNIVERSITY PRESS<br /> -SALES AGENTS<br /> -<br /> -NEW YORK<br /> -LEMCKE & BUECHNER<br /> -<span class="smcap">30-32 West 27th Street</span> -<br /> -LONDON<br /> -HUMPHREY MILFORD<br /> -<span class="smcap">Amen Corner</span>, E.C.</small> -</p></div> - - - - - -<p class="ph2" style="margin-top: 10em;">MAGNA CARTA</p> -<p class="ph3">AND OTHER ADDRESSES</p> - -<p class="ph6">BY</p> - -<p class="ph4">William D. Guthrie</p> - -<p class="center"> -<img src="images/illus1.jpg" alt="pic" /> -</p> - - -<p class="ph5" style="margin-top: 10em;">New York</p> -<p class="ph4">COLUMBIA UNIVERSITY PRESS</p> -<p class="ph6">1916</p> - -<p class="ph6"><i>All rights reserved</i></p> - - - - - - -<p class="ph6" style="margin-top: 10em;"><span class="smcap">Copyright</span>, 1916,</p> -<p class="ph5"><span class="smcap">By</span> COLUMBIA UNIVERSITY PRESS.</p> - -<p class="ph6">Set up and electrotyped. Published August, 1916.</p> - - - -<hr class="chap" /> - -<div class="chapter"> -<h2 class="nobreak" >CONTENTS</h2> -</div> - - - - - -<table summary="toc" width="80%"> -<tr><td></td><td></td><td>PAGE</td></tr> - -<tr><td align="right">I.</td> <td><a href="#MAGNA_CARTA1">MAGNA CARTA</a></td><td align="right"><a href="#Page_1">1</a></td></tr> - -<tr><td></td><td>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.</td><td></td></tr> - -<tr><td align="right">II.</td> <td><a href="#THE_MAYFLOWER_COMPACT5">THE MAYFLOWER COMPACT</a></td> <td align="right"><a href="#Page_27">27</a></td></tr> - -<tr><td></td><td>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.</td><td></td></tr> - -<tr><td align="right">III.</td> <td><a href="#CONSTITUTIONAL_MORALITY10">CONSTITUTIONAL MORALITY</a></td> <td align="right"><a href="#Page_42">42</a></td></tr> - -<tr><td></td><td>Address before the Pennsylvania State Bar Association -at its eighteenth annual meeting, held at Cape May, -New Jersey, June 25, 1912.</td><td></td></tr> - -<tr><td align="right">IV.</td> <td><a href="#THE_ELEVENTH_AMENDMENT23">THE ELEVENTH AMENDMENT</a></td> <td align="right"><a href="#Page_87">87</a></td></tr> - -<tr><td></td><td>Address before the New York State Bar Association at -its thirty-first annual meeting, held in New York, January -25, 1908.</td><td></td></tr> - -<tr><td align="right">V.</td> <td><a href="#CRITICISM_OF_THE_COURTS50">CRITICISM OF THE COURTS</a></td> <td align="right"><a href="#Page_130">130</a></td></tr> - -<tr><td></td><td>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.</td><td></td></tr> - -<tr><td align="right">VI.</td> <td><a href="#GRADUATED_OR_PROGRESSIVE_TAXATION59">GRADUATED OR PROGRESSIVE TAXATION</a></td> <td align="right"><a href="#Page_159">159</a></td></tr> - -<tr><td></td><td>Address before the National Civic Federation at its -annual meeting, held in New York, December 13, 1906.</td><td></td></tr> - -<tr><td align="right">VII.</td> <td><a href="#THE_DUTY_OF_CITIZENSHIP62">THE DUTY OF CITIZENSHIP</a></td> <td align="right"><a href="#Page_178">178</a></td></tr> - -<tr><td></td><td>Address as temporary chairman of the New York Republican -State Convention, Saratoga Springs, September -25, 1912.</td><td></td></tr> - -<tr><td align="right">VIII.</td> <td><a href="#NOMINATING_CONVENTIONS64">NOMINATING CONVENTIONS</a></td> <td align="right"><a href="#Page_219">219</a></td></tr> - -<tr><td></td><td>Remarks before the Committee on Suffrage of the Constitutional -Convention of the State of New York, Albany, -June 16, 1915.</td><td></td></tr> - -<tr><td align="right">IX.</td> <td><a href="#CATHOLIC_PAROCHIAL_SCHOOLS68">CATHOLIC PAROCHIAL SCHOOLS</a></td> <td align="right"><a href="#Page_247">247</a></td></tr> - -<tr><td></td><td>Remarks at the dedication of the Roman Catholic parochial -school at Glen Cove, Long Island, New York, -September 6, 1915.</td><td></td></tr> - -<tr><td align="right">X.</td> <td><a href="#THE_FRANCE-AMERICA_COMMITTEE_OF_NEW_YORK70">THE FRANCE-AMERICA COMMITTEE OF NEW -YORK</a></td> <td align="right"><a href="#Page_261">261</a></td></tr> - -<tr><td></td><td>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.</td><td></td></tr> - -<tr><td></td><td><a href="#INDEX">INDEX</a></td> <td align="right"><a href="#Page_271">271</a></td></tr> -</table> -<hr class="chap" /> - -<div class="chapter"> -<p><span class="pagenum"><a name="Page_1" id="Page_1"></a>[Pg 1]</span></p> - -<h2 class="nobreak" id="MAGNA_CARTA1">MAGNA CARTA<a id="FNanchor_1" href="#Footnote_1" class="fnanchor">[1]</a></h2> -</div> - - -<p class="drop">T<span class="uppercase">o</span> 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.</p> - -<p><span class="pagenum"><a name="Page_2" id="Page_2"></a>[Pg 2]</span></p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_3" id="Page_3"></a>[Pg 3]</span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_4" id="Page_4"></a>[Pg 4]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_5" id="Page_5"></a>[Pg 5]</span> 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.</p> - -<p>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, not<span class="pagenum"><a name="Page_6" id="Page_6"></a>[Pg 6]</span>withstanding 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."<a id="FNanchor_2" href="#Footnote_2" class="fnanchor">[2]</a></p> - -<p>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.</p> - -<p>The idea that the fundamental laws of the land<span class="pagenum"><a name="Page_7" id="Page_7"></a>[Pg 7]</span>—the pious and good old -laws of Alfred and of Edward, as the English called them, or <i>les lois -fondamentales</i>, 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."</p> - -<p>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<span class="pagenum"><a name="Page_8" id="Page_8"></a>[Pg 8]</span> declared it unalterable."<a id="FNanchor_3" href="#Footnote_3" class="fnanchor">[3]</a> 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."</p> - -<p>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 <i>vs</i>. Madison, in -1803, was but following these ancient<span class="pagenum"><a name="Page_9" id="Page_9"></a>[Pg 9]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_10" id="Page_10"></a>[Pg 10]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_11" id="Page_11"></a>[Pg 11]</span> 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.</p> - -<p>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, <i>Anglicana ecclesia</i>, 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.</p> - -<p><span class="pagenum"><a name="Page_12" id="Page_12"></a>[Pg 12]</span></p> - -<p>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."</p> - -<p>The provisions of the Great Charter relating to the administration -of justice were undoubtedly<span class="pagenum"><a name="Page_13" id="Page_13"></a>[Pg 13]</span> 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.</p> - -<p>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 -perma<span class="pagenum"><a name="Page_14" id="Page_14"></a>[Pg 14]</span>nent, 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."</p> - -<p>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<span class="pagenum"><a name="Page_15" id="Page_15"></a>[Pg 15]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_16" id="Page_16"></a>[Pg 16]</span> -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.</p> - -<p>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 <i>commune consilium</i>. This common council is the body that fifty -years later developed into the famous parliament of Simon de Montfort -of 1265.</p> - -<p>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.<span class="pagenum"><a name="Page_17" id="Page_17"></a>[Pg 17]</span> 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.</p> - -<p>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.</p> - -<p>It is no answer to say that the parliament of to-day finds its -prototype not in the old common<span class="pagenum"><a name="Page_18" id="Page_18"></a>[Pg 18]</span> 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.</p> - -<p>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."</p> - -<p>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<span class="pagenum"><a name="Page_19" id="Page_19"></a>[Pg 19]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_20" id="Page_20"></a>[Pg 20]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_21" id="Page_21"></a>[Pg 21]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_22" id="Page_22"></a>[Pg 22]</span> 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</p> - -<p> -<span style="margin-left: 1em;">"A land of settled government,</span><br /> -<span style="margin-left: 1em;">A land of just and old renown,</span><br /> -<span style="margin-left: 1em;">Where freedom slowly broadens down</span><br /> -<span style="margin-left: 1em;">From precedent to precedent."</span><br /> -</p> - -<p>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 "<i>saunz estre mesne en respons par due proces de -lei</i>." 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 <i>due proces de lei</i> in the act of 1354 was undoubtedly -intended to be supplemental to the provisions of the Great Charter -and to apply only<span class="pagenum"><a name="Page_23" id="Page_23"></a>[Pg 23]</span> 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."</p> - -<p>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"<span class="pagenum"><a name="Page_24" id="Page_24"></a>[Pg 24]</span> 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.</p> - -<p>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 <i>just and appropriate</i> and the word "process" to mean -<i>substantive provision</i> as well as procedure.</p> - -<p>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<span class="pagenum"><a name="Page_25" id="Page_25"></a>[Pg 25]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_26" id="Page_26"></a>[Pg 26]</span> 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."<a id="FNanchor_4" href="#Footnote_4" class="fnanchor">[4]</a></p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_1" href="#FNanchor_1" class="label">[1]</a> 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.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_2" href="#FNanchor_2" class="label">[2]</a> Guesses at Truth, 1st series, 3d ed. (1847), pp. 324-325.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_3" href="#FNanchor_3" class="label">[3]</a> W.S. McKechnie, <i>Magna Carta</i>, 2d ed. (1914), p. 159.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_4" href="#FNanchor_4" class="label">[4]</a> Edward J. Phelps, Orations and Essays (1901), p. 127.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_27" id="Page_27"></a>[Pg 27]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="THE_MAYFLOWER_COMPACT5">THE MAYFLOWER COMPACT<a id="FNanchor_5" href="#Footnote_5" class="fnanchor">[5]</a></h2> -</div> - - -<p class="drop">W<span class="uppercase">herever</span> 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 <i>dies parentales</i>, when -violets and roses and wine, oil and milk were offered and <i>aves</i> were -chanted to the spirits of their dead.</p> - -<p>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 ShintÅ, worship their<span class="pagenum"><a name="Page_28" id="Page_28"></a>[Pg 28]</span> -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<span class="pagenum"><a name="Page_29" id="Page_29"></a>[Pg 29]</span> 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 ShintÅ -believer: '<i>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</i>'?"<a id="FNanchor_6" href="#Footnote_6" class="fnanchor">[6]</a></p> - -<p>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.</p> - -<p>In these days of superlative comfort and affluence, it is difficult for -us assembled in this palatial hall, feasting better than the CÊsars -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<span class="pagenum"><a name="Page_30" id="Page_30"></a>[Pg 30]</span> 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.<span class="pagenum"><a name="Page_31" id="Page_31"></a>[Pg 31]</span><a id="FNanchor_7" href="#Footnote_7" class="fnanchor">[7]</a></p> - -<p>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 -y<sup>e</sup> presence of God, and one of another, covenant & combine our selves -togeather into a civill body politick, for our better ordering & -preservation & furtherance of y<sup>e</sup> 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 y<sup>e</sup> generall good of y<sup>e</sup> 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.</p> - -<p><span class="pagenum"><a name="Page_32" id="Page_32"></a>[Pg 32]</span></p> - -<p>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.</p> - -<p>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,"<span class="pagenum"><a name="Page_33" id="Page_33"></a>[Pg 33]</span> 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.<a id="FNanchor_8" href="#Footnote_8" class="fnanchor">[8]</a> -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<span class="pagenum"><a name="Page_34" id="Page_34"></a>[Pg 34]</span> that in many -cases these persecutions were as much political as they were religious.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_35" id="Page_35"></a>[Pg 35]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_36" id="Page_36"></a>[Pg 36]</span> 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.</p> - -<p>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 <i>equal</i>, 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<span class="pagenum"><a name="Page_37" id="Page_37"></a>[Pg 37]</span> 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 <i>just</i> as well as <i>equal</i> 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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_38" id="Page_38"></a>[Pg 38]</span> -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 y<sup>e</sup> feild" taking -"their litle-ons with them to set corne, which before would aledg -weaknes, and inabilitie," Bradford proceeds as follows:</p> - -<p>"The experience that was had in this comÌ
one 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 y<sup>e</sup> taking away of propertie, -and bringing in comÌ
unitie 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 imploymeÌ
t that would have been to their -benefite and comforte. For y<sup>e</sup> yong-men that were most able and fitte -for labour & service did repine that they should spend their time & -streingth<span class="pagenum"><a name="Page_39" id="Page_39"></a>[Pg 39]</span> 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 y<sup>e</sup> other could; this was thought injuestice. The aged -and graver men to be ranked and equalised in labours, and victails, -cloaths, &c., with y<sup>e</sup> meaner & yonger sorte, thought it some indignite -& disrespect unto them.... Let none objecte this is men's corruption, -and nothing to y<sup>e</sup> course it selfe. I answer, seeing all men have this -corruption in them, God in his wisdome saw another course fiter for -them."<a id="FNanchor_9" href="#Footnote_9" class="fnanchor">[9]</a></p> - -<p>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<span class="pagenum"><a name="Page_40" id="Page_40"></a>[Pg 40]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_41" id="Page_41"></a>[Pg 41]</span> 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?</p> - -<p>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.</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_5" href="#FNanchor_5" class="label">[5]</a> 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.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_6" href="#FNanchor_6" class="label">[6]</a> Lafcadio Hearn, <i>Kokoro</i>, pp. 289-290.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_7" href="#FNanchor_7" class="label">[7]</a> 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: -</p> -<p> -"In y<sup>e</sup> name of God, Amen. We whose names are under-writen, the loyall -subjects of our dread soveraigne Lord, King James, by y<sup>e</sup> grace of -God, of Great Britaine, Franc, & Ireland king, defender of ye faith, -&c., haveing undertaken, for y<sup>e</sup> glorie of God, and advancemente of -y<sup>e</sup> Christian faith, and honour of our king & countrie, a voyage to -plant y<sup>e</sup> first colonie in y<sup>e</sup> 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 -y<sup>e</sup> 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 y<sup>e</sup> generall good of y<sup>e</sup> Colonie, unto which we promise all due -submission and obedience. In witnes wherof we have hereunder subscribed -our names at Cap-Codd y<sup>e</sup> 11. of November, in y<sup>e</sup> year of y<sup>e</sup> raigne -of our soveraigne lord, King James, of England, France, & Ireland -y<sup>e</sup> eighteenth, and of Scotland y<sup>e</sup> fiftie fourth. An<sup>o</sup>: 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.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_8" href="#FNanchor_8" class="label">[8]</a> 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.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_9" href="#FNanchor_9" class="label">[9]</a> Collections of the Massachusetts Historical Society, 4th -series, vol. III, pp. 134-136.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_42" id="Page_42"></a>[Pg 42]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="CONSTITUTIONAL_MORALITY10">CONSTITUTIONAL MORALITY<a id="FNanchor_10" href="#Footnote_10" class="fnanchor">[10]</a></h2> -</div> - - -<p class="drop">T<span class="uppercase">he</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_43" id="Page_43"></a>[Pg 43]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_44" id="Page_44"></a>[Pg 44]</span> 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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_45" id="Page_45"></a>[Pg 45]</span> -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.</p> - -<p>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,<span class="pagenum"><a name="Page_46" id="Page_46"></a>[Pg 46]</span> 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, <i>clarum et -venerabile nomen</i>, 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."<a id="FNanchor_11" href="#Footnote_11" class="fnanchor">[11]</a></p> - -<p>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<span class="pagenum"><a name="Page_47" id="Page_47"></a>[Pg 47]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_48" id="Page_48"></a>[Pg 48]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_49" id="Page_49"></a>[Pg 49]</span> case (Matter of Jacobs),<a id="FNanchor_12" href="#Footnote_12" class="fnanchor">[12]</a> 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<span class="pagenum"><a name="Page_50" id="Page_50"></a>[Pg 50]</span> New York have acquiesced in the decision of the Court of -Appeals as fair, just and satisfactory.</p> - -<p>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<span class="pagenum"><a name="Page_51" id="Page_51"></a>[Pg 51]</span> 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<span class="pagenum"><a name="Page_52" id="Page_52"></a>[Pg 52]</span> been driven into factories at the dictation of factory owners -or trade-unions having sufficient political influence to secure the -necessary legislation.</p> - -<p>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,<span class="pagenum"><a name="Page_53" id="Page_53"></a>[Pg 53]</span> 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.</p> - -<p>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,<span class="pagenum"><a name="Page_54" id="Page_54"></a>[Pg 54]</span> 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."<a id="FNanchor_13" href="#Footnote_13" class="fnanchor">[13]</a></p> - -<p>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."</p> - -<p>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<span class="pagenum"><a name="Page_55" id="Page_55"></a>[Pg 55]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_56" id="Page_56"></a>[Pg 56]</span> 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.</p> - -<p>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 -sub<span class="pagenum"><a name="Page_57" id="Page_57"></a>[Pg 57]</span>ject to cancellation at any time if the surroundings become -unsanitary.</p> - -<p>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."</p> - -<p>Another New York case which is being similarly criticized and -misrepresented is what is known as the Bakers case, or People -<i>vs.</i> Lochner.<a id="FNanchor_14" href="#Footnote_14" class="fnanchor">[14]</a> 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,<span class="pagenum"><a name="Page_58" id="Page_58"></a>[Pg 58]</span> 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."</p> - -<p>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<span class="pagenum"><a name="Page_59" id="Page_59"></a>[Pg 59]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_60" id="Page_60"></a>[Pg 60]</span> 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 <i>vs.</i> Hardy.<a id="FNanchor_15" href="#Footnote_15" class="fnanchor">[15]</a> -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.</p> - -<p>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<span class="pagenum"><a name="Page_61" id="Page_61"></a>[Pg 61]</span> them at liberty -to disregard its spirit whenever they saw fit to do so.</p> - -<p>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."</p> - -<p>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,<a id="FNanchor_16" href="#Footnote_16" class="fnanchor">[16]</a> 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<span class="pagenum"><a name="Page_62" id="Page_62"></a>[Pg 62]</span> 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,<a id="FNanchor_17" href="#Footnote_17" class="fnanchor">[17]</a> 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<span class="pagenum"><a name="Page_63" id="Page_63"></a>[Pg 63]</span> connection with the regulation of interstate -commerce.</p> - -<p>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 jus<span class="pagenum"><a name="Page_64" id="Page_64"></a>[Pg 64]</span>tice, -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."</p> - -<p>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<span class="pagenum"><a name="Page_65" id="Page_65"></a>[Pg 65]</span> this latter decision was rendered and published -before Mr. Roosevelt made his address.</p> - -<p>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 <i>vs.</i> South Buffalo -Railway Company,<a id="FNanchor_18" href="#Footnote_18" class="fnanchor">[18]</a> 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<span class="pagenum"><a name="Page_66" id="Page_66"></a>[Pg 66]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_67" id="Page_67"></a>[Pg 67]</span> 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."</p> - -<p>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.