.■wK'*.-!.' . A^.^^ QJnrnpU ICam ^rljnnl IGtbratij Cornell University Library KF 298.R28 The Influence of the legal profession in 3 1924 024 522 611 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024522611 Nebraska tat^ Bar ^ssaeiatton «^*-$s. mt. Isftam gcatiis' Address. THE INFLUENCE OF THE LEGAL PROFESSION IN THE AFFAIRS OF CIVIL GOVERNMENT. AN ADDRESS DELIVERED BEFORE THE Nebraska State Bar association LINCOLN, NEBRISKI, On Wednesday, the Eighteenth Day of January, 1882. By ISHAM REAVIS. LINCOLN, NEB.; JOURNAL COMPANY, STATE PRINTERS. 1882. 1^7,^27^ ADDRESS. Mr. President, and Geiithmen of the Slate Bar Assnein- tion : The honor of delivering the annual address before this Association at the present gathering, was both un- sought and unexpected by me, and I enter upon the discharge of the duty involved with much reluctance and diffidence. But I shall offer no apology. The address itself must stand for one, if any be necessary. I have selected as the basis of such remarks as I shall make in your presence to-night, a subject which I think is of general interest to the bar, namely, " The Influ- ence of the Legal Profession in the Affairs of Civil Government."' It is universally conceded, I believe, that the greatest blessing that humanity can enjoy, or does enjoy, in this world, is good government. When I say good government, I mean that kind which pro- tects the lives, the liberties, and properties of all its citizens precisely alike; a goverftment in which the ruling classes have no greater measure of rights than any other class, governed by its laws. Men have no more rights to-day than they ever had, but the rights they do possess, and have always possessed, are more fully recognized in this latter quarter of the nineteenth century, than at any other period in the history of the race. This is said to be the result of advaneins; civiliza. ization ; but civilization itself is but the result of the ope- ration of persistent forces working in hurraony in the development of the better elements of human nature, and comprehending in their reach all the ages of the past in which men have lived. It is not my purpose now to point out those forces in society which have conjointly brought about the changed condition indi- cated, but to direct attention briefly, to some of the influences exerted by the legal profession in the adop- tion of those institutions and policies of government, which have for their object the elevation of the nations and the happiness of man. The social compact as we find it to-day, and espe- cially in our own country, is what centuries of persist- ent eflfort has made it. Steadily, from that far time when the necessities of man first suggested the idea of government, the people, the great unremembered masses, have been advancing out of uncivilized and barbarous rule, up to that ideal New Atlantis dreamed of by Plato in the garden of Athens, and in later times more tersely described by the founders of this republic, namely: a government whose just powers are de- rived FROM THE CONSENT OF THE GOVERNED. "We, of all other peoples of the earth, have approximated most nearly to that result, but the work as a completed whole is far from finished. That is to say, the American Re- public has taken a long step in advance of all others in the right direction ; but we must not forget, that this advanced step was strictly in harmony with the spirit of the times immediately preceding its establishment, and that republican institutions in this western hemi- sphere, were but the legitimate product of the various forces in society, that had for ages been working in harmonious concert, for the civilization and elevation of the race. Perhaps the most efficient agent in that great work, and the one that has achieved the greatest results in the amelioration of the condition of man, is civil gov- ernment, based upon laws whose operation is uniform, universal, and general. This idea of government, in which the governed shall have some voice in the mat- ter, has been evolved in the progress of time, from the exigencies of society itself, the personal happiness and well-being of its individual members, and from the teachings of philosophers and statesmen of every age. Mr. Lincoln simply put into apt words, an idea that had been growing upon the world since history was born, when he spoke of "a government of the people, by the people, and for the people," as from the very nature of man, this seems to have been intended from the beginning. A brief glance into the shadows of the past may not be foreign to the present inquiry, and I therefore invite attention to a condensed summary of historical fact touching the gradual advance of the nations in matters of government. " The earliest traditions," writes Mr. Spencer, "inform us that rulers were regarded as gods. or demigods, and in some cases actually worshiped. By their subjects primitive kings were regarded as superhuman in origin, and superhuman in power. They possessed divine titles; received obeisances like those made before the altar of deities. If there needs proof that the divine and half divine characters origi- nally ascribed to monarchs were ascribed literally, we have it in the fact that there are still existing savage races among whom it is h^ld that the chiefs and their kindred are of celestial origin, or, as elsewhere, that only the chiefs have souls. And of course, along with beliefs of this kind, there existed a belief in the unlim- ited power of the ruler over his subjects. "In times and among races somewhat less barbarous, we find these