Class _AiM_i^ Book T^^^ Copyright ]»]°_ V Pl COPYRIGHT DEPOSIT. University of Pennsylvania THE PROCEEDINGS AT THE DEDICATION OF THE NEW BUILDING OF THE DEPARTMENT OF LAW February 21st and 22nd 1900 Compiled by GEORGE ERASMUS NITZSCHE At the Request of the Faculty of the Department of Law PHILADELPHIA 190 1 THE I iSRAPV ap Two Ovcica i:eceivE«» APR. 2t 1902 J30PVfi(9HT ENTRY CLASS fi-'KXa No. OOPY c. k.^ Copyright, 1901, By University of Pennsylvania. T/te editiott of this book is limited to jjo copies, of which this is No. ...ri. .7 / PRESS OF INTERNATIONAL PRINTING CO. 801 CHESTNUT ST. CONTENTS. I. Report of Proceedings i II. Dedication of New Building of the Law Department ... 3 (a) Prayer by Bishop Whitaker 3 (/;) Address of Provost Harrison , . 5 (c) Address of Mr. Samuel Dickson 8 (^) Address of Mr. William Draper Lewis 17 () Presidential Mansion, 1802- 1829. (c) Arts Building, 1829-1873. (d) College Hall, 1 873-1 888. (e) Girard Building, 1888- 1895, (/) Congress Hall, 1895- 1900. V vi Illustrations. George Sharswood 222 Quarters in " Congress Hall " and New Court House, 1895-1900 228 (a) Chamber of House of Representatives in "Con- gress Hall." (b) Old District Court Room in "Congress Hall." (c) Old Criminal Court Room in ' ' New Court House." (d) View of Quarters from Independence Square. (e) " New Court House." (/) Moot Court Room in " New Court House.' ' Biddle Law Library (stack room) 232 Some Interior Views of New Building 238 (a) Wharton Hall. {b) A View of the Staircase. {c) Price Hall. {d) Students' Conversation Room. (e) A Corner of the Main Hallway. (/) The Moot Court Room. [/ The Dormitories — the " Little Quad " 245 Houston Hall (interior of main hall) 247 Franklin Field 249 ■^ ^ IX UJSriVERSITY OF PENNSYLVANIA OPENING OF THE NEW BUILDING OF THE Depratment of Law THIRTY-FOrrRTH AND CHESTNUT StRBBTS February Twenty-first and Twenty-second 1900 Guests are requested to mention upon which occasions THEY EXPECT TO BE PRESENT. ON FEBRUARY 9TH, CARDS OF ADMISSION WILL BE MAILED. Wednesday, February Twenty-first. 1.30. Reception and Luqch in the New Building, by tF]e Society of tl-|e Alunnni of the Depart- nneqt of Law. 2 30. Inspection of the Building. 3.30. Opening Exercises, and Dedicatioq of McKean Sharswood, aqd McMurtrie Halls. Addresses by Provost Harrison. Samuel Dickson, Esq., Chairman of the Law Committee. William Draper Lewis, Ph. D., Dean of the Law Faculty. James Barr Ame.s, A. M., Dean of the Law School of Harvard University. 8.30. Meeting at the American Academy of Music Addresses by The Hon. John Marshall Harlan, Senior Associate Justice of the Supreme Court of the United States. The Hon. Sir Charles Arthur Roe, LL. D., representing the University of Oxford. Mr. G. B. Finch, A. M., representing the University of Cambridge. XI Thursday, Februart Twenty-second. Washtktgtobt'S BrRTHDAX— Ujstivehsitx Dat. .00. At the American Academy of Music. Address by His Excellency Wu Ting-fang, the Chinese Minister. Conferring of Honorary Degrees. 4.30. Dedication of Price Hall, in the New Building, Address by Hampton L. Carson, LL. D., Professor of Law. 4 ^ ^ X ^ ^^ ^ ^ d"^ 1 1\ ^^ M ^ ^ < ^ \^ '^ ;' -s ^^ 4 ^ THE PROCEEDINGS AT THE Dedication of the New Building of the Department of Law of the University of Pennsylvania. Philadelphia, FEBRUARY 2ist AND 22d, I9OI. First Day* On Wednesday, February twenty-first, at half-past one o'clock, a reception was tendered the guests of the University, in the new Law Building, by the Society of the Alumni of the Department of Law. The reception was held in Sharswood Hall, the Board of Managers of the Society, the Provost of the University, the Com- mittee of the Trustees on Law and Legal Relations and the Faculty of the Department of Law receiving the guests on behalf of the Society, assisted by a reception committee composed of the following ladies : Mrs. John C. Bell. Mrs. William E. Mikell. Mrs. George T. Bispham. Mrs. John W. Patton. Mrs. Francis H. Bohlen. Mrs. Samuel W. Pennypacker Mrs. Hampton L. Carson. Mrs. George W. Pepper. Mrs. Samuel Dickson. Mrs. Eli K. Price. Mrs. Joseph S. Harris. Mrs. Frank P. Prichard. Mrs. Charles C. Harrison. Mrs. William Sellers. Mrs. Harry S. Hopper. Mrs. Edgar F. Smith. IMrs. William Draper Lewis. Mrs. William M. Stewart, Jr. Mrs. O. W. Whitaker. 2 Luncheon and Afternoon's Exercises. A luncheon was served in McMurtrie Hall, and the building was then thrown open for inspection until three o'clock. At half-past three o'clock the guests and officers of the University and the students of the Law Department having assembled in the class rooms on the first floor, the representatives of Universities, Colleges and Law Schools, and the Faculty and students of the Law Depart- ment of the University of Pennsylvania, being all in aca- demic dress, moved in procession to McKean Hall, where the afternoon's exercises were held. The order of the procession was as follows : — Vice-Provost and Trustees of the University. Special Guests of the University. University and College Presidents. Members of the Federal Judiciary. Members of the Supreme Court of Pennsylvania and the Courts of last resort of other States. Members of the Superior Court of Pennsylvania. Members of the Common Pleas and Orphans' Courts of Pennsylvania, and other Courts of Record of other States. Representatives of Law Schools Representatives of Bar Associations and ijiembers of the Bar being special guests. The Faculty and other members of the teaching force of the Department of Law. Students of the Department of Law by classes. Members of the Reception Committee. All other Guests. Prayer of Bishop Whitaker. 3 Charles Custis Harrison, LL. D., Provost of the University presiding, introduced the Rt. Rev. Ozi W. Whitaker, D.D., LL. D., Bishop of Pennsylvania, who opened the exercises with the following prayer : O God, the Father of Lights, the source of all knowl- edge and power ; the Ruler of the universe, the Judge of all the earth ; by whom nations exist and sovereigns rule and judges exercise authority ; we adore Thee and magnify Thy glorious Name for all the blessings we enjoy. We thank Thee for civil and religious liberty, and for all the favorable conditions of our lives, and for the com- pletion of this work which has brought us together this day. Grant, O Lord, that we may show forth our thank- fulness for all Thy benefits by making a right use of them for Thy glory and for the welfare of mankind. We im plore Thy blessings upon all in legislative, executive and judicial authority, that they may have grace, wisdom and understanding so to discharge their duties as most effect- ually to promote the interests of true religion and virtue, and the peace, good order and honor of the state and nation. We ask Thy blessing upon the University of Pennsylvania, and especially now upon that department of its instruction and work, for whose use this temple of justice has been erected. Wilt Thou enlighten with Thy perfect light the minds of all those Thy servants who shall be appointed to teach in this School of Law. May they have wisdom for the wide range of duties devolving upon them ; may they realize that all human laws should be but the apphcation of Divine Law to the varying condi- tions and relations of men, and may all their teaching be in the fear of God, and in the love of righteousness and truth. And wilt Thou grant, O Lord, that all who shall here receive instruction in the principles and methods of their chosen profession may be animated by the same spirit. By their love of justice and their reverence for law, may 4 Prayer of Bishop Whitaker. their influence be to purify and elevate the morals of the people, and may they show forth what they shall have learned here by steadfastness of principle and the main- tenance of every righteous cause. To these high and holy ends, O God, we dedicate this building, in Thy name ; beseeching Thee to remem ber for good all those by whose generosity it has been erected ; all who shall give or receive instruction within its walls ; and all who are in any way connected with its work ; and wilt Thou grant, O Lord, to these, and to all this people, an abiding sense of the great truth that the only security for the continuance of the blessings which all enjoy, consists in our recognition of Thy sovereign and gracious Providence, and in humbly following the teachings and example of Thy Son Jesus Christ, our Lord, in whose words we unite in praying unto Thee: Our Father, who art in Heaven, hallowed be Thy name. Thy Kingdom come. Thy will be done on earth as it is in Heaven. Give us this day our daily bread. And forgive us our tres- passes, as we forgive those who trespass against us. And lead us not into temptation, but deliver us from evil. For Thine is the kingdom, and the power, and the glory, forever and ever. Amen. The grace of our Lord Jesus Christ, and the love of God, and the fellowship of the Holy Ghost, be with us all evermore. Amen. * •♦. Address of Provost Harrison. 5 Provost Harrison delivered the address of wel- come, speaking as follows : Ladies and Gentlejnen : I need not confess with how much pleasure the University greets, this afternoon, its guests from far and near. The occasion is certainly one which may well touch us all with a flush of modest pride ; — for the day marks not only the dedication of a noble building to a true subject of University study ; but it also marks a new era in the history of the Law School. Hitherto, the Department of Law has been without a home and fireside of its own, and for the greater part of its life it has been separate and apart from the Uni- versity — a School of Law, but hardly a University School of Law. It has missed the contact with the daily life of the University, and the University has missed the influence of the School. The mother has had an adult child in separate and distant lodgings. Hereafter and henceforth, we are all to be together. The Trustees desire me at this time to express their sincere thanks for the public interest and the private munificence which have made their purposes possible to the extent we see to-day. During all the time in which our plans were forming, the City of Philadelphia has given us patient and free use of the court house and court rooms not far from that " Old Building " where James Wilson delivered his first law lecture before the University, 1 10 years ago — and that act of public thought- fulness is to-day well retaliated by this result of many private gifts. Through these alone and in entire depend- ence thereon has this building been erected. It is a danger, I believe, in such University undertakings as this, to think too much of the present and not enough of the future ; but I feel that in this latest work we have emptied our quiver of its arrows. The patience and care and affection with which our plans and purposes have been safe-guarded by the Faculty, the Architects, and the Law Committee of the Trustees may have been 6 ' Address of Provost Harrison. equalled at other times and in other places, but not in my experience. The interest of all has never failed ; but I am sure that no one will withhold approval when in this respect I publicly thank the hard worked Dean of the Law Faculty and Messrs. Cope and Stewardson, the architects. One can scarce realize what it means when I say that a full year was given to the continuous study of the plans before their final adoption. It is hard to know whom not to thank. Builder and work- man, master and servant alike, deserve, and to-day receive, their proper wage of approval. Like the build- ing of that other temple, under an older dispensation of law, there has been no voice of strife or contention or dispute here. Nor any accident. It is quite natural that we should wish, peculiarly, to thank, at this time, the givers of the many gifts for the erection of the building. It has been my fortune personally to know them all. They will prefer not to be mentioned by name at this time ; but they will quite understand how the University feels towards and thinks of them. We thank all ; we are grateful for the memory of him — my classmate — who first stirred us to the un- dertaking ; and in equal measure to those young lawyers, who, in more instances than one, have given a large part of a year's fees. In the memorials, too, which have been here founded, we have the beginning of an Abbey •of Inscriptions, telling of lives of "judicial independence, of professional honor, and of public respect," whose influ- ence must take its hold upon master and scholar alike. Many, both men and women, will know what I mean when I extend to them, here and now, my personal thanks. I am sure that the Trustees will desire me to say that while this building has been presently completed, we do not wish to take all the credit and honor of it. It means simply that the time had come for us to do this work. Other men had been for a century building a foundation, and we have erected the building upon that Address of Provost Harrison. 7 foundation, well cemented and prepared. It is our greater pride — greater than the realized purpose — that no history of the Bar of Philadelphia — or, as Horace Binney defini- tively expressed it — " the leaders of the Bar of Philadel- phia," can be written without writing in part the history of the University of Pennsylvania. Mr. Chairman, others may speak of the development of the law as a science, of the progression of the law, depending upon the progress of the lawyer. My part and duty shall have been ended, I trust, when I offer for your approving acceptance this new building of the De- partment of Law of the University. Its purpose and the purposes of the University are clear. We seek to offer here the largest facilities in science and letters, and the highest influences upon the conduct of life, to that class — not caste — which may be willing to devote itself to those ideals of education which alone become a University. Nations are slow to recognize the social value of such education, but quick to know that no uneducated nation can survive as against an educated one. No whole nation can be educated to the ideals of a University, but influence flows gently downwards ; and the function of the American Universities is to prepare a gradually in- creasing number, whose guiding power and influence in their respective spheres may gladly be accepted b}^ the nation at large. The University Chemist and Physicist are recognized in their authority when they apply the original work of the Laboratory to the Arts of the people. So, with increasing influence, are the Historian, the Economist and the Sociologist heard. May the students of Law, in this new building, so master the principles of their science, and be so imbued with high ideals of their calling, that Law and Equity, expounded in their practice and illustrated in their lives, may more and more decide the cause of the people, and in this democracy of ours be the guardians of an ordered liberty. 8 Address of Samuel Dickson. Samuel Dickson, Esq., Chairman of the Committee of the Board of Trustees on Law and Legal Relations, then presented the building on behalf of the Trustees to the Faculty of the Department of Law. Mr. Dickson spoke as follows : " Mr. Provost : The first duty of the representative of the Trustees upon this occasion, is to acknowledge that it is to your courage and exertions we owe it that this build- ing has been erected on this site, for no one else thought it possible to obtain a sum sufficient for the necessary expenditures ; and it is equally imperative to say to you, Mr. Dean, that to the patient and intelligent supervision by yourself and colleagues, of every detail of arrange- ment, must be ascribed, in large measure, the perfect adaptation of the building, in all its parts, to the uses to which it is to be devoted. Upon its formal dedication to the teaching of the law, every lawyer present will naturally recall the first lecture delivered in 1790 by James Wilson, one of the Associate Justices of the Supreme Court of the United States. Upon that occasion were present President Washington, members of his cabinet and of Congress with Mrs. Washington and other ladies. The event was regarded as of the first importance, and it has continued to be so by reason of the course of lectures delivered during that and the following winter, for they constitute a distinct contribution to the literature of the law. His full course would have occupied three terms, but before its completion, he was appointed, in 1791, by the General Assembly of Pennsylvania, to revise and digest the laws of the Commonwealth, to ascertain and determine how far any acts of Parliament extended to it, and to prepare such bills as the new condition of things called for. This task involved great labor and diverted him from his duties as a professor, and he did not live to complete the work which would have anticipated the later collection of the British statutes by the Judges of the Supreme Court, and of the Address of Samuel Dickson. 9 Commissioners subsequently appointed under the act of 1830. His lectures were also left in an unfinished condi- tion, but those which were completed confirm the estimate placed upon his ability by the later writers and notably by Mr. Bryce, who speaks of him as one of the deepest thinkers and most exact reasoners among the members of the convention of 1787, In his account of the prominent lawyers at the time of the Revolution, William Rawle, who knew him at the bar, in the splendor of his talents, and in the fulness of his practice, thus spoke of him : ' Wilson soon became con- spicuous. The views which he took were luminous and comprehensive. His knowledge and information always appeared adequate to the highest subject, and justly administered to the particular aspect in which it was pre- sented. His person and manner were dignified, his voice powerful, though not melodious, his cadence judiciously, though somewhat artificially, regulated. * * * But his manner was rather imposing than persuasive ; his habitual effort seemed to be to subdue without conciliating, and the impression left was more like that of submission to a stern than a humane conqueror. It must, however, be confessed, that Mr. Wilson on the bench was not equal to Mr. Wilson at the Bar, nor did his law lectures entirely meet the expectations that had been formed.' Quite recently his name has been made familiar to the lay public by the publication of the Memoirs of Colonel Hugh Wynne, who knew him both as a tutor and as counsel, and who seems to have been an apt pupil and intelligent client, as he learned to write very good English, and to treat of legal matters in a way satisfactory even to lawyers. It does not appear that any successor to Judge Wilson was appointed by the Trustees at the time of his retire- ment, and in the conditions of professional and social life of that day and of long afterward, the system by which the student entered the office of a practising lawyer, and pursued his studies under his supervision and assisted in lo Address of Samuel Dickson. the clerical work of the office, was in many cases most efficient and satisfactory. Judge Wilson himself had read law with John Dickinson, who had been a fellow student of Thurlow and Kenyon in the Middle Temple, and in turn, at the request of Washington, he received the President's nephew Bushrod, afterwards Associate Justice of the Supreme Court, as his student. Indeed, all the great lawyers of the city, who came to the bar after the Revolution, qualified themselves by study and preparation in the office of a preceptor. It was by this method, that the larger part of the Philadelphia lawyers, whose names are engaved upon the walls of this build- ing, became the leaders of the bar. A sufficient explanation of the non-continuance of the Law School from the retirement of Judge Wilson, was that it was not yet needed, nor would it have attained a considerable number of students when reopened in 1850, had it not been for the fact that George Sharswood, then the President Judge of the District Court of the City and County of Philadelphia, and afterwards Chief Justice of the Supreme Court of Pennsylvania, was the first professor of the reorganized school. Plis relations to the members of the Bar of this city were altogether pecu- liar to himself, and it may be doubted if any judge ever sat upon the bench, who was at once so revered and so beloved. It was largely to his personal influence, there- fore, that the success of the school then and subsequently was due ; but changes of hours and of locality began to interfere with office teaching, and those changes have been followed by others still more effective, until to-day, the removal of the Law School of the University to this side of the Schuylkill, may be accepted as the final proof of an accomplished change in this city in the method of preparation for the practice of the law. To recapitulate the successive and accumulating changes in social and professional life, which has brought this about, is quite unnecessary ; but the fact is, that Address of Samuel Dickson, ii whereas the Law School has hitherto been, in this city, a supplement to office study, it will hereafter become, in most cases, a substitute. There has been conflict of opinion as to methods of teaching, and as to how far the Law School can, in itself, enable the student to make himself a lawyer, but no one has ever contended that the law was not a science, of which the principles could best be mastered by systematic study, under the direction of competent teachers. It is studied, however, by the in- tending practitioner, not merely nor chiefly for his own information, but as what the Germans call a ' bread-study,' for the purpose of making practical use of his learning in dealing with the complicated facts of life, in advising clients in the office, or in trying and arguing cases in court. Both aspects of the question, therefore, should be kept in mind. It has always been, as it now is, a peculiar advantage of this school that from the time of Judge Sharswood and his colleagues, down to the present day, its Faculty has included men whose position on the Bench or at the Bar compelled them, day by day, to use and test their know- ledge in the court room. It is the inestimable privilege of the classes now in this school, that they have the op- portunity to hsten to judges of the Federal courts, whose appointment was made to satisfy the demand of the prac- tising lawyers of the District, and of lawyers who merit and possess the unqualified confidence of the profession and of the community. What they say commands re- spect everywhere else, and it will not fail to do so here. Dr. Arnold used to say, ' It is a good thing to admire,' and the greatest good fortune which can befall a young man is that he should follow his legal studies under such men as he will find here, to whom he can look up with generous enthusiasm as the ideals to whose measure it will be his hope to approach in his future life as one of a profession which they ennoble and adorn. Whether the new order will accomplish the work of 12 Address of Samuel Dickson. the old, and train up succeeding generations of as high a standard as those who have gone before, is the important question for all of us. The rank attained by the leaders of the Old Bar, as Mr. Binney designated them, is every- where recognized, but coming down to a time within the memory of many now present, it may be asserted with great confidence that the entire United States might have been challenged to produce their betters, when Mr. St. George Tucker Campbell, Mr. George M. Wharton, Mr. Theodore Cuyler and Mr. James E. Gowen were in the lead, with Mr. Meredith at their head. To turn out men of their stamp will be an achievement indeed, and no better fortune for the school can be asked for. For this work, Mr. Dean, you and your colleagues have now every help which the University can give you. Nothing will be lacking to the comfort, the convenience and the wants of the student. The Biddle Library, which perpetuates the memory of a leader of the Bar, and of three sons, each in his own line pre-eminent, is as yet inferior to that of Harvard, of which Professor Dicey says that ' it constitutes the most perfect collection of the legal records of the English people to be found in any part of the English-speaking world ; ' but it is already large, and the sum annually applicable to its in- crease will soon make it adequate for the needs of the most erudite. Having thus free and immediate access to every authority he needs to consult, the diligent student will assuredly learn the use of books, and master a fair share of their contents. Of all the influences to surround the student in this new home of the Law School, none should be more potent to kindle his ardor than the memories of the good and great men by which he will be surrounded. This hall, in which we are assembled, bears the name of a lawyer, who completed his studies in the Middle Temple, and who re- turned to take a most prominent and useful part in the American Revolution. He was a signer of the Declara- tion of Independence ; Vice-President and President of Address of Samuel Dickson. 13 the Continental Congress ; Governor of Delaware ; the author of the Constitution of that State ; a member of the convention which framed the Constitution of Pennsylvania of 1790 ; Chief Justice of the Supreme Court of the State for twenty-one years, and its Governor for three terms. In the first volume of Dallas' Reports, there is this letter from Lord Mansfield : *To THE Honourable Thomas M'Kean, Chief Justice of Pennsylvania : 'Kenwood, February 14, 1791. ' Sir : — I am not able to write with my own hand, and therefore must beg leave to use another, to acknowl- edge the honour you have done me, by your most oblig- ing and elegant letter, and the sending me Dallas' Reports. ' I am not able to read myself, but I have heard them read with much pleasure. They do credit to the court, the bar and the reporter : they shew readiness in prac- tice, liberality in principle, strong reason, and legal learn- ing ; the method, too, is clear, and the language plain. ' I undergo the weight of age, and other bodily in- fimities, but blessed be God ! my mind is cheerful, and still open to that sensibility which praise from the praise- worthy never fails to give — Laus laudari a te. Accept the thanks of ' Sir, yoMx most obliged ' and obedient humble servant, ' Mansfield.' From this judgment there is no appeal, nor can anything with propriety be added. When elected governor, he conferred upon the people of this State the inestimable benefaction of the appoint- ment of that great lawyer, William Tilghman, as Chief Justice, and the erection of this structure could not have been undertaken but for the noble liberality of a descend- ant who bore his name. 14 Address of Samuel Dickson. Of Wilson and Sharswood, whose names appear upon the main door, I have already spoken. It remains to add that the memory of Eli K. Price, George M. Wharton and Richard C. McMurtrie will be perpetuated by lecture rooms which bear their names, at the request of those whose filial piety or friendship led them to con- tribute to the erection of this building, in grateful appre- ciation of the professional labors, which gave them promi- nence at the Philadelphia Bar. The student will find some evidence of their learning and discrimination in the re- ports of the many arguments which they made in the Supreme Court, and it is enough to say, upon this occa- sion, as can be truthfully said of all of them, that by none were they so highly esteemed as by their fellow members of the Bar who knew them as men and lawyers, as well as men can know one another, and better than those engaged in any other pursuit can possibly do. Mr. Carson will speak of Mr. Price at length to- morrow, and it need now only be said that his invaluable contributions to the statute law of the State, his active interest in the University, in the American Philosophical Society, and other associations devoted to literature, sci- ence and charity, secured him distinction as a citizen almost equal to that which his long, useful and honorable career won for him at the Bar. It is impossible, however, that any lawyer, who ever met Mr. Wharton in consultation, or listened to his argu- ments, could mention his name without at least alluding to his clearness of statement. By common consent, he had the most perfect power of statement of any man of his day, and no one could present any proposition which he could not re-present in a form more simple and lucid. This was, of course, the result of the exquisite cer- tainty of his mental vision. It was as if his mind had been a perfectly finished lens, which never produced the slightest distortion or aberration, and presented every object with absolute sharpness of definition. Something Address of Samuel Dickson. 