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A jeremiad7 
 
 AX ADDEESS DELIVERED BEFORE THE 
 
 Kansas State Bar Association 
 
 WEDNESDAY, JANUARY 15, 1896 
 
 m.i 
 
 BY MR. A. L. WILLIAMS. 
 
 OF THE TOPEKA BAR. 
 
 TOPEKA, KANSAS: 
 
 CRANE & COMPANY, PRINTEPvS. 
 
 lS-9 6. 
 
<<'J' 
 
 5 Mv'09 
 
^'An error is not the better for being common, nor truth the worse 
 for having been neglected ; and if it toere put to the vote anyichere in 
 the world, I doubt, as things are managed, whether truth loould have 
 the majority, at least while the authority of men, and not the exam- 
 ination of things, must be the measure."— l,oci<.^. 
 
 '^^JUmmiad^^ 
 
 Gentlemen : All men hate those who proph- 
 esy evil. The visionaries who go around see- 
 ing only the end of the world in all things, 
 and finding in the ordinary occurrences of life 
 evidences in support of their gloomy prognosti- 
 cations — "gloomy pessimists," to make use of 
 the exuberant expression of one of our Topeka 
 editors — are generally looked upon as the pests 
 of society, and their presence shunned by all 
 sunny-tempered people. 
 
 Noah, pottering away at his ark and explain- 
 ing to his fellows the oncoming of the flood 
 which should destroy the world ; Jeremiah, 
 pouring forth his lamentations over the new 
 evils about to fall upon his beloved Jerusalem ; 
 Isaiah, pumping his lungs to their full capacity 
 in his effort to outdo his rival prophets ; Hosea, 
 in more temperate language doing his share of 
 wailing; Daniel, recalling to Nebuchadnezzar 
 
his dreams and reading the sad interpretation 
 thereof, were undoubtedly unpopular in their 
 day, and were both jeered and guyed by the 
 people around them. And yet it has sometimes 
 seemed to me that the fellows who jeered Noah, 
 and excited the irrepressible mirth of the loaf- 
 ers by asserting that it was not going to be 
 much of a shower anyhow, were not of neces- 
 sity wiser than old Noah, and certainly, though 
 they may have laughed last, did not laugh best. 
 And so, when the evils came upon Jerusalem 
 which Jeremiah and Isaiah and their friends 
 had foretold, it may possibly have occurred to 
 some of the survivors who fled from Jerusalem 
 to escape captivity and death, that it might 
 have been well, possibly, to have received the 
 words of the prophets, if not with respect, at 
 least without derision. 
 
 Without being either a ship -builder or pro- 
 phet, it is possible that what I am about to say 
 may sound like a jeremiad, for it has occurred 
 to me that it might be well to discuss some- 
 what the philosophy of our form of government 
 and to call attention to the dangers which I 
 sincerely believe beset it. Without resorting to 
 Fourth of July oratory, it may be said as pro- 
 foundly and philosophically true, that our form 
 of government is the best the world has ever 
 known, though the palm of best government 
 
may fairly be disputed by England, from whom 
 we borrowed most of our ideas of government ; 
 and, while contending that onrs is best, I assert 
 that its superiority consists in only one thing, 
 which in the course of this paper I shall en- 
 deavor to point out. There is a difference, too 
 often lost sight of, between the best form of 
 government and a perfect form of government. 
 There is, and in the nature of things there can 
 be, no such thing as either a perfect govern- 
 ment or a perfect form of government. Man, 
 being imperfect, cannot create the perfect. Be- 
 ing finite, he cannot make the infinite. And 
 all forms of government, from the very neces- 
 sity of the case, have inherent within them the 
 seeds of decay and death, ]3recisely as the in- 
 dividual man does, and the best that may be 
 hoped for in government is, that by care and 
 attention, by patriotism and by knowledge, its 
 existence may be prolonged. That all govern- 
 ments and all forms of government have their 
 periods of youth, growth, maturity, old age, de- 
 cay and death, is true, and, being ordained by 
 unerring wisdom, is just. 
 
 Before pointing out what I conceive to be the 
 strong and the weak points of our own govern- 
 ment, it may not be amiss to make a hasty sketch 
 of the evolution of government, as determined by 
 the experience of the -past ; and, while it may 
 
6 
 
 Beem like dealing in the commonplace to men- 
 tion tilings with which you are all familiar, it 
 may yet have a certain degree of value if it 
 provokes new inquiry upon the part of lawyers 
 as to the origin and springs of human govern- 
 ment. 
 
 The first government, in the very nature of 
 things, was the family, and it was an unlimited 
 monarchy, the father having absolute dominion 
 in every respect over the lives of every member 
 of his family, and would have had over their 
 property but for the fact that they possessed 
 none — it all being in him. This earliest form 
 of monarchy was created by a law of nature, 
 and not by circumstances. Love impelled the 
 father to protect his offspring, and strength en- 
 abled him to secure their obedience. It fre- 
 quently happened that during the lifetime of 
 the father, many of his children reared families 
 of their own, and the group thus created was 
 known as the patriarchal, the father of the fam- 
 ily being the patriarch and as absolute in his 
 dominion over his sons' children as over the 
 sons themselves. Even in this primitive govern- 
 ment there arose a natural division which formed 
 the basis of all succeeding governments, namely, 
 the one, the few, and the many ; and no system 
 of government has ever been devised or can be 
 devised which does not take notice of these three 
 
classes. In the case I have mentioned, the pa- 
 triarch, as head of the family, has constituted 
 the one. He naturally preferred some one of 
 his sons to the others, as is abundantly shown 
 by the Bible account of the patriarchs, and the 
 favoritism shown to one son would give to that 
 son and to his children a certain degree of su- 
 periority over the other members of the family 
 and thus constitute a crude aristocracy. 
 
 In the course of time the patriarchal family 
 would become so large that it became a tribe, 
 capable of defending itself against aggressions 
 and making war upon its neighboring tribes, 
 but continuing always under patriarchal rule, 
 though the title was changed to that of chief. 
 In the course of time, by intermarriages, sev- 
 eral tribes became united under one head, when, 
 of course, there could no longer be a patri- 
 archal chief in the original acceptation of that 
 term. And here we find the first rudiments of 
 established government. Some one man, by 
 reason of his greater wealth or strength, or 
 numerical following, would become a leader. 
 An intermediate class would be constituted in 
 the same way, and become the aristocracy of 
 the crude government; while the masses would 
 constitute the common people. After a sufii- 
 cient number of tribes had united to form what 
 might be called a state,^ the division heretofore 
 