</p> - -<p>Another current misrepresentation is that the Supreme Court of the -United States in the Second Employers' Liability cases upheld as -constitutional<span class="pagenum"><a name="Page_68" id="Page_68"></a>[Pg 68]</span> 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 <i>negligence</i> of any of the officers, agents, or employees of -such carrier, or by reason of any defect or insufficiency, <i>due to -its negligence</i>, 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<span class="pagenum"><a name="Page_69" id="Page_69"></a>[Pg 69]</span> enacted by the New -York legislature. The Ives case, far from preventing such a statute, -would be an authority in its support.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_70" id="Page_70"></a>[Pg 70]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_71" id="Page_71"></a>[Pg 71]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_72" id="Page_72"></a>[Pg 72]</span> 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."<a id="FNanchor_19" href="#Footnote_19" class="fnanchor">[19]</a></p> - -<p>Equally conclusive and equally worthy of constant repetition is the -reasoning of Chief Justice Marshall in Marbury <i>vs.</i> 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<span class="pagenum"><a name="Page_73" id="Page_73"></a>[Pg 73]</span> 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."<a id="FNanchor_20" href="#Footnote_20" class="fnanchor">[20]</a></p> - -<p>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<span class="pagenum"><a name="Page_74" id="Page_74"></a>[Pg 74]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_75" id="Page_75"></a>[Pg 75]</span> 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.</p> - -<p>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."</p> - -<p>In many of the current assaults upon the judicial department, -in support often of schemes having<span class="pagenum"><a name="Page_76" id="Page_76"></a>[Pg 76]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_77" id="Page_77"></a>[Pg 77]</span> 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<span class="pagenum"><a name="Page_78" id="Page_78"></a>[Pg 78]</span> right -to a jury-trial or even any hearing at all, confiscate private property -without compensation, and impair the obligation of contracts?</p> - -<p>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?</p> - -<p>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<span class="pagenum"><a name="Page_79" id="Page_79"></a>[Pg 79]</span> 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?</p> - -<p>In nine cases out of ten the answer to these suggestions by those who -to-day are assailing the judicial<span class="pagenum"><a name="Page_80" id="Page_80"></a>[Pg 80]</span> 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."<a id="FNanchor_21" href="#Footnote_21" class="fnanchor">[21]</a></p> - -<p>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 -constitu<span class="pagenum"><a name="Page_81" id="Page_81"></a>[Pg 81]</span>tional 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?</p> - -<p>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<span class="pagenum"><a name="Page_82" id="Page_82"></a>[Pg 82]</span> 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_83" id="Page_83"></a>[Pg 83]</span></p> - -<p>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.<a id="FNanchor_22" href="#Footnote_22" class="fnanchor">[22]</a></p> - -<p>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<span class="pagenum"><a name="Page_84" id="Page_84"></a>[Pg 84]</span> 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<span class="pagenum"><a name="Page_85" id="Page_85"></a>[Pg 85]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_86" id="Page_86"></a>[Pg 86]</span> 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.</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_10" href="#FNanchor_10" class="label">[10]</a> Address before the Pennsylvania State Bar Association at -its eighteenth annual meeting, held at Cape May, New Jersey, June 25, -1912.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_11" href="#FNanchor_11" class="label">[11]</a> 188 United States Reports, p. 375.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_12" href="#FNanchor_12" class="label">[12]</a> 98 New York Reports, p. 98.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_13" href="#FNanchor_13" class="label">[13]</a> 33 Hun's Reports, pp. 380, 382, 383.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_14" href="#FNanchor_14" class="label">[14]</a> 177 New York Reports, p. 145; 198 United States Reports, -p. 45.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_15" href="#FNanchor_15" class="label">[15]</a> 169 United States Reports, p. 366.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_16" href="#FNanchor_16" class="label">[16]</a> 207 United States Reports, p. 463.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_17" href="#FNanchor_17" class="label">[17]</a> 223 United States Reports, p. 1.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_18" href="#FNanchor_18" class="label">[18]</a> 201 New York Reports, p. 271.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_19" href="#FNanchor_19" class="label">[19]</a> The Federalist, Ford's edition, pp. 520, 521, 522.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_20" href="#FNanchor_20" class="label">[20]</a> 1 Cranch's Reports, pp. 176-177.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_21" href="#FNanchor_21" class="label">[21]</a> 204 New York Reports, p. 534.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_22" href="#FNanchor_22" class="label">[22]</a> 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.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_87" id="Page_87"></a>[Pg 87]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="THE_ELEVENTH_AMENDMENT23">THE ELEVENTH AMENDMENT<a id="FNanchor_23" href="#Footnote_23" class="fnanchor">[23]</a></h2> -</div> - - -<p class="drop">O<span class="uppercase">f</span> 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<span class="pagenum"><a name="Page_88" id="Page_88"></a>[Pg 88]</span> -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?</p> - -<p>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<span class="pagenum"><a name="Page_89" id="Page_89"></a>[Pg 89]</span> -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.</p> - -<p>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.<a id="FNanchor_24" href="#Footnote_24" class="fnanchor">[24]</a> The action was in assumpsit to recover -a debt. The court then consisted of Chief<span class="pagenum"><a name="Page_90" id="Page_90"></a>[Pg 90]</span> 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 <i>vs.</i> 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<span class="pagenum"><a name="Page_91" id="Page_91"></a>[Pg 91]</span> 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.</p> - -<p>On February 20, 1793, two days after the opinions in Chisholm <i>vs.</i> -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."</p> - -<p>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 <i>be construed to</i> 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."</p> - -<p>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<span class="pagenum"><a name="Page_92" id="Page_92"></a>[Pg 92]</span> -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.</p> - -<p>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.</p> - -<p>Speaking of the language of the amendment, Chief Justice Marshall said -in the case of Cohens<span class="pagenum"><a name="Page_93" id="Page_93"></a>[Pg 93]</span> <i>vs.</i> 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<span class="pagenum"><a name="Page_94" id="Page_94"></a>[Pg 94]</span> suits commenced or prosecuted by -individuals, but not to those brought by states.</p> - -<p>"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."<a id="FNanchor_25" href="#Footnote_25" class="fnanchor">[25]</a></p> - -<p>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<span class="pagenum"><a name="Page_95" id="Page_95"></a>[Pg 95]</span> 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 <i>vs.</i> Louisiana and North Carolina <i>vs.</i> Temple,<a id="FNanchor_26" href="#Footnote_26" class="fnanchor">[26]</a> 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 <i>vs.</i> -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 <i>vs.</i> Georgia as not necessary to the -determination of the case, and expressed the opinion that the prior -decision was based upon a sound inter<span class="pagenum"><a name="Page_96" id="Page_96"></a>[Pg 96]</span>pretation of the Constitution as -that instrument was then worded.</p> - -<p>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 <i>not -be construed to extend</i> to" any such suit. It is true that the court -in the case of Clark <i>vs.</i> 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,<a id="FNanchor_27" href="#Footnote_27" class="fnanchor">[27]</a> 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 <i>vs.</i> Atlantic Coast Line,<a id="FNanchor_28" href="#Footnote_28" class="fnanchor">[28]</a> 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<span class="pagenum"><a name="Page_97" id="Page_97"></a>[Pg 97]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_98" id="Page_98"></a>[Pg 98]</span> 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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_99" id="Page_99"></a>[Pg 99]</span></p> - -<p>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."</p> - -<p>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<span class="pagenum"><a name="Page_100" id="Page_100"></a>[Pg 100]</span> 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 <i>vs.</i> 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."<a id="FNanchor_29" href="#Footnote_29" class="fnanchor">[29]</a> In United States <i>vs.</i> 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 <i>ex debito -justitiae</i>, 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<span class="pagenum"><a name="Page_101" id="Page_101"></a>[Pg 101]</span> rights."<a id="FNanchor_30" href="#Footnote_30" class="fnanchor">[30]</a> And in -the later case of Carlisle <i>vs.</i> 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.<a id="FNanchor_31" href="#Footnote_31" class="fnanchor">[31]</a> -Later still in the famous case of United States <i>vs.</i> 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."<a id="FNanchor_32" href="#Footnote_32" class="fnanchor">[32]</a></p> - -<p>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,<span class="pagenum"><a name="Page_102" id="Page_102"></a>[Pg 102]</span> 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>But whatever might have been the personal im<span class="pagenum"><a name="Page_103" id="Page_103"></a>[Pg 103]</span>munity 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 <i>vs.</i> 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."<a id="FNanchor_33" href="#Footnote_33" class="fnanchor">[33]</a></p> - -<p>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<span class="pagenum"><a name="Page_104" id="Page_104"></a>[Pg 104]</span> 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."<a id="FNanchor_34" href="#Footnote_34" class="fnanchor">[34]</a> 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 <i>vs.</i> 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."<a id="FNanchor_35" href="#Footnote_35" class="fnanchor">[35]</a> And one hundred years later, -in the case of Feather <i>vs.</i> 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<span class="pagenum"><a name="Page_105" id="Page_105"></a>[Pg 105]</span> 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."<a id="FNanchor_36" href="#Footnote_36" class="fnanchor">[36]</a></p> - -<p>Moreover, the rule of <i>respondeat superior</i> 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<span class="pagenum"><a name="Page_106" id="Page_106"></a>[Pg 106]</span> 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."</p> - -<p>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,<a id="FNanchor_37" href="#Footnote_37" class="fnanchor">[37]</a> 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 man<span class="pagenum"><a name="Page_107" id="Page_107"></a>[Pg 107]</span>damus, -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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_108" id="Page_108"></a>[Pg 108]</span></p> - -<p>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<span class="pagenum"><a name="Page_109" id="Page_109"></a>[Pg 109]</span> -States because they were acting for and on behalf of their states, the -Constitution could in many respects be rendered wholly ineffective and -nugatory.</p> - -<p>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,<span class="pagenum"><a name="Page_110" id="Page_110"></a>[Pg 110]</span> 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.</p> - -<p>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 <i>vs.</i> Starr and -said: "Much less can the eleventh amendment be successfully pleaded -as an invincible barrier to judicial inquiry whether the salutary -provisions of<span class="pagenum"><a name="Page_111" id="Page_111"></a>[Pg 111]</span> the fourteenth amendment have been disregarded by state -enactments."<a id="FNanchor_38" href="#Footnote_38" class="fnanchor">[38]</a></p> - -<p>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<span class="pagenum"><a name="Page_112" id="Page_112"></a>[Pg 112]</span> criminal intent. But it confers no warrant or -authority and affords no defense or protection.</p> - -<p>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 <i>vs.</i> Greenhow.<a id="FNanchor_39" href="#Footnote_39" class="fnanchor">[39]</a></p> - -<p>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 <i>vs.</i> Bank of<span class="pagenum"><a name="Page_113" id="Page_113"></a>[Pg 113]</span> -the United States.<a id="FNanchor_40" href="#Footnote_40" class="fnanchor">[40]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_114" id="Page_114"></a>[Pg 114]</span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_115" id="Page_115"></a>[Pg 115]</span> 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 <i>vs.</i> Gray,<a id="FNanchor_41" href="#Footnote_41" class="fnanchor">[41]</a> 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.'"<a id="FNanchor_42" href="#Footnote_42" class="fnanchor">[42]</a></p> - -<p>It may, nevertheless, be now interesting and valuable to re-examine -the doctrine enunciated by Chief Justice Marshall and to inquire -whether, after all,<span class="pagenum"><a name="Page_116" id="Page_116"></a>[Pg 116]</span> 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<span class="pagenum"><a name="Page_117" id="Page_117"></a>[Pg 117]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_118" id="Page_118"></a>[Pg 118]</span> 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.</p> - -<p>It may seem to many doubtful whether the two leading cases which are -now attracting so much attention, namely, In re Ayers<a id="FNanchor_43" href="#Footnote_43" class="fnanchor">[43]</a> and Fitts -<i>vs.</i> McGhee,<span class="pagenum"><a name="Page_119" id="Page_119"></a>[Pg 119]</span><a id="FNanchor_44" href="#Footnote_44" class="fnanchor">[44]</a> 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.</p> - -<p>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.<a id="FNanchor_45" href="#Footnote_45" class="fnanchor">[45]</a></p> - -<p>The time at our disposal renders it impossible to consider the many -noteworthy and interesting cases which have arisen under the eleventh -amendment and<span class="pagenum"><a name="Page_120" id="Page_120"></a>[Pg 120]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_121" id="Page_121"></a>[Pg 121]</span> 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."</p> - -<p>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<span class="pagenum"><a name="Page_122" id="Page_122"></a>[Pg 122]</span> 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,<a id="FNanchor_46" href="#Footnote_46" class="fnanchor">[46]</a> the -Consolidated Gas Company may be<span class="pagenum"><a name="Page_123" id="Page_123"></a>[Pg 123]</span> 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,<a id="FNanchor_47" href="#Footnote_47" class="fnanchor">[47]</a> 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.</p> - -<p>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."</p> - -<p>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<span class="pagenum"><a name="Page_124" id="Page_124"></a>[Pg 124]</span> 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 <i>in terrorem</i>, 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 <i>vs.</i> 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."<span class="pagenum"><a name="Page_125" id="Page_125"></a>[Pg 125]</span><a id="FNanchor_48" href="#Footnote_48" class="fnanchor">[48]</a></p> - -<p>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<span class="pagenum"><a name="Page_126" id="Page_126"></a>[Pg 126]</span> 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.</p> - -<p>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.</p> - -<p>But, above all other considerations, stands the necessity for -maintaining the absolute confidence<span class="pagenum"><a name="Page_127" id="Page_127"></a>[Pg 127]</span> 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<span class="pagenum"><a name="Page_128" id="Page_128"></a>[Pg 128]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_129" id="Page_129"></a>[Pg 129]</span> 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."<a id="FNanchor_49" href="#Footnote_49" class="fnanchor">[49]</a></p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_23" href="#FNanchor_23" class="label">[23]</a> Address before the New York State Bar Association at its -thirty-first annual meeting held in New York, January 25, 1908.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_24" href="#FNanchor_24" class="label">[24]</a> 2 Dallas' Reports, p. 419.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_25" href="#FNanchor_25" class="label">[25]</a> 6 Wheaton's Reports, pp. 406-407.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_26" href="#FNanchor_26" class="label">[26]</a> 134 United States Reports, pp. 1, 22.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_27" href="#FNanchor_27" class="label">[27]</a> 108 United States Reports, p. 447.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_28" href="#FNanchor_28" class="label">[28]</a> 200 United States Reports, pp. 283, 284.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_29" href="#FNanchor_29" class="label">[29]</a> 1 Cranch's Reports, p. 163.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_30" href="#FNanchor_30" class="label">[30]</a> 11 Wallace's Reports, p. 183.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_31" href="#FNanchor_31" class="label">[31]</a> 16 Wallace's Reports, p. 156.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_32" href="#FNanchor_32" class="label">[32]</a> 106 United States Reports, p. 205.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_33" href="#FNanchor_33" class="label">[33]</a> 101 United States Reports, p. 343.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_34" href="#FNanchor_34" class="label">[34]</a> The Law of the Constitution, 8th ed., p. 189.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_35" href="#FNanchor_35" class="label">[35]</a> Reported by Hargrave, 19 Howell's State Trials, pp. 1030, -1073.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_36" href="#FNanchor_36" class="label">[36]</a> 6 Best and Smith's Queen's Bench Reports (1865), p. 297.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_37" href="#FNanchor_37" class="label">[37]</a> Reported in 14 Howell's State Trials, pp. 1-114.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_38" href="#FNanchor_38" class="label">[38]</a> 188 United States Reports, p. 543.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_39" href="#FNanchor_39" class="label">[39]</a> 114 United States Reports, p. 270.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_40" href="#FNanchor_40" class="label">[40]</a> 9 Wheaton's Reports, p. 738.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_41" href="#FNanchor_41" class="label">[41]</a> 16 Wallace's Reports, p. 220.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_42" href="#FNanchor_42" class="label">[42]</a> In re Ayers, 123 United States Reports, p. 487.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_43" href="#FNanchor_43" class="label">[43]</a> 123 United States Reports, p. 443.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_44" href="#FNanchor_44" class="label">[44]</a> 172 United States Reports, p. 516.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_45" href="#FNanchor_45" class="label">[45]</a> 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.) <i>vs.</i> Wood, 209 United States Reports, p. -205.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_46" href="#FNanchor_46" class="label">[46]</a> Willcox <i>vs.</i> Consolidated Gas Co., 212 United States -Reports, p. 19.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_47" href="#FNanchor_47" class="label">[47]</a> Cotting <i>vs.</i> Kansas City Stock Yards Co., 183 United -States Reports, p. 79.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_48" href="#FNanchor_48" class="label">[48]</a> 1 Cranch's Reports, p. 163.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_49" href="#FNanchor_49" class="label">[49]</a> 4 Cranch's Reports, Appendix, pp. 507-508.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_130" id="Page_130"></a>[Pg 130]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="CRITICISM_OF_THE_COURTS50">CRITICISM OF THE COURTS<a id="FNanchor_50" href="#Footnote_50" class="fnanchor">[50]</a></h2> -</div> - - -<p class="drop">T<span class="uppercase">he</span> 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<span class="pagenum"><a name="Page_131" id="Page_131"></a>[Pg 131]</span> 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<span class="pagenum"><a name="Page_132" id="Page_132"></a>[Pg 132]</span> -lamentably ignorant of the subjects about which they write or declaim, -and—unconsciously and unintentionally in some instances—misrepresent -and distort the facts.</p> - -<p>It will be practicable at the present time to review only a few of the -points suggested by the investigations of your sub-committee.</p> - -<p>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<span class="pagenum"><a name="Page_133" id="Page_133"></a>[Pg 133]</span> -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<span class="pagenum"><a name="Page_134" id="Page_134"></a>[Pg 134]</span> 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.