15 he once said as to his habits of reading is worth record- ing, as ilkistrating clearly what may be done by system. It will be remembered that he was, in his day, the leading authority in this Diocese upon Church Law. When re- turning a copy of Derby's Homer, he said that he had listened to the reading of the entire twenty-four books, and he added that it was his rule to read or listen to another read some standard work for a half hour every evening, and that one who tried it would be astonished at how much could be gone through in that way, and as a further instance, he added that by giving the time every Sunday, between morning and afternoon church, to Church Law, he had, in a few years, gone through all the authorities upon the subject. Of Mr. McMurtrie, of whom some of us are in the habit of speaking as the last scientific lawyer at our Bar, there should be quoted two or three sentences from the eulogy delivered at his Bar meeting by Judge Craig Bid- die, as they bring out clearly his distinguishing charact- eristic as a lawyer : ' Mr. McMurtie, if ever a man did, certainly loved his profession, and loved it with a sort of romantic attachment. Any man who violated the great principles of the law was, to him, a man who could not be tolerated for an instant. No matter from what source the law came, whether from the highest courts in the land or the humblest individual, if it was bad law, Mr. McMurtrie looked upon it as a forgery, as a counterfeit, as equivalent to an attempt to pass money which was not entitled to be current. His sturdiness in this particular gave a rather mistaken notion of his character, but the only thing that ever stirred him to wrath was the one I have just mentioned.' ' The emulation of examples like theirs makes nations great and keeps them so,' and it will be for the men who are to come out from this school not only to maintain the traditions of the Philadelphia Bar as gentlemen and law- yers, and to do their part in helping to advance the 1 6 Address of Samuel Dickson. progress of jurisprudence, and to extend the domain of justice and reason, but also to solve the problem always recurring and never definitely answered, whether the political institutions, which were framed by McKean and Wilson and their colleagues, are to be perpetuated as the enduring heritage of a free and virtuous people. Of all institutions, the University is the most enduring. The life of this one has been brief compared to that of the historic schools, which have honored us by permitting their representatives to be here to-day ; but it was given the power by John and Richard Penn to confer degrees, and since then, four Constitutional Conventions have been assembled to change the organic law of the common- wealth. For centuries to come, each year will see a body of men come forth from these halls to develop into the leaders of thought and action of their time. All that this community has done or can do to insure that they will use their power wisely is worth the doing, for it is not only true, as De Tocqueville said, that the conservative force of the American Bar has been the greatest safeguard of American institutions in the past, but there is equal truth in the aphorism of Lord Bacon — a man, as Coleridge says in quoting the remark, ' assuredly sufficiently acquainted with the extent of secret and personal influence,' that, ' the knowledge of the speculative principles of men in general between the ages of twenty and thirty is the one great source of political prophecy.' Address of William Draper Lewis. 17 In accepting the building on behalf of the Faculty of the Department of Law, William Draper Lewis, Ph.D., the Dean of the Faculty, said : M7\ Provost : A little over three years ago the Faculty of Law expressed to you, and through you to the Trustees, their earnest desire that there should be erected near the other University Buildings a permanent home for the Department. To-day you call upon us to occupy, exclusively for the purposes of the Law School, the most complete educational building in the country. To say that we deeply appreciate this more than generous response to our request is to express but feebly the feeling which stirs us at this moment. When the University determined to erect a building for our Department, the Provost asked us to submit to him a detailed statement of the requirements of such a building. This request was complied with, and though these ' requirements ' necessarily involved a much larger building than any one had up to that time contemplated, we were not asked to modify our plans in the slightest detail. The architects, Messrs. Cope and Stewardson, were directed to prepare plans which should meet every want of the faculty. I need hardly tell you that they have done so. Indeed, if our successors find defects in the general interior arrangement of this building, in the distribution of the reading and lecture rooms, we of the faculty are alone responsible, for neither trouble nor money has been spared by the University in its efforts to give us all that we asked. On this occasion, as we are about to occupy this build- ing, which has been dedicated by you, Mr. Dickson, to the cause of legal education and to the memory of those who in their time knew and loved the law, it is perhaps proper that I, as representing the faculty, should tell the friends of the University and the representatives of legal learning gathered here something of our educational ideal. If I were asked to state the thought which is uppermost in i8 Address of William Draper Lewis. the minds of the faculty, shaping not only our acts as a body, but our individual work as teachers, I should reply : The thought that our chief aim is to enable our students to become efficient lawyers. I can therefore best give you a mental picture of our educational ideal if I show you what we mean by an efficient lawyer. Some there are w^ho tell us that we should try to make our teaching practical, others that we should con- fine ourselves to fundamental principles. The one regards the law as an art, and likes the word practical ; the other regards the law as a science, and is fond of such expres- sions as * grounded in the theory of the law.' It may surprise some of you to hear me say that our faculty has never discussed the question whether we should regard the law from the point of view of an art or of a science. We have never discussed this question because we are united in the thought that a system of legal education which pretended to give the principles of law, disasso- ciated from their practical application, would be as useless as a system which confined the student to copying legal papers. All of us admit that law is a science. But it is a living science ; one that is applied every day to the affairs of living men ; and a science whose principles have been hammered out, not in the closet of the recluse, but in the effort to decide real controversies between man and man. Its rules have sprung from multitudinous instances. They are one of the results of the facts which make up our history. As the law has grown, so is it being developed. Even as I speak, hundreds of courts in this country and in England and her colonies, are con- sciously or unconsciously modifying the principles of our law by the effort to apply them to new controversies. If our economic and social development should cease, and we should become a static people, and the new cases in our courts were always identical with some other reported case, law would cease to be a science. It would become merely an art, and would be no more interesting than Address of William Draper Lewis. 19 the science of civil engineering, provided every bridge that was built was the duplication of some existing bridge. Again, if man should stop disputing with his fellow-man, the study of the law would be the study of purely historical phenomena. But in our complex, developing modern life new legal problems are arising every day. The law is not merely the study of phenom- ena connected with a bygone people. The law is a living science and a present art, and therefore there is no such a thing as a practical as distinguished from a theo- retical lawyer. There are only two kinds of lawyers, the efficient and the inefficient. If you can find a man whose only accomplishment is that he can draw a deed, pro- vided you do not wish to accomplish something he has not seen done before, you may find a man who is useful occasionally to do your conveyancing, but you do not find an efficient lawyer who can talk to you by the hour on the advantages of codification, or on the compara- tive excellencies of the civil and tiie common law, or on the early courts in Rome ; but cannot take the facts of a case between Jones and Smith, and give reasons which would appeal to a court why one or the other is right, then you may have found a man who is full of enter- taining information, but again you have not found an efficient lawyer ; you have not found the man which it is the desire of our faculty to graduate. In our minds, the efficient lawyer is not merely the so-called practical man, and on the other hand not merely the so-called theoretical one. He is the man who can do well the work which the lawyer is called upon to do. He is one who can take the jumble of facts which his client calls a clear statement of the case, and see quickly and accurately the legal point or points on which the case will turn, and with this knowledge as a starting point, be able to get the facts before the court, and having done so prepare his brief and argue intelligently the legal ques- tions in his case. We believe that a system of legal 20 Address of William Draper Lewis. education which trains him for part of this duty and not the other, is radically deficient. Our aim is to give the student a knowledge which will not only enable him to argue a legal point, but which will enable him to bring a suit and prepare and try a case ; not primarily because we believe that a knowledge of what is called practice is a necessary addition to a knowledge of the fundamental principles of law in order that a man may become a practicing member of the Bar, but because we also believe that as the law is a science grown up from actual cases, and applied and still growing by application to actual cases, a knowledge of ancient pleading and modern practice is essential in order that the student may understand the fundamental principles of the law. It may be asked, do all your students expect to prac- tice law ? Have you no place for one who wants to write on law or teach some branch of the law or legal history ? Certainly we have a place for such a man. But we be- lieve that his training should not, in the main, be different from the training of the man who intends to argue cases in court. The work of the lawyer in the preparation of his case, of the judge called upon to decide it, or of the writer or teacher who must compare it with earlier cases, criticise and explain it, is essentially the same. Each must examine the same books and face the solution of the same problems. To suceeed in their respective spheres, the waiter and teacher, no less than the judge or practitioner, must realize that he is dealing with an applied science. To grasp the exact meaning of a legal decision, he must thoroughly understand the mechanical forms, that is, the pleadings under which the case was presented to the court. He also must be familiar with the practical difficulties of proving certain classes of facts. In other words, we do not believe that one can intelli- gently teach or write on the law which his scholars or readers must apply in a real world, without a knowledge of the conditions under which the principles he discusses Address of William Draper Lewis. 21 must be applied. And therefore, in saying that our chief desire is to graduate " efficient lawyers," we do not slight the man who comes to us to prepare himself for research work or teaching ; but in trying to make him also an efficient lawyer, we take the only course which can make him an efficient student of the law. While a knowledge of the theory and practice of the law forms the extent of the systematic teaching in our present undergraduate course, I should leave you with a false impression if I were to allow you to go away with the idea that we think there are no other elements in the make-up of an efficient lawyer besides the training of his brain and hand. In law, as in all other departments of human endeavor, the efficient man must possess elements of character as well as intellectual and mechanical endow- ments. He must have in his character certain moral elements, and at least two other elements which I think we may also include under the designation of moral. One of these elements of character we may call method or perseverance, according to the form of its manifesta- tion. Whether we call it method or perseverance we cannot overestimate its importance. If a lawyer is not neat he hampers his own progress ; if he cannot system- atize his work, great success, except in rare instances, is denied to him ; unless he is capable of long continued and persistent effort, he may never hope to obtain even a moderately respectable position at the Bar. We cannot teach here directly and in a separate course, neatness, order, perseverance, but by holding this element of char- acter before ourselves as essential to the real efficiency of our graduates, we can, and I believe do, accomplish something in this direction. Not alone with this object, but by no means wholly in disregard of it, we make our course and our examinations such that all our students understand that to obtain a good position in the class, or even to get through our course at all, there must be per- sistent work every day during the term, and that in each 2 2 Address of William Draper Lewis. week the work must be systematized ; to each day being given its allotted portion. Three years of such training, while it does not make all of our graduates paragons of neatness, method or persistence, undoubtedly has a distinct tendency to mold into the character this element, which, equally with knowledge and skill, is essential to efficiency. There is a second element of character, very different from that to which I have just called your attention, but none the less essential. This is the element of mental independence in legal thinking. Mental timidity must not be confounded with the caution which very properly keeps a client out of a contest the issue of which is doubtful. But the lawyer who, for his legal opinions, leans on his digest, his text-book, or his friend, wins only the cases which no one could help winning. Now independence of thought can no more be taught as a separate course than neatness or perseverance. Some have it naturally, others acquire it only by much persistence on the part of the teacher ; others, again, no matter what is done for them, never acquire it. But we believe that it is true in law, as in other things, that much can be accomplished by the teacher if he is distinctly conscious of the import- ance of developing in his students the power to think for themselves. Therefore, in our teaching here, we encour- age the student to work out the problems of the law for himself. Where there is a real opportunity for a differ- ence of opinion, we are frankly indifferent as to whether he agrees with us or not, provided he can maintain his own opinion with legal reasons. The old idea that a teacher is a modern Gamalial, at whose feet the student is to sit and drink in information without question, if it ever existed in this Department, has gone, and I trust gone forever. Each of us teaches by that method which appeals to him as best ; some lecture, some use in part a text-book, some the so-called case-method ; but the men- tal attitude of each of us towards our classes is, I believe, Address of William Draper Lewis. 23 the same. It is that of the man who invites on the part of his students discussion, public or private, of the sub- jects in his course ; it is that of the man who is making the distinct eflort to give his students the power to think for themselves. There is one other element in our concept of effi- ciency, harder to define, perhaps, but more important than all the others. From one point of view, it is the moral make-up of the man ; from another it is his mental attitude towards the law. All departments of the Uni- versity are striving to turn out men who will lead clean and honest lives. I believe the whole tendency of our life at Pennsylvania, as in other universities, is in this direction. Our dormitory system, our athletics, our Houston Club, and our various student organizations, fill that portion of the daily life of our students not given to study with wholesome mental and physical occupa- tion, and are important factors in the upbuilding of their character. Our work as a Faculty of Law, as we con- ceive it, is to take the foundation of good morals, which is, in an ever increasing degree, laid for us in the char- acter of the great majority of our students by home and university influences, and build thereon something which will make our graduates, not only moral men, but moral lawyers. A man rightly is considered moral when he has certain general positive and negative qualities ; if he is temperate in his life, honest in his business dealings, kind to those dependent on him, and considerate of his fellow men. It is our thought that a lawyer should be all this and more. Perhaps this "more" can be summed up in a single sentence : He should love the law and guard her. If he does this, slovenly and inaccurate work, careless legal advice will be impossible to him; the etiquette of the profession he will guard with jealous care ; he will keep his own actions on a high plane, and place under the ban of wholesome disdain those who sully the high traditions of the Bar. 24 Address of William Draper Lewis. How can a law school teach affection and reverence towards the law and the profession thereof? By formal courses in legal ethics ? We do not think so. Can nothing therefore be done in this direction by a law faculty? That is the opposite error. There is a subtle thing which all teachers know as the atmosphere of a school. There always is an atmosphere. It may be very good, or very bad, or neither one nor the other. This mental atmos- phere, in part, is left by those who have graduated ; in part it is the effect of the mental attitude towards his com- ing work, brought by the incoming student, and in a great part it is the character of the teachers, the efficiency of the school taken as a whole, and the dignity and decorum of its surroundings. I need hardly tell you that, following the example of our predecessors, we of the present faculty have labored and are laboring, with the efficient assistance of large numbers of our students, to make this mental and moral atmosphere of which I have been speaking such that our graduates may not only be skilled in the theory and practice of the law, may not only have in a greater measure than they had on entering, method in work, per- severance in endeavor, and independence in thought, but also that they may have a deep love and enthusiasm for the law, which will abide with them throughout their lives, shielding them from all temptation to do anything which would tend to bring her or them as lawyers into disrepute. Over the main staircase of this building, so as to be seen by one about to leave it, is to be carved the words of the great Judge whose unselfish labors created this De- partment of the University. They are the words of George Sharswood : ' Truth, simplicity and candor, these are the cardinal virtues of a lawyer.' Let us hope that each new man, as he takes up the work of teaching here, will con- sider well the labors for the cause of legal education of such men as he who framed this sentence, of such men as Morris, as Mitchell, and as Hare. These men not only taught the students the law, but impressed them with Address of James Barr Ames. 25 some of the dignity of their own character and their own devotion to the profession. We, and those who will take up our work when we lay it down, by following the ex- ample of their devotion, may perhaps also be able to write in the hearts of our students those three all-embrac- ing words — ' truth, — simplicity, — candor.' The closing address was delivered by James Barr Ames, A.M., Dean of the Harvard Law School. Profes- sor Ames spoke on " The Vocation of the Law Profes- sor," as follows : On a broad shaded street in one of the most beau- tiful of New England villages, stands an attractive old Colonial house, the residence, at the close of the Ameri- can Revolution, of a Connecticut lawyer. Hard by the house was the owner's law office, a small one-story wooden building much resembling the familiar district schoolhouse. There was nothing about it to catch the eye, but it has a peculiar interest for the lawyer, as the birthplace of the American Law School. For it was to this building that young men came from all parts of the country to listen to the lectures of Judge Reeve, the founder of the celebrated Litchfield Law School. It is indeed a far cry from the small lecture room of Judge Reeve to this noble structure destined to be for centuries the spacious and well-appointed home of a great university law school. From her humbler home in Cam- bridge, I gladly bring the greetings and congratulations of the elder to the younger sister, and I am deeply sen- sible of the privilege of saying here a few words upon a topic that is near to the hearts of both. On this red-letter day in the history of law schools, we may look back for a moment upon the path of legal education, if only to take courage for further achievement, as w^e watch the steadily growing conviction, in this 26 Address of James Barr Ames. country at least, that law is a science, and as such can best be taught by the law faculty of a university. With the revival of interest in the Roman Law, students flocked to the mediaeval universities, notably to Bologna and Paris ; and in countries where the system of law is essentially Roman, the tradition of obtaining one's legal education at a university has continued un- broken. Indeed, upon the continent of Europe a univer- sity law school is the only avenue to the legal profession. But the English law was not Romanized, For this, any one who thinks of trial by jury, of the beneficence of English equity, and of the unrivaled English judiciary, may well be thankful. But as a consequence of the non- acceptance of Roman Law, early English lawyers were not bred at Oxford or Cambridge, For the universities were in the hands of the ecclesiastics, who naturally con- fined their attention to the canon and civil law. Another reason may be found in the well-known dialogue between Lord Chancellor Fortescue and the young Prince of Wales in praise of the laws of England. The Prince having asked why the laws of England were not taught at the universities, the Chancellor replied : " In the uni- versities of England sciences are not taught but in the Latin tongue, and the laws of the land are to be learned in the three several tongues, to witte, in the English tongue, the French tongue and the Latin tongue." English lawyers, therefore, obtained their legal train- ing in London, and, in early times, at the Inns of Court, which, with the dependent Chancery Inns, were called by Fortescue and Coke a legal university. In the days of these writers, the term was not inapt. The membership of the inns was made up of students, resident graduates, called barristers, readers or professors, and benchers, or ex-professors, all living together in their dormitories and dining-halls, in that spirit of comradeship which has added so much to the attractiveness and influence of the legal profession. They lived, too, in an atmosphere of Address of James Barr Ames. 27 legal thought. Every day after dinner, and every night after supper, there were discussions of legal questions after the manner of a moot-court. There were also lec- tures by the old barristers, which were followed by dis- cussions of the chief points of the lectures. But the lectures and discussions came in time to be regarded as too great a burden upon the lawyers. They were at first shortened, and finally, in the latter half of the seven- teenth century, given up altogether. A legal education being no longer obtainable in the Inns of Court, students of law trusted to private reading, supplemented at first by experience in attorneys' offices, but after Lord Mansfield's day, in the chambers of special pleaders, conveyancers or equity draughtsmen. The decay of the Inns of Court seems not to have excited, for two hundred and fifty years, any adverse com- ment. But towards the middle of this reforming century many influential lawyers were impressed with the need of a better preparation for admission to the Bar. In 1846 a Parliamentary Commission, after hearing the testimony of a large number of witnesses, reported that the state of legal education in England was " extremely unsatisfactory and incomplete," and " strikingly inferior to such educa- tion in all the more civilized states of Europe and America," and recommended that the Inns of Court should resume their ancient function of a legal university. Five annual courses of lectures in law were the meagre result of this report. In 1855 a second Parliamentary Commission, includ- ing Vice-Chancellor Wood, Sir Richard Bethell (Lord Westbury) and Sir Alexander Cockburn, recommended that a university be constituted with a pov/er of conferring degrees in law. This recommendation had no effect. Some twenty years later, under the leadership of Lord Selborne, an attempt was made to bring about the estab- lishment of a general school of law in London by the action of Parliament. But the attempt was unsuccessful. 28 Address of James Barr Ames. Finally, six years ago, a third Parliamentary Commission reported in favor of a Faculty of Law in the proposed teaching University of London. And there the matter rests, although Lord Russell has recently expressed the hope " that the effort may once more be made, and this time successfully made, to establish what Westbury and Selborne hoped and worked for, a great school of law." As a result of the agitation of the last sixty years, six readers and four assistant readers give some thirty hours of legal instruction per week throughout the year, and only those may be called to the Bar who have passed successfully certain examinations. These examinations represent about one-third of the work covered by those of the Law School of the University of Pennsylvania, and, in the opinion of competent judges, do not afford any trustworthy test of adequate knowledge of the law. No attendance is required at the readers' lectures or classes, and the actual attendance is small. There is no perma- nent teaching staff. The teachers are appointed for a term of three years. They may or may not be reappointed. Incredible as it may appear, at the end of their term, in 1898, the ten readers and assistant readers were all dropped and replaced by a wholly new decemvirate. The reason for this clean sweep is almost more surprising than the change itself. The Council of Legal Education, as one of the members informed Lord Russell, " thought if they did not effect frequent changes, and thus permitted the idea to grow up that the teachers should be continued in office so long as they did their work well, it would be interfering with them in the pursuit of their profession, and it would be unfair to remove them later." Lord Rus- sell, in criticising this novel conception of a professorial staff, says truly that " such a policy renders it impossible to look to the creation of an experienced professional class of teachers." There is obviously a wide gap between this school of the Inns of Court and the leading law schools in this country with a three years' course, compul- Address of James Barr Ames. 29 sory attendance, searching annual examinations, and a faculty of permanent professors. One naturally asks, Why did not the universities assume the work of legal education which the Inns of Court abandoned ? The answer is simple. The traditions of centuries were against such an innovation. It is true that the Vinerian professorship of the Common Law, to which we owe the world renowned Commentaries of Black- stone, was established at Oxford in the middle of the last centur}^, and this was followed some forty years later by the similar Downing professorship at Cambridge. But only within the last thirty years has really valuable work been accomplished at the universities by a body of com- petent and permanent teachers. Even now the depart- ment of law at Oxford and Cambridge is not and does not claim to be a professional school. A large part of the curriculum is devoted to Roman Law, Jurisprudence and International Law, and a large majority of those who take the law course are undergraduates who propose to take their B.A. degree in law. Mr. Raleigh, one time Vinerian Reader in English Law, tells us that the best men at Oxford seldom begin the study of law until they go to London, and he thinks, in common with many others, that the ancient universities committed a grave mistake when they placed law among the subjects that qualify for the degree of B.A. I regret to find that Sir Frederick Pollock considers this mistake irrevocable. American law professors would generally agree that a college student had better let law alone until he has completed his undergraduate course. Until the law course is made exclusively a post-graduate course, and Roman Law, Jurisprudence and International Law are made electives in the third year of the curriculum, instead of required subjects of the first year, and the staff of permanent professors materially enlarged, those of us who would like to see a strong professional school of law 30 Address of James Barr Ames. at the English universities, are not Hkely to have our dreams reaUzed. There must be, of course, some sufficient reason why, notwithstanding the recommendations of successive Par- hamentary Commissions, and the earnest efforts of men Hke Lord Westbury, Lord Selborne and Lord Russell, so little progress has been made, either in London or at Oxford or Cambridge, towards the establishment of a law school comparable to the best schools in other countries. A distinguished lawyer of this city suggested, many years ago, the quaint explanation that in a country in which the law consists of the decisions of the judges, " it might be politic not to encourage academic schools of the national jurisprudence lest ambitious professors and bold commen- tators should obtrude their private opinions, and instil doubts into the minds of the youth." The true explana- tion, it is believed, is that which was suggested by another eminent Philadelphia lawyer. Mr. Samuel Dickson, to whom we have had the pleasure of listening to-day, in his interesting address at the opening session of this school eight years ago, pointed out that no public inconvenience was felt from the calling to the Bar of gentlemen who were incompetent or unwilling to practice. For the barris- ters being engaged, under the English custom, not by the clients, but by the attorneys or solicitors, who were them- selves experienced in law, the ignorant or incompetent barristers had no chance of obtaining any business, and dropped out of sight. Furthermore, the concentration of the entire body of barristers in London, and the unrivaled honors and emoluments that reward the successful lawyer so developed competition and so stimulated the ambition of the ablest men, as inevitably to produce a Bench and Bar of the highest merit and distinction. If we turn now to this country, we find a marked contrast with the English experience in legal education. To the College of William and Mary, in Virginia, belongs the distinction of having the earliest law professorship in Address of James Barr Ames. 31 the United States, a distinction due to the fertile genius of Jefferson, who, being appointed visitor to the college in 1779, wrote to a friend, in a tone of great satisfaction, that he had succeeded in abolishing the two professor- ships of divinity and substituting two others, one of medi- cine and one of law and police. Judge George Wythe, commonly known as Chancellor Wythe, was appointed professor, doubtless through the influence of Jefferson, who had been a pupil in his office. It is an interesting fact that John Marshall, as a student of the college, attended the first course of lectures given by the first American law professor. Three similar professorships were established in the last century, at Philadelphia, New York, and Lexington, Ky. It seems probable that these professorships were created with the hope that they would soon expand into university schools of law. Such an inference derives support from the high character of the first incumbents. Professor Wythe was a distin- guished judge of the high Court of Chancery of Virginia, Professor Wilson, at Philadelphia, was an Associate Justice of the Supreme Court of the United States, and both were signers of the Declaration of Independence. Professor Kent, though a young man when first appointed, already ranked as a lawyer of exceptional ability and legal learning. To these honored names should be added that of Henry Clay, who, although the fact seems to have escaped his biographers, was for two years professor of law at Transylvania University, being the youngest full law professor, as well as the youngest senator, in our country's history. But the hopes that may have been entertained of developing schools of law out of these professorships were in the main doomed to disappoint- ment. The private law school at Litchfield had for nearly twenty-five years no competitor, and throughout the fifty years of its existence was the only school that could claim a national character. 