beliefs a little modified. The monarch, instead of being literally thought god or demigod, is conceived to be a man of divine authority, with perhaps more or less of divine nature. * * * * "Later in the progress of civilization, as during the middle ages in Europe, the current opinions respect- ing the relationship of rulers and ruled are further changed. For the theory of divine origin there is sub- stituted that of divine right. No longer god or demi- god, or even god-descended, the king is now regarded simply as Grod's vicegerent. Moreover, his authority ceases to be unlimited. Subjects deny his right to dispose of their lives and properties at will, and yield allegiance only in the shape of obedience to his com- mands. "With advancing political opinion has come still greater restriction of imperial power. Belief in the supernatural character of the ruler, long ago repudi- ated by ourselves (England), for example, has left be- hind it nothing more than the popular tendency to ascribe unusual goodness, wisdom, and beauty to the monarch. Loyalty, which originally meant implicit submission to the king's will, now means a merely nominal profession of subordination, and the fulfill- ment of certain forms of respect. "Our political practice and our political theory alike utterly reject those legal prerogatives which once passed unquestioned. By deposing some, and putting othei-s in their places, we have not only denied the di- vine rights of certain men to rule, but we have denied that they have any rights beyond those originating in the consent of the nation." This is a faithful, and though brief, an accurate statement of historical fact. . Thus we observe, that the tendency has always been, to wrest the power of government from the hands of the kings, and remit it to the people. Every age, has added something of value to the sum of the world's progress in this direction. It may have been of little value in some times and among particular nations, but it was of some value. This prevailing tendency thus ever manifesting itself is traceable directly to some element of our nature, possessed in some degree by all, and is perhaps best expressed jby the words, moral ■sense. We understand by that, the rule by which the man of no education, save that which is acquired in the school of experience, measures right and wrong conduct, and in most cases measures correctly; that innate conviction always alive in the human soul, that no one man was ever born into this world with any more natural rights than any other man; that instinc- tive reverence for justice, that has not only made laws for the protection of life and property possible, but their enactment and enforcement accomplished facts. All that is good in governments is the product of good and wise men, in whom the moral sense was predomi- nant, and the wisdom of experience the rule of their conduct. jSTow, what share has the legal profession had in this great woi'k of governmental reform? And when I say legal profession, I mean both the bench and the bar, for the two are essentially the same. To arrive at a clearer understanding of the proposition, it is necessary to consider certain functions of government that are distinctive in every nation, and with which the legal profession must, and does of necessity, have inti- mate connection. And iirst, as to the ownership and control of the soil. There is, in my judgment, no function of government so transcendently important in any nation as its land system. Equity, abstractly speaking, does not recognize property in land. In their natural state, men have equal rights in the use of the surface of the earth. The demands of organized society have materially abridged those natural rights, and in their stead, certain rules of a conventional char- acter have been prescribed by the superior authority in each particular nation, for the distribution of the soil among the people, and for the protection of each person in his just possessions. Titles to the soil, there- fore, are derivable only from the state, whose original deeds, in many instances, were written by the sword instead of a pen, and sealed with blood instead of wax. The old and familiar story of the difficulties between Abraham and Lot, of patriarchal days, will serve to illustrate the necessity for state control of its territory that peace and order may be maintained among its citizens. These very worthy people were unable to agree while acting together, and believing the world to be large enough for him and Lot to live in it, and care for their herds without interfering with each other, Abraham requested his kinsman Lot to depart with his flocks into one district of country, and he would take his and go into another; and so they sep- arated, and the strife was ended. Had they lived in later times, say in our own, the process of winding up their co-partnership would have been attended with some difficulty, and possibly very great expense. Ownership of the soil in that distant age, was not recognized in any other shape than that which actual occupancy conferred. But, with the lapse of time and the increase of pop- ulation, the patriarchal mode of settling disputes of 10 this kind became not only impracticable, but impossi- ble. Necessity, therefore, begat the fiction of property in land, and the problem of the ages has been how to apportion the soil so as to promote the greatest happi- ness among the people. Just how it has been done in past times is matter of history, and it is my purpose to show that the legal profession, as a class, has done all that