</p> - -<p>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,<span class="pagenum"><a name="Page_135" id="Page_135"></a>[Pg 135]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_136" id="Page_136"></a>[Pg 136]</span> -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?</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_137" id="Page_137"></a>[Pg 137]</span></p> - -<p>An interesting example of the operation of a statute in connection -with established rules of law will be found in the case of Knisley -<i>vs.</i> Pratt.<a id="FNanchor_51" href="#Footnote_51" class="fnanchor">[51]</a> 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—<i>assuming, of course, the draftsman and the -legislature so intended</i>—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.<span class="pagenum"><a name="Page_138" id="Page_138"></a>[Pg 138]</span> 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!</p> - -<p>It is true that the doctrine of the Knisley case has been recently -overruled by the Court of Appeals in the case of Fitzwater <i>vs.</i> -Warren.<a id="FNanchor_52" href="#Footnote_52" class="fnanchor">[52]</a> 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, <i>if it deems that the rule of law should be as now -announced</i>, 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.</p> - -<p><span class="pagenum"><a name="Page_139" id="Page_139"></a>[Pg 139]</span></p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_140" id="Page_140"></a>[Pg 140]</span> 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.</p> - -<p>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 nomina<span class="pagenum"><a name="Page_141" id="Page_141"></a>[Pg 141]</span>tion of men of the highest -character and of the highest qualifications for judicial office.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_142" id="Page_142"></a>[Pg 142]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_143" id="Page_143"></a>[Pg 143]</span> -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.</p> - -<p>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 <i>vs.</i> -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<span class="pagenum"><a name="Page_144" id="Page_144"></a>[Pg 144]</span> 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."<span class="pagenum"><a id="Page_145"></a>[Pg 145]</span> -<a id="FNanchor_53" href="#Footnote_53" class="fnanchor">[53]</a></p> - -<p>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 <i>vs.</i> Lustig,<a id="FNanchor_54" href="#Footnote_54" class="fnanchor">[54]</a> 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!</p> - -<p>Another case of apparently inexcusable delay is People <i>vs.</i> -Koerner.<a id="FNanchor_55" href="#Footnote_55" class="fnanchor">[55]</a> 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<span class="pagenum"><a name="Page_146" id="Page_146"></a>[Pg 146]</span> 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!</p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_147" id="Page_147"></a>[Pg 147]</span> 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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_148" id="Page_148"></a>[Pg 148]</span> -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 <i>ex parte</i> injunction shall go out -except as a stay-order to show cause why a preliminary injunction -should not issue."</p> - -<p>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,<a id="FNanchor_56" href="#Footnote_56" class="fnanchor">[56]</a> or what<span class="pagenum"><a name="Page_149" id="Page_149"></a>[Pg 149]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_150" id="Page_150"></a>[Pg 150]</span> papers and upon an <i>ex parte</i> application, it is well -known that the order may be and frequently is vacated immediately on -the <i>ex parte</i> 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.</p> - -<p>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.<span class="pagenum"><a name="Page_151" id="Page_151"></a>[Pg 151]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_152" id="Page_152"></a>[Pg 152]</span> 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."</p> - -<p>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.</p> - -<p>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.</p> - -<p>Some typical examples of misrepresentation of our<span class="pagenum"><a name="Page_153" id="Page_153"></a>[Pg 153]</span> 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.<a id="FNanchor_57" href="#Footnote_57" class="fnanchor">[57]</a></p> - -<p>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:</p> - -<p>"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<span class="pagenum"><a name="Page_154" id="Page_154"></a>[Pg 154]</span> 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."</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_155" id="Page_155"></a>[Pg 155]</span> 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."</p> - -<p>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 con<span class="pagenum"><a name="Page_156" id="Page_156"></a>[Pg 156]</span>cerning the -constitutionality of an act of the legislature.</p> - -<p>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."</p> - -<p>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,<a id="FNanchor_58" href="#Footnote_58" class="fnanchor">[58]</a> 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.</p> - -<p><span class="pagenum"><a name="Page_157" id="Page_157"></a>[Pg 157]</span></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_158" id="Page_158"></a>[Pg 158]</span> -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.</p> - -<p>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.</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_50" href="#FNanchor_50" class="label">[50]</a> 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.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_51" href="#FNanchor_51" class="label">[51]</a> 148 New York Reports, p. 372.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_52" href="#FNanchor_52" class="label">[52]</a> 206 New York Reports, p. 355.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_53" href="#FNanchor_53" class="label">[53]</a> 153 N.Y. Appellate Division Reports, p. 674.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_54" href="#FNanchor_54" class="label">[54]</a> 206 New York Reports, p. 162.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_55" href="#FNanchor_55" class="label">[55]</a> 154 New York Reports, p. 355; 117 N.Y. Appellate Division -Reports, p. 40; and 191 New York Reports, p. 528.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_56" href="#FNanchor_56" class="label">[56]</a> 158 United States Reports, p. 564.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_57" href="#FNanchor_57" class="label">[57]</a> See discussion <i>supra</i>, pp. 48-70.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_58" href="#FNanchor_58" class="label">[58]</a> See the New York Labor Law, sec. 77.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_159" id="Page_159"></a>[Pg 159]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="GRADUATED_OR_PROGRESSIVE_TAXATION59">GRADUATED OR PROGRESSIVE TAXATION<a id="FNanchor_59" href="#Footnote_59" class="fnanchor">[59]</a></h2> -</div> - - -<p class="drop">T<span class="uppercase">he</span> 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<span class="pagenum"><a name="Page_160" id="Page_160"></a>[Pg 160]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_161" id="Page_161"></a>[Pg 161]</span> moderation of the lawmakers, and that of all powers it is the one -most liable to abuse.</p> - -<p>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<span class="pagenum"><a name="Page_162" id="Page_162"></a>[Pg 162]</span> -alike protected, so all alike should bear the burden, in proportion to -the interests secured."<a id="FNanchor_60" href="#Footnote_60" class="fnanchor">[60]</a></p> - -<p>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<span class="pagenum"><a name="Page_163" id="Page_163"></a>[Pg 163]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_164" id="Page_164"></a>[Pg 164]</span> 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.</p> - -<p>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 <i>abondants</i>, and one hundred per cent. of all incomes which -they thought were <i>superflus</i>.</p> - -<p>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.<span class="pagenum"><a name="Page_165" id="Page_165"></a>[Pg 165]</span> 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."</p> - -<p>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<span class="pagenum"><a name="Page_166" id="Page_166"></a>[Pg 166]</span> 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."</p> - -<p>The well-known French political economist and scientist Leroy-Beaulieu -in his works, <i>Traité d'Economie Politique</i> and <i>Science des Finances</i>, -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."</p> - -<p><span class="pagenum"><a name="Page_167" id="Page_167"></a>[Pg 167]</span></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_168" id="Page_168"></a>[Pg 168]</span> 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."</p> - -<p>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 <i>post-obit</i> -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."</p> - -<p>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<span class="pagenum"><a name="Page_169" id="Page_169"></a>[Pg 169]</span> 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.</p> - -<p>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.</p> - -<p>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.<span class="pagenum"><a name="Page_170" id="Page_170"></a>[Pg 170]</span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_171" id="Page_171"></a>[Pg 171]</span> regulate inheritances in clear violation of the -spirit of the Constitution.</p> - -<p>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 Con<span class="pagenum"><a name="Page_172" id="Page_172"></a>[Pg 172]</span>stitution, 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.</p> - -<p>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<span class="pagenum"><a name="Page_173" id="Page_173"></a>[Pg 173]</span> 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.</p> - -<p>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.</p> - -<p>As Chief Justice Fuller said in the Income Tax cases: "The acceptance -of the rule of apportionment was one of the compromises which made<span class="pagenum"><a name="Page_174" id="Page_174"></a>[Pg 174]</span> 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."<a id="FNanchor_61" href="#Footnote_61" class="fnanchor">[61]</a></p> - -<p>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<span class="pagenum"><a name="Page_175" id="Page_175"></a>[Pg 175]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_176" id="Page_176"></a>[Pg 176]</span> -months. In any event, the delay ought not to exceed fourteen months.</p> - -<p>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<span class="pagenum"><a name="Page_177" id="Page_177"></a>[Pg 177]</span> 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.</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_59" href="#FNanchor_59" class="label">[59]</a> Address delivered before the National Civic Federation at -its annual meeting held in New York, December 13, 1906.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_60" href="#FNanchor_60" class="label">[60]</a> Constitutional Limitations, 7th ed., p. 705.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_61" href="#FNanchor_61" class="label">[61]</a> 157 United States Reports, p. 583.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_178" id="Page_178"></a>[Pg 178]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="THE_DUTY_OF_CITIZENSHIP62">THE DUTY OF CITIZENSHIP<a id="FNanchor_62" href="#Footnote_62" class="fnanchor">[62]</a></h2> -</div> - - -<p class="drop">A<span class="uppercase">t</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_179" id="Page_179"></a>[Pg 179]</span> -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.</p> - -<p>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.<span class="pagenum"><a name="Page_180" id="Page_180"></a>[Pg 180]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_181" id="Page_181"></a>[Pg 181]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_182" id="Page_182"></a>[Pg 182]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_183" id="Page_183"></a>[Pg 183]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_184" id="Page_184"></a>[Pg 184]</span> 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."</p> - -<p>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 con<span class="pagenum"><a name="Page_185" id="Page_185"></a>[Pg 185]</span>vinced 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.</p> - -<p>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<span class="pagenum"><a name="Page_186" id="Page_186"></a>[Pg 186]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_187" id="Page_187"></a>[Pg 187]</span> 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."</p> - -<p>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.</p> - -<p>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 prin<span class="pagenum"><a name="Page_188" id="Page_188"></a>[Pg 188]</span>ciple." 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."</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_189" id="Page_189"></a>[Pg 189]</span> 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."</p> - -<p>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<span class="pagenum"><a name="Page_190" id="Page_190"></a>[Pg 190]</span> the continued -support of the country on any such terms.</p> - -<p>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<span class="pagenum"><a name="Page_191" id="Page_191"></a>[Pg 191]</span> Mr. Roosevelt -as his friend, and subsequent withdrawal would have been a personal -humiliation.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_192" id="Page_192"></a>[Pg 192]</span> 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.</p> - -<p>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.</p> - -<p>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.<span class="pagenum"><a name="Page_193" id="Page_193"></a>[Pg 193]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_194" id="Page_194"></a>[Pg 194]</span> 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?</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_195" id="Page_195"></a>[Pg 195]</span> 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."</p> - -<p>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.</p> - -<p>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 <i>right</i> nor the <i>power</i> to protect -a single industry or a single workman. Such a proposition may well -amaze<span class="pagenum"><a name="Page_196" id="Page_196"></a>[Pg 196]</span> 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 <i>right</i> nor the <i>power</i> to -enact a tariff except for revenue.</p> - -<p>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,<span class="pagenum"><a name="Page_197" id="Page_197"></a>[Pg 197]</span> 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 <i>right</i> and the <i>power</i> of Congress to protect -American workmen, farmers and manufacturers.</p> - -<p>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<span class="pagenum"><a name="Page_198" id="Page_198"></a>[Pg 198]</span> 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"?</p> - -<p>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<span class="pagenum"><a name="Page_199" id="Page_199"></a>[Pg 199]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_200" id="Page_200"></a>[Pg 200]</span> 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<span class="pagenum"><a name="Page_201" id="Page_201"></a>[Pg 201]</span> tariff was the cause of the high -cost of living in free-trade England or elsewhere in Europe!</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_202" id="Page_202"></a>[Pg 202]</span></p> - -<p>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.</p> - -<p>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 tak<span class="pagenum"><a name="Page_203" id="Page_203"></a>[Pg 203]</span>ing -an oath to support the Constitution in which they do not believe.</p> - -<p>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<span class="pagenum"><a name="Page_204" id="Page_204"></a>[Pg 204]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_205" id="Page_205"></a>[Pg 205]</span> 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.</p> - -<p>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."</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_206" id="Page_206"></a>[Pg 206]</span> 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<span class="pagenum"><a name="Page_207" id="Page_207"></a>[Pg 207]</span> 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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_208" id="Page_208"></a>[Pg 208]</span></p> - -<p>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.</p> - -<p>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 candi<span class="pagenum"><a name="Page_209" id="Page_209"></a>[Pg 209]</span>dates, 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?</p> - -<p>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<span class="pagenum"><a name="Page_210" id="Page_210"></a>[Pg 210]</span> 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!</p> - -<p>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<span class="pagenum"><a name="Page_211" id="Page_211"></a>[Pg 211]</span> -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."</p> - -<p>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.</p> - -<p>The hatred of the courts which the Progressives now share in common -with the Socialists, Anarchists<span class="pagenum"><a name="Page_212" id="Page_212"></a>[Pg 212]</span> 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.</p> - -<p>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."</p> - -<p>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.</p> - -<p>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."<span class="pagenum"><a name="Page_213" id="Page_213"></a>[Pg 213]</span> 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."</p> - -<p>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."</p> - -<p>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<span class="pagenum"><a name="Page_214" id="Page_214"></a>[Pg 214]</span> 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<span class="pagenum"><a name="Page_215" id="Page_215"></a>[Pg 215]</span> 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."</p> - -<p>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.</p> - -<p>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—<span class="pagenum"><a name="Page_216" id="Page_216"></a>[Pg 216]</span>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.</p> - -<p>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."<span class="pagenum"><a name="Page_217" id="Page_217"></a>[Pg 217]</span><a id="FNanchor_63" href="#Footnote_63" class="fnanchor">[63]</a></p> - -<p>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?</p> - -<p>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<span class="pagenum"><a name="Page_218" id="Page_218"></a>[Pg 218]</span> 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."</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_62" href="#FNanchor_62" class="label">[62]</a> Address as temporary chairman of the New York Republican -State Convention, at Saratoga Springs, September 25, 1912.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_63" href="#FNanchor_63" class="label">[63]</a> 158 United States Reports, p. 594-595.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_219" id="Page_219"></a>[Pg 219]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="NOMINATING_CONVENTIONS64">NOMINATING CONVENTIONS<a id="FNanchor_64" href="#Footnote_64" class="fnanchor">[64]</a></h2> -</div> - - -<p class="drop">T<span class="uppercase">he</span> Direct Primary Law of 1911<a id="FNanchor_65" href="#Footnote_65" class="fnanchor">[65]</a> abolished all political conventions -except the state convention, but the Direct Primary Law of 1913<a id="FNanchor_66" href="#Footnote_66" class="fnanchor">[66]</a> -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.</p> - -<p><span class="pagenum"><a name="Page_220" id="Page_220"></a>[Pg 220]</span></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_221" id="Page_221"></a>[Pg 221]</span> 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.</p> - -<p><span class="pagenum"><a name="Page_222" id="Page_222"></a>[Pg 222]</span></p> - -<p>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<span class="pagenum"><a name="Page_223" id="Page_223"></a>[Pg 223]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_224" id="Page_224"></a>[Pg 224]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_225" id="Page_225"></a>[Pg 225]</span> 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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_226" id="Page_226"></a>[Pg 226]</span></p> - -<p>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<span class="pagenum"><a name="Page_227" id="Page_227"></a>[Pg 227]</span> 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.</p> - -<p>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?</p> - -<p>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 govern<span class="pagenum"><a name="Page_228" id="Page_228"></a>[Pg 228]</span>ment. -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.</p> - -<p>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<span class="pagenum"><a name="Page_229" id="Page_229"></a>[Pg 229]</span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_230" id="Page_230"></a>[Pg 230]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_231" id="Page_231"></a>[Pg 231]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_232" id="Page_232"></a>[Pg 232]</span> 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<span class="pagenum"><a name="Page_233" id="Page_233"></a>[Pg 233]</span> 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<span class="pagenum"><a name="Page_234" id="Page_234"></a>[Pg 234]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_235" id="Page_235"></a>[Pg 235]</span> 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<span class="pagenum"><a name="Page_236" id="Page_236"></a>[Pg 236]</span> of direct primaries in nine cases out of ten, -and more readily and frequently and unsatisfactorily than under the old -convention system.</p> - -<p>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.</p> - -<p>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 sound<span class="pagenum"><a name="Page_237" id="Page_237"></a>[Pg 237]</span>est 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.