32 Address of James Barr Ames. The oldest of the now existing law schools in this country is the school at Cambridge, which was organized in 1817. But for the first dozen years of its existence, the Harvard School was a languishing local institution. I cannot better present to you the gloomy outlook for this school at that time than by quoting from Provost Duponceau. In an address before the Philadelphia Law Academy in 182 1, he advocated earnestly the establish- ment in Philadelphia of a National School of Law, and after alluding to the law lectures at the University of Cambridge, added: " If that justly celebrated University were situated elsewhere than in one of the remote parts of our union, there would be no need, perhaps, of looking to this city for the completion of the object which we have in view. Their own sagacity would suggest to them the necessity of appointing additional professors, and thus under their hands would gradually rise a noble temple dedicated to the study of our national jurisprudence. But their local situation precludes every such hope." Nor were the law schools of the University of Maryland, Yale and the University of Virginia, which w^ere established between 1824 and 1826, in any sense rivals of the Litch- field School. At the termination of that famous private school in 1833, there were only about 150 students at seven university law schools. In the dozen years follow- ing, new schools w^ere organized, and the school at Cam- bridge under the leadership of Story, in spite of its unfortunate situation, became a national institution. In 1850, when the Law School of the University of Pennsyl- vania was established by the auspicious election of Judge Sharswood as Professor of Law, our schools numbered fourteen, and in i860 the number had risen to twenty-three, with a total attendance of about 1000 students, all but one of these schools forming a department of some university. In the thirty-five years since the Civil War more than eighty new schools have been organized, so that we have to-day 105 law schools, with an attendance Address of James Barr Ames. 33 of about 13,000 students. Twenty-five years ago in none of the schools did the course exceed two years. To-day, fifty of the schools have a three years' course. Nearly ninety of these schools are departments of a university. Valuable as the lawyer's office is and must always be for learning the art of practice, these figures show how completely it has been superseded by the law school as a place for acquiring familiarity with the principles of law. It is an interesting illustration of the law of evolution that we Americans, starting from radically different tra- ditions of legal education, by a wholly independent process, without any imitation of continental ideas, have adopted in substance the continental practice of university legal training. What is the significance for the future of this remark- able growth of law schools? It means, first of all, the opening of a new career in the legal profession, the career of the law professor. This is a very ancient career in countries in which the Civil Law prevails. In Germany, for instance, a young man upon completing his law studies at the university, determines whether he will be a practicing lawyer, a judge or professor, and shapes his subsequent course accordingly. The law faculties are, therefore, rarely recruited from either practicing lawyers or judges. This custom will never, I trust, prevail in this country. Several of my colleagues at Cambridge think that a law faculty made up in about equal propor- tions of men appointed soon after receiving their law degree, and of men appointed after an experience of from ten to twenty years in practice or upon the Bench would give the best obtainable results. I should be willing to take the chances of a somewhat larger proportion of the younger men, if I believe them to have the making of eminent counselors or strong judges ; and, surely, men lacking these qualifications ought never to be thought of as permanent teachers in a first-class law school. The 34 Address of James Barr Ames. experience of the new law school at Leland Stanford University may fairly be expected to throw light on this problem. Next year, four of the five law professors in that school will be men who received their appointment within two years after taking their degree in law. They all graduated with distinction, and might look forward with confidence to a successful career at the Bar or on the Bench. I venture the prediction that this California school will ere long be in the front rank of American law schools. One of their faculty told me that their ambition was to make the Stanford Law School better than the best Eastern law schools, and added, with com- mendable enthusiasm, that he believed they would succeed within twenty-five years. May God speed them to their goal ! But whatever question there may be as to the just proportion in a law faculty of professors from the forum and from the university, there ought to be no doubt that the faculty should be made up almost wholly of men who devote the whole of their time to the university. The work of a law professor is strenuous enough to tax the energies of the most vigorous and demands an undivided allegiance. At the present time about one-fourth of the law pro- fesssors of this country give themselves wholly to the duties of their professorships, while three-fourths of them are active in practice or upon the Bench. These propor- tions ought to be, and are likely to be, reversed in the next generation. At the law schools of Harvard, Colum- bia, University of Virginia, Washington and Lee, Cornell, Stanford and as many more, nearly all the professors give themselves exclusively to the academic life. The Uni- versity of Pennsylvania, I am confident, will not be long in joining this group. There are, of course, occasional instances of men of exceptional ability, facility and capa- city for work, and of ,such abundant loyalty — I need not go beyond the walls of this building for illustrations — Address of James Barr Ames. 35 from whom it is better to accept the half loaf that the^ are ready to give, than the whole loaf of the next best obtainable persons. There is always the hope, too, that such men may, sooner or later, cast in their lot for good and all with the university. But it is a sound general rule that a law professorship should be regarded as a vocation and not as an avocation. Of this vocation the paramount duty is, of course, that of teaching. Having mastered his subject, the pro- fessor must consider how best he can help the students to master it also. Different methods have prevailed at dif- ferent times and places. At the Litchfield School, Judge Reeve and Judge Gould divided the law into forty-eight titles and prepared written lectures on these titles which they delivered, or rather dictated to the students, who took as accurate notes as possible, which they afterwards filled out and copied for preservation, A set of these notes, filling three quarto volumes of about five hundred pages each, was presented to the Harvard Law Library. The donor in his letter accompanying the gift wrote that these notes were so highly prized when he was a student at Litchfield that ^100 and upwards were frequently paid for a set. At a time when there were very few legal treatises, this plan of supplying the students with manu- script text-books served a useful purpose. But with the multiplication of printed treatises, instruction by the writ- ten lecture, which Judge Story, as far back as 1843, char- acterized as inadequate, has been rightly superseded. The recitation or text-book method was for many years the prevailing method, and is still much used. A certain number of pages in a given text-book are assigned to the students, which they are expected to read before coming to the lecture room. The professor catechises them upon these pages, and comments upon them, criticising, ampH- fying and illustrating the text according to his judgment. In the hands of a master of exposition, who has also the gift of provoking discussion by putting hypothetical cases. 36 Address of James Barr Ames. this method will accomplish valuable results. But the fundamental criticism to be made upon the recitation method of instruction, as generally handled, is that it is not a virile system. It treats the student not as a man, but as a schoolboy reciting his lesson. Any young man who is old enough and clever enough to study law at all, is old enough to study it in the same spirit and the same manner in which a lawyer or judge seeks to arrive at the legal principle involved in an actual litigation. The notion that there is one law for the student and another law for the mature lawyer is pure fallacy. When thirty years ago Professor Langdell introduced the inductive method of studying law, it was my good fortune to be in his first class at the Harvard Law School, so that we had an op- portunity to compare his method with the recitation sys- tem. We were plunged into his collection of cases on Contracts, and were made to feel from the outset that we were his fellow students, all seeking to work out by dis- cussion the true principle at the bottom of the cases. We very soon came to have definite convictions, which we were prepared to maintain stoutly on legal grounds, and we were possessed with a spirit of enthusiasm for our work in Contracts, which was sadly lacking in the other courses conducted on the recitation plan. There are some very suggestive sentences in Lord Chief Baron Kelly's testimony before the Parliamentary Commission of 1855. He was giving his reasons, derived from his own experience, for setting a much higher value upon the experience in the chamber of a barrister or special pleader than upon courses of lectures. " Per- haps," he says, " there was too much copying. But there was also this — there were constant debatings, there were constant investigations of every case that came into the barrister's or pleader's chambers for his opinion and look- ing up of cases ; and then the students, each giving his own opinion upon the case, and saying why he formed that opinion, by referring to authorities ; and then the Address of James Barr Ames. 37 barrister saying, my opinion is so and so, upon such and such grounds, correcting the errors of the one student, and approving of the course resorted to by the other. That was the way in which I learned the law, together with reading ; and if I am to compel anybody to go through any course at all, it would be just that course." The Lord Chief Baron was exceptionally fortunate in his student experience. He was in truth at a private law school conducted on the sound principle of developing the student's powers of legal reasoning by continual dis- cussion of the principles involved in actual cases. With the extinction of the special pleader there are few such schools left, even in London, and none at all in this country. One of my colleagues has said that if a law- yer's office were conducted purely in the interest of the student, and if, by some magician's power, the lawyer could command an unfailing supply of clients with all sorts of cases, and could so order the coming of these clients as one would arrange the topics of a scientific law- book, we should have the law-student's paradise. This fanciful suggestion was made with a view of showing how close an approximation to this dream of perfection we may actually make. If we cannot summon at will the living cHents, we can put at the service of the stu- dents, and in a place created and carried on especially for their benefit, the adjudicated cases of the multitude of clients who have had their day in court We have only to turn to the reported instances of past litigation, and we may so arrange these cases by subjects and in the order of time as to enable us to trace the genesis and the development of legal doctrines. If it be the professor's object that his students shall be able to discriminate be- tween the relevant and the irrelevant facts of a case, to draw just distinctions between things apparently similar, and to discover true analogies between things apparently dissimilar, in a word, that they shall be sound legal thinkers, competent to grapple with new problems be- 38 Address of James Barr Ames. cause of their experience in mastering old ones, I know of no better course for him to pursue than to travel with his class through a wisely chosen collection of cases. These " constant debatings " in the class have a further advantage. They make easy and natural the growth of the custom of private talks and discussions between pro- fessor and students outside of the lecture rooms. Any one who has watched the working of this custom knows how much it increases the usefulness of the professor and the effectiveness of the school. But the field of the law-professor's activity is not limited to his relations with the students, either in or out of the classroom. His position gives him an exceptional opportunity to exert a wholesome influence upon the development of the law by his writings. If we turn to the countries in which the vocation of the law-professor has long been recognized, to Germany, for instance, we find a large body of legal literature, of a high quality, the best and the greater part of which is the work of profes- sors. The names of Savigny, Windscheid, Ihering and Brunner at once suggest themselves. These and many others are the lights of the legal profession in Germany. The influence of their opinions in the courts is as great or even greater than that of judicial precedents. Indeed, to our way of thinking, too much regard is paid to the opinion of writers and too little to judicial precedents, with the unfortunate result that the distinction of the conti- nental judges is far less than that of the English judiciary. The members of the court do not deliver their opinions seiHatim^ nor does one judge deliver his written opinion as that of the court. The opinions are all what we call per curiam, opinions. Furthermore, one may search the reports from cover to cover, and not be able to find the number or the names of the judges who constitute the highest court in the German Empire. But, while the Germans might well ponder upon the splendid record and position of the judges in England and Address of James Barr Ames. 39 in the best courts in this country, we, on the other hand, have much to learn from them in the matter of legal litera- ture. Some of our law books would rank with the best in any country, but as a class our treatises are distinctly poor. The explanation for this is to be found, I think, in the absence of a large professorial class. We now at last have such a class, and the opportunity for great achieve- ments in legal authorship is most propitious. Doubtless no single book will ever win the success of the Com- mentaries of Blackstone or Kent. And no single profes- sor will ever repeat the marvelous fecundity of Story, who, in the sixteen years of his professorship, being also all those years on the bench of the Supreme Court, wrote ten treatises of fourteen volumes, and thirteen revisions of these treatises. We live in the era of specialization, and the time has now come for the intensive cultivation of the field of law. The enormous increase in the variety and complexity of human relations, the multiplication of law reports, and the modern spirit of historical research, demand for the making of a first-class book on a single branch of the law an amount of time and thought that a judge or lawyer in active practice can almost never give. The professor, on the other hand, while dealing with his subject in the lecture room, is working in the direct line of his intended book, and if he teaches by the method of discussion of reported cases, he has the best possible safe- guard against unsound generalizations ; for no ill-con- sidered theory, no doctrinaire tendency can successfully run the gauntlet of keen questions from a body of alert and able young men encouraged and eager to get at the root of the matter. He has also in his successive classes the gratuitous services of a large number of unwitting collaborators. For every one who has ever written on a subject, which has been threshed out by such classroom discussion, will cordially agree with these words of the late Master of Balliol : " Such students are the wings of their teacher ; they seem to know more than they ever 40 Address of James Barr Ames, learn ; they clothe the bare and fragmentary thought in the brightness of their own mind. Their questions suggest new thoughts to him, and he appears to derive from them as much or more than he imparts to them." Under these favoring conditions the next twenty-five years ought to give us a high order of treatises on all the important branches of the law, exhibiting the historical development of the subject and containing sound con- clusions based upon scientific analysis. We may then expect an adequate history of our law supplementing the admirable beginning made by the monumental work of Pollock and Maitland. But the chief value of this new order of legal litera- ture will be found in its power to correct what I conceive to be the principal defect in the generally admirable work of the judges. It is the function of the law to work out in terms of legal principle the rules, which will give the utmost possible effect to the legitimate needs and pur- poses of men in their various activities. Too often the just expectations of men are thwarted by the action of the courts, a result largely due to taking a partial view of the subject, or to a failure to grasp the original development and true significance of the rule which is made the basis of the decision. Lord Holt's unfortunate controversy with the merchants of Lombard street is a conspicuous instance of this sort of judicial error. When, again, the Exchequer Chamber denied the quality of negotiability to a note made payable to the treasurer for the time being of an unincorporated company, they defeated an admir- able mercantile contrivance for avoiding the inconvenience of notes payable to an unchartered company or to a par- ticular person as trustee. Both mistakes were due to a misconception of the true principle of negotiability and both were remedied by legislation. It would be difficult to find an established rule of law more repugnant to the views of business men or more vigorously condemned by the courts that apply it, than the rule that a creditor who Address of James Barr Ames. 41 accepts part of his debt in satisfaction of the whole, may safely disregard his agreement and collect the rest of the debt from his debtor. This unfortunate rule is the result of misunderstanding a dictum of Coke. In truth, Coke, in an overlooked case, declared in unmistakable terms the legal validity of the creditor's agreement. In sug- gesting these illustrations of occasional conflict between judicial decisions and the legitimate interests of merchants I would not be understood as reflecting upon the work of the judges. Far from it. The marvel is that in dealing with the many and varied problems that come before them, very often without any adequate help from the books, so few mistakes are made. From the nature of the case the judge cannot be expected to engage in original historical investigations, nor can he approach the case before him from the point of view of one who has made a minute and comprehensive examination of the branch of the law of which the question to be decided forms a part. The judge is not and ought not to be a specialist. But it is his right, of which he has too long been deprived, to have the benefit of the conclusions of specialists or professors, whose writings represent years of study and reflection, and are illuminated by the light of history, analysis and the comparison of the laws of different countries. The judge may or may not accept the conclusions of the professor, as he may accept or reject the arguments of counsel. But that the treatises of the professors will be of a quality to render invaluable service to the judge and that they are destined to exercise a great influence in the further development of our law, must be clear to every thoughtful lawyer. It is the part of a professor, as well as of a judge, to enlarge his jurisdiction. Mention should, therefore, be made of the wholesome influence which the professor may exert as an expert counselor in legislation, either by stay- ing or guiding the hand of the legislator. The necessity of some legislation to supplement the 42 Address of James Barr Ames. work of the judges, and the wisdom of many statutory- changes will be admitted by all. But the power of legis- lation is a dangerous weapon. Every lawyer can recall many instances of unintelligent, mischievous tampering with established rules of law. One of the worst of such instances is the provision in the New York Revised Statutes of 1828, which changed radically the rule against perpetuities, and which called forth Professor Gray's criti- cism " that in no civilized country is the making of a will so delicate an operation and so likely to fail of success as in New York." Equally severe criticism may be fairly made upon the revolutionary legislation in the same State, in 1830, in regard to the law of trust. This new legislation has produced several thousand reported cases and has given to New York a system of trusts of so provincial a character, that in the opinion of Mr. Chaplin, the author of a valuable work on trusts, the ordinary treatises on that subject are deprived of much of their value for local use. A part of this provincial system worked so disastrously, and caused, as Chief Justice Parker has said in a recent opinion, so many " wrecks of original charities — charities that were dear to the hearts of their would be founders, and the execution of which would have been of inestimable value to the public," that it was at last abolished and the English system of charitable trusts restored. No one will be so rash as to regard the law professor as a panacea against the evils of unwise legislation. But I know of no better safeguard against such evils than the existence of a permanent body of teachers devoting themselves year after year to the mastery of their respective subjects. Then again the spirit of codification is abroad. It is devoutly to be wished that this spirit may be held in check, until we have a body of legal literature resting upon sound generalizations. If, however, codification must come prematurely, it is the part of wisdom to bring to the work the best expert knowledge in the country. The commis- sion to draft the code should be composed of competent Address of James Barr Ames. 43 judges, lawyers and professors, and, in the case of com- mercial subjects, business men of wide experience. The draft of the proposed code should be published in a form easily accessible to any one, and the freest criticism through legal periodicals or otherwise should be invited during several years. In the light of this criticism the draft should then be amended and revised. In Germany, where by far the best of modern codification is to be found, these cardinal principles are followed as a matter of course. They were almost completely ignored, and with very unfortunate results, in the preparation of the Negotiable Instruments Act, adopted by several of our States. We should surely mend our ways in future codifications. In Germany much of the best work in the drafting of the code and of the criticism of the draft is done by the pro- fessors. There is no reason why under similar methods the same might not be true in this country. This, then, is the threefold vocation of the law pro- fessor — teacher, writer, expert counselor in legislation. Surely, a career offering a wide scope for the most stren- uous mental activity, a stimulus to the highest intellec- tual ambition, and gratifying in abundant measure the desire to render high service to one's fellow-men. If the professor renounces the joy of the arena, and the intel- lectual and moral glow of triumphant vindication of the right in the actual drama of life, he has the zest of the hunter in the pursuit of legal doctrines to their source, he has that delight, the highest of purely intellectual de- lights, which comes when, after many vigils, some orig- inal generalization, illuminating and simplifying the law, first flashes through his brain, and, better than all, he has the constant inspiration of the belief that through the students that go forth from his teaching and by his writ- ings, he may leave his impress for good upon that system of law which, as Lord Russell has well said, " is, take it for all in all, the noblest system of law the world has ever seen." 44 Address of James Barr Ames. To those of us who beheve that upon the maintenance and wise administration of this system of law rests more than upon any other support the stability of our govern- ment, it is a happy omen that so many centres of legal learning are developing at the universities all over our land. May the lawyers and the university authorities see to it that these law faculties are filled with picked men. Until the rural legislator has enlightened views of the value of intellectual service, we cannot hope to have on the bench so many of the ablest lawyers as ought to be there. But the universities, many of them at least, are not hampered by this difficulty. They have it in their power to add to the inherent attractiveness of the professor's chair such emoluments as will draw to the law faculty the best legal talent of the country. I have the faith to believe that at no distant day there will be at each of the leading university law schools, a body of law professors of distin- guished ability, of national and international influence. That the Law School of this University will have its place among the leaders is assured, beyond peradventure, by the dedication of this building. The lawyers of future generations, as they walk through these spacious halls, and see this rich library, and the reading-rooms thronged with young men working in the spirit of enthusiastic com- radeship, will say : " Truly it was a noble nursery of jus- tice and liberty that the lawyers and citizens of Philadel- phia erected in 1900 " — but as they call to mind the distinguished lawyers and judges among the alumni, and as they read over the names of the jurist-consults on the professorial stafT, men teaching in the grand manner, and adding lustre by their writings to the University and to the legal profession they shall add. " But those men of Philadelphia builded even better than they knew." On the conclusion of these exercises the special guests of the University were entertained at private dinners given by members of the University Club, members of the Board of Trustees, and of the Faculties of the Uni- Address of Justice Harlan. 