was ever worth doing in that particular. Kings have never troubled themselves much with the affairs of the people, nor made many sacrifices to promote their interests. Despotic rule is at war with the policy of investing the populace with the owner- ship of the soil, while the fundamentals of the true re- public always favor it. The theories of the two forms of government differ as widely on this question as on all others. In fact, it may be said with entire truth, that republican institutions in a country where the feudal tenures of the middle ages are in force would be absolutely impossible. The two cannot exist to- gether. Now, what of the lessons of history? On all questions they are highly instructive — on this, most of all. Men are not generally wiser than their genera^ tion, for ordinarily an idea that is ultimately to revo- lutionize existing society is no sooner published than it eo instanter becomes the property of the world; yet it is a fact of universal recognition that the theories of the preceding generation may, and often do, become the rule of practice of the succeeding one. This is particularly noticeable in the changing systems of the 11 land tenures in different nations. England famishes the most marked example in that particular.- Her land system has undergone many mutations with the efflux of time. The Scandinavian hordes of the fifth century, in their descent from the north, upwards of fourteen hundred years ago, changed the entire sys- tems of continental Europe. With the incursion of those northern barbarians came the feudal system, though it did not generally obtain in England until the reign of William the N'orman. This was of mili- tary origin, and for a thousand years fettered and im- peded the elevation of the people and the civilization of the world. England, of all the nations of Europe, first broke through the thraldom of the feudal tenures ; but it was the work of centuries. Following in the train of this barbarous system, and as a legitimate and logical sequence, came the enactment of what is known as the statute de donis, in the reign of Edward the First, in the latter part of the thirteenth century. By this statute it was intended to inaugurate a system of estate tail, or tenures of title of such a nature that estates in perpetuity would be the result, and for two hundred years this monster enemy of the English yeomanry kept its hold upon the throat of the nation. Under its provisions estates were to be made perpetual, and the free alienation of real property a legal impossi- bility. And notwithstanding its mischievous character was early observed and felt, the parliament could not 12 be induced to repeal it, for at least one branch of that body was constantly under the control of the very class in whose interests the law was originally passed — the landed proprietors of the realm. Blackstone says: "The establishment of this family law (as it is properly styled by Pigott) occasioned infinite difficul- ties and disputes. Children grew disobedient when they knew they could not be set aside ; farmers were ousted of their leases made by tenants in tail ; for if such leases had been valid, then under the color of long leases, the issue might have been virtually disin- herited; creditors were defrauded' of their debts; for if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth; innu- merable latent entails were produced to deprive pur- chasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full; and treasons were encouraged, as estates tail were not liable to forfeiture longer than for the tenant's life. So that they were justly branded as the source of new contentions and mischiefs unknown to the common law, and almost universally considered as the common grievance of the realm. But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, etc." In addition to the evils here enumerated by the learned commentator, the efiect of this obnoxious 13 statute was rapidly making England what Ireland now is, substantially a nation of tenants. A patriotic and sturdy people, such as our ancestors of that period were, could not long endure the unnatural restraints of such a law without earnest protest, yet the long space of two hundred years elapsed before deliverance came. Having nothing to hope from parliament, the bench and bar, under the reign of Edward IV, by an ingenious method invented by themselves, to-wit, the application of common recoveries, in Taltarum's case, openly declared them a sufficient bar to estates tail. This was a piece of judicial legislation that has re- ceived the cordial assent of the profession in all suc- ceeding times. Generally, such legislation is wrong, and in princi- ple I think it is, but if there ever was an instance in which its exercise was justifiable, this certainly was one. " This expedient," says Justice Blackstone, " having greatly abridged estates tail with regard to their dura- tion, others were soon invented to strip them of other privileges." , It was indeed an expedient; it was all that and more — it was revolution. Thus was one of the greatest evils that ever cursed the English nation, eradicated and destroyed by the wisdom and fearless integrity of those sterling judges and lawyers, whose names have been made eternally luminous in the sequence. The importance of that 14 decision was immeasurable, both in its effect and in its comprehensive reach. Like Magna Charta, its abrogation has never been sought by subsequent jur- ists or legislators. By it the English government was placed upon a higher plane; began to assume a differ- ent