</p> - -<p>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<span class="pagenum"><a name="Page_238" id="Page_238"></a>[Pg 238]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_239" id="Page_239"></a>[Pg 239]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_240" id="Page_240"></a>[Pg 240]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_241" id="Page_241"></a>[Pg 241]</span> 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.</p> - -<p>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:</p> - -<p>"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<span class="pagenum"><a name="Page_242" id="Page_242"></a>[Pg 242]</span> 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."<a id="FNanchor_67" href="#Footnote_67" class="fnanchor">[67]</a></p> - -<p>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<span class="pagenum"><a name="Page_243" id="Page_243"></a>[Pg 243]</span> 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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_244" id="Page_244"></a>[Pg 244]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_245" id="Page_245"></a>[Pg 245]</span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>In conclusion, though repeating myself, I earnestly submit that -there can be no greater menace to our<span class="pagenum"><a name="Page_246" id="Page_246"></a>[Pg 246]</span> 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.</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_64" href="#FNanchor_64" class="label">[64]</a> Remarks before the Committee on Suffrage of the -Constitutional Convention of the state of New York at Albany, June 16, -1915.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_65" href="#FNanchor_65" class="label">[65]</a> Laws of 1911, ch. 891.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_66" href="#FNanchor_66" class="label">[66]</a> Laws of 1913, ch. 820.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_67" href="#FNanchor_67" class="label">[67]</a> Congressional Government, p. 97, and Constitutional -Government in the United States, pp. 209, 210.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_247" id="Page_247"></a>[Pg 247]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="CATHOLIC_PAROCHIAL_SCHOOLS68">CATHOLIC PAROCHIAL SCHOOLS<a id="FNanchor_68" href="#Footnote_68" class="fnanchor">[68]</a></h2> -</div> - - -<p class="drop">T<span class="uppercase">he</span> 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.</p> - -<p>There is unfortunately much misunderstanding and criticism among our -fellow-citizens of other denominations in regard to the attitude of the -Roman<span class="pagenum"><a name="Page_248" id="Page_248"></a>[Pg 248]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_249" id="Page_249"></a>[Pg 249]</span> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_250" id="Page_250"></a>[Pg 250]</span> 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 CÊsar the things which are CÊsar'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.</p> - -<p>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<span class="pagenum"><a name="Page_251" id="Page_251"></a>[Pg 251]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_252" id="Page_252"></a>[Pg 252]</span> reverence and self-control, and the more -essential to their well-being are those sources whence reverence -and self-control flow."<a id="FNanchor_69" href="#Footnote_69" class="fnanchor">[69]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_253" id="Page_253"></a>[Pg 253]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_254" id="Page_254"></a>[Pg 254]</span> true -manhood and womanhood. Yet many would wholly exclude and banish its -most important and essential feature!</p> - -<p>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.</p> - -<p>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.</p> - -<p>The greatest single religious fact in the United<span class="pagenum"><a name="Page_255" id="Page_255"></a>[Pg 255]</span> 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<span class="pagenum"><a name="Page_256" id="Page_256"></a>[Pg 256]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_257" id="Page_257"></a>[Pg 257]</span> 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<span class="pagenum"><a name="Page_258" id="Page_258"></a>[Pg 258]</span> 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.</p> - -<p>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 ac<span class="pagenum"><a name="Page_259" id="Page_259"></a>[Pg 259]</span>cording 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.</p> - -<p>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.</p> - -<p>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 recog<span class="pagenum"><a name="Page_260" id="Page_260"></a>[Pg 260]</span>nition. 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<br /> - -<span style="margin-left: 35%;"><span class="smcap">Pro Deo et Ecclesia et Patria</span></span>.</p> - - - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_68" href="#FNanchor_68" class="label">[68]</a> Remarks at the dedication of the Roman Catholic parochial -school at Glen Cove, Long Island, New York, on September 6, 1915.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_69" href="#FNanchor_69" class="label">[69]</a> The American Commonwealth, new edition (1912), vol. II, -pp. 793, 794.</p></div></div> - - -<hr class="chap" /> -<p><span class="pagenum"><a name="Page_261" id="Page_261"></a>[Pg 261]</span></p> -<div class="chapter"> -<h2 class="nobreak" id="THE_FRANCE-AMERICA_COMMITTEE_OF_NEW_YORK70">THE FRANCE-AMERICA COMMITTEE OF NEW YORK<a id="FNanchor_70" href="#Footnote_70" class="fnanchor">[70]</a></h2> -</div> - - -<p class="drop">I <span class="uppercase">ask</span> 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.</p> - -<p>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 CÊsar taught us, that "<i>horum omnium fortissimi sunt -Belgae</i>;" 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.</p> - -<p>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<span class="pagenum"><a name="Page_262" id="Page_262"></a>[Pg 262]</span> readily appreciate why -France should seem, at the moment, to be foremost in our thoughts.</p> - -<p>Monsieur Homberg, Monsieur Mallet: Le Comité France-Amérique de New -York éprouve un trÚs 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.</p> - -<p>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 cÅur qu'une -nou<span class="pagenum"><a name="Page_263" id="Page_263"></a>[Pg 263]</span>velle Bataille de Poitiers contre les Sarrasins délivre bientÃŽt la -belle et sainte terre de France de ses envahisseurs.</p> - -<p>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.</p> - -<p>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 -EtrangÚres de notre CongrÚs National, attestent que cette aide, qui -fut si efficace et qui seule a rendu notre succÚs 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<span class="pagenum"><a name="Page_264" id="Page_264"></a>[Pg 264]</span> 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 entiÚre 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.</p> - -<p>En prenant part à notre Guerre d'Indépendance, le peuple français -savait parfaitement que son aide lui coûterait un prix énorme et -que les impÃŽts 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.<a id="FNanchor_71" href="#Footnote_71" class="fnanchor">[71]</a> De cette énorme dépense, qui a ruiné le trésor royal, -comme l'avait bien prêdit Turgot, pas un sou<span class="pagenum"><a name="Page_265" id="Page_265"></a>[Pg 265]</span> n'a été remboursé à la -France. Elle ne l'a jamais réclamé, et elle en refuserait fiÚrement -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.</p> - -<p>Ne serait-il pas souverainement juste, si le peuple américain, cent -trente quatre ans aprÚs 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'impÃŽt -qui a été payé volontairement et de bon cÅur par le peuple français -du dix-huitiÚme siÚcle pour nous aider. Quelle noblesse, quelle -gloire, quelle splendeur de cÅur, 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,<span class="pagenum"><a name="Page_266" id="Page_266"></a>[Pg 266]</span> nul doute ne subsisterait quant au succÚs éclatant de votre -mission, surtout si une parole éloquente pouvait toucher le cÅur des -Américains et leur rappeler combien ils doivent à la France, à cette -république sÅur 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.</p> - -<p>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 lÚve 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.<a id="FNanchor_72" href="#Footnote_72" class="fnanchor">[72]</a></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_267" id="Page_267"></a>[Pg 267]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_268" id="Page_268"></a>[Pg 268]</span> 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:</p> - -<p> -<span style="margin-left: 1em;">"Their's not to reason why,</span><br /> -<span style="margin-left: 1em;">Their's but to do and die."</span><br /> -</p> - -<p>And we Americans were then prouder than ever before to belong to the -Anglo-Saxon race.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_269" id="Page_269"></a>[Pg 269]</span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_270" id="Page_270"></a>[Pg 270]</span> 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.</p> - -<p>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.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_70" href="#FNanchor_70" class="label">[70]</a> 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.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_71" href="#FNanchor_71" class="label">[71]</a> 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 CollÚge de France is of opinion that the total -expenditure probably reached 2,000,000,000 livres. Marion, <i>Histoire -FinanciÚre de la France, 1715-1789</i>, vol. I, p. 303, Paris, 1914; see -also Gomel, <i>Les Causes FinanciÚres de la Révolution Française</i>, vol. -II, p. 36, Paris, 1893. Fiske, in his Critical Period, p. 35, states -the expenditure to have been 1,400,000,000 francs.</p></div> - -<div class="footnote"> - -<p><a id="Footnote_72" href="#FNanchor_72" class="label">[72]</a> M. Homberg replied in French, and Mr. Guthrie then -continued as above.</p></div></div> - - -<hr class="chap" /> - -<div class="chapter"> -<h2 class="nobreak" id="INDEX">INDEX</h2> -</div> -<p><span class="pagenum"><a name="Page_271" id="Page_271"></a>[Pg 271]</span></p> - -<p> -<span style="margin-left: 1em;">American ideals, <a href="#Page_37">37</a>, <a href="#Page_161">161</a>, <a href="#Page_267">267</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Ancestor-worship, <a href="#Page_27">27</a>-29.</span><br /> -<br /> -<span style="margin-left: 1em;">Anglo-French Commission, <a href="#Page_261">261</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Anson, Sir William R., <a href="#Page_104">104</a>, <a href="#Page_106">106</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Aristotle, <a href="#Page_14">14</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Athens, <a href="#Page_42">42</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Australia, <a href="#Page_81">81</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Ayers, In re, <a href="#Page_118">118</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Bakers case, <a href="#Page_57">57</a>, <a href="#Page_153">153</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bancroft, George, <a href="#Page_30">30</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bankers, Case of the, <a href="#Page_106">106</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bar, should defend the courts against criticism, <a href="#Page_70">70</a>, <a href="#Page_127">127</a>, <a href="#Page_147">147</a>, <a href="#Page_158">158</a>;</span><br /> -<span style="margin-left: 2em;">duty to defend constitutional guaranties, <a href="#Page_85">85</a>, <a href="#Page_86">86</a>;</span><br /> -<span style="margin-left: 2em;">efforts to secure proper judicial nominations, <a href="#Page_139">139</a>-141;</span><br /> -<span style="margin-left: 2em;">professional responsibility, <a href="#Page_142">142</a>-143.</span><br /> -<br /> -<span style="margin-left: 1em;">Barons, Articles of the, <a href="#Page_5">5</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bate's case, <a href="#Page_17">17</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Belgium, <a href="#Page_261">261</a>, <a href="#Page_262">262</a>, <a href="#Page_267">267</a>, <a href="#Page_270">270</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bill of Rights, New York statute of 1787, <a href="#Page_19">19</a>, <a href="#Page_23">23</a>;</span><br /> -<span style="margin-left: 2em;">permanent nature, <a href="#Page_20">20</a>, <a href="#Page_21">21</a>, <a href="#Page_203">203</a>;</span><br /> -<span style="margin-left: 2em;">the federal bill of rights, <a href="#Page_74">74</a>, <a href="#Page_83">83</a>;</span><br /> -<span style="margin-left: 2em;">must be enforced by the courts, <a href="#Page_77">77</a>-78;</span><br /> -<span style="margin-left: 2em;">ineffective where legislative power is supreme, <a href="#Page_77">77</a>-78.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutions and Constitutional limitations.</span><br /> -<br /> -<span style="margin-left: 1em;">Blackstone, Sir William, <a href="#Page_99">99</a>, <a href="#Page_168">168</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bonham's case, <a href="#Page_10">10</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bosses, Political, their power increased by direct primaries, <a href="#Page_142">142</a>, <a href="#Page_236">236</a>, <a href="#Page_238">238</a>;</span><br /> -<span style="margin-left: 2em;">efforts to overthrow them, <a href="#Page_230">230</a>-231, <a href="#Page_245">245</a>;</span><br /> -<span style="margin-left: 2em;">Woodrow Wilson on, <a href="#Page_242">242</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bracton, Henry de, <a href="#Page_102">102</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Bradford, William, <a href="#Page_30">30</a>n, <a href="#Page_38">38</a>-39.</span><br /> -<br /> -<span style="margin-left: 1em;">Bryan, William J., <a href="#Page_180">180</a>-182, <a href="#Page_213">213</a>-215.</span><br /> -<br /> -<span style="margin-left: 1em;">Bryce, Viscount, <a href="#Page_69">69</a>, <a href="#Page_251">251</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Carlisle <i>vs.</i> United States, <a href="#Page_101">101</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Charter, <i>see</i> Constitutions and Magna Carta.</span><br /> -<br /> -<span style="margin-left: 1em;">Chisholm <i>vs.</i> Georgia, <a href="#Page_89">89</a>, <a href="#Page_95">95</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Church and State, Separation of, germ of idea in Magna Carta, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>;</span><br /> -<span style="margin-left: 2em;">an American political principle, <a href="#Page_12">12</a>;</span><br /> -<span style="margin-left: 2em;">opposed by Puritans, <a href="#Page_32">32</a>, <a href="#Page_33">33</a>;</span><br /> -<span style="margin-left: 2em;">accomplished by the Pilgrims, <a href="#Page_32">32</a>, <a href="#Page_34">34</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Clark <i>vs.</i> Barnard, <a href="#Page_96">96</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Class legislation, may lead England to restrain temporary majorities, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">masking as social reform, <a href="#Page_43">43</a>;</span><br /> -<span style="margin-left: 2em;">dangers of, <a href="#Page_74">74</a>, <a href="#Page_79">79</a>, <a href="#Page_85">85</a>, <a href="#Page_124">124</a>;</span><br /> -<span style="margin-left: 2em;">New York tenement law of 1884, <a href="#Page_85">85</a>;</span><br /> -<span style="margin-left: 2em;">involved in graduated taxation, <a href="#Page_165">165</a>, <a href="#Page_166">166</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Cleveland, Grover, <a href="#Page_149">149</a>, <a href="#Page_151">151</a>, <a href="#Page_216">216</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Cohens <i>vs.</i> Virginia, <a href="#Page_93">93</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Coke, Sir Edward, <a href="#Page_23">23</a>, <a href="#Page_105">105</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Common law, silent as to the equal protection of the laws, <a href="#Page_36">36</a>;</span><br /> -<span style="margin-left: 2em;">may be changed by the legislature, <a href="#Page_68">68</a>-69, <a href="#Page_134">134</a>-138, <a href="#Page_155">155</a>;</span><br /> -<span style="margin-left: 2em;">the birthright of Americans, <a href="#Page_98">98</a>;</span><br /> -<span style="margin-left: 2em;">soundness of common-law rules, <a href="#Page_132">132</a>-134.</span><br /> -<br /> -<span style="margin-left: 1em;">Commune consilium, antecedent of parliament, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">power to impose taxes, <a href="#Page_16">16</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Communism, a conceit of Plato's, <a href="#Page_38">38</a>;</span><br /> -<span style="margin-left: 2em;">failure of the experiment in Plymouth colony, <a href="#Page_37">37</a>-39;</span><br /> -<span style="margin-left: 2em;">in the colony of Virginia, <a href="#Page_38">38</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Congress, decay through increase of executive power, <a href="#Page_44">44</a>;</span><br /> -<span style="margin-left: 2em;">power to regulate interstate commerce, <a href="#Page_61">61</a>;</span><br /> -<span style="margin-left: 2em;">cannot regulate internal affairs of the several states, <a href="#Page_61">61</a>;</span><br /> -<span style="margin-left: 2em;">acts of, <a href="#Page_61">61</a>, <a href="#Page_62">62</a>, <a href="#Page_68">68</a>, <a href="#Page_100">100</a>, <a href="#Page_121">121</a>, <a href="#Page_126">126</a>;</span><br /> -<span style="margin-left: 2em;">limitations upon, <a href="#Page_74">74</a>, <a href="#Page_78">78</a>, <a href="#Page_81">81</a>, <a href="#Page_169">169</a>-171;</span><br /> -<span style="margin-left: 2em;">proposes amendments to the Constitution, <a href="#Page_74">74</a>, <a href="#Page_89">89</a>;</span><br /> -<span style="margin-left: 2em;">attempts to curtail the federal courts, <a href="#Page_88">88</a>, <a href="#Page_125">125</a>;</span><br /> -<span style="margin-left: 2em;">duty to enforce constitutional amendments, <a href="#Page_110">110</a>;</span><br /> -<span style="margin-left: 2em;">duty to uphold the Constitution, <a href="#Page_171">171</a>-172;</span><br /> -<span style="margin-left: 2em;">protection of American industries and wages, <a href="#Page_193">193</a>-197;</span><br /> -<span style="margin-left: 2em;">dissatisfaction with, <a href="#Page_205">205</a>-206.</span><br /> -<br /> -<span style="margin-left: 1em;">Consolidated Gas Co. case, <a href="#Page_122">122</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Cooley, Thomas M., <a href="#Page_90">90</a>, <a href="#Page_161">161</a>-162.</span><br /> -<br /> -<span style="margin-left: 1em;">Constitutions, principles rooted in Magna Carta, <a href="#Page_1">1</a>;</span><br /> -<span style="margin-left: 2em;">intended to endure forever, <a href="#Page_20">20</a>, <a href="#Page_21">21</a>, <a href="#Page_203">203</a>;</span><br /> -<span style="margin-left: 2em;">unwise to create political body to enforce, <a href="#Page_25">25</a>;</span><br /> -<span style="margin-left: 2em;">may be deprived of practical force by failure to observe constitutional restraints, <a href="#Page_46">46</a>, <a href="#Page_75">75</a>;</span><br /> -<span style="margin-left: 2em;">explanation would dispel prejudice against the courts, <a href="#Page_48">48</a>;</span><br /> -<span style="margin-left: 2em;">nature and purpose to declare general principles, <a href="#Page_52">52</a>;</span><br /> -<span style="margin-left: 2em;">a rule of interpretation, <a href="#Page_154">154</a>-155;</span><br /> -<span style="margin-left: 2em;">antiquated in the view of modern iconoclasts, <a href="#Page_202">202</a>;</span><br /> -<span style="margin-left: 2em;">small vote on amendments, <a href="#Page_208">208</a>-209;</span><br /> -<span style="margin-left: 2em;">should deal only with fundamentals, <a href="#Page_224">224</a>, <a href="#Page_225">225</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Magna Carta and Mayflower Compact.</span><br /> -<br /> -<span style="margin-left: 1em;">Constitution, Federal, sources of, <a href="#Page_1">1</a>, <a href="#Page_31">31</a>, <a href="#Page_98">98</a>;</span><br /> -<span style="margin-left: 2em;">enforced by the courts, <a href="#Page_25">25</a>, <a href="#Page_42">42</a> sqq., <a href="#Page_70">70</a> sqq., <a href="#Page_87">87</a> sqq., <a href="#Page_109">109</a> sqq.;</span><br /> -<span style="margin-left: 2em;">supremacy of, <a href="#Page_71">71</a> sqq., <a href="#Page_87">87</a>, <a href="#Page_111">111</a>, <a href="#Page_113">113</a>;</span><br /> -<span style="margin-left: 2em;">considered and ratified, <a href="#Page_74">74</a>, <a href="#Page_88">88</a>, <a href="#Page_89">89</a>;</span><br /> -<span style="margin-left: 2em;">easily amended, <a href="#Page_82">82</a>-85, <a href="#Page_89">89</a>, <a href="#Page_91">91</a>-92, <a href="#Page_175">175</a>, <a href="#Page_176">176</a>, <a href="#Page_208">208</a>;</span><br /> -<span style="margin-left: 2em;">necessity for deliberation in amending, <a href="#Page_84">84</a>-85, <a href="#Page_176">176</a>-177;</span><br /> -<span style="margin-left: 2em;">rule for construing, <a href="#Page_97">97</a>-98;</span><br /> -<span style="margin-left: 2em;">oath to support, <a href="#Page_171">171</a>-172;</span><br /> -<span style="margin-left: 2em;">attempts to circumvent, <a href="#Page_175">175</a>;</span><br /> -<span style="margin-left: 2em;">embodies eternal truths, <a href="#Page_203">203</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutional limitations.