pointed out as constituting the one, the few 
 and the many, would become more pronounced, 
 and enter directly into the constitution and 
 form of any government to be created for the 
 government of such state. There would thus 
 be, as there always have been, the elements of 
 the only three simple forms of good government 
 which the world has ever known, namely, mon- 
 archy, aristocracy, and democrac-y. Each of 
 tliese three forms of government has an evil 
 form attendant upon it. and into which, sooner 
 oi- later, every government the world has ever 
 known has merged. The evil shadow following 
 monarchy is despotism, following aristocracy is 
 oligarchy, and following democracy is anarchy ; 
 and if the history of tlie past, supplemented by 
 our knowledge of the weakness of human na- 
 ture, be any criterion, we may safely assume 
 that what has been will be, and that every 
 government now existing upon the earth, if it 
 continues long enough, will pass through all 
 tliese forms. We may illustrate it by applying 
 the experience of the past to the primitive state 
 before outlined. After the state, as suggested, 
 has passed beyond the patriarchal condition 
 and no one man is the father of the commu- 
 nity, the government will be a monarchy, obey- 
 ing in the first instance the man best fitted to 
 rule. Greatness is only a combination of op- 
 
portunity with good common -sense and a par- 
 ticular capac-ity for the work most essential for 
 the prosperity of the state. Greatness does not 
 consist in a general superiority, but simply a 
 superior knowledge of how to do a particular 
 thing required, at a particular time and un- 
 der particular circumstances. To illustrate : In 
 primitive times, when the chief occupation of 
 the tribes was fighting and looting each other, 
 a weak and timid man with a knowledge of all 
 the sciences, but with no means of making 
 them useful, would be inferior to the man who 
 possessed strength and courage, though densely 
 ignorant of everything but the art of fighting. 
 Such a man, by his skill in warfare, would 
 be naturally selected as a king. The men who 
 had most approved themselves in battle would 
 be specially rewarded by him, and thus consti- 
 tute the nucleus of an aristocracy. So long as 
 this king lived and reigned he would probably 
 govern wisely and' well, and would so establish 
 his power that upon his death it would descend 
 to his oldest son, ordinarily, as being the 
 strongest. This son might also rule wisely and 
 well, and l^y so doing so strengthen his power 
 that when he transmitted it to his son he 
 would be an absolute monarch. Possessing 
 the power transmitted hj his father without 
 his virtues, he would very soon become a tyrant. 
 
10 
 
 Ultimately his rule would become so oppressive 
 that there would be revolt, not against the 
 form of government, but against the ruler, and 
 this revolt would in every instance, as in every 
 instance in the past it has been, be led by the 
 aristocracy, for the simple reason that the vio- 
 lence of an absolute ruler in a monarchical 
 government in which there is an aristocratic 
 class, is always more felt by that class than l^y 
 the common people. To preserve themselves 
 from oppression and possible annihilation, they 
 would ally themselves with the common peo- 
 ple, and thus overturn the tyranny which grew 
 out of monarchy. The name of king, or mon- 
 arch, or any other single ruler being made 
 odious, the government would be adminis- 
 tered l^y the aristocracy, and as long as the 
 original members of the aristocracy lived they 
 would probal)ly, admonished by the fate of the 
 monarch they had overthrown, rule justly ; but 
 their successors, realizing their power without 
 emulating the virtues of their fathers, would 
 soon T^egin to wrangle among themselves for 
 power, and some combination of the strongest 
 families would assume supreme control and thus 
 become an oligarchy. With tlie king deposed 
 and the aristocracy practically destroyed, there 
 would be in the state only the two parties — 
 the oligarchy and the people. The oppression 
 
11 
 
 of this form of government being too great to 
 be borne, the common people, aided by the 
 various members of the original aristocracy who 
 had been crushed out by the oligarchy, would 
 unite to overturn the government, and by be- 
 ing united would be, as the people always have 
 been, successful. The new government thus 
 created, being a government of the people, 
 would be what is commonly called a democ- 
 racy ; though it is worth noting that there is 
 no instance in history of such a thing as a pure 
 democracy, nor is it possible to establish one, 
 for the simple reason that in a pure democ- 
 racy every individual has an absolute veto 
 upon all the others, and it is simply another 
 word for anarchy, into which I am sorry to 
 say, all democracies of ancient times sooner 
 or later degenerated. Being a democracy, or 
 rather, being in a state of anarchy, by reason 
 of the lack of a head and system of govern- 
 ment, the victors would form themselves into a 
 general assembly for the government of the 
 people, and this general assembly would of 
 course divide up into bitterly hostile factions, 
 led by dangerous demagogues, which would pro- 
 ceed rapidly from intrigues to blows. There 
 being no law, there would be no protection. 
 Having no government, there would be no se- 
 curityr and it would simply be a disintegration 
 
12 
 
 of society — the rule of the strong, in which of 
 <-ourye the weakest would go to the wall. Out 
 of this state of anarchy would arise some strong 
 man, originally a demagogue, who, securing the 
 largest following, would ultimately usurp the 
 powers of government, and, having destroyed 
 the last vestige of aristocracy, would rule su- 
 preme above the people. 
 
 These propositions are abundantly illustrated 
 and demonstrated by the history of nearly ev- 
 ery city of ancient Greece and of nearly every 
 city of Italy during the middle ages ; and in 
 modern days we have seen the anarchy of Paris 
 produce Napoleon, the tyrant of France. 
 
 It must not be supposed that during the tran- 
 sitions, such as I have briefly sketched, there 
 were not thoughtful men attempting to devise 
 some system of stahle government for their dis- 
 tracted country. On the contrary, in every city, 
 (and it should be said in passing that in an- 
 cient times the cities constituted governments of 
 themselves,) there were learned men attempting 
 to remedy the evils which constantly afflicted 
 their country. The division of the people by a 
 natural law into the one, the few and the many, 
 has always been recognized by every writer of 
 ancient or modern days, and an attempt has 
 been made from very early times to contrive a 
 system of checks and balances by which an 
 
13 
 
 equilibrium could be established between the 
 different powers. The nature of monarchy, aris- 
 tocracy and democracy was as well known in 
 the days of Herodotus, the father of history, 
 as at the present day, and various efforts were 
 made to devise some system of government 
 which should preserve an equilibrium between 
 the classes representing these various forms of 
 government, and the bloody overthrow of many 
 governments in the past has been due entirely 
 to an ignorance of the system of checks and 
 balances, ultimately adopted by England and 
 taken and improved by us. It was early seen 
 that a government which should have any free- 
 dom at all should be a representative one, in 
 which the aristocracy and the people should 
 have a share, but the evil was that the two 
 bodies met in one assembly. It was believed, 
 for instance, in Florence, when the people had 
 practically secured control of the government, 
 that no harm could come by allowing the aris- 
 tocracy a minor representation, in an assembly 
 composed of representatives of both classes. It 
 proved then, as it had proved before and has 
 proved since, and always will prove, a failure, 
 and a dangerous one. Though the aristocracy 
 were in the minority, they were enabled by 
 their superior wealth, their following and their 
 intelligence, to corrupt the commons with whom 
 
14 
 
 they were associated, and to gradually re --as 
 sume and wield the real power of the govern- 
 ment, though nominally it was still in control 
 of the commons. The experiment of representa- 
 tion of classes in a common assembly has been 
 tried in aristocratic republics as well as in dem- 
 ocratic ones, and always with the same result. 
 It was reserved for England to discover the 
 true balance of powers, which was to separate 
 the executive from the legislative — to divide 
 the legislative into two bodies, each with a veto 
 upon the other, and to make the judiciary sep- 
 arate from, but not independent of, the others. 
 It was the glory of the United States that in 
 addition to this system it not only made the 
 judiciary independent of the legislative and the 
 executive, but made it one of the checks upon 
 both. 
 