attitude as a nation, and from thence has steadily advanced in harmony with the spirit of the rule laid down by those ancient judges, until to-day, estates tail in that country, born of the infamous statute de donis, have no real existence. Thus fell by the hand of that strongest arm of the legal profession — the judiciary — the parent enemy of the free alienation of real proper- ty, without which free institutions cannot exist. Pld prejudices and customs cannot be got rid of in a month, a year, a decade, or a century, and it is not surprising that it has required a period equal to half the life of the Christian era to bring the land sys- tems of the civilized world up to their present state of advanced perfection. And in this great humanizing and civilizing process the legal profession has always stood in the very first rank. We have but to compare the family law of Edward I of England with the homestead law of the United States, enacted in our own day, to clearly understand how far the world has moved in the interim. The one established perpetual estates for the few, and hopeless tenantry for the many; the other, the creature of a more enlightened age, consecrates the public domain to the perpetual use of all the people. Just how much 15 happiness the latter law has dilf'used among the sons and daughters of toil, human ken will never compass, and just how much misery, want, and destitution the other has wrought is equally impossible of computa- tion. The one was the emanation of an arrogant and lordly aristocracy, and was opposed, and eventually destroyed, by lawyers; while the other grew out of the democratic idea that the soil of the country should be owned by the people of the country, and that free homes are the rightful heritage of a free people. Homestead laws have always received a liberal con- struction from the courts of this Union, and the con- stant care and supervision of the legal profession everywhere. It is with much pleasure that I quote the language of the Supreme Court of one of the American States on this subject: " The design is to protect citizens and families not only from destitution, but to cherish those feelings of independence so essential to the maintenance of free institutions." Col. Thomas H. Benton, one of the greatest of American statesmen, as long ago as 1829, while ad- vocating the adoption of a general homestead policy in the Senate of the United States, amplified this idea with. so much ability and force, as in my judgment to be exhaustive of the whole subject, and fully illustra- tive of the point I wish to make in this connection. He said: "Tenantry is unfavorable to freedom. It 16 lays the foundation for separate orders in society, an- nihilates the love of country, and weakens the spirit of independence. The tenant has, in fact, no country, no hearth, no domestic altar, no household god. The freeholder, on the contrary, is the natural supporter of a free government; and it should be the policy of re- publics to multiply their freeholders, as it is the policy of monarchies to multiply tenants." The great senator, statesman, and lawyer did not live to see his theory become the settled policy of his country (as indeed it has) but he lived long enough to know that in the fullness of time such would be the rule of the law in spite of every opposition. And so with his idea of a trans-continentlal railway: "Let us build the iron road," said the old senator in a speech at St. Louis in 1849, " and build it from sea to sea." His eloquent voice has been long silent, but the shriek of the locomotive has awakened the echoes and startled the stillness of the mountain solitudes of the far west for more than ten years in its onward career to the western sea. It is to such as he, and that class of men, that we owe in great part our national prosperity and our ma- terial progress as a people. Mr. Yattell, in his admirable work on the law of nations, asserts, and with much propriety, that ." the more rigorous the statute the more degraded the peo- ple." This has come to be axiomatic, and is univer- sally conceded to be true, proofs of which may be 17 found in abundance in the history of nearly every nation that ever existed. And there is no one func- tion or policy of government where this truth is so prominently observable as in the laws governing the primary disposal of the soil of the various nations. It is safe to assert, and I think the assertion will not be seriously questioned, that the condition of a people or of a nation can be best known by a careful exami- nation of the land systems of each — perhaps not en- tirely so, but at least proximately. The unequal tenures of the French system produced the bloody revolution of 1789; those of Russia the serfdom of that unhappy country, by which men and their families passed in the deed, as appurtenances to the land. Similar causes have reduced Spain to a third rate power; created the race of lazzeroni of Italy, and the peon of Mexico. With such systems among the fun- damentals of a government, national progress is an impossibility, and the elevation of the masses an idle dream. Serfdom in Russia has ceased to exist, but its legitimate descendant, Nihilism, is alive in all its hideous deformity. Peonage in Mexico is nominally abolished, but brigandage and prostitution, its natural productions, yet survive to tell the story of their in- famous ancestof. These, and such as these, speak of a darker age, but they are slowly but surely passing away. They are dark stains on the escutcheon of civil government, but a still darker