</span><br /> -<br /> -<span style="margin-left: 1em;">Constitutional government, depends upon constitutional morality, <a href="#Page_26">26</a>;</span><br /> -<span style="margin-left: 2em;">its debt to the Pilgrims, <a href="#Page_29">29</a>, <a href="#Page_32">32</a>, <a href="#Page_35">35</a>;</span><br /> -<span style="margin-left: 2em;">characterized by equality before the law, <a href="#Page_35">35</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Constitutional limitations, idea in Magna Carta, <a href="#Page_6">6</a>-7;</span><br /> -<span style="margin-left: 2em;">recognized in statute of 42 Edward III., <a href="#Page_7">7</a>, <a href="#Page_8">8</a>;</span><br /> -<span style="margin-left: 2em;">common to every American constitution, <a href="#Page_8">8</a>, <a href="#Page_73">73</a>;</span><br /> -<span style="margin-left: 2em;">not imposed upon parliament, <a href="#Page_9">9</a>-11, <a href="#Page_76">76</a>-77, <a href="#Page_107">107</a>;</span><br /> -<span style="margin-left: 2em;">their enforcement left to the courts, <a href="#Page_25">25</a>, <a href="#Page_45">45</a>, <a href="#Page_47">47</a>, <a href="#Page_70">70</a> sqq., <a href="#Page_87">87</a>, <a href="#Page_109">109</a>, <a href="#Page_113">113</a>, <a href="#Page_127">127</a>;</span><br /> -<span style="margin-left: 2em;">growing impatience with, <a href="#Page_42">42</a>, <a href="#Page_43">43</a>, <a href="#Page_48">48</a>, <a href="#Page_124">124</a>, <a href="#Page_202">202</a>;</span><br /> -<span style="margin-left: 2em;">could be nullified if judges followed the prevailing morality, <a href="#Page_45">45</a>, <a href="#Page_46">46</a>;</span><br /> -<span style="margin-left: 2em;">enforcement by the courts necessary, <a href="#Page_70">70</a> sqq.;</span><br /> -<span style="margin-left: 2em;">binding upon Congress, <a href="#Page_74">74</a>-75, <a href="#Page_171">171</a>-172;</span><br /> -<span style="margin-left: 2em;">Elihu Root on, <a href="#Page_75">75</a>;</span><br /> -<span style="margin-left: 2em;">make possible constitutional morality, <a href="#Page_86">86</a>;</span><br /> -<span style="margin-left: 2em;">to be observed by the President, <a href="#Page_171">171</a>-172.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutions, Due process of law, Constitutional morality, Judiciary, and Fundamental laws.</span><br /> -<br /> -<span style="margin-left: 1em;">Constitutional morality, a condition of permanent free government, <a href="#Page_26">26</a>, <a href="#Page_42">42</a>;</span><br /> -<span style="margin-left: 2em;">discussed generally, <a href="#Page_42">42</a>-86;</span><br /> -<span style="margin-left: 2em;">growing tendency to disregard, <a href="#Page_42">42</a>;</span><br /> -<span style="margin-left: 2em;">its disregard caused the overthrow of Grecian democracy, <a href="#Page_42">42</a>;</span><br /> -<span style="margin-left: 2em;">its essence is self-imposed restraint, <a href="#Page_42">42</a>;</span><br /> -<span style="margin-left: 2em;">its necessity should be taught, <a href="#Page_48">48</a>, <a href="#Page_85">85</a>-86.</span><br /> -<br /> -<span style="margin-left: 1em;">Conventions, Constitutional, their duty to secure the privileges of Magna Carta,<a href="#Page_2"> 2</a>;</span><br /> -<span style="margin-left: 2em;">the first American, <a href="#Page_29">29</a>-30, <a href="#Page_37">37</a>;</span><br /> -<span style="margin-left: 2em;">Ohio convention of 1912, <a href="#Page_61">61</a>, <a href="#Page_64">64</a>;</span><br /> -<span style="margin-left: 2em;">the federal convention of 1787, <a href="#Page_89">89</a>, <a href="#Page_256">256</a>;</span><br /> -<span style="margin-left: 2em;">in New York, <a href="#Page_154">154</a>, <a href="#Page_186">186</a>, <a href="#Page_235">235</a>, <a href="#Page_257">257</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Conventions, Nominating, discussed generally, <a href="#Page_219">219</a>-246;</span><br /> -<span style="margin-left: 2em;">right to, should be guaranteed by the Constitution, <a href="#Page_220">220</a>, <a href="#Page_225">225</a>;</span><br /> -<span style="margin-left: 2em;">their origin, <a href="#Page_229">229</a>;</span><br /> -<span style="margin-left: 2em;">abuses of, <a href="#Page_229">229</a>, <a href="#Page_237">237</a>;</span><br /> -<span style="margin-left: 2em;">movement to abolish, <a href="#Page_230">230</a>, <a href="#Page_239">239</a>-240;</span><br /> -<span style="margin-left: 2em;">their merits and advantages, <a href="#Page_236">236</a>-237, <a href="#Page_242">242</a>-246.</span><br /> -<br /> -<span style="margin-left: 1em;">Cotting <i>vs.</i> Kansas City Stock Yards Co., <a href="#Page_123">123</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Courts, <i>see</i> Judiciary.</span><br /> -<br /> -<span style="margin-left: 1em;">Coxey's Army, <a href="#Page_181">181</a>, <a href="#Page_199">199</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Criminal Procedure, delays in, <a href="#Page_126">126</a>, <a href="#Page_143">143</a>-146.</span><br /> -<br /> -<span style="margin-left: 1em;">Cromwell, Oliver, <a href="#Page_34">34</a>-35.</span><br /> -<br /> -<span style="margin-left: 1em;">Crown, power limited by Magna Carta, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>, <a href="#Page_24">24</a>-25;</span><br /> -<span style="margin-left: 2em;">former exercise of legislative power, <a href="#Page_17">17</a>;</span><br /> -<span style="margin-left: 2em;">maxim that "the king can do no wrong," <a href="#Page_98">98</a>, <a href="#Page_102">102</a>, <a href="#Page_105">105</a>, <a href="#Page_108">108</a>, <a href="#Page_114">114</a>;</span><br /> -<span style="margin-left: 2em;">sued under the Petition of Right, <a href="#Page_99">99</a>-102;</span><br /> -<span style="margin-left: 2em;">not suable in tort, <a href="#Page_102">102</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Cullen, Chief Judge, <a href="#Page_80">80</a>, <a href="#Page_139">139</a>, <a href="#Page_210">210</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Davis <i>vs.</i> Gray, <a href="#Page_115">115</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Day in court, <a href="#Page_13">13</a>, <a href="#Page_121">121</a>, <a href="#Page_150">150</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Debs case, <a href="#Page_148">148</a>-151, <a href="#Page_212">212</a>, <a href="#Page_215">215</a>-216.</span><br /> -<br /> -<span style="margin-left: 1em;">Declaration of Independence, proclaimed the inalienable rights of the individual, <a href="#Page_4">4</a>, <a href="#Page_81">81</a>;</span><br /> -<span style="margin-left: 2em;">relation to the Mayflower Compact, <a href="#Page_30">30</a>;</span><br /> -<span style="margin-left: 2em;">its spirit perpetuated, <a href="#Page_76">76</a>;</span><br /> -<span style="margin-left: 2em;">marked human progress towards liberty, <a href="#Page_203">203</a>;</span><br /> -<span style="margin-left: 2em;">its truths eternal, <a href="#Page_203">203</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Demagogue, his plea that the people are infallible, <a href="#Page_43">43</a>;</span><br /> -<span style="margin-left: 2em;">his well-known arts, <a href="#Page_192">192</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Democracy, the fallacies of absolute, <a href="#Page_39">39</a>-40, <a href="#Page_43">43</a>, <a href="#Page_165">165</a>;</span><br /> -<span style="margin-left: 2em;">in Plymouth colony, <a href="#Page_39">39</a>;</span><br /> -<span style="margin-left: 2em;">historical failures, <a href="#Page_42">42</a>, <a href="#Page_75">75</a>, <a href="#Page_205">205</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Democratic party, principles and recent campaigns, <a href="#Page_178">178</a> sqq.;</span><br /> -<span style="margin-left: 2em;">tariff legislation, <a href="#Page_195">195</a>-198;</span><br /> -<span style="margin-left: 2em;">on use of injunctions, <a href="#Page_213">213</a>-214.</span><br /> -<br /> -<span style="margin-left: 1em;">Despotism, equal laws a feature of, <a href="#Page_36">36</a>;</span><br /> -<span style="margin-left: 2em;">will result from increasing power of the executive, <a href="#Page_44">44</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Dicey, A.V., <a href="#Page_15">15</a>, <a href="#Page_103">103</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Dies parentales, <a href="#Page_27">27</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Due course of law, in New York bill of rights of 1787, <a href="#Page_23">23</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Due process of law, universal application in the United States, <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">equivalent of "law of the land" (q.v.), <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">substance of expression in Magna Carta, <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">history of expression in America, <a href="#Page_18">18</a>-19, <a href="#Page_23">23</a>-24;</span><br /> -<span style="margin-left: 2em;">meaning, <a href="#Page_19">19</a>, <a href="#Page_22">22</a>-24;</span><br /> -<span style="margin-left: 2em;">earliest use, <a href="#Page_22">22</a>-23;</span><br /> -<span style="margin-left: 2em;">term meaningless to man in the street, <a href="#Page_48">48</a>;</span><br /> -<span style="margin-left: 2em;">principle applied in the Tenement House case, <a href="#Page_54">54</a>;</span><br /> -<span style="margin-left: 2em;">in the Ives case and Employers' Liability cases, <a href="#Page_65">65</a>, <a href="#Page_68">68</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Education, Catholic parochial schools, <a href="#Page_247">247</a>-260;</span><br /> -<span style="margin-left: 2em;">primary and elementary, <a href="#Page_253">253</a>;</span><br /> -<span style="margin-left: 2em;">the Catholic university, <a href="#Page_255">255</a>;</span><br /> -<span style="margin-left: 2em;">public grants to private schools, <a href="#Page_256">256</a>, <a href="#Page_257">257</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Edward I., <a href="#Page_100">100</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Edward III., <a href="#Page_7">7</a>, <a href="#Page_8">8</a>, <a href="#Page_11">11</a>, <a href="#Page_22">22</a>, <a href="#Page_23">23</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Edward the Confessor, 7.</span><br /> -<br /> -<span style="margin-left: 1em;">Egyptians, <a href="#Page_27">27</a>, <a href="#Page_168">168</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Election Law (New York), <a href="#Page_209">209</a>, <a href="#Page_219">219</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Elections, primary elections a menace, <a href="#Page_39">39</a>, <a href="#Page_142">142</a>, <a href="#Page_227">227</a>-228, <a href="#Page_231">231</a>-236, <a href="#Page_238">238</a>, <a href="#Page_245">245</a>-246;</span><br /> -<span style="margin-left: 2em;">presidential, <a href="#Page_178">178</a> sqq.;</span><br /> -<span style="margin-left: 2em;">nomination of candidates, <a href="#Page_207">207</a>, <a href="#Page_219">219</a>-246;</span><br /> -<span style="margin-left: 2em;">vote on constitutional amendments, <a href="#Page_208">208</a>-209;</span><br /> -<span style="margin-left: 2em;">effect of the short ballot, <a href="#Page_222">222</a>-224;</span><br /> -<span style="margin-left: 2em;">secret ballot objectionable, <a href="#Page_228">228</a>;</span><br /> -<span style="margin-left: 2em;">some New York statistics, <a href="#Page_231">231</a>-233;</span><br /> -<span style="margin-left: 2em;">origin of primaries, <a href="#Page_239">239</a>-240;</span><br /> -<span style="margin-left: 2em;">to judicial office, <a href="#Page_243">243</a>-245.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Conventions.</span><br /> -<br /> -<span style="margin-left: 1em;">Electorate, responsible for political evils, <a href="#Page_205">205</a>-206, <a href="#Page_245">245</a>;</span><br /> -<span style="margin-left: 2em;">voting a duty, <a href="#Page_206">206</a>, <a href="#Page_238">238</a>, <a href="#Page_245">245</a>;</span><br /> -<span style="margin-left: 2em;">indifference and negligence of, <a href="#Page_207">207</a>, <a href="#Page_208">208</a>, <a href="#Page_209">209</a>, <a href="#Page_230">230</a>-232, <a href="#Page_237">237</a>, <a href="#Page_240">240</a>;</span><br /> -<span style="margin-left: 2em;">remedy for corruption, <a href="#Page_237">237</a>-238.</span><br /> -<br /> -<span style="margin-left: 1em;">Eleventh amendment, main treatment, <a href="#Page_87">87</a>-129;</span><br /> -<span style="margin-left: 2em;">text, <a href="#Page_91">91</a>;</span><br /> -<span style="margin-left: 2em;">possibly qualified, <a href="#Page_97">97</a>, <a href="#Page_110">110</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Employers' Liability cases, <a href="#Page_61">61</a>-64, <a href="#Page_67">67</a>-68, <a href="#Page_121">121</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">English church, its part in Magna Carta, <a href="#Page_3">3</a>, <a href="#Page_4">4</a>, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>;</span><br /> -<span style="margin-left: 2em;">freed from the crown by Magna Carta, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">England, political thought in the 13th and 14th centuries, <a href="#Page_6">6</a>-9, <a href="#Page_18">18</a>-19;</span><br /> -<span style="margin-left: 2em;">taxation, <a href="#Page_9">9</a>, <a href="#Page_16">16</a>-18;</span><br /> -<span style="margin-left: 2em;">courts, <a href="#Page_10">10</a>, <a href="#Page_17">17</a>, <a href="#Page_76">76</a>, <a href="#Page_77">77</a>, <a href="#Page_103">103</a>-107;</span><br /> -<span style="margin-left: 2em;">class legislation, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">acts of Supremacy and Uniformity, <a href="#Page_32">32</a>, <a href="#Page_36">36</a>-37;</span><br /> -<span style="margin-left: 2em;">debt to Puritanism, <a href="#Page_34">34</a>-35;</span><br /> -<span style="margin-left: 2em;">in the World War, <a href="#Page_35">35</a>, <a href="#Page_261">261</a>, <a href="#Page_267">267</a>-270;</span><br /> -<span style="margin-left: 2em;">labor legislation, <a href="#Page_79">79</a>;</span><br /> -<span style="margin-left: 2em;">protective tariff, <a href="#Page_196">196</a>;</span><br /> -<span style="margin-left: 2em;">cost of living, <a href="#Page_199">199</a>, <a href="#Page_200">200</a>;</span><br /> -<span style="margin-left: 2em;">board of trade, <a href="#Page_200">200</a>;</span><br /> -<span style="margin-left: 2em;">union of legislative and executive powers, <a href="#Page_227">227</a>-228;</span><br /> -<span style="margin-left: 2em;">state aid to parochial schools, <a href="#Page_256">256</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> English church and Parliament.</span><br /> -<br /> -<span style="margin-left: 1em;">Entick <i>vs.</i> Carrington, <a href="#Page_104">104</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Equality before the law, <a href="#Page_31">31</a>, <a href="#Page_35">35</a>, <a href="#Page_152">152</a>, <a href="#Page_161">161</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Europe, political ideas in the 13th century, <a href="#Page_6">6</a>;</span><br /> -<span style="margin-left: 2em;">in 1620, <a href="#Page_35">35</a>;</span><br /> -<span style="margin-left: 2em;">the great war, <a href="#Page_35">35</a>, <a href="#Page_41">41</a>, <a href="#Page_267">267</a> sqq.;</span><br /> -<span style="margin-left: 2em;">source of legislative schemes, <a href="#Page_76">76</a>;</span><br /> -<span style="margin-left: 2em;">industrial competition with the United States, <a href="#Page_196">196</a>-197;</span><br /> -<span style="margin-left: 2em;">high cost of living, <a href="#Page_200">200</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Executive, and legislative power in England, <a href="#Page_17">17</a>;</span><br /> -<span style="margin-left: 2em;">power limited by Magna Carta, <a href="#Page_24">24</a>-25;</span><br /> -<span style="margin-left: 2em;">increase in power threatens despotism, <a href="#Page_44">44</a>, <a href="#Page_223">223</a>-224;</span><br /> -<span style="margin-left: 2em;">shifting responsibility to the courts, <a href="#Page_47">47</a>;</span><br /> -<span style="margin-left: 2em;">duty to uphold the Constitution, <a href="#Page_171">171</a>-172;</span><br /> -<span style="margin-left: 2em;">sentiment against a third term, <a href="#Page_186">186</a>-188;</span><br /> -<span style="margin-left: 2em;">now most powerful branch of the government, <a href="#Page_220">220</a>;</span><br /> -<span style="margin-left: 2em;">should not exercise the lawmaking power, <a href="#Page_227">227</a>;</span><br /> -<span style="margin-left: 2em;">control of foreign relations, <a href="#Page_269">269</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Feather <i>vs.</i> The Queen, <a href="#Page_104">104</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Federalist, quoted on judicial power, <a href="#Page_71">71</a>-72, <a href="#Page_109">109</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fifteenth amendment, <a href="#Page_83">83</a>, <a href="#Page_110">110</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fifth amendment, <a href="#Page_19">19</a>, <a href="#Page_68">68</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fitts <i>vs.</i> McGhee, <a href="#Page_118">118</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fitzwater <i>vs.</i> Warren, <a href="#Page_138">138</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Five Knights case, <a href="#Page_15">15</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fourteenth amendment, <a href="#Page_24">24</a>, <a href="#Page_36">36</a>, <a href="#Page_68">68</a>, <a href="#Page_110">110</a>, <a href="#Page_111">111</a>, <a href="#Page_169">169</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">France, early charters of liberties, <a href="#Page_5">5</a>;</span><br /> -<span style="margin-left: 2em;"><i>les lois fondamentales</i>,<a href="#Page_7"> 7</a>;</span><br /> -<span style="margin-left: 2em;">legislative and executive powers, <a href="#Page_76">76</a>, <a href="#Page_77">77</a>, <a href="#Page_227">227</a>-228;</span><br /> -<span style="margin-left: 2em;">forced loans, <a href="#Page_164">164</a>;</span><br /> -<span style="margin-left: 2em;">French Revolution, <a href="#Page_164">164</a>;</span><br /> -<span style="margin-left: 2em;">cost of living, <a href="#Page_200">200</a>;</span><br /> -<span style="margin-left: 2em;">friendly relations with America, <a href="#Page_261">261</a>-266;</span><br /> -<span style="margin-left: 2em;">in the World War, <a href="#Page_261">261</a>, <a href="#Page_262">262</a>-266;</span><br /> -<span style="margin-left: 2em;">aid to American revolutionists, <a href="#Page_262">262</a>-264;</span><br /> -<span style="margin-left: 2em;">treaty of alliance with America of 1778, <a href="#Page_265">265</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">France-America Committee, <a href="#Page_261">261</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fuller, Chief Justice, <a href="#Page_46">46</a>, <a href="#Page_173">173</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Fundamental laws, idea revived by Magna Carta, <a href="#Page_6">6</a>-7;</span><br /> -<span style="margin-left: 2em;">in Greece and Rome, <a href="#Page_6">6</a>;</span><br /> -<span style="margin-left: 2em;">in France, <a href="#Page_7">7</a>;</span><br /> -<span style="margin-left: 2em;">a controlling principle of American constitutions, <a href="#Page_8">8</a>, <a href="#Page_73">73</a>;</span><br /> -<span style="margin-left: 2em;">idea abandoned in England, <a href="#Page_9">9</a>;</span><br /> -<span style="margin-left: 2em;">theory may yet be applied by English courts, <a href="#Page_11">11</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutions.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Gaynor, William J., <a href="#Page_54">54</a>, <a href="#Page_55">55</a>, <a href="#Page_57">57</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Georgia, <a href="#Page_89">89</a>, <a href="#Page_90">90</a>, <a href="#Page_95">95</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Glen Cove parochial school, <a href="#Page_247">247</a>, <a href="#Page_259">259</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Government, origin and importance of separation of powers, <a href="#Page_4">4</a>, <a href="#Page_13">13</a>, <a href="#Page_16">16</a>, <a href="#Page_17">17</a>, <a href="#Page_18">18</a>, <a href="#Page_227">227</a>;</span><br /> -<span style="margin-left: 2em;">depends more upon men than upon laws, <a href="#Page_28">28</a>, <a href="#Page_206">206</a>, <a href="#Page_221">221</a>;</span><br /> -<span style="margin-left: 2em;">governmental powers derived from the consent of the governed, <a href="#Page_30">30</a>;</span><br /> -<span style="margin-left: 2em;">government by the legislature preferable to government by the judiciary, <a href="#Page_45">45</a>, <a href="#Page_46">46</a>;</span><br /> -<span style="margin-left: 2em;">the form may survive the substance, <a href="#Page_46">46</a>;</span><br /> -<span style="margin-left: 2em;">constant extension of governmental functions, <a href="#Page_74">74</a>, <a href="#Page_80">80</a>, <a href="#Page_120">120</a>, <a href="#Page_220">220</a>;</span><br /> -<span style="margin-left: 2em;">the American government different from others, <a href="#Page_76">76</a>, <a href="#Page_161">161</a>, <a href="#Page_227">227</a>;</span><br /> -<span style="margin-left: 2em;">trend toward centralization in America, <a href="#Page_176">176</a>;</span><br /> -<span style="margin-left: 2em;">local self-government essential, <a href="#Page_177">177</a>;</span><br /> -<span style="margin-left: 2em;">need of trained experts, <a href="#Page_220">220</a>-221.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Congress, Constitutional government, Democracy, Executive, Judiciary, Legislature, Minorities, Majorities, Representative government, and State governments.</span><br /> -<br /> -<span style="margin-left: 1em;">Graduated taxation, general discussion, <a href="#Page_159">159</a>-177;</span><br /> -<span style="margin-left: 2em;">exempts the majority and burdens the minority, <a href="#Page_160">160</a>, <a href="#Page_163">163</a>, <a href="#Page_166">166</a>;</span><br /> -<span style="margin-left: 2em;">a means to break up large fortunes, <a href="#Page_160">160</a>, <a href="#Page_169">169</a>-170;</span><br /> -<span style="margin-left: 2em;">may amount to confiscation, <a href="#Page_163">163</a>-166;</span><br /> -<span style="margin-left: 2em;">necessarily arbitrary, <a href="#Page_163">163</a>;</span><br /> -<span style="margin-left: 2em;">as forced loans in France, <a href="#Page_164">164</a>;</span><br /> -<span style="margin-left: 2em;">Lecky's views, <a href="#Page_164">164</a>-165;</span><br /> -<span style="margin-left: 2em;">McCulloch's views, <a href="#Page_165">165</a>-166;</span><br /> -<span style="margin-left: 2em;">views of Leroy-Beaulieu, <a href="#Page_166">166</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Great Britain, <a href="#Page_10">10</a>, <a href="#Page_101">101</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> England.</span><br /> -<br /> -<span style="margin-left: 1em;">Great Charter, <i>see</i> Magna Carta.