 The convention which assembled in Philadel- 
 phia on the 14th of May, 1787, for the purpose 
 of framing a constitution of government for the 
 United States, contained more able men than 
 were ever assembled before or since for consul- 
 tation. There were men who were great soldiers 
 in time of war and profound statesmen in time 
 of peace. There were great lawyers, philoso- 
 phers and statesmen present. There were very 
 few members, indeed, who had not given more 
 years to the study of the philosophy of govern- 
 
15 
 
 ment than any man of the present day thinks 
 it necessary to bestow upon any subject. They 
 had read the history of all the republics, mon- 
 archies and democracies of ancient times, and 
 had thoroughly advised themselves as to the 
 strength and weakness of the various forms of 
 government with which experiments had been 
 made through tlie centuries. They were nearly 
 all personally acquainted with John Adams, the 
 framer of the constitution of Massachusetts, 
 whose knowledge of those matters was phenom- 
 enal, and had availed themselves of that knowl- 
 edge in preparing themselves for the task before 
 them. While they had an excellent model be- 
 fore tliem in the unwritten constitution of Eng- 
 land, there were many essential points which 
 they had to determine for themselves, and for 
 which there were no precedents in history. 
 
 They had, moreover, to devise at one time a 
 complete and harmonious system of government 
 — a task which no nation at that time had ever 
 undertaken. The constitution of England, in 
 other words its common law, was the growth 
 and accumulation of centuries, the product of 
 the customs, traditions and habits of the Eng- 
 lish people from the earliest time, and there 
 was, therefore, no logical method in its arrange- 
 ment. Our convention, therefore, while it availed 
 itself of the wisdom of the English constitution. 
 
16 
 
 was not indebted to it for the form in which 
 they made our own. The makers of our consti- 
 tution knew from abundance of experience, and 
 particularly from the fact that England was the 
 only stable government on earth which had en- 
 dured for centuries, that the best form of gov- 
 ernment was one composed of the three simple 
 forms of government known as monarchy, aris- 
 tocracy, and democracy. 
 
 We all understand, and upon 4th of July pro- 
 claim the fact, that the framers of our constitu- 
 tion were not willing to establish a monarchy 
 on this continent, but we do not understand so 
 thoroughly as we ought to, that they held a 
 pure democracy equally abhorrent. They liad 
 learned the great truth, which we have either 
 forgotten or never knew, that the tyranny of 
 the many is more to be dreaded than the tyr- 
 anny of the one or the few. They knew, if we 
 do not, that a mob is more dangerous and more 
 bloodtliirsty than a monarch. Neither were they 
 willing to establish anything approaching an 
 aristocratic form of government : their desire was 
 to frame a constitution of government which 
 should combine all that was best and reject all 
 that was worst of the three forms of govern- 
 ment before mentioned, and they performed tliat 
 task in a way to entitle them to the eternal 
 gratitude of their descendants. They knew that 
 
17 
 
 no government could exist without a distinct 
 head, as tliey had seen the Siamese-twin system 
 of kingsliip tried in the consular governments 
 of Rome, and knew the bloody and disastrous 
 results following therefrom. They had observed 
 the same evils resulting from the numerous ex- 
 periments made in the smaller Italian cities in 
 the middle centuries, and were thoroughly con- 
 vinced that one responsible head of the govern- 
 ment should be chosen. They knew that the 
 legislative power should be vested in two dis- 
 tinct houses, each having an absolute veto on 
 the other, and they therefore provided for a 
 house of representatives and for senators. They 
 knew also of the natural division of the people 
 into the one, the few, and the many, and they 
 therefore made of the senate an aristocratic body 
 modeled after the House of Lords, and with as 
 full an intention that it should be an aristo- 
 cratic body as the English had when they cre- 
 ated theirs. They had before them for their 
 guidance the Massachusetts constitution of 1780, 
 the work of John Adams, and availed themselves 
 largely of that wonderful document, which con- 
 tained within itself not only the correct rules 
 of government, but profound philosophical dis- 
 sertations upon the nature of government ; and 
 I cannot refrain from quoting a few expressions 
 therefrom : 
 
18 
 
 "The end of the institution, maintenance and 
 administration of government is to secure the 
 existence of a body-politic to protect it, and to 
 furnish the individuals who compose it with 
 the power of enjoying in safety and .tranquility 
 their natural rights and the blessings of life ; 
 and whenever these great objects are not ob- 
 tained the people have a right to alter the gov- 
 ernments and to take measures necessary for 
 their safety, prosperity and happiness. The 
 body-politic is formed by the voluntary associa- 
 tion of individuals by which the whole people 
 covenants with each citizen and each citizen 
 with the whole people, that all shall be gov- 
 erned by certain laws for the common good. It 
 is the duty of the people, therefore, in framing 
 a constitution of government, to provide for an 
 equitable mode of making laws, as well as for 
 an impartial interpretation and a faithful exe- 
 cution of them, that every man may at all times 
 find his security in them. ... 
 
 "No man, nor corporation nor association of 
 men, have any other title to obtain advantages 
 or particular and exclusive privileges distinct 
 from those of the community, than what rises 
 from the consideration of services rendered to 
 the public ; and this title being in nature neither 
 hereditary nor transmissible to the children or 
 descendants or relations by blood, the idea of a 
 man born a magistrate, law -giver or judge is 
 absurd and unnatural." 
 
 That constitution also provided that the sen- 
 ators should have a freehold of at least 300 
 pounds, while a member of the lower house 
 should be required to have a freehold of only 
 100 pounds. That he believed that the senate 
 
19 
 
 should be an aristocratic body is evident from 
 the following language from his work on con- 
 stitutions, and the reasons therein given have 
 stood the test of time. It is safe to say, too, 
 that the members of the constitutional eonven- 
 tion believed as he did when the Senate of the 
 United States was created : 
 
 " The rich, the well born and the able, acquire 
 an influence among the people, that will soon be 
 too much for simple honesty and plain sense, in 
 the house of representatives. The most illustri- 
 ous of them must therefore be separate from the 
 mass, and placed by themselves in a senate ; that 
 is, to all honest and useful intents, an ostracism. 
 A member of the senate, of immense wealth, the 
 most respected birth, and transcendent abilities, 
 has no influence in a nation in comparison with 
 what he would have in a single representative as- 
 sembly. When a senate exists, the most powerful 
 man in the state may be safely admitted into the 
 house of representatives, because the people have 
 it in their power to remove him into the senate 
 as soon as his influence becomes the great object 
 of ambition ; and the richest and the most saga- 
 cious wish to merit an advancement to it by ser- 
 vices to the public in the house. When he has 
 obtained the object of his wishes, you may still 
 hope for the benefits of his exertions without 
 dreading his passions; for the executive power 
 being in other hands, he has lost much of his in- 
 fluence with the people, and can govern very few 
 votes more than his own among the senators." 
 