one, if possible, exists 18 in the present condition of homeless Ireland. The. mere mention of that green island in the sea, brings vividly to the mind of the student of history sad rec- ollections of wrong and oppression, which the crowned heads of England, by one pretence or another, have visited upon its hapless people. Whoever will consult the infamous record of national crime, committed by England against the Irish nation, extending as it does from the reign of the Tudors down to that of George III, will have little difficulty in understanding the true condition of things in Ireland to-day, and the underlying cause of that condition. What with the confiscations and colonizations of Elizabeth, and the wars of Cromwell, supplemented by the penal code, of which Hallam says: "To have exterminated the Catholics by the sword, or expelled them like the Moriscoes of Spain, would have been but little more repugnant to justice and humanity, but incomparably more politic," — liberty in Ireland became a tradition, and justice an obsolete term. The history of those days is red with blood. The crimes of which impe- rial England is guilty on the score of Irish misrule and intentional wrong belong to that class which grow darker with the ages; crimes for which history has no forgiveness, nor the memories of men any for- getfulness. Religious fanaticism, among other causes, led Cromwell to attempt the conversion of the Roman Catliolics by the persuasive influences of the sword. Failing in everything but conquest, he arbitrarily 19 transferred the greater part of the Irish soil from the vanquished nation to the victors. This was the be- ginning of evil days, and the end is not yet. Foul deeds had been perpetrated against this brave, warm- hearted, and generous people before, but infinitely worse were to follow, scattering in their paths desti- tution, disease, and death, and wrapping their dark shadows about this once fertile, happy, and prosper- ous land like a very garment. It is asserted that as late as 1874 seven-eighths of the land belonged to a proprietary of Protestants, while perhaps even a great- er proportion of the occupiers were Roman Catholics. A century before, it is said, " not even a pitiful eighth part of the land belonged to members of the church which comprised the great body of the people." Some definite notion of the agrarian difficulties and inequali- ties that environed the denizens of this despoiled and dismantled country can be gathered from the histori- cal fact that "the first act which relaxed the severity of the laws against Catholics in their relation to land was that of 1771, which permitted a Roman Catholic to take a lease for sixty-one years, of hog of not less than ten or more than fifty acres, with not more than half an acre of arable land for the site of a house, provided the same were not within a mile of any town," This act, which in fact was only insult ^dded to injury, was regarded as a real advance, and in the light of the former treatment of that people, perhaps it was, but just think of it — a lease for not less than 20 ten nor more than fifty acres of bog, and not more than half an acre of arable land for the site of a house. "What immense fortunes those people must have made from leases like that. The American homesteader would have some difficulty, I apprehend, in subsisting himself and family on premises no more extensive and productive than fifty acres of bog, and one-half an acre of arable land for garden purposes, and the asylum of home ; yet how many millions of those suf- fering and ueglected people have coerced a starving subsistence from such as that? And who can wonder that famine and fever, disease and death, want and universal destitution, ignorance and poverty should result as a necessary sequence? But, notwithstand- ing the past history of Ireland for three hundred years has been the most pitiable in human annals, there are yet some bright spots in the universal gloom. While despotism paralyzed every energy of this people, devastated their country, destroyed its indus- tries, desecrated the altars and tombs of their fathers, there were, from time to time, as the years of their miseries grew more numerous, mighty spirits sent to their relief, who, from the force of unequaled genius, and energies equal to every emergency, battled for the rights of their people, not in the struggle of organized war, but in a higher and nobler field — on the rostrum, at the hustings, in the courts and the councils of state. Of this number are the Floods, the Grattans, the Cur- rans, the Emmets, and greater than all, that man of 21 the people, but the intellectual peer of any man, Dan- iel O'Connell. These were all earnest and able men, and lawyers of the very first stamp. They were peculiarly the friends of Ireland and the Irish people, and in the cause of both, and of liberty and justice, they devoted the labor of their illustrious lives. True, very little was accomplished by any one of them, O'Connell excepted, but the joint efforts of all have produced material and beneficial results. They led the bar of the country, moulded public opinion, and inaugurated that whirlwind of agitation of their country's wrongs that has gathered strength and force at every move, and is yet to sweep all before it. A handful of sand will not make a bar in the river or by the sea shore, but the slow and continuous accre- tions of ages, will. And so with the operation of moral forces that eventuate in changing the condition of a community, a people, or a nation. These fearless men never took a