</span><br /> -<br /> -<span style="margin-left: 1em;">Greece, fundamental laws in,<a href="#Page_6">6</a>;</span><br /> -<span style="margin-left: 2em;">ancestor-worship, <a href="#Page_27">27</a>;</span><br /> -<span style="margin-left: 2em;">Athenian democracy, <a href="#Page_42">42</a>, <a href="#Page_75">75</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Gunter <i>vs.</i> Atlantic Coast Line, <a href="#Page_96">96</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Habeas corpus, Writ of, the bulwark of personal liberty, <a href="#Page_15">15</a>, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">its antecedent in Magna Carta, <a href="#Page_15">15</a>;</span><br /> -<span style="margin-left: 2em;">in England, <a href="#Page_15">15</a>, <a href="#Page_107">107</a>;</span><br /> -<span style="margin-left: 2em;">rendered effective by the courts, <a href="#Page_77">77</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Hamilton, Alexander, <a href="#Page_71">71</a>, <a href="#Page_74">74</a>, <a href="#Page_88">88</a>, <a href="#Page_161">161</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Hampden, John, <a href="#Page_17">17</a>, <a href="#Page_34">34</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Hans <i>vs.</i> Louisiana, <a href="#Page_95">95</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Hearn, Lafcadio, <a href="#Page_28">28</a>, <a href="#Page_29">29</a>n.</span><br /> -<br /> -<span style="margin-left: 1em;">Henry VIII., <a href="#Page_32">32</a>, <a href="#Page_36">36</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Holden <i>vs.</i> Hardy, <a href="#Page_60">60</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Hunter <i>vs.</i> Wood, <a href="#Page_119">119</a>n.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Impositions, Case of, <a href="#Page_17">17</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Income Tax cases, <a href="#Page_173">173</a>, <a href="#Page_175">175</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Income Tax, <a href="#Page_159">159</a>, <a href="#Page_173">173</a>-175.</span><br /> -<br /> -<span style="margin-left: 1em;">Inheritance Tax, <a href="#Page_159">159</a>-160, <a href="#Page_167">167</a>-173.</span><br /> -<br /> -<span style="margin-left: 1em;">Initiative and Referendum, a menace to our republican form of government, <a href="#Page_39">39</a>, <a href="#Page_193">193</a>;</span><br /> -<span style="margin-left: 2em;">origin in distrust of legislatures, <a href="#Page_44">44</a>;</span><br /> -<span style="margin-left: 2em;">agitation for, <a href="#Page_47">47</a>, <a href="#Page_204">204</a>;</span><br /> -<span style="margin-left: 2em;">in Australia, <a href="#Page_81">81</a>;</span><br /> -<span style="margin-left: 2em;">a scheme of the Progressives, <a href="#Page_204">204</a>-209.</span><br /> -<br /> -<span style="margin-left: 1em;">Injunctions, as used to restrain state officers, <a href="#Page_87">87</a>-88, <a href="#Page_97">97</a>, <a href="#Page_109">109</a>-114;</span><br /> -<span style="margin-left: 2em;">to restrain officers of the crown in England, <a href="#Page_106">106</a>-107;</span><br /> -<span style="margin-left: 2em;">to restrain criminal proceedings, <a href="#Page_117">117</a>-119;</span><br /> -<span style="margin-left: 2em;">to prevent the enforcement of unconstitutional state statutes, <a href="#Page_120">120</a>, <a href="#Page_125">125</a>, <a href="#Page_127">127</a>, <a href="#Page_128">128</a>;</span><br /> -<span style="margin-left: 2em;">use in connection with strikes and labor disputes, <a href="#Page_146">146</a>-152, <a href="#Page_212">212</a>-217;</span><br /> -<span style="margin-left: 2em;">New York practice, <a href="#Page_148">148</a>, <a href="#Page_151">151</a>-152.</span><br /> -<br /> -<span style="margin-left: 1em;">Inquisition, Writ of, <a href="#Page_14">14</a>, <a href="#Page_15">15</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Institutions, the slower their growth the more enduring they are, <a href="#Page_1">1</a>;</span><br /> -<span style="margin-left: 2em;">English source of American institutions, <a href="#Page_98">98</a>, <a href="#Page_266">266</a>-267;</span><br /> -<span style="margin-left: 2em;">the Roman Catholic church and American institutions, <a href="#Page_249">249</a>-250.</span><br /> -<br /> -<span style="margin-left: 1em;">Intestate succession <a href="#Page_167">167</a>-169.</span><br /> -<br /> -<span style="margin-left: 1em;">Ives case, <a href="#Page_65">65</a>-69, <a href="#Page_153">153</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Jacobs case, <a href="#Page_49">49</a>-57, <a href="#Page_153">153</a>, <a href="#Page_154">154</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">James I., <a href="#Page_17">17</a>, <a href="#Page_30">30</a>n, <a href="#Page_31">31</a>n.</span><br /> -<br /> -<span style="margin-left: 1em;">Japan, <a href="#Page_27">27</a>-29, <a href="#Page_197">197</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Jefferson, Thomas, <a href="#Page_186">186</a>, <a href="#Page_187">187</a>, <a href="#Page_189">189</a>, <a href="#Page_197">197</a>, <a href="#Page_205">205</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">John, King, <a href="#Page_4">4</a>, <a href="#Page_7">7</a>, <a href="#Page_12">12</a>, <a href="#Page_25">25</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Judges, qualifications, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>, <a href="#Page_70">70</a>, <a href="#Page_142">142</a>, <a href="#Page_243">243</a>-245;</span><br /> -<span style="margin-left: 2em;">bound by principles, rules and precedents, <a href="#Page_46">46</a>;</span><br /> -<span style="margin-left: 2em;">not infallible, <a href="#Page_47">47</a>;</span><br /> -<span style="margin-left: 2em;">duty to enforce the law, <a href="#Page_128">128</a>, <a href="#Page_129">129</a>, <a href="#Page_209">209</a>;</span><br /> -<span style="margin-left: 2em;">selection and tenure, <a href="#Page_139">139</a>-142, <a href="#Page_243">243</a>-245;</span><br /> -<span style="margin-left: 2em;">should be defended against unjust criticism, <a href="#Page_69">69</a>-70, <a href="#Page_126">126</a>-128, <a href="#Page_157">157</a>-158.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Judiciary and Recall.</span><br /> -<br /> -<span style="margin-left: 1em;">Judiciary, power to annul unconstitutional laws, <a href="#Page_7">7</a>-9, <a href="#Page_25">25</a>, <a href="#Page_42">42</a> sqq., <a href="#Page_70">70</a> sqq., <a href="#Page_87">87</a> sqq., <a href="#Page_109">109</a> sqq.;</span><br /> -<span style="margin-left: 2em;">former dependence upon the crown, <a href="#Page_10">10</a>, <a href="#Page_17">17</a>;</span><br /> -<span style="margin-left: 2em;">has no power over legislation in England and France, <a href="#Page_11">11</a>, <a href="#Page_76">76</a>, <a href="#Page_77">77</a>, <a href="#Page_107">107</a>;</span><br /> -<span style="margin-left: 2em;">importance recognized in Magna Carta, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>;</span><br /> -<span style="margin-left: 2em;">defended against unjust criticism, <a href="#Page_43">43</a> sqq., <a href="#Page_130">130</a>-158, <a href="#Page_181">181</a>, <a href="#Page_193">193</a>, <a href="#Page_211">211</a>-212;</span><br /> -<span style="margin-left: 2em;">government by, <a href="#Page_45">45</a>-46;</span><br /> -<span style="margin-left: 2em;">rules for determining the constitutionality of a statute, <a href="#Page_45">45</a>, <a href="#Page_46">46</a>, <a href="#Page_52">52</a>;</span><br /> -<span style="margin-left: 2em;">charged with having usurped power over legislation, <a href="#Page_45">45</a>, <a href="#Page_70">70</a>, <a href="#Page_81">81</a>;</span><br /> -<span style="margin-left: 2em;">examples of alleged abuse of power, <a href="#Page_48">48</a>-68;</span><br /> -<span style="margin-left: 2em;">cannot control legislative discretion, <a href="#Page_52">52</a>;</span><br /> -<span style="margin-left: 2em;">should avoid judicial legislation, <a href="#Page_62">62</a>, <a href="#Page_135">135</a>;</span><br /> -<span style="margin-left: 2em;">necessity of defending against unfair criticism, <a href="#Page_69">69</a>, <a href="#Page_70">70</a>, <a href="#Page_126">126</a>-128, <a href="#Page_158">158</a>;</span><br /> -<span style="margin-left: 2em;">must enforce the Bill of Rights, <a href="#Page_77">77</a>;</span><br /> -<span style="margin-left: 2em;">control over executive and administrative officers, <a href="#Page_103">103</a>-107, <a href="#Page_111">111</a>, <a href="#Page_114">114</a>;</span><br /> -<span style="margin-left: 2em;">necessity for confidence in, <a href="#Page_126">126</a>-128;</span><br /> -<span style="margin-left: 2em;">the bulwark of liberty, <a href="#Page_128">128</a>, <a href="#Page_226">226</a>;</span><br /> -<span style="margin-left: 2em;">independence of, <a href="#Page_141">141</a>, <a href="#Page_142">142</a>, <a href="#Page_226">226</a>;</span><br /> -<span style="margin-left: 2em;">not responsible for delays, <a href="#Page_142">142</a>-146.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Judges, Constitutional limitations, Injunctions, and Recall.</span><br /> -<br /> -<span style="margin-left: 1em;">Judiciary, Federal, jurisdiction to enjoin state officers, <a href="#Page_87">87</a>, <a href="#Page_108">108</a>-110, <a href="#Page_113">113</a>, <a href="#Page_117">117</a>, <a href="#Page_119">119</a>;</span><br /> -<span style="margin-left: 2em;">efforts to curtail power of, <a href="#Page_88">88</a>, <a href="#Page_125">125</a>;</span><br /> -<span style="margin-left: 2em;">jurisdiction limited, <a href="#Page_97">97</a>;</span><br /> -<span style="margin-left: 2em;">power to annul state laws a necessity, <a href="#Page_108">108</a>, <a href="#Page_109">109</a>, <a href="#Page_112">112</a>, <a href="#Page_116">116</a>, <a href="#Page_124">124</a>-129;</span><br /> -<span style="margin-left: 2em;">compels the states to obey the Constitution, <a href="#Page_113">113</a>;</span><br /> -<span style="margin-left: 2em;">power to enjoin criminal prosecutions by the states, <a href="#Page_117">117</a>-119;</span><br /> -<span style="margin-left: 2em;">causes of dissatisfaction with, <a href="#Page_126">126</a>;</span><br /> -<span style="margin-left: 2em;">oath of office of judges, <a href="#Page_127">127</a>;</span><br /> -<span style="margin-left: 2em;">constituted as a bulwark of liberty, <a href="#Page_128">128</a>;</span><br /> -<span style="margin-left: 2em;">assaults upon, <a href="#Page_128">128</a>, <a href="#Page_146">146</a>-152;</span><br /> -<span style="margin-left: 2em;">issuance of injunctions in labor disputes, <a href="#Page_213">213</a>-217;</span><br /> -<span style="margin-left: 2em;">power to punish for contempt, <a href="#Page_215">215</a>-217.</span><br /> -<span style="margin-left: 2em;"><i>See also</i> Supreme Court.</span><br /> -<br /> -<span style="margin-left: 1em;">Jurisprudence, as a science, <a href="#Page_13">13</a>, <a href="#Page_52">52</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Jury-trial, origin in Magna Carta, <a href="#Page_15">15</a>, <a href="#Page_19">19</a>-20;</span><br /> -<span style="margin-left: 2em;">early history, <a href="#Page_19">19</a>-20;</span><br /> -<span style="margin-left: 2em;">a right assured by the judicial power, <a href="#Page_78">78</a>;</span><br /> -<span style="margin-left: 2em;">not in cases of contempt, <a href="#Page_215">215</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Justice, political justice secured by Magna Carta, <a href="#Page_1">1</a>, <a href="#Page_4">4</a>, <a href="#Page_13">13</a>-15;</span><br /> -<span style="margin-left: 2em;">the highest political liberty, <a href="#Page_13">13</a>;</span><br /> -<span style="margin-left: 2em;">uniformity and certainty essential in its administration, <a href="#Page_13">13</a>;</span><br /> -<span style="margin-left: 2em;">social justice, <a href="#Page_43">43</a>, <a href="#Page_81">81</a>-82;</span><br /> -<span style="margin-left: 2em;">delays in its administration, <a href="#Page_125">125</a>, <a href="#Page_126">126</a>, <a href="#Page_142">142</a>-146.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Knisley <i>vs.</i> Pratt, <a href="#Page_137">137</a>, <a href="#Page_155">155</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Labor, competition of foreign workmen, <a href="#Page_196">196</a>, <a href="#Page_197">197</a>, <a href="#Page_198">198</a>;</span><br /> -<span style="margin-left: 2em;">conditions in 1896, <a href="#Page_198">198</a>-199.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Master and servant.</span><br /> -<br /> -<span style="margin-left: 1em;">Labor laws, in New York, <a href="#Page_50">50</a>, <a href="#Page_56">56</a>, <a href="#Page_58">58</a>, <a href="#Page_59">59</a>, <a href="#Page_137">137</a>, <a href="#Page_156">156</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Labor unions, attitude toward the courts, <a href="#Page_131">131</a>, <a href="#Page_140">140</a>-141;</span><br /> -<span style="margin-left: 2em;">some labor leaders, <a href="#Page_131">131</a>, <a href="#Page_147">147</a>, <a href="#Page_212">212</a>;</span><br /> -<span style="margin-left: 2em;">opposition to injunctions, <a href="#Page_146">146</a>-152.</span><br /> -<br /> -<span style="margin-left: 1em;">Labourers, Statute of, <a href="#Page_79">79</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Langford <i>vs.</i> United States, <a href="#Page_103">103</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Langton, Stephen, <a href="#Page_5">5</a>, <a href="#Page_12">12</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Law, how to be administered, <a href="#Page_13">13</a>;</span><br /> -<span style="margin-left: 2em;">wiser than those who administer it, <a href="#Page_14">14</a>;</span><br /> -<span style="margin-left: 2em;">principle of the supremacy of the law, <a href="#Page_14">14</a>, <a href="#Page_103">103</a>-107, <a href="#Page_111">111</a>, <a href="#Page_114">114</a>;</span><br /> -<span style="margin-left: 2em;">just and equal laws, <a href="#Page_31">31</a>, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>, <a href="#Page_37">37</a>, <a href="#Page_152">152</a>;</span><br /> -<span style="margin-left: 2em;">equality before the law, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>, <a href="#Page_161">161</a>;</span><br /> -<span style="margin-left: 2em;">growing disregard of, <a href="#Page_43">43</a>, <a href="#Page_201">201</a>;</span><br /> -<span style="margin-left: 2em;">touches every individual, <a href="#Page_85">85</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Common law, Due process of law, Fundamental laws, Law of the land, Justice, Judges, and Judiciary.</span><br /> -<br /> -<span style="margin-left: 1em;">Lawlessness, manifested in alleged reforms, <a href="#Page_43">43</a>;</span><br /> -<span style="margin-left: 2em;">and in labor organizations, <a href="#Page_150">150</a>, <a href="#Page_217">217</a>;</span><br /> -<span style="margin-left: 2em;">its growth in connection with the spread of socialism, <a href="#Page_201">201</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Law of the land, a phrase wiser than those who wrote it, <a href="#Page_5">5</a>;</span><br /> -<span style="margin-left: 2em;">the epitome of ancient and forgotten wisdom, <a href="#Page_5">5</a>-6;</span><br /> -<span style="margin-left: 2em;">guaranteed by Magna Carta, <a href="#Page_9">9</a>, <a href="#Page_18">18</a>, <a href="#Page_21">21</a>, <a href="#Page_22">22</a>;</span><br /> -<span style="margin-left: 2em;">the equivalent of "due process of law" (q.v.), <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">meaning, <a href="#Page_18">18</a>, <a href="#Page_19">19</a>, <a href="#Page_21">21</a>, <a href="#Page_22">22</a>;</span><br /> -<span style="margin-left: 2em;">in American constitutions, <a href="#Page_18">18</a>-19, <a href="#Page_23">23</a>-24;</span><br /> -<span style="margin-left: 2em;">in the Petition of Right, <a href="#Page_23">23</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Lawyers, <i>see</i> Bar.</span><br /> -<br /> -<span style="margin-left: 1em;">Lecky, W.E.H., <a href="#Page_164">164</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Legislation, formerly not a panacea for all ills, <a href="#Page_9">9</a>;</span><br /> -<span style="margin-left: 2em;">practical reforms needed, <a href="#Page_44">44</a>, <a href="#Page_205">205</a>-206;</span><br /> -<span style="margin-left: 2em;">alleged social legislation, <a href="#Page_49">49</a>-54, <a href="#Page_153">153</a>, <a href="#Page_154">154</a>;</span><br /> -<span style="margin-left: 2em;">particular legislation criticized as being arbitrary, crude, experimental, meddlesome, and oppressive, <a href="#Page_52">52</a>, <a href="#Page_80">80</a>, <a href="#Page_82">82</a>, <a href="#Page_120">120</a>-125, <a href="#Page_163">163</a>, <a href="#Page_245">245</a>;</span><br /> -<span style="margin-left: 2em;">a rule of construction, <a href="#Page_154">154</a>-155;</span><br /> -<span style="margin-left: 2em;">necessity for exact language, <a href="#Page_208">208</a>;</span><br /> -<span style="margin-left: 2em;">great volume of statutes, <a href="#Page_204">204</a>, <a href="#Page_208">208</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Class legislation and Social legislation.</span><br /> -<br /> -<span style="margin-left: 1em;">Legislature, taxation originally its chief function,<a href="#Page_9">9</a>;</span><br /> -<span style="margin-left: 2em;">limitations upon, <a href="#Page_43">43</a>-46, <a href="#Page_51">51</a>, <a href="#Page_70">70</a>, <a href="#Page_71">71</a>, <a href="#Page_78">78</a>, <a href="#Page_81">81</a>, <a href="#Page_124">124</a>;</span><br /> -<span style="margin-left: 2em;">corruption charged by social reformers, <a href="#Page_44">44</a>;</span><br /> -<span style="margin-left: 2em;">abandoning constitutional questions to the courts, <a href="#Page_47">47</a>;</span><br /> -<span style="margin-left: 2em;">duty to apply constitutional principles, <a href="#Page_52">52</a>;</span><br /> -<span style="margin-left: 2em;">supreme in its sphere, <a href="#Page_52">52</a>;</span><br /> -<span style="margin-left: 2em;">power to protect the public health, <a href="#Page_59">59</a>, <a href="#Page_60">60</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutional limitations, Legislation, and Congress.</span><br /> -<br /> -<span style="margin-left: 1em;">Leroy-Beaulieu, Pierre Paul, <a href="#Page_166">166</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Liberty, Civil, guaranteed by Magna Carta, <a href="#Page_1">1</a>, <a href="#Page_4">4</a>, <a href="#Page_5">5</a>;</span><br /> -<span style="margin-left: 2em;">Declaration of Independence, <a href="#Page_4">4</a>, <a href="#Page_81">81</a>;</span><br /> -<span style="margin-left: 2em;">early charters of the French kings, <a href="#Page_5">5</a>;</span><br /> -<span style="margin-left: 2em;">writ of habeas corpus its bulwark, <a href="#Page_15">15</a>, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">conditions necessary for its perpetuation, <a href="#Page_26">26</a>, <a href="#Page_36">36</a>, <a href="#Page_37">37</a>;</span><br /> -<span style="margin-left: 2em;">guaranteed by the Constitution, <a href="#Page_51">51</a>, <a href="#Page_76">76</a>;</span><br /> -<span style="margin-left: 2em;">legislative interference with, <a href="#Page_74">74</a>, <a href="#Page_80">80</a>;</span><br /> -<span style="margin-left: 2em;">of vital concern to everyone, <a href="#Page_84">84</a>;</span><br /> -<span style="margin-left: 2em;">guarded by the common law, <a href="#Page_98">98</a>;</span><br /> -<span style="margin-left: 2em;">its essence, <a href="#Page_124">124</a>;</span><br /> -<span style="margin-left: 2em;">some political documents, <a href="#Page_203">203</a>;</span><br /> -<span style="margin-left: 2em;">threatened by temporary majorities (q.v.), <a href="#Page_211">211</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Liberty, Constitutional, Justice Story on, <a href="#Page_25">25</a>;</span><br /> -<span style="margin-left: 2em;">in the custody of the American people, <a href="#Page_26">26</a>;</span><br /> -<span style="margin-left: 2em;">the Pilgrim Fathers assist at its birth in America, <a href="#Page_30">30</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Liberty, Religious, secured by the New York constitution, <a href="#Page_12">12</a>;</span><br /> -<span style="margin-left: 2em;">idea of, in Magna Carta, <a href="#Page_12">12</a>, <a href="#Page_13">13</a>;</span><br /> -<span style="margin-left: 2em;">established in America by the Pilgrims of Plymouth, <a href="#Page_32">32</a>, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">our greatest blessing, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">secured by the courts, <a href="#Page_77">77</a>-78;</span><br /> -<span style="margin-left: 2em;">favored by non-sectarian public schools, <a href="#Page_248">248</a>;</span><br /> -<span style="margin-left: 2em;">fostered in America by Protestants, <a href="#Page_251">251</a>, <a href="#Page_259">259</a>;</span><br /> -<span style="margin-left: 2em;">formerly denied to Catholics in New York, <a href="#Page_258">258</a>;</span><br /> -<span style="margin-left: 2em;">secured temporarily in New York by Governor Dongan, <a href="#Page_259">259</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Lincoln, Abraham, <a href="#Page_26">26</a>, <a href="#Page_191">191</a>, <a href="#Page_246">246</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Lottery case, <a href="#Page_46">46</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Madison, James, <a href="#Page_88">88</a>, <a href="#Page_186">186</a>, <a href="#Page_189">189</a>, <a href="#Page_197">197</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Magna Carta, general treatment, <a href="#Page_1">1</a>-26;</span><br /> -<span style="margin-left: 2em;">marked our greatest political epoch, <a href="#Page_1">1</a>;</span><br /> -<span style="margin-left: 2em;">saved England from despotism, <a href="#Page_1">1</a>;</span><br /> -<span style="margin-left: 2em;">the source of representative government, <a href="#Page_1">1</a>-2, <a href="#Page_16">16</a>, <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">the foundation of liberty and justice, <a href="#Page_1">1</a>, <a href="#Page_4">4</a>;</span><br /> -<span style="margin-left: 2em;">reissues and confirmations, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>, <a href="#Page_7">7</a>, <a href="#Page_8">8</a>, <a href="#Page_20">20</a>, <a href="#Page_22">22</a>;</span><br /> -<span style="margin-left: 2em;">extolled by the royal governor of New York, <a href="#Page_2">2</a>;</span><br /> -<span style="margin-left: 2em;">crystallized and perpetuated English