 Making the senators elective by the state leg- 
 islature and fixing their term for six years, and 
 so arranging the time of elections that the body 
 
20 
 
 should practically be perpetual, was a very wise 
 thing for another reason. The masses of any 
 government are easily led away by the excite- 
 ment of the moment, and, under the harangue 
 of dangerous demagogues, are liable to commit 
 great follies. Their immediate representatives 
 in the lower house of Congress are naturally 
 compelled to carry out any wild and visionary 
 scheme proposed by them ; but the senators, 
 having six-years terms to serve, are in a position 
 to more coolly and philosophically survey the 
 situation and to determine whether or not the 
 proposed legislation is wise, and if they believe 
 it detrimental to the best interests of the coun- 
 try, will feel perfectly safe in vetoing it, firm in 
 the belief that before their term expires the 
 passions will have been allayed, and those who 
 urged the wild measure will in their hearts 
 thank them for having killed it. Indeed, a 
 check upon hasty legislation, the result of pas- 
 sion, prejudice or disaster occasioned by panics, 
 is essential to the stability of our government. 
 
 De Tocqueville, in his "Democracy in Amer- 
 ica," notices and praises this feature of our gov- 
 ernment. "Both emanate," he says, speaking of 
 the house and the senate, " equally from the peo- 
 ple, but do not represent the people exactly in 
 the same manner ; the office of the one is to fol- 
 low the daily impressions, that of the other to 
 
21 
 
 obey the habitual instincts and permanent incli- 
 nations of the community." 
 
 "To a people as little blinded by prejudice," 
 says Madison, addressing the American people in 
 defense of the senate, "or corrupted by flattery, 
 as those whom I address, I shall not scruple to 
 add, that such an institution may be sometimes 
 necessary, as a defense to the people against their 
 own temporary errors and delusions. As the cool 
 and deliberate sense of the community ought, in 
 all governments, and actually will, in all free gov- 
 ernments, ultimately prevail over the views of its 
 rulers : so there are particular moments in public 
 affairs, when the people, stimulated by some irreg- 
 ular passion, or some illicit advantage, or misled 
 by the artful misrepresentations of interested 
 men, may call for measures which they themselves 
 will afterwards be the most ready to lament and 
 condemn. In these critical moments, how salu- 
 tary will be the interference of some temperate 
 and respectable body of citizens, in order to check 
 the misguided career, and to suspend the blow 
 meditated by the people against themselves, until 
 reason, justice, and truth, can regain their author- 
 ity over the public mind. What bitter anguish 
 would not the people of Athens have often es- 
 caped, if their government contained so provident 
 a safeguard against the tyranny of their own pas- 
 sions ! Popular liberty might then have escaped 
 the indelible reproach of decreeing to the same 
 citizens the hemlock on one day, and statues on 
 the next." 
 
 Pollock, in his Oxford Lectures, says : 
 
 "At no time has it been fitter for us to be 
 put in mind that the effective power of law is 
 not only the work but the test of a civilized 
 
22 
 
 commonwealth, and that law, as a great English 
 writer has said, is in its nature contrary to such 
 forces and operations as are ' violent and casual. ' " 
 
 The judiciary was modeled in the main after 
 that of England, and I am of the opinion that 
 the framers of our constitution did not them- 
 selves see how vast the difference would ulti- 
 mately become between the two systems, by 
 reason of the simple fact that ours was a writ- 
 ten constitution, placing a check upon all the 
 departments of government, while in England 
 the only checks were upon the monarch ; that 
 is, the only written check which England had 
 was Magna Charta, which was extorted by the 
 barons, and simply placed a limit upon the 
 power of the king ; there being no limitation 
 whatever upon tlie power of parliament, which 
 was then and is now supreme. Consequently, 
 in England all that the judges could do was to 
 interpret the acts of parliament, but could hot 
 of course declare them in violation of a consti- 
 tution which did not exist. The judges, there- 
 fore, while in one sense independent, were 
 merely adjuncts to the king and the parlia- 
 ment, to decide causes between the subjects, 
 take cognizance of criminal prosecutions, and 
 act as advisers of the king and the parliament ; 
 and in a general way this was believed by the 
 
23 
 
 framers of our constitution to be the extent of 
 their dnty here. 
 
 It is a cnrions fact that the power of the ju- 
 dicial department in this respect was less con- 
 sidered by the framers of onr constitution than 
 any other single question presented. That it 
 was a distinct branch of the government, inde- 
 pendent of both the executive and the legis- 
 lative and a strong check upon both, was but 
 dimly seem, and that it was the greatest of all 
 the checks was not dreamed of. It is curious 
 to notice that John Adams, looking back across 
 the ages, could see plainly the mistakes of all 
 previous governments in not establishing a sys- 
 tem of checks and balances, and was yet ap- 
 parently unable to see that the independent 
 judiciary Avhich he helped to establish would 
 be one of the checks of our system. There is 
 nothing anywhere in his writings to be found 
 showing that he considered the judiciary as 
 anything more than an auxiliary and assistant 
 to the other powers of government ; and yet the 
 mere fact that we alone of all nations of the 
 world had by a written constitution placed re- 
 strictions upon the power of the legislative as 
 well as the executive, made it absolutely neces- 
 sary that the courts of the United States should 
 have the power to declare an act of the national 
 legislature null and void, if in their judgment 
 
24 
 
 such legislation was not warranted l^y the con- 
 stitution. It seems strange now that the exist- 
 ence of this j)ower could have been disputed, 
 and stranger still that it was not clearly seen 
 when our constitution was adopted. It must be 
 apparent at a glance that our constitution would 
 have no binding force as a check upon legisla- 
 tion unless there resided somewhere power to 
 declare whether or not a given law was in vio- 
 lation of that constitution, and this power could 
 only be exercised by the judiciary. To say that 
 the legislature should itself sit in judgment up- 
 on its own power to legislate, would be to de- 
 clare that the constitution had no force. And 
 yet, the proposition that the courts had the 
 power to declare an act of the legislature void 
 because of its repugnance to the constitution, 
 was received with great disfavor by many emi- 
 nent men when the claim was first asserted. The 
 first case in which it ever arose was that of Com- 
 monwealth V. Caton, in Virginia, in 1782, in the 
 course of which Judge Withe emphatically as- 
 serted that power, saying : 
 
 "Nay, more, if the whole legislature — an event 
 to be deprecated ^ — should attempt to overleap the 
 boundaries prescribed to them by the people, I, 
 in administering the justice of the country, will 
 meet the united powers at my seat in this tri- 
 bunal, and, pointing to the constitution, will say 
 to them, 'Here is the limit to your authority; 
 hither shall you go, but no farther.'" 
 