step backward. Their march was ever onward. Daniel O'Connell, single-handed and alone, fought English prejudices and English inhibitions against Catholic representation in parliament, and ended victor in the fight. But it was a twenty years' struggle. This was necessary before other abuses could be successfully attacked, or a re-adjustment of the land system hoped for. There is nothing in history like it, and although Daniel O'Connell sleeps with his fath- ers, the great work of Irish emancipation still goes on. Q9 The thread has been taken up where he dropped it, by hands less able, perhaps, but equally zealous, and justice for the Irish peasantry, on the basis demanded by him, must eventually be accorded by the English government. There are some things that the moral sense of the civilized world will not sanction, and non- resident landlordism is one of them. This fact has at length dawned upon the English ministry, and the problem of adjustment is now in process of solution. But the honor of the great result belongs primarily to the leading spirits of the legal profession of this and former times, and to them let it be freely given. The influence of these men, entrenched as they were and are, behind the ramparts of eternal right, has been more potent in the fight for hearth and home than armies equipped for battle could have been. They arraigned England before that imperious and stern tribunal from whose decisions no appeal lies — the pub- lic opinion of the world — and have convicted this queen of the seas on every count in the indictment preferred against her. But let us follow the profession into other depart- ments of civil government. And especially let us in- quire what connection its representative members have had with the establishment and maintenance of popu- lar government on American soil. In a confined sense, the members of the legal pro- fession are regarded only as advocates of individual rights in legal controversies; but there is an enlarged 23 field of usefulness in which their demand for recogni- tion is no less imperative than in other capacities — for instance, in matters of legislation. Very frequently the enactment of a law by a legislative body is but a formal ratification of a measure long since agreed upon in the public mind. Scarcely any question that is ulti- mately to ajffect the public weal passes into the forms of law, without having first received from the people that careful scrutiny and discussion its gravity and importance is likely to, and most usually does invite, so that when the legislator adds his vote to its adoption, he but puts into crystallized form a public judgment already formed and promulgated. This is the common experience, and I think if you will inquire into the history of all great measures, the adoption of which has added to the sum of our country's substantial good, you will find among the early friends and supporters of any given proposition, the able, the learned, and the great of the legal profession. James Otis, an eminent lawyer of colonial days, in a single legal argument ao-ainst the issuance of the infamous writs of assist- ance, so-called, authorized by British rule, not only fired the people of the colonies to revolt against the parent government, but mapped out with prophetic power the coming of the mighty nation that was ulti- mately to be born of that memorable struggle. The elder Adams, who heard this grand efibrt of a grander man, said, long afterwards, that " American indepen- dence was then and there born." 24 Thomas Jeiferson, another eminent lawyer and states- man of the same period, formulated the whole theory of popular and just government in the declaration of independence, of which he was the author, and did it in a very few, but comprehensive sentences. This was the second great charter of human rights, and like its time-revered prototype, the Magna Charta of England, will never be lost or forgotten, so long as genius has an admirer or liberty a friend. In many respects this is one of the most remarkable state papers to be found in the archives of any nation. The occasion that inspired it, the results that followed its publication, and the signal and brilliant success which crowned the efforts of those illustrious builders of the new republic, all conspire to clothe it with a glamour of glory which must forever gleam through the ages with undimmed lustre. It was the beginning of immortal deeds. The truths which it declares to be self-evident, and to preserve and enforce which gov- ernments are established among men, are those upon which the theory of revolt was predicated, and the bat- tles of the revolution fought. It has been described as a mass of glittering generalities; and although in a sense true, the criticism was unfriendly. The instru- ment was at once the act of separation and a declara- tion of war, and became of inestimable value, in later times, as the basis of a new nationalitJ^ No greater task was ever committed to the hands of men than that of constructing a government in the 25 wilderness of this continent, of which the ideas grouped in the declaration of independence should be the chief corner stones. Mutual protection suggested the union of the colonies under the name of states. The first move in that direction was the adoption of the articles of confederation. Subsequently, for the purpose of "forming a more perfect union," the con- stitution of the United States was framed, and by the assent of the states was made the supreme law of the land. Every institution, feature, or law of a nation or state