liberties, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>, <a href="#Page_5">5</a>, <a href="#Page_21">21</a>;</span><br /> -<span style="margin-left: 2em;">all Americans enjoy its privileges, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>, <a href="#Page_5">5</a>;</span><br /> -<span style="margin-left: 2em;">granted at Runnymede, June 15, 1215, <a href="#Page_3">3</a>;</span><br /> -<span style="margin-left: 2em;">still on the English statute books, <a href="#Page_3">3</a>;</span><br /> -<span style="margin-left: 2em;">a battle-cry against tyranny, <a href="#Page_3">3</a>, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">modern criticism of, <a href="#Page_3">3</a>-4, <a href="#Page_7">7</a>, <a href="#Page_8">8</a>, <a href="#Page_15">15</a>, <a href="#Page_19">19</a>;</span><br /> -<span style="margin-left: 2em;">the value of its traditions, <a href="#Page_4">4</a>-5, <a href="#Page_26">26</a>;</span><br /> -<span style="margin-left: 2em;">based upon eternal truths and to endure forever, <a href="#Page_5">5</a>, <a href="#Page_21">21</a>, <a href="#Page_203">203</a>;</span><br /> -<span style="margin-left: 2em;">established the rights of the individual as against the government, <a href="#Page_6">6</a>, <a href="#Page_7">7</a>;</span><br /> -<span style="margin-left: 2em;">long regarded as an unalterable fundamental law, <a href="#Page_6">6</a>-10;</span><br /> -<span style="margin-left: 2em;">limited the power of the king, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>, <a href="#Page_24">24</a>-25;</span><br /> -<span style="margin-left: 2em;">denounced by the Pope, <a href="#Page_12">12</a>;</span><br /> -<span style="margin-left: 2em;">established the supremacy of the law, <a href="#Page_14">14</a>;</span><br /> -<span style="margin-left: 2em;">translated and explained in the churches, <a href="#Page_14">14</a>;</span><br /> -<span style="margin-left: 2em;">guaranteed the writ of habeas corpus, <a href="#Page_15">15</a>;</span><br /> -<span style="margin-left: 2em;">separated legislative and executive power, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">prevented taxation without the consent of parliament, <a href="#Page_16">16</a>-17;</span><br /> -<span style="margin-left: 2em;">the law of the land, <a href="#Page_18">18</a>-22;</span><br /> -<span style="margin-left: 2em;">jury-trial, <a href="#Page_19">19</a>, <a href="#Page_20">20</a>;</span><br /> -<span style="margin-left: 2em;">supplemented by the statute of 1354, <a href="#Page_22">22</a>-23;</span><br /> -<span style="margin-left: 2em;">justified revolution for cause, <a href="#Page_25">25</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Majorities, Temporary, may yet be restrained in England, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">arbitrary action, <a href="#Page_40">40</a>, <a href="#Page_124">124</a>;</span><br /> -<span style="margin-left: 2em;">their alleged infallibility a dangerous doctrine, <a href="#Page_43">43</a>;</span><br /> -<span style="margin-left: 2em;">the proposal to free them from all restraints, <a href="#Page_43">43</a>;</span><br /> -<span style="margin-left: 2em;">their ever-changing opinions and desires as a rule of constitutional construction, <a href="#Page_45">45</a>-46;</span><br /> -<span style="margin-left: 2em;">oppressive class legislation, <a href="#Page_74">74</a>, <a href="#Page_78">78</a>-79;</span><br /> -<span style="margin-left: 2em;">need to be restrained, <a href="#Page_75">75</a>;</span><br /> -<span style="margin-left: 2em;">exercise of the taxing power, <a href="#Page_165">165</a>;</span><br /> -<span style="margin-left: 2em;">would overrule the courts, <a href="#Page_211">211</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Minorities.</span><br /> -<br /> -<span style="margin-left: 1em;">Mallet, Monsieur, <a href="#Page_262">262</a>, <a href="#Page_266">266</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Marbury <i>vs.</i> Madison, <a href="#Page_8">8</a>, <a href="#Page_72">72</a>, <a href="#Page_100">100</a>, <a href="#Page_124">124</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Marshall, Chief Justice, his decision in Marbury <i>vs.</i> Madison, <a href="#Page_8">8</a>-9, <a href="#Page_72">72</a>-73, <a href="#Page_100">100</a>;</span><br /> -<span style="margin-left: 2em;">on the Constitution, <a href="#Page_21">21</a>;</span><br /> -<span style="margin-left: 2em;">on the suability of a state, <a href="#Page_88">88</a>;</span><br /> -<span style="margin-left: 2em;">on the eleventh amendment, <a href="#Page_93">93</a>-94, <a href="#Page_95">95</a>;</span><br /> -<span style="margin-left: 2em;">on restraining state officers, <a href="#Page_113">113</a>-114;</span><br /> -<span style="margin-left: 2em;">on civil liberty, <a href="#Page_124">124</a>;</span><br /> -<span style="margin-left: 2em;">on the duty of judges, <a href="#Page_129">129</a>;</span><br /> -<span style="margin-left: 2em;">unpopular decisions, <a href="#Page_210">210</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Martial law, as the alternative of injunctions, <a href="#Page_151">151</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Master and servant, three common-law rules changed by Congress, <a href="#Page_62">62</a>-63, <a href="#Page_68">68</a>;</span><br /> -<span style="margin-left: 2em;">the common law to be changed by the legislature, not by the courts, <a href="#Page_68">68</a>-69, <a href="#Page_134">134</a>-135, <a href="#Page_137">137</a>-138, <a href="#Page_155">155</a>;</span><br /> -<span style="margin-left: 2em;">soundness of the common-law rules, <a href="#Page_132">132</a>-134.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Workmen's Compensation.</span><br /> -<br /> -<span style="margin-left: 1em;">Mayflower, <a href="#Page_27">27</a>, <a href="#Page_29">29</a>, <a href="#Page_30">30</a>, <a href="#Page_32">32</a>, <a href="#Page_37">37</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Mayflower Compact, main treatment, <a href="#Page_27">27</a>-41;</span><br /> -<span style="margin-left: 2em;">its interest to Americans, <a href="#Page_29">29</a>, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>, <a href="#Page_40">40</a>;</span><br /> -<span style="margin-left: 2em;">called the first written constitution, <a href="#Page_30">30</a>;</span><br /> -<span style="margin-left: 2em;">text as preserved by Governor Bradford, <a href="#Page_30">30</a>n-31n;</span><br /> -<span style="margin-left: 2em;">its covenant for just and equal laws, <a href="#Page_31">31</a>, <a href="#Page_35">35</a>-37;</span><br /> -<span style="margin-left: 2em;">initiated republican government, <a href="#Page_31">31</a>, <a href="#Page_40">40</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Minorities, English courts may yet have to protect, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">their protection entrusted by the founders to the courts, <a href="#Page_25">25</a>, <a href="#Page_43">43</a>, <a href="#Page_75">75</a>, <a href="#Page_76">76</a>, <a href="#Page_78">78</a>;</span><br /> -<span style="margin-left: 2em;">secure under representative government, <a href="#Page_40">40</a>;</span><br /> -<span style="margin-left: 2em;">threatened by the short ballot, <a href="#Page_223">223</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Judiciary.</span><br /> -<br /> -<span style="margin-left: 1em;">Monroe, James, <a href="#Page_186">186</a>, <a href="#Page_189">189</a>, <a href="#Page_197">197</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Morality, a condition of social welfare and individual happiness, <a href="#Page_250">250</a>, <a href="#Page_252">252</a>;</span><br /> -<span style="margin-left: 2em;">taught in Catholic schools, <a href="#Page_250">250</a>, <a href="#Page_255">255</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutional Morality.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Natural rights, a cardinal principle of Magna Carta, <a href="#Page_6">6</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">New York city, tobacco workers in tenements, <a href="#Page_49">49</a>-57;</span><br /> -<span style="margin-left: 2em;">board of health, <a href="#Page_50">50</a>;</span><br /> -<span style="margin-left: 2em;">death-rate, <a href="#Page_51">51</a>;</span><br /> -<span style="margin-left: 2em;">tenement-house conditions, <a href="#Page_55">55</a>-57;</span><br /> -<span style="margin-left: 2em;">courts, <a href="#Page_141">141</a>, <a href="#Page_142">142</a>;</span><br /> -<span style="margin-left: 2em;">parochial schools, <a href="#Page_254">254</a>, <a href="#Page_257">257</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">New York state, constitution, <a href="#Page_12">12</a>, <a href="#Page_19">19</a>, <a href="#Page_23">23</a>, <a href="#Page_24">24</a>, <a href="#Page_49">49</a>, <a href="#Page_258">258</a>;</span><br /> -<span style="margin-left: 2em;">Court of Appeals, <a href="#Page_50">50</a>, <a href="#Page_57">57</a>, <a href="#Page_65">65</a>, <a href="#Page_80">80</a>, <a href="#Page_138">138</a>, <a href="#Page_139">139</a>, <a href="#Page_141">141</a>, <a href="#Page_145">145</a>, <a href="#Page_146">146</a>, <a href="#Page_154">154</a>-156, <a href="#Page_212">212</a>;</span><br /> -<span style="margin-left: 2em;">Bar Association, <a href="#Page_75">75</a>, <a href="#Page_131">131</a>, <a href="#Page_140">140</a>;</span><br /> -<span style="margin-left: 2em;">conflicts with the federal courts, <a href="#Page_87">87</a>;</span><br /> -<span style="margin-left: 2em;">practice as to injunctions, <a href="#Page_148">148</a>, <a href="#Page_151">151</a>-152;</span><br /> -<span style="margin-left: 2em;">population, <a href="#Page_204">204</a>, <a href="#Page_234">234</a>;</span><br /> -<span style="margin-left: 2em;">religious denominations, <a href="#Page_256">256</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">North Carolina <i>vs.</i> Temple, <a href="#Page_95">95</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Officers, Public, responsibility of, <a href="#Page_14">14</a>, <a href="#Page_103">103</a>-106, <a href="#Page_111">111</a>, <a href="#Page_114">114</a>, <a href="#Page_226">226</a>;</span><br /> -<span style="margin-left: 2em;">fair criticism desirable, <a href="#Page_47">47</a>;</span><br /> -<span style="margin-left: 2em;">greater permanency of tenure advocated, <a href="#Page_143">143</a>;</span><br /> -<span style="margin-left: 2em;">their selection important, <a href="#Page_221">221</a>;</span><br /> -<span style="margin-left: 2em;">in New York, <a href="#Page_222">222</a>-224.</span><br /> -<br /> -<span style="margin-left: 1em;">Osborn <i>vs.</i> U.S. Bank, <a href="#Page_112">112</a>-114.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Parliament, and Magna Carta, <a href="#Page_3">3</a>;</span><br /> -<span style="margin-left: 2em;">its power formerly limited, <a href="#Page_7">7</a>, <a href="#Page_8">8</a>, <a href="#Page_10">10</a>;</span><br /> -<span style="margin-left: 2em;">its supremacy, <a href="#Page_9">9</a>-11, <a href="#Page_17">17</a>-18, <a href="#Page_76">76</a>-77, <a href="#Page_107">107</a>;</span><br /> -<span style="margin-left: 2em;">formerly believed to exist to uphold Magna Carta, <a href="#Page_10">10</a>, <a href="#Page_25">25</a>;</span><br /> -<span style="margin-left: 2em;">its consent to taxation necessary, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">parliament of 1265 developed from the <i>commune consilium</i>, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">prototype in parliament of Simon de Montfort, <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">labor laws, <a href="#Page_79">79</a>;</span><br /> -<span style="margin-left: 2em;">statute on the Petition of Right, <a href="#Page_101">101</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Parties, Political, essential to free government, <a href="#Page_206">206</a>, <a href="#Page_238">238</a>-242;</span><br /> -<span style="margin-left: 2em;">should follow the representative principle, <a href="#Page_207">207</a>;</span><br /> -<span style="margin-left: 2em;">effect of initiative and referendum upon, <a href="#Page_207">207</a>;</span><br /> -<span style="margin-left: 2em;">corruption not cured by primaries, <a href="#Page_236">236</a>, <a href="#Page_238">238</a>;</span><br /> -<span style="margin-left: 2em;">party government, <a href="#Page_238">238</a>-242.</span><br /> -<br /> -<span style="margin-left: 1em;">People <i>vs.</i> Koerner, <a href="#Page_145">145</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">People <i>vs.</i> Lochner, <a href="#Page_57">57</a>-58, <a href="#Page_153">153</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">People <i>vs.</i> Lustig, <a href="#Page_145">145</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">People <i>vs.</i> Turley, <a href="#Page_143">143</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Perkins, James Breck, <a href="#Page_263">263</a>, <a href="#Page_264">264</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Persecution, Religious, in 16th and 17th centuries, <a href="#Page_33">33</a>-34;</span><br /> -<span style="margin-left: 2em;">by Puritans in Massachusetts, <a href="#Page_33">33</a>;</span><br /> -<span style="margin-left: 2em;">often really political, <a href="#Page_33">33</a>n, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">in England, <a href="#Page_36">36</a>-37;</span><br /> -<span style="margin-left: 2em;">of Catholics in America, <a href="#Page_258">258</a>-259.</span><br /> -<br /> -<span style="margin-left: 1em;">Petition of Right, relation to Magna Carta, <a href="#Page_15">15</a>, <a href="#Page_23">23</a>;</span><br /> -<span style="margin-left: 2em;">procedure under, <a href="#Page_99">99</a>-102.</span><br /> -<br /> -<span style="margin-left: 1em;">Phelps, Edward J., <a href="#Page_26">26</a>n.</span><br /> -<br /> -<span style="margin-left: 1em;">Pilgrim Fathers, debt of America to, <a href="#Page_29">29</a>, <a href="#Page_32">32</a>, <a href="#Page_34">34</a>, <a href="#Page_35">35</a>;</span><br /> -<span style="margin-left: 2em;">framed first written constitution, <a href="#Page_30">30</a>;</span><br /> -<span style="margin-left: 2em;">their tolerance, <a href="#Page_32">32</a>, <a href="#Page_33">33</a>;</span><br /> -<span style="margin-left: 2em;">their relation to the Puritans, <a href="#Page_32">32</a>, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">hated by both Puritans and Cavaliers, <a href="#Page_32">32</a>;</span><br /> -<span style="margin-left: 2em;">separated Church and State and established religious liberty, <a href="#Page_32">32</a>, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">their experiment in communism, <a href="#Page_37">37</a>-39;</span><br /> -<span style="margin-left: 2em;">established representative government in America, <a href="#Page_39">39</a>;</span><br /> -<span style="margin-left: 2em;">military preparedness, <a href="#Page_41">41</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Mayflower Compact.</span><br /> -<br /> -<span style="margin-left: 1em;">Plymouth colony, government of, <a href="#Page_23">23</a>, <a href="#Page_37">37</a>, <a href="#Page_39">39</a>;</span><br /> -<span style="margin-left: 2em;">Governor Bradford's annals of, <a href="#Page_30">30</a>n;</span><br /> -<span style="margin-left: 2em;">freedom from religious persecution, <a href="#Page_33">33</a>;</span><br /> -<span style="margin-left: 2em;">absorbed by Massachusetts in 1691, <a href="#Page_37">37</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Poindexter <i>vs.</i> Greenhow, <a href="#Page_112">112</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Police power, exercised by the legislature, <a href="#Page_60">60</a>;</span><br /> -<span style="margin-left: 2em;">its just exercise not hindered by the courts, <a href="#Page_81">81</a>-82;</span><br /> -<span style="margin-left: 2em;">very comprehensive, <a href="#Page_211">211</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Precedents, their value in the law, <a href="#Page_22">22</a>;</span><br /> -<span style="margin-left: 2em;">judges bound by, <a href="#Page_46">46</a>;</span><br /> -<span style="margin-left: 2em;">danger of establishing, <a href="#Page_52">52</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Primary elections, <i>see</i> Elections.</span><br /> -<br /> -<span style="margin-left: 1em;">Progressive party, <a href="#Page_183">183</a>, <a href="#Page_204">204</a>, <a href="#Page_211">211</a>, <a href="#Page_217">217</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Prohibition, Writ of, <a href="#Page_107">107</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Prosecuting attorney, his work, <a href="#Page_143">143</a>, <a href="#Page_144">144</a>, <a href="#Page_146">146</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Prout <i>vs.</i> Starr, <a href="#Page_110">110</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Public service corporations, legislative oppression of, <a href="#Page_120">120</a>;</span><br /> -<span style="margin-left: 2em;">right of appeal to the courts, <a href="#Page_121">121</a>-126;</span><br /> -<span style="margin-left: 2em;">regulation necessary, <a href="#Page_126">126</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Puritans, their relation to the Pilgrims, <a href="#Page_32">32</a>, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">their views, <a href="#Page_32">32</a>-33;</span><br /> -<span style="margin-left: 2em;">our debt to them, <a href="#Page_34">34</a>;</span><br /> -<span style="margin-left: 2em;">their influence in England, <a href="#Page_34">34</a>-35.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Quakers, <a href="#Page_33">33</a>n.</span><br /> -<br /> -<span style="margin-left: 1em;">Quo warranto, Writ of, <a href="#Page_107">107</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Railroads, oppressed by legislation, <a href="#Page_120">120</a>, <a href="#Page_121">121</a>, <a href="#Page_123">123</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Recall, a menace to our republican governments, <a href="#Page_39">39</a>, <a href="#Page_193">193</a>, <a href="#Page_205">205</a>-207, <a href="#Page_209">209</a>-211;</span><br /> -<span style="margin-left: 2em;">agitation for, <a href="#Page_47">47</a>;</span><br /> -<span style="margin-left: 2em;">applied to judicial decisions, <a href="#Page_211">211</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Referendum, <i>see</i> Initiative.</span><br /> -<br /> -<span style="margin-left: 1em;">Religion, growing disrespect for, <a href="#Page_201">201</a>;</span><br /> -<span style="margin-left: 2em;">impracticable to teach it in the public schools, <a href="#Page_248">248</a>;</span><br /> -<span style="margin-left: 2em;">the foundation of our social order, <a href="#Page_250">250</a>-252;</span><br /> -<span style="margin-left: 2em;">should be taught systematically to school children, <a href="#Page_252">252</a>-254, 256;</span><br /> -<span style="margin-left: 2em;">religious denominations in the United States, <a href="#Page_255">255</a>-256.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Liberty and Persecution.</span><br /> -<br /> -<span style="margin-left: 1em;">Representative government, foundation laid by Magna Carta, <a href="#Page_4">4</a>, <a href="#Page_16">16</a>, <a href="#Page_18">18</a>;</span><br /> -<span style="margin-left: 2em;">synonymous with the republican form of government guaranteed by the Constitution, <a href="#Page_31">31</a>, <a href="#Page_39">39</a>, <a href="#Page_75">75</a>, <a href="#Page_76">76</a>, <a href="#Page_227">227</a>;</span><br /> -<span style="margin-left: 2em;">first established in America by the Pilgrims, <a href="#Page_31">31</a>, <a href="#Page_39">39</a>, <a href="#Page_40">40</a>;</span><br /> -<span style="margin-left: 2em;">a development from democracy, <a href="#Page_39">39</a>;</span><br /> -<span style="margin-left: 2em;">menaced by modern political nostrums, <a href="#Page_39">39</a>, <a href="#Page_43">43</a>, <a href="#Page_204">204</a>-211, <a href="#Page_228">228</a>, <a href="#Page_245">245</a>-246;</span><br /> -<span style="margin-left: 2em;">the form may survive the substance, <a href="#Page_46">46</a>;</span><br /> -<span style="margin-left: 2em;">depends upon the electorate, <a href="#Page_206">206</a>;</span><br /> -<span style="margin-left: 2em;">involved in nominating conventions, <a href="#Page_225">225</a> sqq.;</span><br /> -<span style="margin-left: 2em;">contribution of English-speaking race, <a href="#Page_226">226</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Republican form of government, <i>see</i> Representative government.</span><br /> -<br /> -<span style="margin-left: 1em;">Republican party, campaigns, <a href="#Page_178">178</a> sqq.;</span><br /> -<span style="margin-left: 2em;">principles, <a href="#Page_217">217</a>-218;</span><br /> -<span style="margin-left: 2em;">New York convention of 1914, <a href="#Page_234">234</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Revolution, American, <a href="#Page_25">25</a>, <a href="#Page_162">162</a>, <a href="#Page_262">262</a>-266.</span><br /> -<br /> -<span style="margin-left: 1em;">Roman Catholic church, parochial schools, <a href="#Page_247">247</a>-260;</span><br /> -<span style="margin-left: 2em;">sacrifices for education, <a href="#Page_247">247</a>, <a href="#Page_254">254</a>;</span><br /> -<span style="margin-left: 2em;">attitude toward public schools, <a href="#Page_248">248</a>-249;</span><br /> -<span style="margin-left: 2em;">teaches character, good citizenship and morality, <a href="#Page_250">250</a>, <a href="#Page_252">252</a>, <a href="#Page_253">253</a>, <a href="#Page_255">255</a>, <a href="#Page_256">256</a>;</span><br /> -<span style="margin-left: 2em;">increasing strength in the United States, <a href="#Page_256">256</a>;</span><br /> -<span style="margin-left: 2em;">formerly persecuted in America, <a href="#Page_258">258</a>-259.</span><br /> -<br /> -<span style="margin-left: 1em;">Rome, <a href="#Page_6">6</a>, <a href="#Page_27">27</a>, <a href="#Page_44">44</a>, <a href="#Page_168">168</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Roosevelt, Theodore, <a href="#Page_56">56</a>-67, <a href="#Page_121">121</a>, <a href="#Page_153">153</a>-156, <a href="#Page_159">159</a>-160, <a href="#Page_183">183</a>-189, <a href="#Page_209">209</a>, <a href="#Page_213">213</a>-215.</span><br /> -<br /> -<span style="margin-left: 1em;">Root, Elihu, <a href="#Page_75">75</a>, <a href="#Page_153">153</a>, <a href="#Page_176">176</a>, <a href="#Page_185">185</a>, <a href="#Page_194">194</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Separation of powers, <i>see</i> Government.</span><br /> -<br /> -<span style="margin-left: 1em;">ShintÅ, worship of, <a href="#Page_27">27</a>-29.