45 versity of Pennsylvania, and members of the Philadelphia Bar. In the evening the exercises were continued at the American Academy of Music. The program as first arranged consisted of addresses by the Honorable John Marshall Harlan, Senior Associate Justice of the Supreme Court of the United States, the Honorable Sir Charles Arthur Roe, representing the University of Oxford, Eng- land, and Mr. Gerald Brown Finch, M. A., representing the University of Cambridge, England. At half-past eight o'clock the procession moved from the green room to the stage, where the special guests of the University and Reception Committee were already seated, in the following order : Justice Harlan, with the Provost of the University ; Sir Charles Arthur Roe, with the Chair- man of the Committee of the Trustees on Law and Legal Relations ; Mr. Finch, with the Dean of Faculty of the Department of Law, the members of the Committee of the Trustees on Law and Legal Relations, and the Faculty of the Department of Law. After music by the students' band of the University, Provost Harrison introduced Justice Harlan, who spoke as follows : I congratulate the people of this great Common- wealth, especially the Provost, Trustees, Professors and Students of this famous University, on the auspicious character of this occasion. We are assembled to mani- fest our interest in the dedication of a new and magnifi- cent building for the use of those who in this University impart and receive instruction in the science of law. All who have contributed in aid of its construction are en- titled to the thanks of the lovers of liberty. When I speak of liberty, I mean such liberty as is enjoyed in this country. This fair land is in a peculiar sense the home of freedom — the freedom that takes account of man as man, that tolerates no government that does not rest upon the consent of the governed, and recognizes the right of all persons within its jurisdiction, of whatever race, to the equal protection of the laws in every matter affecting life, 46 Address of Justice Harlan. liberty or property. In the vindication of those prin- ciples the American people will always need, as they have always had, the earnest, energetic support of the legal profession. Indeed, it is not too much to say that those who give their lives to the study, practice and administra- tion of the law constitute the active corps of the great army of freedom. If they fall away from the line of duty and as a body become false to the essential guarantees of life, liberty and property — if from want of courage or principle they retire before the advancing hosts of com- munism and anarchy — we may expect our freedom to be displaced by despotism and lawlessness. Only the ignorant or narrow-minded inveigh against lawyers as a class ; for candid students of history admit that in every crisis in which freedom has been put in peril by bad men or bad governments. Judges and Lawyers have stood forth as the fearless champions of right, the enemies of wrong and oppression. This has never been more dis- tinctly illustrated than in the lives of the Judges and Lawyers of this imperial Commonwealth. Pennsylvania may well take pride in the fact that no State of the Union has given to the world a larger number of eminent Judges and Lawyers. Among those who have adorned the Bench are Wilson, Baldwin, Grier, Strong, McKean, William Tilgham, Gibson, Sharswood, Black, Thompson and Cadwalader. Among those of extraordinary ability and learning as lawyers I may mention Ingersoll, Edward Tilgham, Rawle, Binney, Sergeant, Meredith, Campbell and Biddle. The memory of those distinguished men is warmly cherished by the legal profession. You of that profession in Pennsylvania can hold up their names and without boasting say to your brethren of other States: Match them if you can — surpass them you cannot. When I accepted the invitation to deliver an address on this occasion my first thought was to trace the history of the University of Pennsylvania and say something of the men whom it had trained and sent out into the vari Address of Justice Harlan. 47 ous walks of life. But that thought was abandoned be- cause it was found that those who were graduated from the University and who had shed honor upon its instruc- tors were too numerous to be mentioned upon any one occasion. It finally occurred to me as appropriate to this meet- ing to speak of the public career of James Wilson, and particularly of the principles of constitutional law for which he stood when the present Union was established. I am moved to this by the fact that he was the first Pro- fessor in a College of Law which was established in this city in the last century, and was subsequently merged into the University of Pennsylvania. It is an interesting fact that President Washington and his cabinet and the lead- ing members of the Congress of the Confederation at- tended the opening lecture of Professor Wilson. Those lectures have been preserved, and are familiar to every student of constitutional law. But he was not distinguished alone as a pioneer in American Jurisprudence. He was a member of the Second Congress that assembled in this city in May, 1775, continuing in that branch of the public service for some years ; a Signer of the Declaration of In- dependence ; a prominent member of the Convention that framed the present Constitution of the United States, and, by appointment of Washington, an Associate Justice of the Supreme Court of the United States. When the University of Pennsylvania is mentioned, we of the legal profession at once think of its most eminent Professor of Law. And as the University is about to enter upon a wider career of usefulness it is well to recall some of the services rendered by that remarkable man, and refer to the principles by which his public career was guided. In doing so I must omit any reference to his earlier life, ex- cept to say that in 1774, when only thirty-two years of age, in a pamphlet relating to the legislative authority of the British Parliament and which attracted great attention, Wilson disclosed the broad ground upon which his political 48 Address of Justice Harlan. faith rested, by declaring that all men — not some men^ not men of any particular race or color, but '■^all men are by nature equal and free " — the same great principle subsequently embodied in the Declaration of Indepen- dence. I come at once to the period when the momentous question as to the formation of a new government in place of that established by the Articles of Confederation was agitated. Every statesman of that day — no one more fully than Wilson — recognized the inherent weakness of the organization then existing and the absolute necessity for another form of government. The Articles of Con- federation, although contemplating perpetual union, were addressed to the States by name. They declared that each State retained its sovereignty, freedom and inde- pendence, and every power, jurisdiction and right that was not by those Articles expressly delegated to the United States in Congress assembled. This restriction closed the doors against the exercise of implied powers, however necessary they might be to the effective exercise of the powers expressly granted. The Articles established a mere league between sovereign States. All expenses incurred for the common defense or the general welfare were to be defrayed out of funds to be supplied only by taxes levied by the States. In this last provision lay the inherent vice of the Articles of Confederation. While to the government created by them was committed the duty of maintaining the unity of the country in time of war, it had no power, in and of itself, to raise the money neces- sary to accomplish that end. It could not lay and collect taxes. It leaned entirely upon the State governments, and in no legal sense upon the people of the States. If for any cause one State refused to furnish its part of the money necessary to defray the general expenses. Congress was without power to compel it to do so. This defect was sorely felt during the Revolutionary War ; and when the common enemy recognized the independence of America, Address of Justice Harlan. 49 there arose on all sides a cry for a government that would be one in fact as well as in name. The situation is described with great force by Mr. Justice Story, in his Com- mentaries on the Constitution : " Congress in peace was possessed of but a delusive and shadowy sovereignty, with little more than the empty pageantry of office. They were, indeed, clothed with authority of sending and receiv- ing ambassadors ; of entering into treaties and alliances ; of appointing courts for the trial of piracies and felonies on the high seas ; of regulating the public coin ; of fixing the standard of weights and measures ; of regulating trade with the Indians ; of establishing post offices ; of borrowing money and emitting bills of credit ; of ascer- taining and appropriating the sums necessary for defraying the public expenses, and of disposing of the western terri- tory. And most of these powers required for their exer- cise the assent of nine States. But they possessed not any power to raise any revenue, to lay any tax, to enforce any law, to secure any right, to regulate any trade, or even the poor prerogative of commanding means to pay its own ministers at a foreign court. They could contract debts, but they were without means to discharge them. They could pledge the public faith, but they were incapa- ble of redeeming it. They could enter into treaties, but every State in the Union might disobey them with impu- nity. They could contract alliances, but they could not command men or money to give them vigor. They could institute courts for piracies and felonies on the high seas, but they had no means to pay the judges or the jurors. In short, all powers which did not execute themselves were at the mercy of the States and might be trampled on with impunity." Washington said the Confederation was "a half-starved limping government, always moving upon crutches and tottering at every step ; and that what was needed was an indissoluble union of States, with power in the Federal head to regulate and govern the general concerns of the country, the States retaining control of all matters of a 50 Address of Justice Harlan. local character. The Confederation has been well described as a government that had power to declare everything, with- out the power to do anything. The statesmen of that day, James Wilson among the number, demanded the creation of a government, with authority to exert every power con- ferred upon it against all comers, whether States or armed combinations of individuals. Of course many deemed it impossible for the patriots of the Revolutionary period to establish, much less to maintain, such a government. But if the pessimists of those times could reappear upon the earth and look over this country now extending from ocean to ocean, with more than seventy millions of pros- perous, happy and contented people, all standing under one flag, all obedient to the same constitution, so strong that there are none to molest or to make them afraid, he would see that he had misapprehended the capacity of our fathers to lay the foundation of free institutions grounded upon the principle, vital in our republican system, of local rule in respect of local matters, and national rule in respect of national matters. It was in this city, in a building still standing. Inde- pendence Hall, that the Convention met that gave to America the matchless Constitution under which our people have lived for more than a century. In that his- toric Hall James Wilson was often heard in support of the essential principles of stable government. He was recog- nized as the most learned member of that notable body. Webster said that Justice was the great interest of man on earth. Of Justice as illustrated by the science of the law Wilson had been an earnest devotee from his early man- hood. In the highest and best sense he was a great Lawyer. Still more, he had become a master in the sci- ence of Government. He was therefore pre-eminently qualified to take part in la5dng the foundations of institu- tions under which the rights of man would be secure against the assaults of power. What a privilege it was to look upon that convention of patriots and statesmen — Address of Justice Harlan. 51 the wisest assemblage of public servants that ever con- vened at any time in the history of the world — no one of them wiser than James Wilson. The Convention met in September 1787, all the States except one being represented. Its composition and the history of its proceedings will always interest the student of American history. Its President was Washington. Its most conspicuous members were Franklin, Wilson and Robert Morris of Pennsylvania, Madison and Mason of Virginia, King of Massachusetts, Sherman of Connecti- cut, Hamilton of New York, Paterson of New Jersey, Dickinson of Delaware, Rutledge and the Pinckneys of South Carolina. The historian McMaster, an honored Professor of this University, in an article relating to the Convention, says : " Hardly one of them but had sat in some famous assem- bly, had signed some famous document, had filled some high place, or had made himself conspicuous for learning, for scholarship, or for signal services rendered in the cause of liberty. One had framed the Albany plan of Union, some had been members of the Stamp Act Congress of 1763, the names of others appear at the foot of the Decla- ration of Independence and at the foot of the Articles of Confederation ; two had been Presidents of Congress ; seven had been or were then Governors of States ; twenty- eight had been members of Congress ; one had com- manded the armies of the United States ; another had been superintendent of finance ; a third had been repeat- edly sent on important missions to England, and had long been Minister to France." The solemn responsibility which the members of the Constitutional Convention felt appears from a letter of the celebrated George Mason, in which he said : " May God grant we may be able to gratify them by establishing a wise and just government. For my own part I never before felt myself in such a situation, and declare I would not, upon pecuniary motives, serve in this Convention for 52 Address of Justice Harlan. a thousand pounds per day. The revolt from Great Britain and the formation of our new government at that time were nothing compared with the great business now before us. There was then a certain degree of enthusiasm, which inspired and supported the mind ; but to view, through the calm and sedate medium of reason, the in- fluence which the establishments now proposed may have upon the happiness or misery of millions yet unborn, is an object of such magnitude as absorbs, and in a manner suspends, the operations of the human understanding." " The establishment of a constitution," said Hamilton, "in time of profound peace, b}'- the voluntary consent of a whole people, is a prodigy to the completion of which I look forward with trembling anxiety." The Constitution as framed was far from being satis- factory to every member of the Convention. But there pervaded the body a spirit of amity and concession. All believed that upon the acceptance of the proposed Con- stitution depended the Union of the States and the existence of our liberties — for all felt that a common govern- ment with ample power to deal with matters that concerned the people of all the States was absolutely necessary to preserve the fruits of the struggle for independence. Said Hamilton : "I am anxious that every member should sign. A few by refusing may do infinite mischief. No man's ideas are more remote from the plan than my own are known to be ; but is it possible to deliberate between anarchy and convulsion on one side, and the chance of good to be expected from the plan on the other? " The closing scenes of the Convention must have pos- sessed extraordinary interest for those present. Just before the delegates signed the Constitution, the venerable Frank- lin, then past eighty years, fearing that some hesitated to sign, said : " The opinions I have had of its errors, I sacrifice to the public good. Within these walls they were born, and here they shall die. If every one of us, in returning to our constitutents, were to report the objec- Address of Justice Harlan. 53 tions he had made to it, and endeavor to gain partisans in support of them, we might prevent its being generally- received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor, among foreign nations as well as among ourselves, from our real or apparent unanimity. Much of the strength and effi- ciency of any government in procuring and securing hap- piness to the people depends on opinion — on the general opinion of the goodness of the government, as well as of the wisdom and integrity of its governors. I hope, there- fore, that for our own sakes as part of the people, and for the sake of our posterity, we shall act heartily and unani- mously in recommending this Constitution wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered." And we have the authority of Madison for this interesting circumstance : *' Whilst the last members were signing, Dr. Franklin, looking towards the President's chair, at the back of which, on the wall, a rising sun happened to be painted, observed to a few members near him that painters had often found it difficult in their art to distinguish a rising from a setting sun. ' I have,' said he, ' often and often, in the course of the session, and the vicissitude of my hopes and fears as to its issue, looked at that sun behind the President, without being able to tell whether it was rising or setting ; but now, at length, I have the hap- piness to know that it is a rising and not a setting sun.' " Another interesting fact has been stated in connec- tion with the closing scenes of the Convention. In the diary of Washington — the anniversary of whose birthday we celebrate to-morrow — it is recorded that, on the eve- ning of the day when the Convention finally adjourned, he retired at an early hour ** to mediate on the moment- ous work which had been executed " — an eloquent picture unconsciously drawn for us with his own hand. We may well believe that the deep, calm nature of that man of massive mould was profoundly stirred when, at the close 54 Address of Justice Harlan. of that memorable day, he looked forward into the future and attempted to forecast the destiny of his beloved coun- try under the form of government proposed for its adop- tion. If the work then executed appeared to him to be momentous in its character and in its probable results, how much more so does it appear to us, as we look back over the wonderful history of this wonderful nation ! When we think of what he did for our country, we cannot be surprised at the estimate placed upon him by Gladstone. In a letter written by that distinguished statesman as late as 1884, he said : " If among the pedestals supplied by history for public characters of extraordinary nobility and purity, I saw one higher than all the rest, and if I were required at a moment's notice to name the fittest occupant of it, I think my choice, at any time during the last forty- five years, would have lighted, and it would now light, upon Washington." We come now to the period when the people of the original States were considering whether they would accept or reject the proposed Constitution. The struggle was one of surpassing interest: Every conceivable objec- tion was raised against the adoption of the Constitution, It was a hand-to-hand contest, and in the front rank of the friends of the proposed Union was James Wilson. Upon the result, the friends of the Constitution felt, de- pended all that was worth preserving. The chief interest centered around the conventions in Pennsylvania, Massachusetts, Virginia and New York, the most powerful and influential of the States. By the terms of the submission the Constitution went into effect when nine States should adopt it. In the Pennsylvania Convention the recognized leader of the Constitutional forces was Wilson, the only member of that body who ha(i been a member of the Convention that framed the Constitution. Standing with him in that memorable contest was Thomas McKean, an able states- man and an enlightened jurist, who was declared by John Address of Justice Harlan. 55 Adams to be one of the best tried and foremost pillars of the Revolution. Wilson's speeches in that Convention have been characterized as the most comprehensive and luminous commentaries on the Constitution that have come down from that period. In his late work on the American Commonwealth, Bryce expressed the opinion that Wilson's speeches " in the Pennsylvania Ratifying Convention, as well as in the great Convention of 1787, display an amplitude and profundity of view in matters of constitutional theory which place him in the front rank of political thinkers of his age." Those of the opposition whom he met in debate in the Pennsylvania Convention were men of marked ability and undoubted courage. The Constitution, he frankly stated, was not in every respect what he desired. " But," he said, " when I reflect how widely men differ in their opinions, and that every man — and the observation applies likewise to every State — has an equal pretension to assert his own, I am satisfied that anything nearer to perfection could not have been accom- plished. If there are errors, it should be remembered that the seeds of reformation are sown in the work itself, and the concurrence of two-thirds of the Congress may at any time introduce alterations and amendments. Regarding it then in every point of view, with a candid and disin- terested mind, I am bold to assert that it is the best form of government which has ever been offered to the world." In reply to the suggestion that the Constitution proposed for acceptance worked the destruction of the State govern- ments, Wilson declared the contrary to be capable of demonstration, saying that " the State governments must exist, or the General Government must fall amidst their ruins." Alluding to certain observations of Mr. Findley, he said : " His [Findley's] position is, that the supreme power resides in the States, as governments, and mine is, that it resides in the people, as the fountain of govern- ment ; that the people have not — that the people mean not — and that the people ought not, to part with it to any 56 Address of Justice Harlan. government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same sub- ject." " My position is, sir, that in this country the supreme, absolute and uncontrollable power resides in the people at large ; that they have vested certain propor- tions of this power in the State governments, but that the fee simple continues, resides and remains with the body of the people." All are familiar with the history of the memorable debate in the Senate of the United States between the Expounder of the Constitution and those holding that the General Government was a mere league or compact between sovereign States from which any State could withdraw at pleasure, and thereby dissolve the Union ordained and established by the People of the United States. But Webster was not the first statesman who expressed the thought that this government was not a mere league or compact between sovereign States, although it devolved upon him to demonstrate — and all America now agrees that he did demonstrate, with un- surpassed power of logic, reasoning and eloquence — that the Union could not be legally dissolved by the act of any States, and could only be overturned by revolution. Wilson, in the Pennsylvania Convention of 1787, had, long before that debate, said : " This, Mr. President, is not a government founded upon compact ; it is founded upon the power of the people. * * * The system itself tells you what it is ; it is an ordinance and estab- lishment of the people. I think that the force of the in- troduction to the work must by this time have been felt. It is not an unmeaning flourish. The expressions declare, in a practical manner, the principle of this Constitution. It is ordained and established by the people themselves ; and we, who give our votes to it, are merely the proxies Address of Justice Harlan. 57 of our constituents. We sign it as their attorneys, and as to ourselves we agree to it as individuals. This system, sir, will make us a nation, and put it in the power of the Union to act as such. We will be considered as such by every nation in the world. We will regain the confidence of our own citizens and command the respect of others." " I am astonished," exclaimed Wilson in debate, " to hear the ill-founded doctrine that States alone ought to be represented in the Federal Government ; these must possess sovereign authority, forsooth, and the people be forgot ! No ; let us reascend to first principles. * * * The people of the United States are now in the posses- sion and exercise of their original rights, and while this doctrine is known and operates we shall have a cure for every disease." "The streams of power," he said, "run in different directions, but they all originally fiow from one abundant fountain. In this Constitution all authority is derived from the people." In one of his last appeals to the Convention for the ratification of the proposed Constitution, he said : " By adopting this system, we shall probably lay a foundation for erecting temples of liberty in every part of the earth. It has been thought by many that on the success of the struggle America has made for freedom will depend the exertions of the brave and enlightened of other nations. The advantages re- sulting from this system will not be confined to the United States ; it will draw from Europe many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjects, to restore to them a portion of that liberty of which they have for so many ages been deprived. . It will be sub- servient to the great designs of Providence, with regard to this globe, in the multiplication of mankind,^their im- provement in knowledge, and their advancement in hap- piness." In view of these declarations by Wilson as to the 58 Address of Justice Harlan. scope of the Constitution presented for adoption or rejec- tion, one cannot be surprised that when he became an Associate Justice of the Supreme Court of the United States he said in one of his opinions : " Whoever consid- ers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied that the people of the United States intended to form themselves into a Nation for national purposes. They instituted for such purposes a National Government complete in all its parts, with powers legislative, executive and judi- cial ; and in all those powers extending over the whole nation." Wilson and his associates succeeded in the Pennsyl- vania Convention ; for that body, representing the people, accepted the Constitution by a vote of forty-six to twenty- three. Accompanied by the President, and Vice Presi- dent of the State, members of Congress, the Faculty of the University and other officials, the members of the Convention proceeded to the Court House, and the rati- fication was read to an immense concourse of people. Cannon were fired and the bells on public buildings and churches were rung as evidence of the popular joy. This happy result was mainly due to Wilson. Bancroft the historian has gone so far as to say, in reference to Wilson's services in the Pennsylvania Convention, that " but for one thing, without doubt, Pennsylvania would have refused to have ratified the Convention, and that one incident marks alike the technical knowledge, the com- prehensive grasp, and the force of argument, of this great man." The effect of the action of Pennsylvania upon Conventions in other States was everywhere recognized. In the Massachusetts Convention the leaders in debate were King, Ames and Parsons. The final vote was one hundred and eighty-seven for and one hundred and sixty- eight against the acceptance of the Constitution. A change of ten votes would have produced a different result. The acceptance of the Constitution by Massa- Address of Justice Harlan. 