once existed as an idea in the brain of a single individual. This is true of the constitution proper of our country. In all its essential features it is chiefly the work of Alexander Hamilton, than whom America never had a greater statesman, nor profounder lawyer. Mr. Hamilton had published a series of articles in what was known as the "Federalist," previous to the assembling of the convention that framed the consti- tution, in which he had sketched with unparalleled ability the entire framework of constitutional govern- ment, and which that convention subsequently incor- porated into the fundamental law. I therefore assert, and with confidence, that to the legal profession, act- ing through its representative members, the world owes the example of successful constitutional and pop- ular govern ment in America, and wherever through- out the earth it has since been established. France has been ripening for democratic rule for a hundred years; but her road to a republic has been through 26 revolution and blood. The mantle of Mirabeau, the representative of the third estate in the revolution of 1789 (though himself not a lawyer, but possessed of every qualification- of the best), has fallen upon the shoulders of Gambetta, the champion of republican government in that country, who is. This intellectual giant of the bar has crushed out both the Bourbons and the Bonapartists, and upon the ruins of both has erected the French Republic. He is to France what Alexander Hamilton was to America, and what the legal profession has always been to just and free gov- ernment, whose rightful authority is derived from the consent of the people. I cannot dismiss this branch of the subject without referring to another page of our country's history, whereon is recorded an event equally brilliant with any other, and as comprehensive and far-reaching in its effect as the very life of the nation. Mr. Mill has said, and I believe with truth, that a good or bad counselor at a given crisis may determine the fate of the world. The event I am about to speak of partakes largely of that character, and is peculiarly germain to my present purpose. This republic was for a long time regarded more as an experiment than anything, else, until the mem- orable forensic contest between Mr. Hayne, of South Carolina, and Mr. Webster, of Massachusetts. It was then that the great expounder of the American con- stitution disabused the public mind of tlie notion of experiment, and demonstrated as only Daniel Webster 27 could, that this is indeed a nation with powers equal to any emergency, a,nd possessed of the elements of perpetual existence. The idea of state co-partnership was shown to be fallacious, and as dangerous as it is false. There have been many other able arguments made on the subject since, but this one stands alone in its grandeur and profundity, like its great author, unequalled and unsurpassed. From that hour this government was placed upon a firmer footing than it had ever before occupied. Universal confidence now took the place of uneasy distrust that had previously disturbed the public mind, and the shadows of the coming brilliant events of a later date, were cast be- fore. The theories of the great lawyer have come to be the adopted policies of the government in all its departments, and thus they will ever be. Considered in the light of subsequent events, this argument of Mr. Webster, in the economy of things, was as necessary as it was exhaustive and convincing. There were then, and had long been, two antagonis- tic elements in the body politic of the nation, whose antagonism was as deadly as a war between antitheses possibly could be, and the evidences of the coming contest for supremacy were everywhere to be seen. It was the old conflict of freedom and slavery, and the doctrine of state rights, pre-eminently the creature of the slave power and the enemy of free institutions, was the hydra which Mr. "Webster, in the might of his great intellect, bravely met and so grandly destroyed. 28 Without the instruction imparted hj that speech the battles of the rebellion might not have been fought, or if fought, had been with a different result, and the emancipation proclamation of Abraham Lincoln had not been made. The war of ideas produced that of bullets, and slavery fell in the sequence. In this, as in all kindred movements wherein society and men have been benefited, the handiwork of the legal pro- fession is everywhere discernible. But in more recent times the influence of the pro- fession has embraced a still wider range of usefulness. Under the rule of despotic power national controver- sies and difficulties were settled by war, so far as war (which is only another name for brute force) can settle anything. The Kings quarreled over disputed terri- tory or women, and the people slaughtered each other to determine which of these crowned brigands had the clearest divine right to the thing in dispute. The wager of battle, in which the unsung, the uncoffined, and unhonored people alone suffered and most gener- ally alone died, was supposed to demonstrate on which side the Lord was. Napoleon's notion in that partic- ular is perhaps the best. He said the Lord was on the side of the strongest battalions. Cromwell was impressed with the same idea, for while he cautioned his men to trust in the Lord, he also admonished them to keep their powder dry. "War is but the lingering effect of barbarism, and although that Utopian age may never arrive when the sword shall be beaten into 29 plow shares and spears into pruning hooks, yet to a very