</span><br /> -<br /> -<span style="margin-left: 1em;">Ship-Money, Case of, <a href="#Page_17">17</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Short ballot, <i>see</i> Elections.</span><br /> -<br /> -<span style="margin-left: 1em;">Sixteenth amendment, <a href="#Page_83">83</a>, <a href="#Page_83">83</a>n.</span><br /> -<br /> -<span style="margin-left: 1em;">Socialism, tends to destroy religion, morality and law, <a href="#Page_201">201</a>;</span><br /> -<span style="margin-left: 2em;">opposition of Socialists to the courts, <a href="#Page_211">211</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Communism.</span><br /> -<br /> -<span style="margin-left: 1em;">Social reform, as class legislation, <a href="#Page_43">43</a>;</span><br /> -<span style="margin-left: 2em;">practical reform can be effected by electing legislators of character and ability, <a href="#Page_44">44</a>;</span><br /> -<span style="margin-left: 2em;">not to be accomplished by exalting the legislature at the expense of the courts, <a href="#Page_44">44</a>, <a href="#Page_45">45</a>, <a href="#Page_84">84</a>, <a href="#Page_140">140</a>;</span><br /> -<span style="margin-left: 2em;">not impeded by the courts or our constitutions, <a href="#Page_56">56</a>, <a href="#Page_68">68</a>-69, <a href="#Page_81">81</a>-82, <a href="#Page_135">135</a>, <a href="#Page_137">137</a>, <a href="#Page_155">155</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Standish, Myles, <a href="#Page_33">33</a>, <a href="#Page_41">41</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">State governments, American, reserved powers of the states, <a href="#Page_61">61</a>, <a href="#Page_62">62</a>, <a href="#Page_177">177</a>;</span><br /> -<span style="margin-left: 2em;">suability of a state, <a href="#Page_87">87</a> sqq.;</span><br /> -<span style="margin-left: 2em;">theory of immunity from suit, <a href="#Page_98">98</a>;</span><br /> -<span style="margin-left: 2em;">prohibitions against, <a href="#Page_110">110</a>;</span><br /> -<span style="margin-left: 2em;">compelled to obey the federal Constitution, <a href="#Page_113">113</a>;</span><br /> -<span style="margin-left: 2em;">state officers are suable, <a href="#Page_114">114</a>;</span><br /> -<span style="margin-left: 2em;">conflicts with the federal courts, <a href="#Page_117">117</a>-128;</span><br /> -<span style="margin-left: 2em;">right to regulate inheritances, <a href="#Page_160">160</a>, <a href="#Page_167">167</a>-172;</span><br /> -<span style="margin-left: 2em;">governmental functions, <a href="#Page_172">172</a>;</span><br /> -<span style="margin-left: 2em;">threatened by primaries, <a href="#Page_246">246</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Strikes, use of injunctions to suppress, <a href="#Page_146">146</a>-152, <a href="#Page_212">212</a>-215;</span><br /> -<span style="margin-left: 2em;">Pullman strike of 1894, <a href="#Page_148">148</a>, <a href="#Page_151">151</a>, <a href="#Page_215">215</a>-216.</span><br /> -<br /> -<span style="margin-left: 1em;">Supremacy and Uniformity, Acts of, <a href="#Page_32">32</a>, <a href="#Page_36">36</a>-37.</span><br /> -<br /> -<span style="margin-left: 1em;">Supreme Court, Federal, some important decisions, <a href="#Page_8">8</a>, <a href="#Page_57">57</a>, <a href="#Page_60">60</a>, <a href="#Page_61">61</a>, <a href="#Page_62">62</a>, <a href="#Page_72">72</a>, <a href="#Page_89">89</a>, <a href="#Page_93">93</a>, <a href="#Page_95">95</a>, <a href="#Page_96">96</a>, <a href="#Page_100">100</a>, <a href="#Page_101">101</a>, <a href="#Page_113">113</a>, <a href="#Page_173">173</a>;</span><br /> -<span style="margin-left: 2em;">view of due process of law, <a href="#Page_21">21</a>-22;</span><br /> -<span style="margin-left: 2em;">attacks upon, <a href="#Page_63">63</a>, <a href="#Page_64">64</a>, <a href="#Page_68">68</a>;</span><br /> -<span style="margin-left: 2em;">jurisdiction of suits against states, <a href="#Page_93">93</a> sqq.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Judiciary.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Taft, William H., <a href="#Page_184">184</a>, <a href="#Page_190">190</a>-193, <a href="#Page_217">217</a>-218.</span><br /> -<br /> -<span style="margin-left: 1em;">Tariff, doctrine of protective, <a href="#Page_193">193</a>-201;</span><br /> -<span style="margin-left: 2em;">non-partisan commissions, <a href="#Page_194">194</a>, <a href="#Page_218">218</a>;</span><br /> -<span style="margin-left: 2em;">free trade favored by the Democrats, <a href="#Page_195">195</a>, <a href="#Page_198">198</a>;</span><br /> -<span style="margin-left: 2em;">act of July 4, 1789, <a href="#Page_196">196</a>;</span><br /> -<span style="margin-left: 2em;">evils of Democratic legislation, <a href="#Page_198">198</a>, <a href="#Page_199">199</a>;</span><br /> -<span style="margin-left: 2em;">not responsible for the high cost of living, <a href="#Page_199">199</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Taxation, the chief legislative function in the 13th and 14th centuries, <a href="#Page_9">9</a>, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">provisions in Magna Carta, <a href="#Page_16">16</a>;</span><br /> -<span style="margin-left: 2em;">control of parliament over, <a href="#Page_16">16</a>, <a href="#Page_17">17</a>;</span><br /> -<span style="margin-left: 2em;">early controversies in England, <a href="#Page_16">16</a>-18;</span><br /> -<span style="margin-left: 2em;">and representation, <a href="#Page_16">16</a>-17, <a href="#Page_162">162</a>-163;</span><br /> -<span style="margin-left: 2em;">essentially a legislative function, <a href="#Page_17">17</a>;</span><br /> -<span style="margin-left: 2em;">inheritance tax, <a href="#Page_159">159</a>-160, <a href="#Page_167">167</a>-173;</span><br /> -<span style="margin-left: 2em;">income tax, <a href="#Page_159">159</a>, <a href="#Page_173">173</a>-175;</span><br /> -<span style="margin-left: 2em;">power to tax is the power to destroy, <a href="#Page_160">160</a>;</span><br /> -<span style="margin-left: 2em;">conflict of state and federal, <a href="#Page_160">160</a>;</span><br /> -<span style="margin-left: 2em;">should be equal and apportioned, <a href="#Page_161">161</a>;</span><br /> -<span style="margin-left: 2em;">taxing power liable to abuse, <a href="#Page_161">161</a>;</span><br /> -<span style="margin-left: 2em;">proportional taxation, <a href="#Page_161">161</a>-163;</span><br /> -<span style="margin-left: 2em;">federal rule of apportionment, <a href="#Page_173">173</a>-174;</span><br /> -<span style="margin-left: 2em;">excise tax, <a href="#Page_173">173</a>.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Graduated taxation.</span><br /> -<br /> -<span style="margin-left: 1em;">Tenement case, <i>see</i> Jacobs case.</span><br /> -<br /> -<span style="margin-left: 1em;">Throop, Governor, <a href="#Page_221">221</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Truth, indispensable even in political discussions, <a href="#Page_69">69</a>;</span><br /> -<span style="margin-left: 2em;">trite truths often the most valuable, <a href="#Page_202">202</a>;</span><br /> -<span style="margin-left: 2em;">eternal, <a href="#Page_203">203</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Turgot, Baron de L'Aulne, <a href="#Page_264">264</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Unconstitutional laws, American doctrine based upon the statute of 1369, <a href="#Page_7">7</a>, <a href="#Page_8">8</a>, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">doctrine formerly recognized in England, <a href="#Page_7">7</a>-10;</span><br /> -<span style="margin-left: 2em;">English courts may yet annul, <a href="#Page_11">11</a>;</span><br /> -<span style="margin-left: 2em;">examples, <a href="#Page_49">49</a>, <a href="#Page_57">57</a>, <a href="#Page_61">61</a>, <a href="#Page_65">65</a>, <a href="#Page_122">122</a>, <a href="#Page_123">123</a>, <a href="#Page_137">137</a>, <a href="#Page_209">209</a>;</span><br /> -<span style="margin-left: 2em;">Hamilton's views, <a href="#Page_71">71</a>-72;</span><br /> -<span style="margin-left: 2em;">cannot always be annulled by the courts, <a href="#Page_170">170</a>-171.</span><br /> -<span style="margin-left: 2em;"><i>See</i> Constitutional limitations.</span><br /> -<br /> -<span style="margin-left: 1em;">United States of America, termed a government of laws and not of men, <a href="#Page_124">124</a>;</span><br /> -<span style="margin-left: 2em;">population, <a href="#Page_204">204</a>;</span><br /> -<span style="margin-left: 2em;">debt to France, <a href="#Page_262">262</a>-266;</span><br /> -<span style="margin-left: 2em;">treaty of alliance with France, <a href="#Page_265">265</a>;</span><br /> -<span style="margin-left: 2em;">policy of neutrality in European wars, <a href="#Page_268">268</a>-270;</span><br /> -<span style="margin-left: 2em;">foreign relations in the hands of the President, <a href="#Page_269">269</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">United States <i>vs.</i> Lee, <a href="#Page_101">101</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">United States <i>vs.</i> O'Keefe, <a href="#Page_100">100</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Vassal <i>vs.</i> Massachusetts, <a href="#Page_90">90</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Washington, George, <a href="#Page_35">35</a>, <a href="#Page_186">186</a>, <a href="#Page_187">187</a>, <a href="#Page_189">189</a>, <a href="#Page_197">197</a>, <a href="#Page_263">263</a>, <a href="#Page_268">268</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Willcox <i>vs.</i> Consolidated Gas Co., <a href="#Page_122">122</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Wilson, Woodrow, <a href="#Page_195">195</a>, <a href="#Page_198">198</a>, <a href="#Page_217">217</a>, <a href="#Page_241">241</a>.</span><br /> -<br /> -<span style="margin-left: 1em;">Workmen's Compensation laws, federal enactments, <a href="#Page_61">61</a>-64, <a href="#Page_67">67</a>-68;</span><br /> -<span style="margin-left: 2em;">New York statute, <a href="#Page_65">65</a>-69;</span><br /> -<span style="margin-left: 2em;">legislation not prevented by the courts or the Constitution, <a href="#Page_68">68</a>-69, <a href="#Page_82">82</a>;</span><br /> -<span style="margin-left: 2em;">general discussion, <a href="#Page_132">132</a>-138;</span><br /> -<span style="margin-left: 2em;">should be confined to hazardous employments, <a href="#Page_134">134</a>-136;</span><br /> -<span style="margin-left: 2em;">the British act, <a href="#Page_135">135</a>.</span><br /> -<br /> -<br /> -<span style="margin-left: 1em;">Young, Ex parte, <a href="#Page_119">119</a>n.</span><br /> -</p> - - -<div style='display:block; margin-top:4em'>*** END OF THE PROJECT GUTENBERG EBOOK MAGNA CARTA AND OTHER ADDRESSES ***</div> -<div style='display:block; margin:1em 0'>This file should be named 64197-h.htm or 64197-h.zip</div> -<div style='display:block; margin:1em 0'>This and all associated files of various formats will be found in https://www.gutenberg.org/6/4/1/9/64197/</div> -<div style='display:block; margin:1em 0'> -Updated editions will replace the previous one—the old editions will -be renamed. -</div> - -<div style='display:block; margin:1em 0'> -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg™ electronic works to protect the PROJECT GUTENBERG™ -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for an eBook, except by following -the terms of the trademark license, including paying royalties for use -of the Project Gutenberg trademark. If you do not charge anything for -copies of this eBook, complying with the trademark license is very -easy. You may use this eBook for nearly any purpose such as creation -of derivative works, reports, performances and research. Project -Gutenberg eBooks may be modified and printed and given away--you may -do practically ANYTHING in the United States with eBooks not protected -by U.S. copyright law. Redistribution is subject to the trademark -license, especially commercial redistribution. -</div> - -<div style='margin:0.83em 0; font-size:1.1em; text-align:center'>START: FULL LICENSE<br /> -<span style='font-size:smaller'>THE FULL PROJECT GUTENBERG LICENSE<br /> -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK</span> -</div> - -<div style='display:block; margin:1em 0'> -To protect the Project Gutenberg™ mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase “Project -Gutenberg”), you agree to comply with all the terms of the Full -Project Gutenberg™ License available with this file or online at -www.gutenberg.org/license. -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 1. General Terms of Use and Redistributing Project Gutenberg™ electronic works -</div> - -<div style='display:block; margin:1em 0'> -1.A. By reading or using any part of this Project Gutenberg™ -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg™ electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg™ electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the person -or entity to whom you paid the fee as set forth in paragraph 1.E.8. -</div> - -<div style='display:block; margin:1em 0'> -1.B. “Project Gutenberg” is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg™ electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg™ electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg™ -electronic works. See paragraph 1.E below. -</div> - -<div style='display:block; margin:1em 0'> -1.C. The Project Gutenberg Literary Archive Foundation (“the -Foundation” or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg™ electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg™ mission of promoting -free access to electronic works by freely sharing Project Gutenberg™ -works in compliance with the terms of this agreement for keeping the -Project Gutenberg™ name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg™ License when -you share it without charge with others. -</div> - -<div style='display:block; margin:1em 0'> -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg™ work. The Foundation makes no -representations concerning the copyright status of any work in any -country other than the United States. -</div> - -<div style='display:block; margin:1em 0'> -1.E. Unless you have removed all references to Project Gutenberg: -</div> - -<div style='display:block; margin:1em 0'> -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg™ License must appear -prominently whenever any copy of a Project Gutenberg™ work (any work -on which the phrase “Project Gutenberg” appears, or with which the -phrase “Project Gutenberg” is associated) is accessed, displayed, -performed, viewed, copied or distributed: -</div> - -<blockquote> - <div style='display:block; margin:1em 0'> - This eBook is for the use of anyone anywhere in the United States and most - other parts of the world at no cost and with almost no restrictions - whatsoever. You may copy it, give it away or re-use it under the terms - of the Project Gutenberg License included with this eBook or online - at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you - are not located in the United States, you will have to check the laws - of the country where you are located before using this eBook. - </div> -</blockquote> - -<div style='display:block; margin:1em 0'> -1.E.2. If an individual Project Gutenberg™ electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase “Project -Gutenberg” associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg™ -trademark as set forth in paragraphs 1.E.8 or 1.E.9. -</div> - -<div style='display:block; margin:1em 0'> -1.E.3. If an individual Project Gutenberg™ electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg™ License for all works -posted with the permission of the copyright holder found at the -beginning of this work. -</div> - -<div style='display:block; margin:1em 0'> -1.E.4. Do not unlink or detach or remove the full Project Gutenberg™ -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg™. -</div> - -<div style='display:block; margin:1em 0'> -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg™ License. -</div> - -<div style='display:block; margin:1em 0'> -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg™ work in a format -other than “Plain Vanilla ASCII” or other format used in the official -version posted on the official Project Gutenberg™ web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original “Plain -Vanilla ASCII” or other form. Any alternate format must include the -full Project Gutenberg™ License as specified in paragraph 1.E.1. -</div> - -<div style='display:block; margin:1em 0'> -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg™ works -unless you comply with paragraph 1.E.8 or 1.E.9. -</div> - -<div style='display:block; margin:1em 0'> -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg™ electronic works -provided that: -</div> - -<div style='margin-left:0.7em;'> - <div style='text-indent:-0.7em'> - • You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg™ works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg™ trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, “Information about donations to the Project Gutenberg - Literary Archive Foundation.” - </div> - - <div style='text-indent:-0.7em'> - • You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg™ - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg™ - works. - </div> - - <div style='text-indent:-0.7em'> - • You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - </div> - - <div style='text-indent:-0.7em'> - • You comply with all other terms of this agreement for free - distribution of Project Gutenberg™ works. - </div> -</div> - -<div style='display:block; margin:1em 0'> -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg™ electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from the Project Gutenberg Literary Archive Foundation, the manager of -the Project Gutenberg™ trademark. Contact the Foundation as set -forth in Section 3 below. -</div> - -<div style='display:block; margin:1em 0'> -1.F. -</div> - -<div style='display:block; margin:1em 0'> -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg™ collection. Despite these efforts, Project Gutenberg™ -electronic works, and the medium on which they may be stored, may -contain “Defects,” such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. -</div> - -<div style='display:block; margin:1em 0'> -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the “Right -of Replacement or Refund” described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg™ trademark, and any other party distributing a Project -Gutenberg™ electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. -</div> - -<div style='display:block; margin:1em 0'> -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. -</div> - -<div style='display:block; margin:1em 0'> -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you ‘AS-IS’, WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. -</div> - -<div style='display:block; margin:1em 0'> -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. -</div> - -<div style='display:block; margin:1em 0'> -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg™ electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg™ -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg™ work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg™ work, and (c) any -Defect you cause. -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 2. Information about the Mission of Project Gutenberg™ -</div> - -<div style='display:block; margin:1em 0'> -Project Gutenberg™ is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. -</div> - -<div style='display:block; margin:1em 0'> -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg™’s -goals and ensuring that the Project Gutenberg™ collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg™ and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at www.gutenberg.org. -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 3. Information about the Project Gutenberg Literary Archive Foundation -</div> - -<div style='display:block; margin:1em 0'> -The Project Gutenberg Literary Archive Foundation is a non-profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation’s EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state’s laws. -</div> - -<div style='display:block; margin:1em 0'> -The Foundation’s business office is located at 809 North 1500 West, -Salt Lake City, UT 84116, (801) 596-1887. Email contact links and up -to date contact information can be found at the Foundation’s web site -and official page at www.gutenberg.org/contact -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 4. Information about Donations to the Project Gutenberg Literary Archive Foundation -</div> - -<div style='display:block; margin:1em 0'> -Project Gutenberg™ depends upon and cannot survive without widespread -public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine-readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. -</div> - -<div style='display:block; margin:1em 0'> -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular state -visit <a href="https://www.gutenberg.org/donate/">www.gutenberg.org/donate</a>. -</div> - -<div style='display:block; margin:1em 0'> -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. -</div> - -<div style='display:block; margin:1em 0'> -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. -</div> - -<div style='display:block; margin:1em 0'> -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate -</div> - -<div style='display:block; font-size:1.1em; margin:1em 0; font-weight:bold'> -Section 5. General Information About Project Gutenberg™ electronic works -</div> - -<div style='display:block; margin:1em 0'> -Professor Michael S. Hart was the originator of the Project -Gutenberg™ concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg™ eBooks with only a loose network of -volunteer support. -</div> - -<div style='display:block; margin:1em 0'> -Project Gutenberg™ eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. -</div> - -<div style='display:block; margin:1em 0'> -Most people start at our Web site which has the main PG search -facility: <a href="https://www.gutenberg.org">www.gutenberg.org</a>. -</div> - -<div style='display:block; margin:1em 0'> -This Web site includes information about Project Gutenberg™, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. -</div> - -</body> -</html> diff --git a/old/64197-h/images/cover.jpg b/old/64197-h/images/cover.jpg Binary files differdeleted file mode 100644 index 53c59e8..0000000 --- a/old/64197-h/images/cover.jpg +++ /dev/null diff --git a/old/64197-h/images/illus1.jpg b/old/64197-h/images/illus1.jpg Binary files differdeleted file mode 100644 index 51aa0b3..0000000 --- a/old/64197-h/images/illus1.jpg +++ /dev/null |