59 chusetts although unconditional was accompanied by- resolutions expressing her opinion that the adoption of certain amendments and alterations " would remove the fears and quiet the apprehensions of many of the good people of the Commonwealth, and more effectually guard against an undue administration of the Federal Govern- ment." In Virginia there was a long and bitter contest. Washington was not in the Convention, but he was the real commander of the Virginia Constitutional forces. Indeed, from his quiet retreat at Mount Vernon he conducted the campaign for the Constitution throughout the whole country. To Patrick Henry he transmitted a copy of the Constitution, confessing that while it did not contain all that he desired, its adoption was of the last consequence. " From a variety of concurring events," he wrote, " it appears to me that the political concerns of this country are in a manner suspended by a thread," and if nothing had been agreed upon by the Convention, " anarchy would soon have ensued, the seeds being deeply sowed in every soil." To Edmund Randolph he declared that the proposed Constitution, " or a dissolution of the Union awaits our choice, and is the only alternative before us." To Lafayette he wrote : " There is no alternative, no hope of alteration, no intermediate resting place between the adoption of the Constitution and a recurrence to an un- qualified state of anarchy, with all of its deplorable conse- quences." The leaders in the Virginia Convention for the Constitution were Madison, Pendleton, Randolph, Nicho- las and Marshall. The opposition was led by Henry, Lee, Grayson, Monroe and Mason. They opposed the accept- ance of the Constitution in the belief that it tended to the destruction of the States, by creating a vast, consolidated, all-powerful central government, that would ultimately overthrow the principle of local government for local affairs. The position these men took did not prove them to be wanting in patriotism ; for they were foremost 6o Address of Justice Harlan. throughout the Revolutionary period in asserting the rights of American freemen. The position in which the Virginia Convention was placed was very peculiar. While the debate was in prog- ress, it was known that eight States had accepted the Constitution. The others were supposed to be holding back to see what Virginia would do. The final vote was eighty-nine for and seventy-nine against the Constitution. When the friends of the Constitution prevailed, it was supposed that Virginia was the ninth State to accept. But in fact, unknown to the members of that Convention, New Hampshire had accepted the Constitution before Virginia. As soon as New Hampshire voted for it, a messenger was sent to Virginia to carry the good news to the friends of the Constitution there ; and as soon as Virginia accepted it, a messenger was sent to New Hampshire to notify its friends there and give them encouragement. These messengers passed each other on their respective routes without meeting. So that New Hampshire and Virginia each voted in ignorance of what the other had done. The struggle in the New York Convention was extra- ordinary in every view. When the Convention met there was a very large majority under the lead of strong men, against accepting the Constitution. The minority was led by Alexander Hamilton. A writer has said that the debates in the New York Convention were like a "Homeric battle, Hamilton against a host;" that his mind, " like an ample shield, took all their darts, with verge enough for more." Unfortunately there is no full report of that great debate. But it has come to us from that time that the display of intellectual power in those debates by young Hamilton was most extraordinary — the more so because he did not altogether approve the plan of government devised by the Constitution and had accepted it only from a high sense of duty and patriotism. It has been said of him that " of all men who have ever lived in Address of Justice Harlan, 6i the United States, his was the most complete mind. He seemed to absorb information. Upon any subject he could leap fully armed into the saddle, ready to meet all comers. If right, he was irresistible ; if wrong, master of sophistry, he was almost irrefutable." Talleyrand, who was acquainted with all the celebrated men of his day, said that the greatest he had ever known were Napoleon, Fox and Hamilton, and that Hamilton was the first. As the debate was about to close, the news came that New Hampshire had accepted the Constitution. That information was brought by the messenger sent to Vir- ginia, who stopped en route in New York. And when in a day or so the news came that Virginia had also accepted the Constitution the opposition in New York gave way. New York did not accept the Constitution in distinct and unqualified terms. But its acceptance was legally suffi- cient. The vote was thirty for, to twenty-seven against, acceptance. In the circular letter sent by New York to the Governors of the States we find these words : " Our attachment to our sister States, and the confidence we repose in them, cannot be more forcibly demonstrated than by acceding to a government which many of us think very imperfect, and devolving the power of deter- mining whether that government shall be rendered per- petual in its present form, or altered agreeably to our wishes and a minority of the State with whom we unite," Thus was born the present Union of the States, The predictions of those who prophesied evil from its creation have not been verified. The hopes of those who said it would preserve all that had been won by the war for independence have been more than fulfilled. It is a strong government because its powers are enumerated and are sufficient to accomplish the object of its creation — strong also because it really rests upon the consent of the people. The secret of the success that attended the framing of the Constitution was well expressed by James Russell 62 Address of Justice Harlan. Lowell when in his address in England on Democracy he said : " They (the framers of the Constitution) had a pro- found disbelief in theory, and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy that a new system of government could be ordered like a new suit of clothes. They would as soon thought of ordering a new suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such a vesture of their thought and experience as they were meditating." " The best reason," another American said, " for American pride in the Constitution lies, not in the creative genius of its framers, nor in the beauty and symmetry of their work, but in the fact that it was and is a perfect ex- pression of the institutional methods of its people." And therein is found full justification for the observation that '* the statesmen of the American Revolution have taken their places once for all amongst the great political instruc- tors of the world." This work of the fathers is not however to be under- rated because largely based upon experience. For, as said by David Hume in one of his essays, " to balance a large estate or society, whether monarchical or republican, on general laws, is a work of so great difficulty that no human genius, however comprehensive, is able by the mere dint of reason and reflection to eflect it. The judg- ment of many must unite in the work ; experience must guide their labor ; time must bring it to perfection ; and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments." Let us examine for a few moments the distinguish- ing features of the old government that Wilson assisted in displacing and the new government that he aided in establishing. As already observed, the Articles of Confederation were addressed to the State governments, while the Constitution speaks to individuals as well Address of Justice Harlan. 63 as to the States. Under the Articles of Confedera- tion it was " We, the States," while under the Constitution it is, " We, the People of the United States." The Union created by the Constitution does not depend upon the will of any State or combination of States. It cannot be laid aside at pleasure. It has within itself the means of per- petuating its own existence. Its hand reaches to the remotest corners of the Republic, and its power compels obedience to the Constitution as the Supreme Law of the Land, anything in the Constitution or laws of any State to the contrary notwithstanding. When the Government of the United States acts within the limits of the powers conferred upon it, it acts for all the People of the United States. No State can stand between any citizen and obedience to the rightful authority of the Union. In the time of the Confederation a squad of discon- tented soldiers, less than one hundred in number, appeared in front of Independence Hall, in which Congress was sitting, and demanded the enactment of certain measures, thereby compelling that body, for the personal safety of its members, to change its place of meeting from Phila- delphia to New Jersey. There was no power to protect even Congress in the discharge of its great functions, Pennsylvania did not interpose, and its executive did not care to come into conflict with his fellow citizens. The spectacle was thus presented of the Congress of the Con- federation fleeing before a mob contemptible in numbers, however honest in purpose. Early in the history of the present National Govern- ment, some citizens of this Commonwealth, being dis- pleased with laws enacted by Congress for purposes of revenue, organized on a large scale what is called the Whisky Rebellion. They had many apologists in leading politicians of that day, who addressed them as the ** dear people," whose rights were being destroyed by a despotic government. But Washington was at the head of affairs, and Hamilton was at his side. The Father of his Country 64 Address of Justice Harlan. determined to vindicate the majesty of the law and sent troops under Light Horse Harry Lee to the scene of dis- turbance. The misguided insurrectionists dispersed as the national troops bearing the flag of the Union approached the locality of the disturbance. In 1 86 1, when it was sought by armed force to take the life of the Nation, there was power in the govern- ment of the Union to reinstate the National authority over every foot of our territory. In that hour of peril to all that was dear to us, the gallant sons of Pennsylvania were well to the front. The people of this Commonwealth will always cherish the memory of those brave soldiers of the Union. That our soldiers did not die in vain, that the American people were able to preserve the national life, that we have now a union of hearts and a union of hands, is due to the fact that our fathers established a government that could preserve its own life and enforce its own authority. And what power, let me ask, was given to that government that ought not to have been given to it, or that any one would now take from it ? The power to lay and collect taxes, duties, imposts and ex- cises, for the purpose of paying the debts and providing for the common defense and the general welfare of the United States ; to borrow money on the credit of the United States ; to regulate commerce with foreign nations and among the several States ; to establish an uniform rule of naturalization ; to pass uniform laws on the sub- ject of bankruptcies ; to coin money, and to regulate the value thereof ; to establish post offices and post roads ; to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and, discov- eries ; to make treaties ; to create a judiciary, competent to determine controversies between citizens of different States and controversies involving rights and questions arising under the Constitution, laws and treaties of the United States ; to declare war ; to raise and support Address of Justice Harlan. 65 armies ; to provide and maintain a navy ; and to make all laws necessary and proper for carrying into execution these and other powers vested by the Constitution in the General Government — will any one now say that the Nation ought not to have such powers ? Does any one suppose that those powers, or any of them, could be exerted by the States without imperiling the interests of the whole Nation ? The rights that grow out of the exer- cise of these and other powers are essentially National rights, in the preservation of which we are all, without regard to party lines, deeply concerned. No higher duty rests upon us than to see to it — each one in his peculiar sphere of duty — that the general government is not shorn of any right belonging to it under the Constitution. We have all been accustomed to hear of the tenden- cies of the General Government, by its various depart- ments to encroach upon the rights of the States. There are some who never weary of saying that the Federal judiciary continually usurps powers that do not belong to it, and seeks to impair the rightful authority of the States. The truth is that the National Government has been com- pelled, from its organization, to struggle for the privilege of existing and of exerting its rightful powers. Every exer- cise of power by the United States has been narrowly watched, criticised and, often without reason, opposed, under the pretence that States' Rights were being destroyed. But, although it is literally true that the Nation has had to fight for its right to exert its rightful authority, it must be said that opposition to the exercise of power by the National Government is not altogether unnatural. In a large sense we all stand for local rule. The germinal idea of American liberty is local self-govern- ment. We are home rulers by instinct, a feeling that has its root in affection for our own families above other families. Each man loves, above all other places, the one in which he was born and reared. When he returns to the old homestead in which he first saw the light of day, 66 Address of Justice Harlan. or in which his youth was passed, he cannot repress emotions of love for that particular place. Why, here is the same old bucket that hung- in the well when he was a boy. Here is the apple tree from whose branches was suspended his swing; every bud and tree and flower is dear to him because this was his home. So we love the town or city in which we live. The good people of this beautiful city like it better, I doubt not, than any other city, even in Pennsylvania. And the man of Pennsylvania would be looked upon with distrust, or as not a true son of this great Commonwealth, if he was not ready under all circumstances to say — indeed, to prove — that the women of Pennsylvania were the hand- somest women, the people of Pennsylvania the best people, and Pennsylvania the best State in all the world. In view of these tendencies in our natures, it may be expected that the States should be, now and then, jealous of the exercise of power by the General Government. It is, perhaps, well that they are, because it is as true to-day, as it was in the times of the Revolution, as it was far back in the periods of English history when the people won their rights from despotic rulers only by hard blows, that real liberty — the liberty that means something and for which men will die — depends not so much upon the absence of actual oppression, as upon the existence of constitutional checks that will keep governmental authority within proper bounds, and render oppression impossible. The disposition in all ages of many in authority to exceed their just powers has riveted in the hearts of the people the stern maxim that " eternal vigilance is the price of liberty." Watch the National Government then, if you will — scan closely all that it does or proposes to do — resist, within the limits of the law, all tendencies that are hostile to the reserved rights of the States. But let us at the same time remember that our all, and perhaps the hopes of freemen everywhere depend upon the recognition of the right of the National Government to exercise the powers belonging Address of Justice Harlan. 67 to it under the Constitution. And that right becomes the more important as our nation expands in population and territory. Careful men have estimated that our country when fully developed is capable of sustaining a popula- tion of one thousand millions of people. The time is certain to arrive, if this people remain true to their great destiny, when our Nation will be, if it has not already become, the most powerful factor in all movements that affect the peace of the world and the rights of man. The stronger we become in population arid the more extended we become in territory, the more vital are the powers of the Nation ; for only the government of the Nation — which as said by Chief Justice Marshall, is the government of all, whose powers are delegated by all, and which represents and acts for all — can keep all parts of our land together, as it was intended they should be kept, in the bonds of indissoluble Union. These observations about the rights of the Nation have been made because of the tendency in some quar- ters to deny to it rights and powers that are essential to our existence as one people, But do not suppose that I undervalue the rights of the States. There are National Rights and there are State Rights. To the States we must look primarily for protection in our lives, our liber- ties and our property. They have rights, as sacred as are the rights of the Nation. The State governments are vital in our constitutional system. Indeed, without the States under the Constitution there could be no United States of America. The States deal with matters over which it would be impossible for the National Govern- ment to exercise proper supervision. Those who speak slightingly of State rights do not appreciate the real sig- nificance of the relations of the States to the General Government. The fact is, we are coming to feel more than ever before that our liberties are involved in the preservation of the rights of the States. There are some who affect to think that the States stand in the way of 68 Address of Justice Harlan. accomplishing the great objects of the National Govern- ment and who would destroy them by such interpreta- tions of the National Constitution as would leave them but shadows of governments. There are others who affect to see in every act of Congress a purpose to over- turn the rightful authority of the States. The teachings of each of these classes are to be disregarded. We are not deceived by them. The people, the common people, of whom Lincoln spoke, know that the rights of the State, in their highest and best constitutional sense, have been preserved and are in no danger whatever from the action of the General Government. The real friends of State rights are those who concede to the General Gov- ernment the powers committed to it by the National Con- stitution, and the real friends of the Union are those who respect the reserved powers of the States. Only a short time ago might have been witnessed in London a spectacle which for magnificence and splendor has never been surpassed in the history of the world. The Houses of Parliament went in a body to present an address to Her Britannic Majesty, Queen Victoria. The Lord Chancellor of England, the highest judicial officer in the British Empire, kneeled before Her Majesty, and remained upon his knees until he had read the address of Parliament. He did not kneel because he was in the presence of a gracious woman — as any brave, manly per- son might well do — but because he was in the presence of a Sovereign. He and those whom he represented were subjects of a single human being exerting the powers of sovereignty. At one time in the history of this country a few misguided men left our shores and went to the aid of patriotic Cubans struggling to be free. They were arrested and condemned to be shot by order of the Cap- tain-General of that oppressed island. When the time came for their execution William Crittenden, one of the number, was blindfolded and ordered to kneel, that his executioners might the more easily take his life. The Address of Justice Harlan. 69 proud-spirited man, a descendant of a Revolutionary hero, with head erect and fearless of death, refused to kneel, and replied : " An American kneels only to his God !" In En- gland, to use the language of Mr. Gladstone, the Sovereign " is the symbol of the Nation's unity, and the apex of the social structure ; the maker (with advice) of the laws ; the supreme governor of the Church ; the fountain of justice ; the sole source of honor ; the person to whom, all military, all naval, all civil service is rendered." Our Sovereign is not he who for the time wields the Executive power of the United States. Our Sovereign is the People. They are the source of power and justice in this land. Their will is expressed by written constitutions and by laws passed in pursuance thereof, and to that will all must yield obedience. No man here is so high that he is above the law. No one here assumes to rule by divine right, but only in the mode prescribed by law and that law comes into existence only by the consent of the People acting by their representatives. Our institutions emphatically rest upon the sovereignty of the public will. Upon this principle they must always rest, unless in an evil hour, when all the guarantees of freedom have been destroyed, we should return to the exploded theory that the rights of life, liberty and property are such only as are conceded by those who dominate the people. My friends, I must apologize for detaining you so long. The subject of my remarks has always been one of interest to me. I never tire of reading about the great men who laid in this goodly land the foundations of free republican government. The history of our country is to be traced in the lives of men like Washington, the Adamses, Hamilton, Franklin, Wilson, Henry, Madison, Jefferson, Marshall, Mason, Lee and Ellsworth. The Gov- ernment which they assisted in establishing is entitled to our affection and support. The lessons to be drawn from their lives are absolute fidelity to country and unflinching adherence to those principles which must be regarded if 70 Address of Justice Harlan. government of the people, by the people and for the peo- ple is not to disappear. May I not add that now more than at any period in our history is it necessary that we be faithful to sound principles of government and liberty regulated by law. Our country has reached a critical and momentous period, and the utmost vigilance and the most unselfish patriotism are demanded from every genuine American. The time has come when we must be Americans, through and through. We have no right to turn our backs upon pub- lic affairs, or to become indifferent to the fate of our insti- tutions. Still less have we a right to enjoy the blessings and protection of this glorious land while continually saying and doing that which serves to strengthen the hands of the enemies of the Republic. Some people have a strange way in which to manifest their devotion to coun- try. They rarely see in the operations of the Government anything to approve, and they never fail, when the Nation is having a dispute with other peoples, to say that our country is wrong and our adversaries right. And they do this even while our soldiers are in far distant lands endeav- oring to maintain the rightful authority of the Nation. Some have not hesitated to say, in the most public man- ner, that those who from jungles ambush and shoot down our brave soldiers, are fighting the battles of liberty and doing only what they have a right to do, what their honor requires. These men are never happier than when at- tempting to persuade their fellow citizens that America is entering upon a dark and perilous future, and that all so far accomplished for the liberty and well being of the people will be lost if the Nation does not retrace its steps. For my own part, I believe that a destiny awaits America such as has never been vouchsafed to any people and that in the working out of that destiny, under the leadings of Providence, humanity everywhere will be lifted up, and power and tyranny compelled to recognize the fact that " God is no respecter of persons," and that He " hath Address of Justice Harlan, 71 made of one blood all nations of men." Let us have an abiding faith that our country will never depart from the fundamental principles of right and justice or prove recreant to the high trusts committed to it for the benefit not alone of the American people but of all men every- where on all the earth. We have had our days of gloom and darkness. We have had political storms that seemed to threaten the destruction of our institutions ; and now and then we may have been somewhat faint-hearted as to our destiny and doubted whether all was well for the Great Republic. But those storms passed away, and we rejoice that our apprehensions were groundless. We may expect storms in the future ; for nothing worth preserving has ever been achieved by individuals or by nations except through trials and sacrifices. Take courage in the belief that the American people are pure in heart, and have no desire or purpose other than to maintain the authority of the Nation wherever the flag floats, and to preserve unimpaired to the latest generation the free in- stitutions given them by the fathers. Taught by the experience of the past we will stand at our respective posts of duty in the firm conviction that the kind Provi- dence that has always watched over this People will pre- serve our heritage of constitutional liberty. We love the " rocks and rills," the " woods and templed hills " of this beautiful land, and come what may, we will give to America the best service of which we are capable. Let us feel about our country as did William Tell for his be- loved land, when being overtaken in the mountains of Switzerland by a furious storm, he is represented as saying — " I thought of other lands, whose storms Are summer flaws to those of mine, and just Have wished me there : the thought that mine -was free Has checked that wish ; and I have raised my head, And cried in thraldom to that furious wind, ' Blow on : this is the land of Liberty ! ' " 72 Address of Charles Arthur Roe. Provost Harrison then introduced as the next speaker the Honorable SiR Charles Arthur Roe, who deUv- ered the following address on The Constitutional Rela- tions of England and her Dependencies. According to the last official statistics published by the Colonial Office, the Colonial Empire of Great Britain — excluding Great Britain itself, and India — extended over some 9,750,000 of square miles, with an estimated popu- lation of between 23,000,000 and 24,000,000 — the distribu- tion of which is thus summarized : Countries . Area (Sq. Miles). Population. Europe 3,700 427,000 Asia 124,000 5,279,000 Africa 2,515,000 5,304,000 America 3,958,000 5,733,000 West Indies 12,000 1,514,000 Australasia 3,175,000 4,926,000 Total 9,797,700 23,283,000 If we add to these figures, The United Kingdom 121,180 40,000,000 India 1,560,110 289,000,000 the total area and population under the Crown of England will be nearly 11,500,000 square miles, with some 350,000,000 of inhabitants. It would be impossible to say, without a very elabo- rate examination of statistics, what proportion of the above area and population can really be regarded as British. But speaking roughly, we may say that Canada, Australasia, and a great part of the Cape of Good Hope are true British colonies in the sense that the bulk of the population is of British descent, with English law for their personal law, and that they may be expected to expand into great English-speaking nations. Of course a considerable number of persons of pure British descent are to be found in the other parts of the empire, but for purposes of enumeration they may be set off against the non-British in the British colonies proper. The latter Address of Charles Arthur Roe. 73 would, on this calculation, contain an area of some 7,000,000 or 7,500,000 square miles, and a population of about 12,000,000. I will not attempt to give any detailed account of how this great empire has been built up. Part of it was acquired by conquest — or as the result of wars — but it is to the peaceful industry and enterprise and natural aptitude for colonization of her sons that England owes ftie greater part of her colonial empire. The foundation of this empire was laid by the acquisition of Newfound- land in 1583 — and the last act of expansion was the arrangement with other European Powers of 1890 by which England acquired, or was acknowledged to have the right to acquire, some 2,500,000 out of 11,000,000 of square miles which is the estimated area of the whole of Africa. The formal constitutional relations between England and her colonies and dependencies is the same for all in the sense that all form part of the dominions of the Crown, and are, in theory, governed by the Crown through the colonial secretary, the history of whose office is briefly this : In July, 1660, the management of the affairs of the colonies was entrusted to a committee of the Privy Council, which, in the following December, became the Council of Foreign Plantations. This, in 1672, was united to the Council of Trade, and the joint body was styled the Council of Trade and Plantations. It was suppressed in 1677, but revived in 1695, and continued to exist down to 1782. In 1768, when the unfortunate quarrel between England and her American colonies had com- menced, a secretary of state for the colonies was for the first time appointed. But both he and the council were abolished in 1782, when the quarrel ended in the com- plete loss of America, and the affairs of the colonies that remained to us were again made over to a committee of the Privy Council. This committee was formally consti- 74 Address of Charles Arthur Roe. tuted in 1786, and subsequendy developed into what is now known as the Board of Trade, but after the outbreak of the French War in 1793, the committee ceased to have anything to do with colonial affairs. These were first made over to the Home and then to the War Ofifice, and in 1 801 a new ofifice of secretary of state for war and the colonies was created. This arrangement continued till 1854, when the outbreak of the Crimean War, as well as the rapid growth of the Australian colonies necessitated a separation of the two offices. Since then the secretary of state for the colonies has had sole charge of their affairs. But although the colonies and dependencies are alike in so far as they are, in theory, governed by the Crown through the colonial secretary, their real government pre- sents every variety of constitutional relations, from com- plete dependence to practical independence. Apart from mere posts occupied for naval or military purposes, such as Gibraltar, Adeb, Perim, and Wai-o-Wai, which are under the Admiralty or War Office, or the government of India and "protectorates" or "spheres of influence," such as Uganda, Zanzibar, the Niger Coast, and the North Borneo Company, which are under the Foreign Office, there are under the Colonial Office forty distinct and, as regards each other, independent governments or adminis- trations. Of these forty, eleven are what is called " self- governing colonies," /. c, practically independent govern- ments with parliaments of their own. The remaining twenty-nine may be grouped as follows : I. Without any Legislative Council, that is, where the power of legislation is vested in the officer admin- istering the government 4 These may be subdivided into — {a) Where the Crown has reserved to itself the power of legislating by order in council, Malta, Labuan, St. Helena 3 Address of Charles Arthur Roe. 75 {b) Where it has not reserved this power. Ba- sutoland i II. With Legislative Councils nominated by the Crown i6 {a) In which the Crown has reserved the power of legislating by order in council 15 {b) Where it has not reserved this power ... i III. With Legislative Councils, partly nominated by the Crown and partly elected 9 (a) In which the Crown has reserved the power of legislating by order in council 6 [b) In which it has not reserved the power . . 