great extent the office of war has been, and will be further supplanted by that of friendly arbitration, as was the case of the Alabama claims preferred by our country against England, and adjusted by the shores of Lake Geneva, in that way. The lawyers who represented the United States in that celebrated controversy did more for their country than armies could have done, and the waste of untold treasure, and the shedding of innocent blood on both sides was prevented. The nations of the earth have profited by the example, and the civilization of the world has been advanced to a higher plane. The idea of inter- national arbitration for the adjustment of conflicting interests of governments originated primarily with that class of men who have written and enforced codes, and rules for the settlement of individual diffi- culties, and the modus of procedure in the one, has been assimilated in every essential particular to that of the other. Courts have been substituted for armies, and men learned in the law of nations and the arts of peace, for marshals and generals. The warfare waged in this intellectual arena is one of the brain, of prece- dent and legal acumen; and the result a bloodless de- termination of what once would have been causus belli. It is impossible in the narrow limits of this address, to give even an imperfect outline of the almost bound- less influence exerted by the profession from whose ranks have come eighteen of the twenty-one Ameri- 30 can Presidents; all the members of the bench both state and federal; the chief and all his subordinates of one of the political departments of the government, a majority in both branches of nearly every congress that has met since the adoption of the constitution, and likewise in most of the state legislatures. In the governmental trinity of co-ordinate powers, the judi- ciary is the only one that stands unsmirched and stain- less in the public estimate. It alone is free from the suspicions and doubts which party strifes have engen- dered in connection with other branches of the public service, and the ermine, proverbially pure and spotless, was never more worthily worn than now. Corruption at no period of our history has ever reached it; con- tumely and detraction have rarely been leveled against it, and never successfully. Wise, conservative, and just, this arm of our country's strength and hope has ever sustained the right, declared the truth, and ex- pounded the law with impartial judgment. An inde- pendent and incorruptible judiciary is not only the sheet anchor of constitutional government, and the rock of its enduring safety, but must of necessity wield an influence in the social fabric that is both un- measured and immeasurable. I cannot close this desultory address without direct- ing attention to another policy of government, of re- cent origin, and peculiarly American in its idea and operative force as a factor in the affairs of the society of the country. I refer to our system of public in- 31 struction, established by law and supported by taxa- tion. Originally there was much doubt as to the power of the state to impose taxes for such a purpose. These doubts grew out of the notion that the educa- tion of the children of the country belonged to the family and the church, .and that the secular arm could not rightfully interfere in the premises, liad experi- ence had taught the world, however, that with no other aids than those afforded by purely social and religious elements, the reign of ignorance would con- tinue unbroken, and the experiment of popular gov- ernment among the people must surely fail. There- fore, putting the necessity of popular education on no other ground than that of the public safety, and the perpetuity of free institutions, it has been clearly de- monstrated by the best legal minds on and off the bench, that ample power exists by implication, if not by positive grant in terms, in the constitution of the United States to warrant legislation establishing a system of common schools and supporting the same at public expense. I do not claim that the honor of originating and establishing the common school system belongs wholly to the legal profession, but I do claim that it fostered the idea and endorsed the policy at every step that led up to its adoption. Had the bench been less liberal in its construction of the powers granted in the funda- mental law, or had it been under the control of power inimical to the policy of educating the masses (as has 32 been the case in human history) the establishment of the system as we now have it might have been indefi- nitely delayed, if not strangled entirely. Therefore it is perhaps enough to say that the judges and lawyers of the country, as a class, have always been friendly to the common school system, and whatever was legit- imately in their power to do to plant it on a firm and enduring basis, they have done with cheerful alacrity. And so in all the relations of the citizen to the nation, the profession of which I have been speaking has performed its whole duty, and though levity and careless speech may tend to clothe it with some re- proach, I assert here and now, in the full confidence of the truth of what I utter, that in point of individ- ual honor, integrity, and probity, the members of the legal profession, as a class, will compare favorably with those of any other, and in point of great names, those of "the few, the mortal that were not born to die," all others must sufier in the comparison. 1882. 'S, 911. 9lla«<|wett, --. Siwcoft*, jPresident. Secretary and Treasurer.