25 
 
 The president of the court, Mr. Pendleton, 
 more conservatively expressed himself in the fol- 
 lowing language, which conclusively shows that 
 the claim was new at least to the country : 
 
 "But how far this court, in whom the judi- 
 cial powers may in some sort be said to be con- 
 centrated, shall have the power to declare the 
 nullity of a law passed in this form of the 
 legislative power, without exercising the power 
 of that branch, contrary to the plain terms of 
 the constitution, is indeed a deep, important, 
 and I may add tremendous question, the de- 
 cision of which might involve consequences to 
 which gentlemen may not have extended their 
 ideas. " 
 
 The other judges were of the opinion that 
 the court had the power claimed for it. A few 
 other cases involving the same question were 
 argued in the State courts immediately before 
 and shortly after the adoption of the Federal 
 Constitution ; and yet when the question of the 
 power of the Supreme Court to declare an act 
 of Congress void by reason of its repugnancy to 
 the constitution first came before the court, in 
 Marhury v. Madison, 1st Cranch, 137, it was 
 treated with as much gravity as if it had never 
 been raised before nor thought of. In fact, it 
 had very rarely occurred to American lawyers, 
 trained under the English system of jurispru- 
 dence, that the court could under any circum- 
 stances assume the right to set aside an act of 
 
26 
 
 the legislature. It was in this case authorita- 
 tively settled that the Supreme Court had the 
 power to declare an act of Congress void if in 
 violation of the constitution, and the assertion 
 was made and never since contradicted, that the 
 constitution was an absolute limit upon legisla- 
 tive power, and that Congress did not possess 
 the omnipotence of Parliament. The correctness 
 of that opinion was so fully vindicated by the 
 inflexible logic of Marshall, that it has never 
 since been questioned, and I cannot refrain from 
 quoting what he says : 
 
 "The question whether an act repugnant to 
 the constitution can become the law of the land, 
 is a question deeply interesting to the United 
 States, but happily not of an intricacy propor- 
 tioned to its interest. It seems only necessary to 
 recognize certain principles supposed to have 
 been long and well established to decide it. . . . 
 The powers of the legislature are defined and lim- 
 ited ; and that these limits may not be mistaken 
 or forgotten, the constitution is written. To what 
 purjDose are powers limited and to what purpose 
 is that limitation committed to writing, if these 
 limits may, at any time, be passed by those in- 
 tended to be restrained i The distinction between 
 a government with limited and unlimited powers 
 is abolished if those limits do not confine the per- 
 son on whom they are imposed, and if acts pro- 
 hibited and acts allowed are of equal obligation. 
 It is a proposition too plain to be contested, that 
 the constitution controls any legislative act re- 
 pugnant to it, or that the legislature may alter 
 the constitution by an ordinary act. Between 
 
27 
 
 those two 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 alter- 
 native be true, then a legislative act contrary to 
 the constitution is not law ; if the latter XDart be 
 true, then written constitutions are absurd at- 
 tempts, on the part of the people, to limit a power 
 in its own nature illimitable. ... If an act 
 of the legislature repugnant to the constitution is 
 void, does it, notAvithstanding the invalidity, bind 
 the courts, and oblige them to give it effect ? Or, 
 in other words, though it be not law, does it con- 
 stitute a rule as operative as if it was a law ? This 
 would be to overthrow in fact what was estab- 
 lished in theory, and would seem at first view an 
 absurdity too gross to be insisted on. It shall, 
 however, receive a more attentive consideration. 
 It is emphatically the province and duty of the 
 judicial department to say what the law is. Those 
 who apply the rule to particular cases must of ne- 
 cessity expound and interpret that rule. If two 
 laws conflict with each other, the courts must de- 
 cide on the operation of each. So if a law be in 
 opposition to the constitution ; if both the law 
 and the constitution apply to a particular case, so 
 that the court must either decide the case con- 
 formably to the law, disregarding the constitution, 
 or conformably to the constitution, disregarding 
 the law, — the court must determine which of these 
 conflicting rules governs the case. This is of the 
 very essence of judicial duty. If, then, the courts 
 are to regard the constitution, and the constitu- 
 tion is superior to any ordinary act of the legis- 
 lature, the constitution, and not such ordinary act, 
 must govern the case to which they both apply." 
 
28 
 
 r 
 
 We have, then, ass the three powers of the 
 government, the executive, legislative, and judi- 
 cial— ^ each a complete check upon the other. 
 So long as our constitution is maintained in its 
 integrity and no change is made in the power 
 of the three departments, so long will our lib- 
 erties be secured. In theory, our system is as 
 perfect as human ingenuity has ever devised, 
 and it may well be doubted whether the future 
 will ever be able to improve upon it^ I 
 
 Where, then, is the danger t Not from the 
 executive, for his power is so circumscribed and 
 limited that it is impossible for him to do vio- 
 lence to the constitution or endanger the lib- 
 erties of the citizen. If he violates the consti- 
 tution in a public matter, he is dealt with by a 
 court of impeachment. If he, by an act of ar- 
 bitrary power, attempts to injure the humblest 
 citizen in the land, the courts afford swift and 
 prompt protection. If he attempt by violence 
 to subvert the constitution, the people would 
 crush him. 
 
 The legislature is equally impotent for harm. 
 It may pass bad laws, but these only work in- 
 convenience and may be rectified by the people 
 electing a new Congress to undo the evils of 
 the law. If it attempt legislation repugnant to 
 the constitution, the courts are a complete check 
 upon it. 
 
29 
 
 The judiciary, which has been so much de- 
 nounced, is still more impotent for evil. It has 
 neither the sword nor the purse ; it has neither 
 legislative nor executive functions. It can do 
 nothing but declare what the law is, and then 
 only when properly invoked by some one hav- 
 ing the right to call for its interpretation. It 
 can do nothing towards the enforcement of its 
 own mandates ; it cannot serve its own process ; 
 cannot enforce its own judgments ; can neither 
 imprison a convicted criminal, nor levy an exe- 
 cution upon the property of a judgment debtor. 
 "It has," as Hamilton says, "neither force nor 
 will, but merely judgment." Outside of and 
 beyond the mere declaration of what the law 
 is, it must look to the executive power of the 
 nation to enforce its process or decrees, and 
 this not only can be, but has been, withheld 
 both by the executive and the legislative pow 
 ers. The State of Georgia convicted a mission- 
 ary for preaching to the Indians. The Supreme 
 Court of the United States held the law under 
 which the conviction was had, to be unconsti- 
 tutional, and ordered the release of the prisoner. 
 The authorities of Georgia refused obedience to 
 the order, and the Governor remarked that he 
 would sooner hang the prisoner than release him. 
 An appeal was made to President Jackson for 
 power to enforce the mandate of the court, which 
 
30 
 
 he peremptorily refused, remarking, ' ' John Mar- 
 shall made this decision — now let him execute 
 it." And this infamous sentiment, I have no 
 doubt, was loudly applauded by men who did 
 not understand how clearly it was the duty of 
 the executive to enforce the mandates of the 
 court. 
 