3 In the case of all these twenty-nine colonies or dependencies the control of the Crown is a real control. Where there is no Legislative Council the officer admin- istering the government acts entirely under instructions received from Home. In the others the case is the same in all executive matters, and even where the Legislative Council contains the largest elected proportion of mem- bers, its powers of legislation are by no means complete, that is to say the colonial secretary, even when he does not require bills to be submitted to him for approval before they are introduced into council, would not hesitate to advise the Crown to veto any bill passed by the council which he considered objectionable. But in the eleven "self-governing" colonies the case is very different. They, too, as I have said, are in theory and by their written constitutions, so far as they have any, governed by the Crown through the colonial secretary. The administration is carried on in the name of a governor appointed by the Crown, through ministers whom he may choose and dismiss at pleasure, and he may veto the most deliberate acts of the legislature. But what we now un- derstand in England by the term " constitution " is not the letter of documents (of which there are hardly any) creating or defining the powers of any part of the body politic, but the general spirit in which custom, which has from time to time changed, and will continue to change, 76 Address of Charles Arthur Roe. expects each different part to exercise its powers. Lord Macaulay, in the opening chapter of his History of Eng- land, says with reference to the constitution : " The change, great as it is, which her (England's) polity has undergone during the last six centuries has been the effect of gradual development, not of demolition and reconstruction. The present constitution of our country is to the constitution under which she flourished 500 years ago, what the tree is to the sapling, what the man is to the boy. The alteration has been great, yet there never was a moment at which the chief part of what existed was not old. A polity thus formed must abound in anomalies, but for the evils arising from mere anomalies we have ample compensation. Other societies possess written constitutions more symmetrical. But no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity." Thus it is that whilst the constitution of England at the present day is practically a democracy, in the sense that the will of the people as expressed through a House of Commons elected on a very broad suffrage, is really the supreme power in the state, the sovereign re- tains not only the title, but also, in theory, the powers of the Tudor and Stuart monarchs, and the House of Lords has at least the same power as the House of Commons. Yet if either the Crown or the House of Lords were to attempt to exercise their powers in opposition to the House of Commons their conduct would be denounced as " unconstitutional," not because it would be a breach of letter of the constitution, but because it has become a recognized principle that the Crown can only act on the advice of responsible ministers and that the House of Lords, though it may and should reject hastily considered measures, or measures as to the expediency of which the opinion of the nation is divided, is not justified in opposing a deliberate and definite expression of the national will. Address of Charles Arthur Roe, "jy A similar spirit pervades the constitution of the self- governing colonies with reference both to their internal government and their relation to the mother country. I will not attempt to trace the history of these colonies, or of any of them, in detail, or to explain the technicalities of their existing constitutions. Speaking broadly, it is as true of them as of the English constitution, that the present state of things is the result of natural development. In its early days the head of a colony must have full powers, and these must be derived from the Crown, that is the responsible government of the mother country, and be exercised under the control of the Crown. When the colony begins to gain strength, its leading men may be selected to assist the governor with their advice and share his powers, and the control of the Crown will be relaxed. As the strength of the colony increases, the nominated council may give place to an elected one, and the control of the Crown reduced to a minimum. This is the stage which has been reached by the " self governing colonies," and, as I have said, it has been reached gradually, not by blindly adopting a particular form of government on ac- count of its theoretical beauty, but by from time to time applying the form most suitable to the circumstances of each particular case. There is a great danger in political (of course I do not use the word in its party sense) as well as in other matters — not excluding even the law, of follow- ing theories instead of attending to the facts. This danger is particularly great when a country whose government is based on a democratic, or popular, foundation is dealing with the affairs of a colony or dependency. Because cer- tain arrangements, such as the practical vesting of supreme power in a popular assembly, trial by jury, liberty of the press, work well, or are a necessity in the mother country it is assumed that they are great and eternal truths which will work equally well in all communities, and that they must be applied regardless of consequences, even though popular elections may result in a war of races, or chaos, y8 Address of Charles Arthur Roe. trial by jury in gross miscarriage of justice, and liberty of the press, in anarchy. The true democratic or popular principle is, I believe, this, that all governments exist, or should exist, for the good of the governed, and that the best form of government for every community is the one which is under the particular condition of each case most calculated to promote this good. The relations between a mother country and her colonies and dependencies re- semble very closely those between a parent and child. If it is incumbent on the parent to protect and control a child in its infancy it is equally incumbent on him to recognize the fact that the child grows into the man, and that as he does so, advice must take the place of command, and at last even advice must not be obtruded unasked. I do not wish to refer to any of the details of what I have already spoken of as the unfortunate quarrel between England and her American colonies, but I think that it may be said with truth that the chief cause of it was England's failure to recognize the fact that her child had grown up. She has learned a lesson from the past, and whatever may be the formal constitutional relations between England and her grown-up colonies, the real tie between them is that of family affection. The value of such a tie is as great in public as in private life, and it was never more strongly shown than at the present moment, when from all parts of the empire England's children are rallying to her side, ready to spend their money and their lives in her defence, each colony vying with the others as to which can do most for the common mother, and best serve their much-loved Queen. To the very brief sketch which I have attempted to give of the constitutional relations between England and her colonies, I must add a few words regarding these relations between her and India. India is not, and never can be a colony, that is, a country occupied to any appre- ciable extent by settlers of British descent. Its organiza- tion, social and political, is entirely its own, though its Address of Charles Arthur Roe. 79 government is completely controlled by England. It is the greatest of England's ** dependencies," and a most perfect illustration of the true meaning of the term. Although India is often described as having been con- quered, or acquired by the sword, the description is very inaccurate. The real source of the acquisition was, as in the case of the colonies — the peaceful industry and enter- prise of England's own children. The foundation of the empire was a curious one — it was due to a rise in the price of pepper. The Dutch, who had a monopoly of the Eastern trade, raised the price of all spices to such an extent that, in 1600, a few merchants of the city of Lon- don determined to send out one or two ships of their own. Their enterprise was successful ; it was repeated and developed into a regular trade. The merchants became a chartered company with a monopoly, and established depots or factories. Bombay came to England as part of the dowry of the Queen of Charles II. Madras was founded in 1664, and Calcutta in 1698. The factories grew into possessions and their guards into a powerful army. Clive made these possessions a power, and War- ren Hastings made this power an empire, of which he was made governor-general in 1774. It was Pitt's Regu- lating Act of that year which first established any real constitutional relations between England and India. This was done by constituting England a committee of the East Indian Company's directors, presided over by a cabinet minister, called the " president of the board of control," for the management of the " political " affairs of the company, by associating with the governor-general members of council appointed from home, and by estab- lishing at each presidency town, that is, at Calcutta, Madras and Bombay, a supreme court whose judges were English barristers. This arrangement lasted till i860, when the East India Company ceased to exist, and the Crown assumed the direct government of India. 8o Address of Charles Arthur Roe. But the organization of the new government was framed, in the main, on the lines of the old one. In England a secretary of state took the place of the old " president of the board of control," and his council, vary- ing in number from ten to fifteen, and composed of persons, official and non-official, of the greatest Indian experience, took the place of the old company's commit- tee. The secretary of state cannot impose any burden on the finances of India without the consent of his council, and he is supposed to consult it and be guided by its advice in all other matters. But he may, and he not infrequently does, act independently of his council, or dis- regard its advice, not, I fear, always to the benefit of India. In India the governor-general became also viceroy, but his powers and those of his executive council, which consists of a legal member and a financial member, usually sent out from England, and a military member, and two civilians selected from the civil and military service in India, remained much as before. Each member of coun- cil has special charge of some department of the govern- ment, and, like a cabinet minister in other countries, disposes of all minor matters connected with it. All matters of importance are dealt with by the whole council, but the viceroy is not bound by a vote of the majority, nor would a member who was outvoted think it necessary to resign. He would merely record a minute setting forth his reasons for dissenting from the policy adopted. No doubt the original intention of the framers of this constitution was that the opinion of the members of the council should be given independently by them as Indian experts, that the viceroy should also form an independent judgment after giving due weight to this opinion, and that the secretary of state in England should only overrule the viceroy for very special reasons. I would not imply that the members of the council have ceased to give independent opinions, and they have most carefully kept themselves free from English political parties. But the Address of Charles Arthur Roe. 8 i course of events in India and its vicinity, which has made many Indian questions English or European questions* and more especially the telegraphic connection between India and England, has tended to reduce the government of India to a more subordinate position, and to make its highest officers not men left to act independently with a possibility of having their action set aside, but mere officials appointed to carry out orders or a policy resolved on at home. A very erroneous idea prevails about the government of India and its officers in matters of internal administra- tion. It is very generally supposed that the executive government and its officials down even to its district officers can issue what orders they please, and that these orders have the force of law. Nothing can be further from the truth. No doubt this was the state of things under the native governments which preceded the British» and it continues, with certain reservations, in the native states at the present day. But in British India the powers of the government and its officers were created solely by the written law, and are strictly limited by it. There is no royal prerogative by common law, and no inherent power in any class or any individual to rule over others. The whole population is on a footing of the most perfect legal equality, and if any one issues an order to another he must show that the power to do so was conferred on him by a certain section of a certain act, either of parlia- ment or the Indian legislature, and punishment for disobedience of the order could only be inflicted by a regular court of law, after a proper trial. If the viceroy himself were to be personally assaulted by a common coolie, the latter would not, as in most Eastern countries, be led off to instant execution, he would have to be pros- ecuted before a magistrate, and could only, on conviction, receive the sentence prescribed by law. No doubt in its inception the British Government did succeed to the powers of the government it displaced, and 82 Address of Charles Arthur Roe. its executive orders were regarded as laws. But as soon as Pitt's Act of 1774 gave a definite shape to the consti- tution of India, the distinction was drawn between mere executive orders, and regulations by the governor-general in council which were drawn up in the form of statutes and were intended to be observed as laws. In 1833 a Legislative Council, consisting of the viceroy and his executive council, with the addition of other members, official and non-official, nominated by him, was created and the power of legislation was transferred to it alone. Lord Macaulay went out to India as its first legal member of council, and the India Penal Code which, though it was not formally passed till i860, was drafted by him, would even if he had written nothing else, remain forever a monument of his genius. The council was enlarged in 1 86 1, and it has been further enlarged of late years, chiefly by the addition of non-official members, a few of whom are elected, or rather nominated to the viceroy for ap- proval, by bodies such as the Calcutta Chamber of Commerce, and members have been given a right of interpellation. Some of these changes can hardly be regarded as improvements, and they were probably adopted merely in order to avoid still more mischievous ones. In its proper sphere, that is as a machine for pass- ing laws, the council has done admirable work. In addition to the Penal Code to which I have referred, it has given us most complete codes of Civil and Criminal Procedure, and a "Contract Act" and an "Evidence Act," which embody the cream of English and American law. The ordinary process of legislation in India is this : Bills are introduced into council, not to satisfy some political cry or " fad," but to meet some real want which has been pressed on the notice of the government. On their introduction they are not only published in the Government Gazette and leading newspapers, English and vernacular, but they are also specially sent for opinion to those persons, official and non-official, Europeans and Address of Charles Arthur Roe. 83 natives, who are likely to have any opinion worth giving. The opinions received are carefully considered by a select committee of the council, who then report the bill to the council generally with their recommendations. It is then debated in the usual way and passed into law or rejected, as the case may be. To attempt to turn this body into a parliament or anything resembling a parlia- ment, will considerably impair its efficiency as a machine for legislation as to any general establishment of parlia- mentary institutions in India. I can only repeat what I have already said as to the danger of applying theories without regard to facts. The natives of India who form themselves into congresses and pass resolutions, in no sense represent the people of India or express their true wants. They merely represent a somewhat numerous body of persons who have received an English education at government expense, and who, on failing to obtain government employment, think that they will at least obtain notoriety by going into opposition. Their mode of thought and speech, and even of their sedition, when they are seditious, is not that of India but of an imitation Europe. Between the Legislative Council and England the con- stitutional relation is that the council has full power to legislate on all matters within the limits of British India, and the Crown, acting through the secretary of state, has merely the power of veto. It was intended that all members of the council, official as well as non-official, should deal with all matters in a perfectly independent spirit, and that the power of veto should only be exercised in extreme cases. But, as in executive matters, there has been a tendency on the part of the secretary of state to encroach on the powers of the government of India. Under the cover of the power of the veto, he requires the more important measures of government to be submitted to him for approval before the bills to give effect to them are introduced into the council, and its official members 84 Address of Charles Arthur Roe. are expected, though not to the same extent as in England, to support the bills that may thus be introduced. Besides the power of control over the making of laws which I have endeavored to explain in the above remarks, there exists for all the colonies, self-governing or depend- ent, and for India, a very real control over the administra- tion of the law, which is exercised by the Judicial Com- mittee of the Privy Council. This body is the final court of appeal for all parts of the British Dominions outside the United Kingdom. Cases come before it from all quarters of the globe, and it has to act as the final interpre- ter of almost every known system of law, English, Colon- ial, Hindu, and Mohammedan, and even the still more in- tricate systems of customary or tribal law, by which most of the native races are governed. Yet, strange to say, this supreme court is not, strictly speaking, a court at all. Its jurisdiction arises simply out of the right of every British subject, who believes that a wrong has been done him, to petition his sovereign personally for redress. Of course there are limits imposed by the various legislatures as to the nature and value of the cases in which an appeal to Her Majesty in council is allowed, but when it is allowed it takes the form of a petition to the sovereign, which is referred by her to certain select members of her Privy Council for consideration. They consider it not as a bench of judges sitting in state, but as a small group of elderly gentlemen in plain clothes, seated at the end of an ofifice table, and the result of their deliberations is recorded, not in the form of a decree of a court but merely as " hum- ble advice" to Her Majesty to take certain action. It is needless to say that Her Majesty always does act on the ad- vice given, but the whole procedure is a curious illustra- tion of the affection of the EngHsh constitution, for old forms long after the substance has completely changed. In concluding this brief sketch of the constitutional relations between England and her colonial empire, I can- not, in the presence of an American audience, refrain from Address of Charles Arthur Roe. 85 giving expression to the thought, which must often occur to most Englishmen, what would that empire have been if you had continued to form part of it ? In its mere ex- ternal form it would have been an empire extending over more than 15,000,000 of square miles, and containing in addition to nearly 300,000,000 British subjects of other races, a population of 131,000,000 of English-speaking freemen, and its internal strength would have been greater even than its form. I have said that the chief cause of our losing you was that England failed to recognize when her child was grown up. It may be that the child was so strong and vigorous, and his future in life so great, that the most judicious treatment would have failed to per- manently retain him even in a nominal dependence on his mother. If this is so, if we must have parted company some day, at any rate we need not have parted in anger. But time softens the bitterness of even the most serious family quarrels, and I think it may be truly said that in ours all sense of bitterness passed away a hundred years ago, and that the lesser feelings of jealousy and estrange- ment have gone also. Year by year the two great kin- dred nations are drawing closer and closer together, they are learning to understand one another better, to rejoice with each other in prosperity, to sympathize with each other in trouble, to recognize the truth of the old saying that "blood is thicker than water," and to feel that we are not merely friends with interests and feelings in common, but are truly members of one family. When we come to you we receive even more than a family welcome, and when you come to us it is not to see a strange country, but to revisit your old home. Many of you, I am glad to say, visit Oxford in the course of your tours, and I have no doubt that, as you gaze on the old colleges and recall their founders and benefactors and the history of the times in which they lived, it is a pleasure to you to feel that this history is your history, that these men were your ancestors, and that you have as good a right to claim admission to 86 Address of Charles Arthur Roe. the colleges as founder's kin as any inhabitant of the- British Isles. Owing to the lateness of the hour the address of Mr. Gerard B. Finch, with which the exercises were to have concluded, was, with his consent, transferred to the next day's program ; and, at the close of Sir Charles Roe's address, the guests of the University repaired to the rooms of the University Club to attend a reception by the club to Mr. Justice Harlan, Sir Charles Arthur Roe, Mr. Gerard B. Finch and Mr, James Barr Ames. Proceedings of the Second Day. 87 On Thursday, February 22nd, annually celebrated by the University of Pennsylvania as " University Day," the students of all departments led by the Municipal Band marched from the campus to the Academy of Music to participate in the exercises of the day. The following alumni and class presidents acted as marshals and aids : Chief Marshal. Judge Edwin A. Jaggard, '82 L. Assistant Thomas Learning, ' 76 C. Ludovic C. Cleeman, ' 59 C. Robert Patton Lisle, '62 C. Cornelius Stevenson, '63 C. Nicholas Henry Thouron, '64 C. Sidney W. Keith, '76 C. Thomas Robins, ' 77 C. Lewis Neilson, '81 C. Charles Edward Ingersoll, ' 82 C. John Lambert, Jr., '83 C. Thomas Lynch Montgomery,' 84 C. Hugh Walker Marshals. William Bowen Boulton, ' 79 C. William Heyward Drayton, Jr. ,' 81 C. Lewis H. Taylor, '80 M. William E. Casselberry, ' 79 M. John L. Wentz, ' 82 M. Howard Gerald Provost, '84 D. Allen J. Smith, ' 86 M. Ernest Wende, ' 84 M. Cecil Clay, ' 59 C. Robert Carmer Hill, '89 C. Thomas TurnbuU, Jr., '87 M. Ogden, '90 C. Aides. John Sebastian Conway, '00 C. Samuel Crowther, Jr., '01 C. Robert Holmes Page, '02 C. William GilfiUan Gardiner, '03 C. John Henry Outland, '00 M. Josiah Calvin McCracken, '01 M. Benjamin Franklin Roller, '02 M. Charles Hay Spayd, '03 M. Charles Louis McKeehan, '00 L. Walter Coggeshall Janney, '01 L. Joseph Robert Wilson, '02 L. Clifton Ernest Lord, '00 D. George Eugene Davis, '01 D. William George Hanrahan, '02 D, Hulbert Young, '00 V. Charles Louis Colton, '01 V. Samuel Burrows, ' 02 V. 88 Conferring of Honorary Degrees. Simultaneously with the arrival of the student body at the Academy, at eleven o'clock, the Provost, with the orator of the day, the representatives of Universities, and the Trustees and Faculties of the University of Pennsyl- vania in academic dress, proceeded to the stage. The exercises were opened with prayer by the Right Reverend Ozi W. Whitaker, after which the audience, led by the band, joined in singing "America." The degree of Doctor of Laws, honoris causa, was then conferred in University Council on the following named gentlemen : James Barr Ames, Dean of the Faculty of Law of Harvard University. Gerard Brown Finch, representative of Cam- bridge University, England. Sir Charles Arthur Roe, representative of Oxford University, England. John Marshall Harlan, Senior Associate Justice of the Supreme Court of the United States. Oscar Solomon Straus, United States Minister to Turkey. Wu Ting-Fang, Chinese Minister to the United States. Porfirio Diaz, President of Mexico (represented by Senor Manuel de Aspiroz, Mexican Ambassador to the United States.) The credentials of the representatives of the Univer- sities of Oxford and Cambridge were then read by them.* * Facsimiles of these credentials appear opposite. ;fi•*^-:::^ II II 'J ■ J 1 i J ^ M •i :# •I* 5 6 > ft •* ft ^ ^ fe. tittit "■i a .^ -> •? •^ - ^ ^ •^ § o i • 5 1 ^ .<=/ I § ?> s: •$. 1 .^ -^ ^ S^ "I ^ '5 ^ ^ -^ 2 •^ ' s ■ -• jk ."S o -s ^ ."^ a ■^ ■:-; <5 I Letter of Frederic William Maitland. 89 The following letter from Frederic William Maitland, LL.D., Downing Pro- fessor of the Laws of England in the University of Cambridge, was also read : Vea/i St>i ^ V^^^iA hZur L&A^J' Sckffs^ in 7ii'i^itiliJiiZ Iki UnCutA^ij ^ e; to 4c ut 7£fi^,^^c^'U^s ^U '^'^^ ^^ ^' ^' ^.^^.. A.J ut ^^^-^ w ^^^ ^^ A////^^/. go Letter of Frederic William Maitland. C&fMe ^ -i-C^^ laujit And ^ ^^t ^ tctLcki^a ^ ^e.. ^oje /^/ /" ^^^^ '^h^^ "^^ ^''' tU to^^^ Usst u^ fai'A, t^ ^ /^^ i ^ L^ Sckad a^cl y^ kn^ ficU f^i ^^^jf / finn {am;- ivUL /{otc'i:,/i, 4^t ^ ^ ^Mo//^hoiz ■luL'ei /uCts oM. o/Ke/i /^ud/ie, ^ fti eUx^z/AeAc J-ct He iVicL l^iM. hk <5i/i 4 % 1 1^ Address of Gerard Brown Finch. 131 Common Law in that contest has been strikingly illustrated by the intensely interesting and important case of Allen v. Flood, decided by the House of Lords in 1898. I venture to prophesy with regard to this contest that the growing moral sense of the people will bring a solution beneficial to both parties and fraught with blessings to the State, I am encouraged in this view by the Workmen's Compen- sation Act of 1897. That Act in the case of certain speci- fied trades throws the compensation for personal injury, arising in the employment, upon the employer, that is to say, on his business. This is an act of justice and humanity, marking a great advance in the treatment of the question. Does not the recognition of such a right on the part of the workman contain the germ of a new status between him, his employer, and the business, out of which the final solution of the question may grow ? If it is true that we are witnessing a reassertion of the ancient ideas of our race, we may expect that the solution will embody in modern form the spirit of the ancient Anglo-Saxon organi- zation disclosed in the first citation which I have given from Mr. Kemble's work. Mr. Provost, in concluding this fragmentary address I desire to avail myself of the present opportunity to express my grateful thanks for the signal honor which the Trustees of the University of Pennsylvania have done my colleague, Sir Charles Roe, and myself in conferring upon us the honorary degree of Doctor of Laws. I take it to be an expression of the great respect and regard felt by the members of your University for the venerable Foundations of Oxford and Cambridge, which we repre- sent. And I desire to thank, not only the University, but also the Law Institutions and the Citizens of this great city, for the abundant testimonies of good-will which they have showered upon us. Mr. Provost, I wish success to this new Law School. May it maintain the traditions handed to it from its pre- 132 Closing Exercises — Dinner. decessor ; and may it ever be the wise teacher, the faithful interpreter and the zealous guardian of our glorious Com- mon Law. The exercises closed with a commemorative dinner given by the Law Association of Philadelphia, the Law- yers' Club of Philadelphia and the Pennsylvania Bar Association, at Horticultural Hall, at which six hundred and fifty persons were present. The banquet hall and tables were profusely decorated with flowers, and the walls were hung with portraits of eminent lawyers and judges. Samuel Dickson, Esq., Chancellor of the Law Asso- ciation, presided. Upon his right sat Hon. John M. Harlan, of the Supreme Court of the United States ; His Excellency Wu Ting-Fang, the Chinese Minister ; Provost Charles C. Harrison ; Dr. Gerard B. Finch, of the Univer- sity of Cambridge, England ; Dr. S. Weir Mitchell ; Hon. Oliver Wendell Holmes, of the Supreme Court of Massa- chusetts ; Mr. James C. Carter, of New York ; Hon. Wm. H. Taft, of the Circuit Court of the United States; Richard C. Dale, Esq. ; and Professor James B. Thayer, of Harvard University. On the left of the presiding officer were Hon. Wm. U. Hensel, ex-Attorney-General of Pennsylvania, who acted as toastmaster ; Hon. George Gray, of the Circuit Court of the United States ; Sir Charles Arthur Roe, of the University of Oxford, England ; Hon. Henry Green, Chief Justice of the Supreme Court of Pennsylvania ; President Francis L. Patton, of Princeton University; Mr. John E. Parsons, President of the Bar Association of New York ; Professor Simeon E. Baldwin, of Yale Univer- sity ; Hon. John P. Sterrett, of the Supreme' Court of Pennsylvania ; Hon. Wm. J. Magee, Chief Justice of the State of New Jersey, and Professor George Wharton Pepper, of the University of Pennsylvania. The following is a facsimile of the dinner program : r // y^./ //^r' J J .