 The judiciary, then, having no power to leg- 
 islate, having no control of the sword or the 
 purse, having no power to execute its process 
 or enforce its judgments, cannot be a serious 
 danger. Where, then, is the danger, if neither 
 of the three branches of the government nor 
 the three combined menace our liberties^ The 
 danger in this case, as in all other democracies, 
 is from the people themselves. In their strug- 
 gle for more power and larger liberty, which 
 simply means license, they aim a blow at imag- 
 inary evils and mortally wound themselves. 
 The constitution is a chain of flawless steel to 
 bind all the departments of government ; it is 
 a rope of sand to bind the people. The one 
 and the few are the minority, and cannot change 
 or impair the fundamental law of the land. 
 The many are the makers of the law, and may 
 at any time, under the influence of passion or 
 prejudice, led by ignorant and vicious dema- 
 gogues, in one day, subvert the only free gov- 
 ernment the world has ever known. 
 
m 
 
 31 
 
 The tendency in this direction is very marked 
 in the United States at present. In various 
 shapes and under various guises the property of 
 the few is being confiscated under the forms of 
 law. The rights of corporations are ignored and 
 the very name is made a synonym for infamy. 
 We all know this fact, and we may soothe our 
 conscience with the thought that the assault 
 upon property is confined to corporations and 
 will go no farther. It is a delusion, and a dan- 
 gerous one, to believe so. The rights of the 
 corporations and their property are assailed, not 
 because they are inimical to the general inter- 
 ests, not because corporations have done any- 
 thing to be outlawed, but simply because the 
 rights in that ijroperty are held by the few 
 and not distributed among the many. What 
 is true to-day of one form of property will be 
 true to-morrow of any other form of property 
 held by less than a majority of the citizens. 
 
 Allison makes an exposition of this state of 
 affairs too clear and too strong to be misunder- 
 stood, and too true to be denied. He says : 
 
 "As a natural consequence of this state of 
 things there is, in opposition to the will or 
 passions of the majority, no lasting security 
 either for life or property in America in cases 
 where the public mind is vehemently excited. 
 Hitherto, indeed, no direct attack on property 
 has been made, at least where it is vested in 
 
32 
 
 land; for this simple reason, that the majority 
 are themselves land-owners, and therefore any- 
 such system would be an attack upon their own 
 interests. But the system of spoliating that 
 species of property in which the majority do 
 not participate, and for which they feel no in- 
 terest, has already been carried to a most fright- 
 ful extent. 
 
 "This is nothing peculiar to America; in 
 every country in the world the majority, under 
 similar circumstances and similar political insti- 
 tutions, would do the same.'' 
 
 Another evidence of the disposition of the 
 people to destroy the government of their own 
 creation is found in the increasing demand that 
 the Senate of the United States be either 
 abolished or the Senators be elected by the 
 people, and for a shorter term than six years ; 
 and if the experience of the past is good for 
 anytliing, it certainly proves that if the Senate 
 were merged in the House and we were gov- 
 erned in our legislature by one assembly, this 
 Grovernment could not possibly survive long. 
 As it is, the Senate is powerless. Its position 
 is, as Adams says in a passage elsewhere quoted, 
 an ostracism and an isolation ; it can pass no 
 bad law without corrupting the lower house, 
 and if in its isolated position it could thus cor- 
 rupt the lower house of Congress, how much 
 more easily could its members do it if they 
 were mingled with the lower house as brother 
 
88 
 
 members ! It can, then, at the most, only ob- 
 strnct the passage of a good law, and it must 
 be remembered that the liberties of the people 
 are more endangered by the enactment of bad 
 laws than by the failure to pass good ones. 
 Moreover, no legislative body was ever yet con- 
 stituted which for any length of time would 
 refuse to pass a good law. Such a refusal 
 would only work an inconvenience, and would 
 be promptly rectified. The danger to all gov- 
 ernments is in the passage of bad laws. 
 
 No reason has ever been assigned, and none 
 of any weight can be assigned, why the Senate 
 should not be elected as it is, and the Senators 
 should not hold for six years. In fact, making 
 the tenure of office six years is, as I have be- 
 fore pointed out, one of the most important 
 provisions to protect against hasty and ill-con- 
 sidered legislation, that there is in our consti- 
 tution. 
 
 Another great danger is in the assault made 
 upon our judiciary. This branch of the gov- 
 ernment is being weakened by assaults from 
 without, and by weakness from within, itself. 
 It has grown to be a common charge on the 
 part of a number of well-meaning people, and 
 indorsed by some few lawyers, that the power 
 of the courts is too great. This, if it means 
 anything, can only mean tiiat the courts should 
 
34 
 
 not have power to declare a law niiconstitn- 
 tioiial. And yet, as I hope I liave made mani- 
 fest, withont this power being vested in the 
 court there would be no constitution. If some 
 of those who complain of too great power in 
 the judiciary were to be ordered imprisoned by 
 an act of the legislature, they would promptly 
 apply to the courts to release them, and it 
 would seem to them perfectly appropriate that 
 the court should release them, on the ground 
 that the act of the legislature ordering their 
 imprisonment was in violation of the constitu- 
 tion. And yet these same men, when the 
 courts, applying the same rule, declare that 
 some law which it is believed was intended to 
 relieve the unfortunate creditors of our State, is 
 unconstitutional and therefore void, inveigh bit- 
 terly against the same courts for oppressing the 
 poor, and declare that they have too nuicli 
 power. The most serious blow at the judiciary, 
 however, in my opinion, is too frequently given 
 by the judges themselves, especially in an elec- 
 tive judiciary. With no disrespect toward an 
 elective judiciary, it may safely be said that no 
 bench filled by men elected by the people in 
 any State in the Union, ever approached in 
 dignity, power, clt^arness and courage, the Su- 
 preme Court of the United States; and the rea- 
 son is not far to seek. It has its foundation 
 
35 
 
 in human nature, and is shared by all of us. 
 The men whose tenure is during good behavior 
 understand that good behavior will continue 
 them in their place. The men who hold by 
 the votes of the constituent understand that 
 the votes of the constituent which put them in 
 can put them out, and they feel bound to re- 
 gard the wishes of those who elect them, to 
 some extent at least. 
 