////' fj///'// //^ f/ Irv/' ' /)/f/u/r/ r//. JSeale's ®rcbestra I. The Memory of Washington. II. The Judiciary. HONOILABLE GEORGE GRAY III. The University of Oxford. Sir CHARLES ARTHUR ROE IV. The University of Cambridge. Mr. g. b. finch, a.m. V. The University of Pennsylvania. Mr. GEORGE WHARTON PEPPER VI. The American Lawyer. MR. JOHN E- PARSONS VII. The Philadelphia Lawyer. Mr. RICHARD C. DALE <5iX€SXS His Excellency Senor Don Manuel De Azpiroz President C. K. Adams Professor James Barr Ames President James B. Angell Honorable Robert W. Archbald Honorable E. A. Armstrong Honorable Michael Arnold Professor Clarence D. Ashley Honorable Charles Y. Audenried Honorable William N. Ashman Honorable Simeon E. Baldwin Honorable J. Hay Brown Honorable Joseph Buffington Honorable James A. Beaver Honorable A. V. Barker Honorable Abraham M. Beitler Professor Samuel C. Bennett Honorable Edward W. Biddle Professor Philip M. Bikle President William W. Birdsall Honorable F. Araedee Bregy Honorable O. B. Bechtel Mr. James C. Carter President Joseph H. Chamberlin Chancellor Winfield S. Chaplin Honorable R. L. Crawford Honorable George S. Crisswell Honorable John Dean Professor Henry E Davis Honorable Edwin M. Dunham Honorable P. M. Dunn Honorable Alfred Darte Honorable John P. Elkin Honorable Henry M. Edwards Honorable John A. Evans Mr. G. B. Finch, A.M. Honorable D. Newlin Fell Professor J. Newton Fiero Honorable Thomas K. Finletter Honorable Robert Sellers Frazer Honorable Joseph C. Ferguson Honorable Henry Green Honorable George Gray President Daniel C. Gilman Honorable Charles G. Garrison Honorable M. P. Grey Professor Charles Noble Gregory Honorable John M. Greer Honorable Joseph M. Gaskill Honorable John M. Harlan Honorable Oliver Wendell Holmes Provost Charles C. Harrison President George E. Harris Professor John H. Harris President George A. Harter Professor William F. Hunter Honorable William B. Kanna Professor William A. Keener Honorable Andrew Kirkpatrick Professor William Minor Lile Honorable John B. Ivivingstoa Honorable John G. Love Honorable John Lynch Honorable Jeremiah Lyons Honorable Charles I. Landis Honorable Wilton M. Lindsay Honorable J. Brewster McColIum Chancellor Henry M. McCracken Honorable John B. McPherson Chancellor Emlen McClain Honorable Harold M. McClure Honorable Charles B. McMichael Honorable Henry J. McCarthy Mr. James H. McKenney Honorable William J. Magie Honorable James T. Mitchell Honorable S. Leslie Rlestrezat Doctor S. Weir Mitchell President James D. Moffat Honorable William A. Marr Honorable Thomas A. Morrison Honorable Thomas J. Morris Honorable James H. Nixon Professor Charles W. Needham Honorable George B. Orlady Honorable James M. Over Mr. Rollo Ogden G UtSTS—Continutd. President Francis L. Patton Honorable William W. Porter Honorable William D. Porter Mr. John E. Parsons Mr John Prentiss Poe Mr. Henry Page Honorable Samuel W. Penny- packer Honorable Clement B. Penrose Professor W. S. Pattee Professor Cuthbert W. Pound Sir Charles Arthur Roe Honorai)le John R. Richards Hon. John W. Reed Honorable Edmund H. Reppert Honorable John P. Sterrett President Austin Scott President Isaac Sharpless President John S. Stahr President Theodore L. Seip President Augustus Shultze Professor H. F. Spangler Professor John D. Shafer Honorable John W. Simonton Honorable Aaron S. Schwartz Honorable George M. Sharp Hon. W. F. Bay Stewart Honorable Clinton R. Savidge Honorable Samuel McC. Swope Mr. Moorfield Storey Honorable Oscar S. Strauss Mr. Henry L. Stimson President George W. Smith Honorable William H. Tafl Professor James B. Thayer Honorable M. Russell Thayer Honorable Frank J. Thomas Honorable Thomas W. Trenchard Honorable James F. Taylor Honorable R. E. Umbel His Excellency Wu Ting Fang President E D. Warfield Honorable Everett P. Wheeler President Beniah L. Whitiqan President John D. Whitney Professor B. L. Wiggins Honorable James B. Wasson Honorable J S. Wilson Honorable Emory A. Walling Honorable John W. F. White Honorable Stanley Woodward Honorable Robert N. Willson Honorable William W Wiltbaak Honorable J. G. Wadlinger Honorable Henry K. Weaud Mr. Edmund Wetmore Honorable Harman Yerkes Subscrt&ers Mr. John Adams Mr. Joha S. Adams Mr. Francis Cope Adler Mr. Karry M. AlbertsoQ Mr. James Alcorn T>3r. Lticien H. Alexander Mr. Edward P. AJlinson Mr. Edward A. Anderson Mr. Tarces B. Anderson Mr. William Y. C. Anderson Mr. J. K. Andre Mr. Pierce Archer Mr. Richard L. Ashhurst Mr. O. C. Allen Mr. Josiah R. Adams Mr. R. Loper Baird Mr. Thomas W. Barlow Mr. John Hampton Barnes Mr. J^orris S. Barratt Mr. Lewin W. Barringer Mr. James M. Beck Mr. J. Claude Bedford Honorable Dimner Beeber Mr. John C. Bell Mr. Charles Biddle Mr. Cadwalader Biddle Mr. Frederick D. Biddle Mr. Louis A. Biddle Mr. Lynford Biddle Mr. Charles C. Binney Mr. George Tucker Bispham Mr. Fdgar N. Black Mr. Edward II. Bonsall Mr. Francis H Bohlen Mr. Tames R. Booth Professor Henry S. Bomeman Colonel Wendell P. Bowman Mr. Peter Boyd Mr. F. B. Bracken Mr. Louis Bre^ Mr. Frederick L. Breitinger Mr Frank F. Brightly Mr. Joseph Hill Brinton Mr. Joseph J. Broadhurst Mr. Clarence M. Brown Mr. Francis Shunk Brown Mr. Henry P. Brown Mr. William Findlay Brown Mr. William H. Brown Mr. F. Pierce Buckley Mr. John C. Bullitt Mr. Dnncah I^ Bazby Mr. George F. Baer Mr. George R. Bedford Mr. Frederick Bertolette Mr. James K. Bowen Mr.-O. C. Bowers Mr. W. U. Brewer Mr. W. Michael Byrne Mr. J. W. B. Eausmaa Mr. John Cadwalader Mr. John Cadwalader, Jr. Honorable James D. Campbell Mr. John M. Campbell Mr. George W. Carr Mr. V/. Wilkins Carr Mr. Charles Carver Professor Hampton L. Carson Mr. Henrv S. Cattell Mr. Joseph L. Caveu Mr. Francis T. Chambers Mr. S. Spencer Chapman Mr. Horace L. Cheyney Mr. Frank S. Christian Mr. B. Frank Clapp Mr. John A. Clark Mr. Joseph S. Clark Mr. Harry G. Clay Mr. Ludovic C. Cleeman Mr. Edward H. Cloud Mr. J. B. Colahan, Jr. Mr. James I. Coraly Mr. Samuel W. Cooper Mr. James C. Corry Mr. George L. Crawford Mr. John P. Croasdale Mr. T. Dewitt Cuyler Honorable Charles M. Campbell Mr. Edwin Rouse Cochran, Jr. Mr. Charles Corbet Mr. E- W. Coggeshall Mr. Charles F. DaCoeta Mr. Richard C. Dale Mr. Howard A. Davis Mr. G. Harry Davis Mr. Sussex D. Davis Mr. Henry M. Dechert Colonel Henry T. Dechert Mr. Joseph J. DeKinder Mr. George Demming Mr. James Aylward Develia Mr. Samuel Dickson SLrBSaWBERS—CoMtinutd. Mr. Hazard Dickson Mr. Joseph S. Goodbread Mr. Arthur G. Dickson Honorable James Gay Gordoa Mr. Edwin S. Dixon Mr. James E. Gorman Mr. Joseph I. Doran Mr. John F. Gorman Mr. D. Webster Dougherty Mr. William Gorman Mr. Charles H. Downing Mr. Leo J. Gorman Mr. WiUiam Drayton Mr. James P. Gourley Mr. Henry S. Drinker Mr Francis I. Goweu Mr. Henry M. DuBois Colonel Charles S. Greene Mr. William F. Dannehower Mr. Joseph L. Greeuwald Mr. William Grew Mr. George S- Darlington Mr. Warren G. Griffith Mr. Victor GuQIou Mr. Henry R. Edmunds Mr. Charles Francis Gummey, Jr. Mr. Adolph Eichholz Mr. John M. Gai-man Mr. Fi-ank S. Elliott Mr. Lyman D. Gilbert Mr. George A. EUasser Mr. H. H. Gilkyson Mr. Isaac Elwell Mr. William B. Given Mr. Rowland Evans Mr. Horace Pellraan Glover Mr. Lincoln L,. Eyre Mr. James C. Gray Mr. B. Frank Eshelmaa Mr. Norman Grey Mr. Montgomery Evans Mr. P. C. Evans Honorable Nathaniel Swing Mr. Alfred R. Haig Mr. Henry W. HaU Mr. Vv'illiam C. Hannis Mr. Thomas A. Fahy Mr. E. Hunn Hanson Mr. Thomas A. Fenstermaker Mr. Thcmas B 'Harned Mr. William C. Ferguson Mr. Avery V. Hsn-ington Mr. George H. Fisher Mr. David C. Harrington Mr. Henry Flanders Mr. W. C. Hj«-ris Mr. Charles D. Fortio Mr. William F. Harrity Mr. William G. Foulke Mr. Gavin W. Hart Mr. Roland R. Foulke Mr. Charles Henry Hart Mr. Joseph C. Fraley ?.Ir. Thomas Hart, Jr. Mr. Henry R. Hatfield Mr. Angelo T. Freedley Mr. Parker R. Freeman Mr. Charles Heebner Mr. William S. Furst Mr. George Henderson Mr. Philip F. Fulmer, Jr. Mi. J. Bayard Henry Mr WiUiam H. Futrell Mr. Morton P. Henry Mr. Edward J. Fox Mr, Max Herzberg Mr. Gilbert Rodman Fox Mr. Luther E. Hewitt Honorable Austin O. Furst Mr. Anthony A. Hirst Mr. Edward Hopkinson Mr. Joseph Hopkinson Mr. Vivian F. Gable Mr. Samuel B. Huey Mr. Charles Boyd Galloway Mr. J. tjuincy Hunsicker Mr. Henry E. Garsed Mr. Samuel M. Hyneman Mr. Joseph M. Gazzam Mr. E. H. Hall Mr. John H. Geil Mr. J. Frank E. Hause Mr. Frederick J. Geiger Mr. William M. Hayes Mr. J. Howard Gendell Mr. George W. Heiges Mr. John S. Gerhard Mr. Isaac Heister Mr. Harry B. Gin Mr. J. Webster Henderson S UBSCRIBERS— Continued. Honorable 'Williatn U. Hensel Mr.William H. R. Lufcens Mr. F. G. Hobson Mr. N. H. Larzelere Mr. Archie M, Holding. Mr. Andrew Albright Leiser Mr. William McPherson Homer Mr. William Penn Lloyd Mr. Charles W. Henry Mr. Milton W. Lowry Mr. Charles E. Ingersoll Mr. wniiam E McCall, Jr. . Mr. John Mc Clintock, Jr., Mr. Edward G. McCollin Mr. John G. Johnson Mr. Joseph P. McCullen Mr. H. LaBarre Jayne Mr. Francis Mcllhenny Honorable Theodore F. Jenkins Mr. H Gordon McCouch Mr. William F. Johnson Mr. Edward G. McLaughlin Mr. Howard Cooper Johnson Mr. Thomas F. McMahon Mr. J. Levering Jones Mr John Blair MacAbee Mr. George Junkin Mr. Leo McFarland Mr. Joseph DeF. Junkin Mr. William MacLean, Jr. Honorable Edwin A. Jaggard Mr. C. H. McCauley Mr. Richmond L. Jones Mr. Andrew H McClintock Mr. Walter C. Janney Honorable Henry C. McCormick Mr. Seth T. McCormick Mr. Harrj' A. McFadden Mr. J. B Kinley Mr. Robert McMeen Mr Samuel H. Kirkpatrick Mr. Edward W Magill Mr William F. Kling i>lr. Andrew J. Maloney Mr. Edward W Kuhlemeier Mr. Joseph Mason Mr. Samuel H. Kaercher Mr. Charles H. Matthews Honorable Wm S. Kirkpatrick Mr Clinton Mayer Mr. Irwin P. Knipe Mr. Daniel B. Meany General W. H. Koontz Mr S. Edwin Megargee Mr. Robert A. Meier Mr. Leoni Melick Mr. John O. Lamb Mr. Joseph Mellors Mr. Charles A. Lagen Mr. George G. Mercer Mr. Joseph F. Lamorelle Mr Thomas E. Merchant Mr. W. Moylan Lansdale Mr. William E Mikell General James W. Latta Mr. E. Spencer Miller Mr. Thomas Leaming Mr. N DuBois Miller Mr. Frederick M. Leonard Mr. Albert L. Moise Mr. Julius C. Levi Mr. William W. Montgomery Mr. Francis A. Lewis Mr Alfred Moore Mr. Francis D. Lewis Mr Charles E. Morgan, Jr. Mr. John Frederick Lewis Mr. RandallMorgan Professor William Draper Lewis Mr. Effingham B. Morris Mr. William H.Lex Mr. William Morris Mr. James H. Little Mr. W Norman Morris Mr. H. A. Little Mr. Thomas D. Mowlds Mr. J. Washington Logue Mr. Joseph W. Moyer Mr. Mayne R. Longstreth Mr. James T. Maffett Mr. Samuel K. Louchheim Mr. Henry C. Loughlin Mr. Bemjamin H. Lowry Mr. William D. Neilson Mr. William Walter Lucas Mr. William L- Nevin SUBSCRIBERS— Continued. Mr. H. S. P. Nichols Mr. George E. Nitzsche Mr. Henry Nunez Mr. James B, Neale Mr. H. C. Niles Mr. William H. O'Brien Mr. M.J. O'Callaghan Mr. Francis J. O'Conner Mr W. C. M. Oram Mr. S. Davis Page Mr. C. Stuart Patterson Mr. John W. Patton Mr. Morton Z. Paul Mr. J. Rodman Paul Honorable Edward M. Paxson Mr George Peirce Honorable Boies Penrose Professor Geo. Wharton Pepper Mr. Samuel C. Perkins Mr. Silas W. Pettit Mr. Horace Pettit Mr. Alfred J. Phillips Mr Sheldon Potter Mr. John Power Mr, Frank P. Prichard Mr. William S. Price Mr. Eli Kirk Price Mr. Edward F. Pugh Mr. Earl B. Pulman Honorable Henry W. Palmer Mr. Mas Pam Mr. Roswell H. Patterson Mr. S. R. Peale Mr. Francis Rawle Mr. W. Brooke Rawle Mr. Eugene Raymond Mr. John R. Read Mr Gustavus Remak, Jr. Mr. Waller E. Res Mr. E. Clinton Rhoads Mr. Joseph R. Rhoads Mr. J. Howard Rhoads Mr. George P. Rich Mr. Frank M, Kiter Mr. Owen J. Roberts Mr V. Gilpin Robinson Mr John I. Rogers Mr. Emil Rosenberger Mr. Joseph G. Rosengarten Mr. P. Frederick Rothermel, Jr. Mr. Horace M. Rumsey Mr. Louis Barcroft Runk Mr. John G. Reading, Jr. Mr. James H. Reed Mr. John Samuel Mr. Joseph Savidge Mr Charles H. Sayre Mr. Edward S. Sayres Mr. Edwin F. Schively Mr. G. E. Schlegelmilch Mr. Charles S. Schofield Mr. Edwin J. Sellers Mr. James C. Sellers Mr. George Sergeant Mr. William W Sergeant Mr. Edmund B. Seymour Mr. E. Cooper Shapley Mr. Charles J. Sharkey Mr. Frank R. Shattuck Mr. Albert B. Shearer Mr. Albert S L. Shields Mr. Frederick J. Shoyer Mr. Robert N. Simpers Mr. Alexander Simpson, Jr. Mr. Jacob Singer Mr. Alfred Percival Smith Mr. A. Lewis Smith Mr. Lewis L. Smith Mr. Walter George Smith Mr. W. Rudolph Smith Mr. Elias P. Smithers Mr, Charles L. Smyth Mr. Jacob Snare Mr. Frederick A. Sobernheimer Mr. Isaac N. Solis Mr. John Sparhawk, Jr. Mr. William H. Staake Mr. Heury F. Stitzell Mr. John M. Strong Mr. Martin H. Stutzbach Mr. W. Henry Sutton Mr. John J. Sullivan Mr. Charles M. Swain Mr. George R Sanderson Mr. William I. Schaffer Mr Robert Snodgrass Mr. Robert B. Staples Mr Russell C. Stewart Commtttces Committee on Banquet an& 2>ecoratton3 WILLIAM H. STAAKE. Cbairman JOHN R. READ VICTOR GUILLOU JOHN B. COLAHAN. JR. A. H. WINTERSTEEN EDWARD P. ALUNSON Committee on IJnvltatlons ANGELO T. FREEDLEY, ChaiTman FRANCIS SHUNK BROWN P. F. ROTHERMEL, jR. SILAS W. PETTIT JOHN C. BELL Committee on Coasts JOHN CADWALADER, Cbairnum RICHARD L. ASHHURST GEORGE TUCKER BISPHAM ALEXANDER SIMPSON, JR. JAMES M. BECK -•' k' flT-'-'-H. * fm/-■ , Address of Samuel Dickson. 147 While the guests were assembling and during the banquet an orchestra, stationed in the foyer, rendered musical selections. The company being seated, Mr. Dickson arose and delivered the following introductory address : Gentleinen : — When Mr. Justice Harlan, His Excel- lency the Chinese Minister, and representatives of Oxford, Cambridge and Harvard Universities consented to deliver addresses at the opening of the new building of the Law School of the University of Pennsylvania, the Provost and Trustees felt warranted in inviting members of the Bench and Bar and of the universities and colleges throughout the country to be present ; and when it became known how graciously this invitation had been acknowledged, the members of the Bar of this city and State requested that they might be allowed to ask those in attendance to be their guests this evening. We were fully aware that although it seems to have been, even in the days of Shakespeare, a custom of immemorial anti- quity for adversaries in law to strive mightily, but to eat and drink as friends, a dinner of this kind has never yet been made entirely satisfactory, but it may at least serve as a collective expression of goodwill and cordial wel- come and friendly regard, and as such we hope it will be accepted by our guests this evening. The members of our Bar highly appreciate the honor done to the Univer- sity and to the city by the presence and participation on this occasion of so many distinguished men, and they have planned and prepared this entertainment as a token, however imperfect, of grateful appreciation. In thus coming together, it is impossible not to have a new and keener sense of our community of interest in our common profession. We have here the representa- tives of sixteen law schools ; of the State judiciary from Massachusetts to Minnesota ; of the Federal judiciary having jurisdiction from the Lakes to the Gulf and from ocean to ocean ; and of the great historic universities of 148 Address of Samuel Dickson. England. But although process runs in a different name in each different jurisdiction, the system of jurisprudence is, in its main features, substantially identical in every forum represented here to-night. For this inestimable advantage, the people of the United States are mainly indebted to the lawyers of the United States, and prima- rily and chiefly to those who so instructed and controlled pubhc opinion, from the beginning of the controversy with Great Britain, that the War of the Revolution was conducted throughout as one of self-defense for the pre- servation and protection of the constitutional rights and privileges of the colonies. In making the contest upon these grounds, they were following precedents with which they were familiar in English history. The conservatism of the race has always, except in the case of the Commonwealth, pre- vented any violent break with the past, and Dr. Arnold has well said that it is the blessing of English history that its " days are bound each to each by natural piety," and that the continuity of the national life has never been severed. The American lawyers of the last century were as resolute as the English statesmen of 1688 in their determination to hold fast to all that was good, and at the very time of renouncing allegiance to the English crown, they renewed their allegiance to the common law of England. The part taken by lawyers in framing the Federal and State Constitutions has been a frequent theme of commendation by the commentators and courts, as nota- bly in the address to which we had the pleasure of listen- ing last evening, but, so far as I know, nothing has been said of the great service done by the lawyers of the Revolution in carrying over the everyday law of the people, nor of what has since been done by their succes- sors down to the present, to make it what it now is. A brief mention of a few familiar facts will recall to your minds something of what has been done by the profes- Address of Samuel Dickson. 149 sion during the last century and a quarter in this behalf, and, at the same time, conduce to a better understanding of the significance of such a gathering of American lawyers as this. It had long been the fashion to speak of the common law as the birthright of Englishmen. In the preamble of the Act of the General Assembly of Pennsylvania of 17 18 it was recited that " it is a settled point that as the com- mon law is the birthright of English subjects, so it ought to be the rule in British dominions " ; and in 1722 it was said by the Master of the Rolls to have been determined by the Lords of the Privy Council, " that if there be a new and uninhabited country found out by English sub- jects, as the law is the birthright of every subject, so wherever they go they carry their laws with them." This view was generally accepted, with the qualification that the colonists carried with them only so much of the law of the mother country as might be found applicable to their condition in the new. In fact, therefore, each colony had gradually built up a common law of its own, adapted to its peculiar wants, which differed in many respects from the original, and from that of the other colonies. There were few edu- cated lawyers on this side of the Atlantic down to the latter half of the eighteenth century, and no book gave an adequate and easily intelligible statement of the prin- ciples and rules of the common law till the appearance of Blackstone's Commentaries. The settlers were chiefly engaged in tilling the soil, their hands were seldom idle, and in their simple and primitive lives they had little need of the refinements of the law. What they prized was the liberty to govern themselves in their own way, to manage their own affairs, to follow their own customs, and to assert and maintain the personal independence of the individual ; and above all, they valued the guarantees which have always made the common law the bulwark of the liberty of the people. 1 50 Address of Samuel Dickson. It is probable, therefore, that in claiming the common law as their heritage, they were using language to which they did not always attach any very clear and distinct meaning ; but beginning with the year 1 760, a brilliant group of young men, no less than one hundred and fifteen in number, chiefly from South Carolina, Virginia, Mary- land, Pennsylvania and New York, crossed the ocean to become students in the Inns of Court, Most of them became conspicuous in the great debate which followed their return, and among them were most of the men who became the leaders of the Old Bar of Philadelphia. From their political writings, and from the scanty summaries of their arguments preserved in the reports, and from the opinions of those of them who sat upon the Bench, we still continue to find satisfactory proof that they would have been learned and accomplished lawyers in any court of any day ; and when they spoke of the common law, they meant by it what the term means now. No more glowing and discriminating panegyric upon the common law was ever pronounced than by Judge Wilson in the lectures which he delivered in 1790 before the Law School of the University, It cannot be doubted that it was their influence which led to its formal adoption by the several States soon after the Declaration of Independence. At the first session of 1776-7 of the General Assembly Pennsylvania under the new Constitution, an Act was passed continuing all laws previously enacted, together with the common law, and such of the statutes of England as had theretofore been in force, except as specially excluded. Similiar action was taken in other States, and by constitutional provision, by statute, or by judicial declaration, the common law was made the basis of the legal system in all of the thirteen States. It was, of course, the modified system in each colony which became of binding authority in the new State, but fortunately, the Commentaries of Blackstone of Address of Samuel Dickson. 151 which the first volume was only published at the end of 1765, had been completed in time for an edition to be published in this city in 177 1-2, and, as Burke pointed out in his speech in favor of conciliation with the colonies, more copies had been sold in America than in England itself, and it is estimated that at least twenty-five hundred copies had been sold here before the Revolution. No single agency did so much to bring about a substantial uniformity in the common law through- out the country, but by the adoption of only so much of the system as was in force at the date of the Declaration of Independence, it became a question for the courts, in each case, to determine whether the original rule had been introduced or superseded. This compelled the con- stant consultation of that great repertory of wisdom, which had been accumulated during the past centuries of English history, and which was recorded in the English reports, from the Year Books down ; but, what is of greater value, it preserved and transplanted those seminal principles of growth by which the common law had come to be what it was, and by which it was to adapt itself to the wants and usages of a free people during all the centuries which were to follow. They thus retained the right of free access to the great body of decisions through which the system had slowly broadened down from precedent to precedent, while reserving the power to modify and change so as to suit the varying conditions of an active and vigorous people, rapidly expanding and developing in a new country. Hence, the law which really comes home to men's business and bosoms in ordinary times of peace and order, and which governs them in all the relations of private life, in the family, and in society ; by which they owned or conveyed or devised their estates ; by which they made or rescinded or enforced contracts ; and by which every-day affairs were managed and conducted, continued just as before. The presumption was against any change 152 Address of Samuel Dickson. having been made, and the burden was on him who as- serted its existence or necessity. No men are more wedded to precedent and more averse to innovation than lawyers, on or off the Bench ; but there never was any hesitation in recognizing an accomplished change in the habits and usages of the peo- ple, or a substantial distinction between the natural condi- tions here and abroad. Numerous modifications have therefore been made to bring the law into accord with the character and spirit of our institutions, and it may be fairly and justly claimed that both in retaining what was old and in welcoming what was new, the lawyers of this country have always acted in accordance with the precept of Bacon — " to take counsel of both times, of the ancienter what is best and of the later times what is fittest ; to re- form without bravery or scandal of former times, yet to set it down to ourselves as well as to create good prece- dents as to follow them." Every lawyer will recall the changes which have been introduced into the law of his own State, and, by way of illustration, reference need only be made to such familiar instances in Pennsylvania as the disregard of the rule which rendered seizin in the grantor necessary to the validity of a conveyance of land ; the rejection of markets overt ; the law of the waygoing crop ; the law of the road, of fences, and the like. Some or all of these find a par- allel in other States, but one is of peculiar interest as illustrating how substantially the same question has been successively dealt with as it first arose on this side of the Alleghenies, and finally presented itself upon the Pacific slope. From an early day, the navigable fresh- water rivers of Pennsylvania, though not tidal, had been declared public highways, and hence the old common-law rule as to the rights of the riparian owner was rejected. A simi- lar view was finally adopted when the scope of the ad- miralty powers of the courts of the United States was Address of Samuel Dickson. 153 extended over navigable rivers and the great lakes; but the most striking example of the capacity of the common law, as a system of living principles, to adapt itself to the needs and facts of a vivid and vigorous life under new and stimulating conditions, was furnished by the manner in which the miners of California made a common law of their own. They drafted and adopted their own rules and regulations for each camp, and they claimed and exercised the right to appropriate and divert and consume the whole or part of any^stream, and to assert the ownership of the water as against all the world, without any obligation to return it to its channel. When these rights had ripened into a coherent scheme, they were recognized and rati- fied by Act of Congress, but they revealed the capacity of men reared under " the hardy features of personal in- depence," fostered by the common law, to frame a form of government in an emergency, which courts and leg- islatures found it impossible subsequently to improve upon. Thus it is that the people of this country, but chiefly its lawyers, have been engaged in building up a system which may now properly be termed the American com- mon law. With patient and laborious research into the records of the past ; with careful comparison between the conclusions reached in contemporaneous courts ; by earnest and thorough discussion of every question of principle or of public policy, the members of our profes- sion, each in the courts of his own State, are steadily and surely building up the great fabric of American law — the wide arch of the rang'd empire. Not less, but in some respects more important, are the labors of men like those of Oxford and Cambridge who have lately written a history of English law before the time of Edward I., so thorough and complete as to make the profession in every English-speaking country their debtor, and who have taught us how better to value the work done at home, by the estimate they have put 154 Address of Samuel Dickson, upon it, when they say, as they do, that " when the ground has lately been occupied by a Holmes, Thayer, Ames, or Bigelow, they pass over it rapidly from a desire to avoid what they should regard as vain repetition."