 ' ' That inflexible and uniform adherence to the 
 rights of the constitution," Hamilton says, "and 
 of individuals, which we perceive to be indis- 
 pensable in the courts of justice, can certainly 
 not be expected from judges who hold their of- 
 fices by a temporary commission. Periodical ap- 
 pointments, however regulated or by whomsoever 
 made, would in some way or other be fatal to 
 their necessary independence. If the power of 
 making them was committed either to the exec- 
 utive or legislative, there would be danger of 
 an improper complaisance to the branch which 
 possessed it ; if to both, there would be an un- 
 willingness to hazard the displeasure of either ; 
 if to the people, or to persons chosen by them 
 for the special purpose, there would be too great 
 a disposition to consult popularity to justify a 
 reliance that nothing would be consulted but the 
 constitution and the laws." 
 
 John Marshall, sitting as a circuit judge, is- 
 sued a subpoena duces tecmn for the President 
 of the United States, with the full knowledge 
 that by so doing he incurred the enmity of the 
 administration and both branches of Congress. 
 
86 
 
 He knew that if he was doing his duty he could 
 not be touched nor removed by an angry ad- 
 ministration. But, great as he was, it is not 
 unfair to his memory to suggest that if the men 
 whom he angered by his action had had the 
 power to remove him from his position by their 
 vote, without assigning any reason therefor, he 
 might have hesitated before taking the step. 
 
 If, then, any change is to be made in our 
 judiciary, our judges should be appointed for 
 life, and not elected for a short term, with the 
 ever-recurring prospect before them of the ne- 
 cessity of appealing to an unstable people for 
 re-election. It is in effect asking a constituent 
 to indorse their action, and nothing could be 
 more repugnant to the letter and the spirit of 
 our constitution than an "indorsement" by the 
 people of judicial action. The only question 
 which any man or any body of men have a 
 right to ask of a judge is. Has he decided cor- 
 rectly 'i Has he done his duty 'i And yet these 
 are the very last questions which the electors 
 ask when they sit in judgment on their judges, 
 and if they had their way would soon make 
 our government one of men and not of laws. 
 
 In many of the cities of Italy no citizen was 
 allowed to be a judge, but one was imported 
 from the outside, and this for the very wise pur- 
 pose of securing absolute impartiality. A citi- 
 
37 
 
 zen would know and be known to a great many 
 of Ills fellows, and, however honestly inclined, 
 would be in spite of himself prejudiced by his 
 surroundings and his knowledge of the parties 
 litigant ; whereas, a judge brought from the out- 
 side and denied the right of citizenship would 
 not have any bias, and would, moreover, under- 
 stand that his continuance in office depended 
 upon his fairness and uprightness. The substi- 
 tute for that in this country should be an ap- 
 pointive judiciary. 
 
 If these assaults upon the Senate for being 
 just what its creators intended it should be, and 
 upon the judiciary for doing precisely what its 
 creators intended it should do, continue in this 
 country, it is not difficult to foretell the end. 
 The danger menacing any people whose govern- 
 ment is usurped by the mass is pointed out in 
 language so much better than any I could use, 
 by three of the most profound thinkers the 
 world has ever produced, that I choose their 
 language instead of my own, to express my 
 views on the subject : 
 
 "An insatiable thirst of liberty destroys de- 
 mocracy. When a city is under a democracy 
 and is thirsting after liberty, and happens to 
 have bad cup-bearers and grows drunk with an 
 unmixed draught of it, beyond what is neces- 
 sary, it punishes even the governors, if they 
 will not be entirely tame, and afford a deal of 
 
38 
 
 liberty, accusing them as corrupted, and lean- 
 ing towards oligarchy. Such as are obedient to 
 magistrates are abused, as willing slaves and 
 good for nothing. . . . And at length they 
 I the people] regard not the Icnvs, ivritten or wi- 
 irritten, that no one whatever, by any manner' 
 of means, may become their master. ... 
 
 "Tlius licentiousness destroys the democracy. 
 Out of no other republic is tyranny consti- 
 tuted but out of democracy: and out of the 
 most excessive liberty, the greatest and most 
 savage slavery." — Plato. 
 
 "In all free states,"' Swift says, "the evil to 
 be avoided is tyranny ; that is to say, the summa 
 i?npe7'ii, or unlimited power, solely in the hands 
 of the one, the few, or the many. Though we 
 cannot prolong the period of a commonwealth 
 beyond the decree of heaven, or the date of 
 its nature, any more than human life beyond 
 the strength of the seminal virtue ; yet we may 
 manage a sickly constitution, and preserve a 
 strong one ; we may watch and prevent acci- 
 dents ; we may turn off a great blow from with- 
 out, and purge away an ill humour that is 
 lurking within ; and render a state long lived, 
 though not immortal. 
 
 " In Rome, from the time of Romulus to Julius 
 Caesar, the commons were growing by degrees 
 into power, gaining ground upon the patricians, 
 inch by inch, until at last they quite over- 
 turned the balance, leaving all doors open to 
 popular and ambitious men, who. destroyed the 
 wisest republic, and enslaved the noisiest people, 
 that ever entered on the stage of the w^orld. 
 
 "It is an error to think it an uncontroulable 
 maxim, that power is always safer lodged in 
 many hands than in one ; for if these many 
 hands be made up from one of those three di- 
 
39 
 
 visions, it is plain, from the example produced, 
 and easy to be paralleled in other ages and 
 countries, that they are as capable of enslaving 
 the nation, and of acting all manner of tyranny 
 and oppression, as it is possible for a single 
 person to be, though we . should suppose their 
 number not only to be four or five hundred, 
 but three thousand. In order to preserve a 
 balance in a mixed state, the limits of power 
 deposited with each party, ought to be ascer- 
 tained and generally known : the defect of this 
 is the cause of those struggles in a state, about 
 prerogative and liberty ; about encroachments 
 of the few upon the rights of the many, and 
 of the many upon the privileges of the few ; 
 which ever did, and ever will, conclude in a 
 tyranny ; first either of the few or the many, 
 but at last, infallibly, of a single person : for 
 whichever of the three divisions in a state is 
 upon the scramble for more power than its 
 own, as one of the three generally is, (unless 
 due care be taken by the other two) ; upon 
 every new question that arises, they will be 
 sare to decide in favour of themselves ; they will 
 make large demands, and scanty concessions, 
 ever coming off considerable gainers ;-r- thus at 
 length the balance is broke, and tyranny let in, 
 from which door of the three it matters not. 
 
 "The desires of men, are not only exorbi- 
 tant, but endless : they grasp at all ; and can 
 form no scheme of perfect happiness with less. 
 Ever since men have been formed into govern- 
 ments, the endeavors after universal monarchy 
 have been bandied among them : the Athenians, 
 the Spartans, the Thebians, and the Achaians, 
 several times aimed at the universal dominion 
 of Greece : the commonwealths of Carthage and 
 Eome affected the universal empire of the 
 
40 
 
 world : in like manner has absolute power been 
 pursued, by the several powers in each particu- 
 lar state, wherein single persons have met with 
 most success, though the endeavors of the few 
 and the many have been frequent enough ; yet 
 being neither so uniform in their designs, nor 
 so direct in their views, they neither could 
 manage nor maintain the power they had got, 
 but were deceived by the popular ambition of 
 some single person : so that it will be always a 
 wrong step in policy, for the nobles or com- 
 mons to carry their endeavors after power so 
 far as to overthrow the balance. With all re- 
 spect for popular assemblies be it spoken, it is 
 hard to recollect one folly, infirmity or vice, to 
 which a single man is subject, and from which 
 a body of commons, either collective or repre- 
 sented, can wholly be exempt ; from whence it 
 comes to pass, that in their results have some- 
 times been found the same spirit of cruelty 
 and revenge, of malice and pride ; the same 
 blindness and olistinacy, and unsteadiness ; the 
 same ungovernable rage and anger ; the same 
 injustice, sophistry, and fraud, that ever lodged 
 in the breast of any individual. When a child 
 grows easy by being humoured, and a lover 
 satisfied by small complianc-es without furtlier 
 pursuits, then expect popular assemblies to be 
 content with small concessions. If tliere could 
 one single example be brought from the whole 
 compass of history, of any one popular as- 
 sembly, who, after beginning to contend for 
 power, ever sat down cpiietly with a certain 
 share ; or of one that ever knew, or pro- 
 posed, or declared what share of power was 
 their due, then might tliere be some hopes, 
 that it was a matter to be adjusted by 
 reasonings, (conferences or debates. An usurp- 
 
41 
 
 ing populace is its own dupe, a mere 
 under-worker, and a purchaser in trust for 
 some single tyrant, whose state and power they 
 advance to their own ruin, with as blind an 
 instinct, as those worms that die with weaving 
 magnificent habits for beings of a superior or- 
 der. The people are more dexterous at pulling 
 down and setting up, than at preserving what 
 is fixed ; and they are not fonder of seizing 
 more than their own, than they are of deliver- 
 ing it up again to the worst bidder, with their 
 own into the bargain. Their earthly devotion 
 is seldom paid to above one at a time, of their 
 own creation, whose oar they pull with less 
 murmuring and more skill, than when they 
 share the leading, or even hold the helm." 
 
 Hamilton says : 
 
 "An unenlightened zeal for the energy and 
 efliciency of government, will be stigmatized as 
 the offspring of a temper fond of power, and 
 hostile to the principles of liberty. An over- 
 scrupulous jealosy of danger to the rights of the 
 people, which is more commonly the fault of the 
 head than the heart, will be represented as mere 
 pretense and artifice. . . . The stale bait for 
 popularity at the expense of public good. It 
 will be forgotten, on the one hand, that jealosy 
 is the usual concomitant of violent love, and 
 that noble enthusiasm of liberty is too apt to be 
 infected with a sort of narrow and illiberal dis- 
 trust. On the other hand, it will be equally for- 
 gotten, that the vigor of government is essential 
 to the security of liberty ; that in the contem- 
 plation of a sound and well-informed judgment, 
 their interests can never be separated ; and that 
 a dangerous ambition more often lurks behind 
 the specious mask of zea,l for the rights of tha 
 
42 
 
 people, than under the forbidding appearance 
 of zeal for the firmness and efficiency of gov- 
 ernment. History will teach us that the for- 
 mer has been found a much more certain road 
 to the introduction of despotism, than the latter, 
 and that of those men who overturn the liber- 
 ties of republics, the greatest number have be- 
 gun their career by paying an obsecpiious court 
 to the people ; commencing demagogues, and 
 ending tyrants." 
 
 When we look at the above extracts and re- 
 flect upon the fact that the first was written 
 more than two thousand years ago, the second, 
 two hundred years ago, and the last, in the lat- 
 ter part of the last century, by one of the 
 framers of our constitution, and remember that 
 they were all the results of historical study, and 
 not the mere theories of visionary dreamers, we 
 must be struck with their force, and be con- 
 vinced that the dangers they point out undoubt- 
 edly lurk in our constitution as they have 
 always lurked in other democratic governments 
 of the world. 
 
 If Plato knew as the result of actual observa- 
 tion, two thousand years ago, that "out of no 
 other republic is tyranny constituted but out of 
 democracy " ; if Swift, after a careful reading of 
 all history, found that it was a false maxim 
 "that power is always safer lodged in many 
 hands than in one," and challenged history to 
 produce an example of any ''one folly, infirmity. 
 
43 
 
 or vice, to which a single man is subject, and 
 from which a body of commons, either collect- 
 ive or represented, can wholly be exempt"; 
 and if Hamilton was convinced from history, 
 "that of those men who had overturned the 
 liberties of republics, the greatest number have 
 begun their career by paying obsequious court 
 to the people, commencing demagogues and end- 
 ing tyrants," we must conclude that danger 
 from demagoguery always attends upon demo- 
 cratic governments. It is a cancer inherent in 
 the body-politic, and therefore incurable. If 
 this be so, if it is a melancholy fact that all 
 free governments are in constant danger from a 
 source which sooner or later will cause their 
 downfall, it behooves every man who loves his 
 country and her institutions, to do what he can 
 to retard the evil growth and make his govern- 
 ment, as Swift says, "long lived, though not 
 immortal." 
 
 This can be done if all members of the bar 
 upon every occasion and before any audience, 
 political, social, or professional, will tell the 
 simple truth. To do this we need more politi- 
 cal martyrs ; men not only willing but glad to 
 sacrifice all political ambitions, if by so doing 
 they will promote the welfare of their country. 
 If we would only learn that defeat is never dis- 
 honorable, though victoty frequently is ; if we 
 
44 
 
 could stand firmly by Locke's declaration that 
 "An error is not tlie better for being common, 
 nor truth the worse for having been neglected,'' 
 we could accomplish this. If, still further, we 
 could absolutely strangle any political ambitions 
 we might have, for the sole purpose of promul- 
 gating the truth and enforcing it upon our fel- 
 low-citizens ; if we could force upon them the 
 conviction that what we were saying was said 
 with a full knowledge that it ostracised us po- 
 litically, they would be compelled ultimately to 
 see that our only motive in telling the truth 
 about our government and our demagogues was 
 to preserve our government, and they would 
 finally believe that we who told unpalatable 
 truths were their friends rather than the dema- 
 gogues who told them lies, inflamed their pas- 
 sions in the pursuit of their own ambitious 
 dreatQS, and sought to lead them to their own 
 destruction and the downfall of their govern- 
 ment. 
 
LIBRftRY OF CONGRESS 
 
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