* They thus, in their turn, are perpetuating and making available all that is valuable in the past and helping to diffuse a scientific spirit among those engaged in the practice and exposition of the law, while those who are brought by their daily avocations into direct contact with the life of the people, and are compelled to deal with the average man as client or juror, are forced to study the practical outcome and to put every proposed improvement to the test of experience. We may, therefore, justly regard ourselves, gentle- men — all of us, from the youngest tyro among those who united in tendering this entertainment, to the most dis- tinguished of our guests — as fellow-workers in a common cause, each making some contribution to the common stock of legal doctrine, which is to be the most precious possession of the American people so long as the Repub- lic shall endure, and to which may be fitly applied the words with which Goethe described Venice, " a grand, venerable work of combined human energies ; a noble monument, not of a ruler, but of a people." At the close of his address, Mr. Dickson presented Mr. William U. Hensel as the toastmaster of the even- ing, who, in a graceful speech, assumed the duties of his position. The first toast was " The Memory of Washington," which was drunk standing and in silence. Mr. Hensel * When one reads that sentence and thinks of the place which the monumental work of Sir Frederick Pollock and Professor Maitland has already taken, and is sure to hold so long as the English law is studied, he cannot help recalling Thackeray's comment on Gibbon's allusion to Fielding : " To have your name mentioned by Gibbon is like having it written on the dome of St Peter's. Pilgrims from all the world admire and behold it," Response of George Gray. 155 next proposed " The Judiciary," which was responded to by Hon. GEORGE GRAY. Judge Gray spoke as follows : Mr. Toastniaster : I will not presume, with my small experience on the Bench, to respond for the Judiciary. In the few words that I shall utter I shall attempt to speak only <7/"the Judiciary. It would be a fruitful theme, indeed, were one permitted to dwell upon the relation of the Judiciary and the Judicial systems of our country to its growth and civilization. No fact stands out more prominently, even to a superficial observer of the history of English speaking peoples, than the important part performed by the Judiciary in the development of that history. It is not a hasty or ill founded generalization to say that the freest countries in the world — the countries where the largest individual liberty co-exists with the greatest security for public order — are those in which the judiciary are held in highest esteem and exert the widest influence. And it needs not to be said that those are the countries in which the mould and vehicle of free thought is English speech, and the accent of liberty is taught by an English tongue. We are compelled to conclude that it is a part of the instinct of our race and blood to achieve liberty regulated by law by those means which prove most efficient for that purpose. If justice is the chief concern of government, the in- strumentality by which it is administered must always be of the first importance. Our ideals of individual liberty, and of national and community freedom, which underlie all our municipal law, have their beginnings far back in the history of our race. With their growth and develop- ment have grown and developed our conceptions of the judicial establishment and the proper powers and func- tions of a free and independent judiciary. I am recalled, in speaking of this subject, to an elo- quent passage in John Richard Green's *' History of the Making of England." I have a copy of it, and will yield to the temptation of reading it in this connection. He says, 156 "The Judiciary." in speaking of the town moot, in the early history of the peoples from whom we sprang : " It is with a reverence such as is stirred by the sight of the headwaters of some mighty river that one looks back to these village moots of Friesland or Sleswick. It was here that England learned to be ' mother of parlia- ments'. It was in these tiny knots of husbandmen that the men from whom Englishmen were to spring learned the worth of public opinion, of public discussion, the worth of the agreement, the * common sense,' the general conviction to which discussion leads, as of the laws, which derive their force from being expressions of that general conviction. A humorist of our own day has laughed at parliaments as ' talking shops,' and the laugh has been echoed by some who have taken humor for argument. But talk is persuasion, and persuasion is force, the one force which can sway freemen to deeds such as those which have made England what she is. The ' talk ' of the village moot, the strife and judgment of men giving freely their own rede and setting it as freely aside for what they learn to be the wiser rede of other men, is the groundwork of English history." And so it has come to be, that the common sense and best sense of every community, the conviction that has come from the crucible of discussion and contention, satisfying the awakened conscience and most enlight- ened judgment of the day, is voiced for us and for all English speaking people, from the judicial tribunal. Small wonder, then, that, from the beginning, there was required of those called to this high function a more than ordinary equipment of learning and of character. Doubtless in those beginnings the judg- ments and the personnel of the Bench partook of the rudeness of the times, but they both reflected what was best and most robust in the society of the day, and the development and improvement of both went hand in hand with the growth of civilization and the amelioration Response of George Gray. 157 of manners. And so our judiciary of to-day is the develop- ment, the fruition, and the perfect flower of the growth of the race to which we belong. It was because free institu- tions were in the blood and bone of those from whom we descended that we have them now, and, if God is willing, we will preserve them by the same means that we have always preserved them, by a brave, learned and inde- pendent judiciary. It is in declaring and expounding that great body of the law that lies outside of express legislative enactment, that our courts have performed their most important office, and have been enabled to exemplify and give articulate expression to the growth of the law. This is sometimes irreverently called "judge- made law," but it is only the voicing of the higher moral- ity and the broader humanity of the time in which they speak. It is after this fashion that " the law of the land," in its best and highest meaning, has become our inheri- tance, and that the muniments of freedom and individual liberty have been measurably placed beyond the reach of hostile legislation, executive power, or the encroachment of dominant majorities. It is this high meaning that the time-honored phrase, " the law of the land," has had since the days of ''Magna Charta'''' down to the present time. Institutional freedom and the fundamental per- sonal and political rights which may not be infringed, are to-day the peculiar care and highest trust of the judiciary — State and National. It is in the preservation of the rights, which were not the concessions of govern- ments, but which governments were formed to protect, that our courts have performed their highest functions. It was an appeal to this " law of the land " that made resistance to the tyranny of English monarchs successful where with other people it failed, and it is this, the " law of the land," which to-day is our best security against the despotism of power, whether democratic or pluto- cratic. 158 "The Judiciary." Usurpation, whether striking through the forms of legislation or through unauthorized executive power, finds this barrier, and behind it a judiciary ready to defend and maintain it. The institutional freedom of a country can have no safeguard so reliable, no protection so strong, as that of a courageous, learned and indepen- dent judiciary. It is the sentiment inborn in a people, that prompts it to resist tyranny, but no weapon was ever forged for freedom's hand, that has been so potent in the resistance of tyranny and the conservation of indi- vidual liberty, as that found in the judicial system that forms itself in an English speaking community. Brave men in other lands have resisted oppression with superb self-devotion, have shed their blood and sacrificed their lives to achieve a temporary victory, but they have often fallen back and failed to garner the fruits of victory from the want of the instinct that has been given our race to maintain as the " law of the land " the sacred principles of individual freedom, through the instrumentality of a judiciary, whom no power could awe or forces of corrup- tion seduce. No battles for individual freedom have been more important in their results — indeed, I may say, none have so permanently enlarged the area of human freedom — as those that have been fought by lawyers in the judicial forum. It is counted as one of the chief glories of our pro- fession, that the constant contention carried on by legal minds over fundamental principles, has so fashioned and tested them, that they have become, as it were, stones fitted by judicial hammer and chisel into the enduring fabric of our liberties. What I wish to impress in this connection is, that our judicial system is a growth and development of the civilization of our race, and was not struck out by the hand of man at one blow from the mint of his logical faculties. The judiciary has become an important part of our governmental system, because we cannot do without it. We do not know how to do with- Response of George Gray. 159 out it. And the capacity of the people for self-govern- ment may well be tested by their readiness to accept and recognize the necessity for judicial tribunals, and their willingness to abide by their decisions fairly made. The integrity of their judiciary, I may safely say, is very dear to all American communities, as it is to all English- speaking communities everywhere. We delight to honor them. The Supreme Court of the United States has been, through all our history, the pride and ornament of our Federal Government. Without it, all will agree that it could never have been successfully carried on — nay, it could hardly have survived the first decade of its exist- ence. Its career has been illustrated by the splendid intel- lects, exalted character, civic courage, and great learning of its members. The " great Chief Justice " was only primus inter pares^ and Taney and Chase and Waite were worthy successors of Marshall; and the names and fame of Storey and Nelson, of Clifford and Miller, of Field and Bradley, to speak only of the dead, belong not only to the Bench, but to the profession which they adorned and honored. Thrice happy the people that can point to such a heritage of courage and character in high place, and thrice happy will they remain, so long as they prize that heritage, and value the institutions which it adorned. Every man who loves the Republic, who cherishes high hopes for humanity, who hates anarchy, and loves liberty, will give his best efforts and highest endeavor to guard and maintain this great tri- bunal, as the best means of securing the blessings of liberty to ourselves and our posterity. Its long history is not only stained by no crime, but the brightness of its escutcheon has not even been dimmed by unworthy compliance with the behests of power, or by any swerving in the path of duty, when pressed by the " civilian ardor prava j'tibentitimy Individual liberty has been safe in its keeping, and the integrity of our dual i6o "The Judiciary." system of government has been maintained when angry partizanship would have wounded or destroyed it. It has made a democratic repubUc possible by giving legal expression to the sometimes incoherent cries of free- dom, and by crystallizing into law what is held in solu- tion, as it were, in the best and highest thought of the time. In its serene presence, the agitation of a turbulent democracy becomes a healthy alternative for political stagnation, and we can safely prefer the yeasty waves of freedom to the calm sea of despotism. I have spoken thus far of the growth of a judicial system which has been largely common to this country, and that from which we derived our common law and much of our institutional freedom, but, in this presence, it cannot pass without notice that our Federal and State judiciary have, in a way peculiar to our own conditions, had a co-operative development and growth of their own. All that has been said of the Federal Supreme Court can be well applied to the Supreme Judicatures of the several States. Charged with the administration of the law and the practical realization of justice between men in their everyday life ; charged with the enforcement of rights and the remedying of wrongs that grow out of the daily contacts of men in the pursuit of business or of pleasure ; supervising all the most intimate relations of life, the great body of our jurisprudence has been moulded under their direction, and has grown and been developed by their forming hands. But I have only time in this connection for a single thought, and that is that in this country, owing to the happy chance that our separate colonies grew into sepa- rate States, each endowed with a sovereignty, which is only qualified by the formation of a general government to which enumerated powers have been delegated, there has been an opportunity for the realization of a local self- government, which theretofore and in other lands has only been the dream of political philosophers. In other Response of George Gray. i6i lands its attainment has been attempted by a distribution of powers by a central government down through the communities which were the creation of such govern- ment, and were dependent upon it for their existence ; while here it has, like all enduring institutions, been the natural product of time and circumstance. The right of local self-government is inherent in the sovereignty of each State, and depends on no power extraneous to itself, and looks to no great central authority except for its guaranteed protection. The States, one and all — the smallest as well as the greatest — stand on the firm ground of their equal sovereignty, as all being charter members of the great corporation of American liberty. We share in the feeling of exaltation that must have filled the breast of the Apostle Paul when, under sentence to be scourged, the Chief Captain came unto him in great haste, and said unto him : " Tell me, art thou a Roman ?" He said yea. And the Chief Captain answered, " With a great sum obtained I this freedom." And Paul said, '■^But I was free borny One observation appropriate to this occasion, which I wish to make, is this, that this separateness of the States, each with its independent judiciary, has developed a comparative jurisprudence of which there is no other example in the world. Experiments in government have thus been enabled to be localized, and while one State takes a tentative step, the others can and do stand by to observe and watch and record the result for the benefit of all. The tentative step sometimes proves an advanced step, which is thus safely taken without shock or disturb- ance of public feeling or existing institutions. A certain healthy rivalry and competition between the States have resulted, and have done much for the common advance- ment of all. And it must also not remain unsaid that through the discussions had in our State courts and the well considered judgments of State tribunals, no less than in the Federal courts, our dual system of government has i62 " The University OF Oxford." been brought to work harmoniously, so that State and national government, each in its own orbit, without clash or obstruction from the other, have made the experiment of our constitutional government a grand and over- whelming success. It is such law that challenges the study of the most cultivated minds, and the loyalty of the most patriotic hearts. It cannot be taught by rote. All philosophy, all science, and all the best that human thought has achieved in its pursuit of the truth, are drafted into its service, and contribute to the building of its temple, always growing in beauty and in use, but never completed. Here on this auspicious occasion we hail the noble University that is giving increased facility for such study of the law, and inviting in increasing numbers our ingenu- ous youth to enroll themselves among its votaries. Here, in the years to come, will young Americans throng to study the growth, and learn the principles of this great science — not as a means of sordid money getting, but with the enthusiasm, ardor and elevation of spirit that belong to the higher planes of human endeavor, and to the unselfish desire to benefit their country and mankind. Here they will learn the law " whose seat is the bosom of God, and whose voice is the harmony of the world." " The University of Oxford " was the next toast pro posed, in response to which Sir Charles Arthur Roe spoke as follows : Mr. Chairman and Gentlemen : On behalf of the University of Oxford I thank you most heartily for the manner in which you have received this toast. You have expressed the pleasure of the Uni- versity of Pennsylvania and the Law Societies of Philadelphia at receiving a representative of Oxford. I can assure you most sincerely that Oxford had Response of Charles Arthur Roe. 163 no less pleasure in sending one — and that I myself am more than pleased that she sent me. The Republic of Learning is even greater than your own great Republic ; it knows no distintion of parties, or even of nationalties. From the infancy of that Republic it has been the custom for members of one University to visit sister Universities, and whether they did so in a representative or in a per- sonal capacity they always received a hearty welcome. The hospitality extended to them may seem poor indeed when compared with what you have so generously lavished on us — but it resembled it in this, that it was the best the entertainers had to give, and it was given heartily. Although the teaching of an University extends over many — if not all — branches of knowledge and science, the teaching of Law has ever held a foremost place in the Course of Study. It is the opening of its magnificent new buildings for the Law School which the University of Pennsylvania has been celebrating yesterday and to-day, and our hosts to-night are the representatives of those who put teaching into practice. In the papers which have been read in the course of these two days the question has been discussed whether a course of University study — or of what is called practical training in a lawyers ofBce — is the better preparation for those who intend to follow the law as a profession. The surroundings, amidst which I have for some years past been engaged in the administra- tion of the Law in India, differ widely from those of England and America ; but I have also, as Vice-Chan- cellor of the University of the Punjab, had a good deal to do with the formation of Law Schools and courses of teach- ing, and my opinion — whichHs, I think, that of Indian Judges generally — is that, although office experience is undoubtedly necessary before actual practice is com- menced, it is in the highest degree desirable, if not essential, that it should be preceded by a course of thorough and systematic study of the principles of Law. It is the prin- ciple — and above all the spirit of the Law of England — 164 " The University of Cambridge." the principle that no man shall be condemned without a fair trial, and the resolve to do justice between man and man, or bodies of men, which is the common inheritance of all English speaking races throughout the world, which constitutes what is really valuable in Law — and the prin- ciple and point we can all unite in upholding, whether our duties lie in the Lecture Room, on the Bench or at the Bar, and whether we are called on to discharge them in America, in Europe or in Asia. Mr. Gerard Brown Finch in response to the toast "The University of Cambridge," said: On behalf of the University of Cambridge I thank you for the cordiality with which you have received this toast. It has been a pleasure to me to realize the respect and affection with which the old Universities of England are regarded by the people of this country. But the regard is not one sided ; and I wish I could adequately convey to this great assembly the cordiality with which the University of Cambridge accepted the invitation to take part in your rejoicings on the "successful accomplish- ment of this long wished for and most important project. The University of Cambridge would gladly have sent one of its most distinguished sons, a Judge of the Court of Appeal, but he could not be spared. I venture, however, to say that my friend. Sir Robert Romer, though bringing greater dignity and ability, would not have brought a greater or more sincere goodwill than mine. In drinking to the welfare of my University you naturally ask how it fares with it in the sphere of work and duty. Does it aid in the advancement of learning ? Is it assiduous in the pursuit of truth ? To these questions I can give you an assuring answer. Never was the University of Cambridge doing so Response of Gerard Brown Finch. 165 much and such useful work for science or letters as it is doing to-day. But how does it stand in relation to the workers in those arts, the underlying principles of which it investigates ? Is there any bridge between our scien- tists and the industrial workers of England ? I am glad to say that the need of this bridge is felt. The remark- able growth and the high status of the Medical School afford an answer on one side of the question ; and the establishment of the School of Engineering under the most able direction of Professor Ewing, and the recent creation of a Professorship of Agriculture afford an answer on another. With regard to the importance of good relations between the peoples of Great Britain and the United States, of which I have heard so much since my arrival here, I personally feel no solicitude. Substantially and in the main we are one people. We have the same ideals. We are alike in our love of freedom and justice. We have the same Common Law, which is at once an ema- nation from and a moulding force of our race. There is thus a fundamental harmony between the two peoples. Quarrels may confuse this harmony for a time, but it is an abiding influence. In one of Wagner's great compositions there is a majestic, solemn movement, representing, it might be, the harmony that is in immortal souls. Then sounds of strife and discord, angry and petulant, are heard. But all this time the stately, solemn movement goes on. So it is in the relations of the two peoples. There has been strife ; angry contention is sometimes heard. They are but as the discords in Wagner's great work. They do not affect the stately march of that great underlying music, that brings all into harmony with itself. Mr. Chairman and Gentlemen, I return you my sin- cere thanks for the manner in which you have drunk the health of the University which I have the honor to represent. i66 "The University of Pennsylvania." Mr. Hensel next proposed " The University of Penn- sylvania," which was responded to by Mr. George Wharton Pepper. It is a graceful recognition of the place of the University in this community that a toast in her honor should be proposed on this occasion. As you drink to her health I am glad to report that she is well — that she is a hundred and sixty years old, but strong and vigorous and in full possession of all her various faculties. This is not a little wonderful ; for one would have expected that under the influence of the college faculty she would have dried up long ago ; that the Medical Faculty would have completed her destruction, and that the Law Faculty would even now be quarelling over her estate. Fortunately, this is not the case. Vigorous and healthy as she is, she is giving birth each year to new generations of vigorous and healthy sons (and now and then a daughter or two), and is the only person in the community who realizes the ambition expressed the other day by a small boy of my acquaintance, who said to his mother, " Mamma, when I grow up Fm going to have three hundred children." "What are you going to do?" she asked, " Adopt a Sunday School ? " " No, sir," he replied^ " Fm going to born 'em all myself." Our Alma Mater " borns them all herself." She individualizes them and watches over them with protecting care. She responds to your call with vivacity and begs to assure you that she will live and work and grow as long as this great community continues to exist. Much has been said yesterday and to-day of the University's work in law. To this I can add nothing. I propose to speak of her activities in other fields, and to place before you a conception of her relation to the com- munity in which we live. Like other institutions, the University of Pennsylva- nia has passed through periods of conspicuous public service and periods of relative obscurity. At all times, Response of George Wharton Pepper. 167 however, her work has been carried steadily forward. At no time, perhaps, has she claimed a larger share of public attention than during the early days of her history in the last century. Philadelphia was then the metrop- olis. The President and the Congress were here. Com- mencement day was an event of public importance. President Washington attended and received his LL. D.; Dr. Franklin was much in evidence, watching over the institution in the founding of which, he had taken so deep an interest. Then, as now, generous and public spirited citizens gave abundantly in response to her ap- peals. In the presence of our distinguished guests from the mother country, it is interesting to recall the fact that George the Third was a liberal patron of the institution, and that the then Archbishop of Canterbury, as well as distinguished dissenting divines, pronounced their bless- ing upon the institution whose Provost, Dr. Smith, was himself the holder of a degree from Oxford University. It is also interesting to remember that throughout the University's history, cordial personal relations have been maintained between members of her Faculties and of her Board of Trustees and the scholars and literary men of old England. The sons of the University are not concerned with the question of her relative rank among institutions of learning. There can be no such thing as rank in the world of culture. It is enough for them to know that her work is worthy — enough to observe that each year she is rendering greater services to the community — enough to note in the long list of those who are spread- ing her fame, such men in the College Faculty as Barker and McMaster, and Patten and Fullerton, and Learned and Doolittle, and Hilprecht and Jastrow — and to see such men in the Medical School as those who are carry- ing on the work of Agnew and of Leidy ; and to perceive that the teachers in the Law School catch inspiration from the scholarly achievements of him who is still with i68 "The University of Pennsylvania." us as a professor emeritus — our revered and well-beloved Judge Hare. The University of Pennsylvania, my friends, was the first American University to confer de- grees in medicine ; the first among surviving universi- ties to give instruction in law ; the first to plan and organize the graded college curriculum which, for a century, was the basis of instruction in our American colleges, the first to establish a school of finance and economy, and the first to establish a school to investigate the laws of health. It is you who have done these things. All of you, whether you are sons by birth or adoption, have a part in this work. We must see to it that in the future even greater things are done than in the past. There is no way in which you can render a greater ser- vice to your community. Bear with me a moment while I speak of the relation between the University and the community. In old times universities were not always ministers of progress. They were not always found on the side of science. They often espoused the cause of the classes against the masses. They were beholden to rich men. Brains were enlisted on the side of defending existing abuses instead of remedying them. Thank God, there has been a gradual declaration of independence on the part of many of our American universities. To-day they stand forth as champions of the truth. They receive liberal gifts, but by common consent the gifts carry with them no recipro- cal obligation to the wealthy donors. University profes- sors are not, and must not be, hampered in their work of investigation. It is a sad day when their teachings are revised on the ground of heterodoxy. Their positions must be secure even if they controvert an accepted rule of Greek grammar or insist upon a revision of an accepted view about the date of a Bibhcal event, or venture to preach and to teach a method of legal education which is not precisely the same as that which has given us the Nestors of the bar. The University must recognize truth Response of George Wharton Pepper. 169 as the ultimate test of all things. She must not stoop to set her mint-mark upon an untruth, or strive to carry it through by the mere force of her authority. It used to be said that University training unfitted students for the work of life. Very few people would seriously make that contention to-day. Those who do are usually the people who forget that a man's life is not all lived in the counting house — that part of his work con- sists in facing and solving the great problems of the Here and Hereafter — that he is bound to serve his com- munity as an intelligent and public spirited citizen, and to lend the weight of his character and influence to the conduct of public afTairs. Such a man is a practical man in the truest sense. He will be ready for all the emergen- cies of life. You will never catch him ofT his guard. Probably the revivalist had a university training of whom the story is told that he depicted the terrors of hell in lurid colors and warned his hearers that in hell there should be weeping and gnashing of teeth. An old lady in the front row quickly responded, " That doesn't apply to me — I have no teeth." " Madam," he said with commend- able readiness, "teeth will be provided." No, my friends, university men are not the unpractical men. Their train- ing has taught them that if the world is to become better they must pitch in and work for the great result. The unpractical men are those who fondly imagine that the world is to be reformed by eloquent and copious denun- ciation of those who are sweating in Hfe's struggle ; who think that they are serving their country when they pass scathing resolutions condemning the policy of the admin- istration in dealing with a situation which they themselves would make a hopeless mess of — who suppose that attacks on individuals and the use of unkind and untrue and disrespectful language about the President and his advisers are useful contributions to the solution of the problems which we have in hand. Some of them, I believe, are holding a meeting in a neighboring hall 170 "The University of Pennsylvania." to-night. To-morrow you will see the account of their proceedings in the papers. Do you suppose you will find therein any helpful or practical or constructive suggestion? Not a line — not a word — not a syllable — not an inarticulate attempt to utter a helpful syllable. These people might well learn a lesson from the helpful suggestiveness of a University man who was appealed to by a lady sitting next him at a luncheon. " Oh, sir," she said, " I have just dropped an egg on the floor ; what shall I do? " — to which he promptly responded, "Cackle, Madam, cackle." The duty of the University to the Community is something intensely practical. It is to hold aloft an ideal of education and culture and to strive to realize that ideal in the person of its graduates. The community has a right to subject university men to searching criti- cism. But it must not be perverse and unintelligent criti- cism. The University does not pretend that every graduate in Arts is a ripe scholar or that every M. D. is an experi- enced practitioner or that every graduate in law is a storehouse of legal information. The University in the course in Arts aims to give a rounded development to a young man's mental, moral and even physical nature ; to take the conceit out of him ; to drive him into the posi- tion of a learner ; to give him an enthusiasm for the in- tellectual life. The Law School aims to train a man to think like a lawyer, to catch the spirit of the law's devel- opment, to analyze an authority and to determine its significance, to grasp the relation of our law to our political and economic development. If this is accom- plished he may be trusted (without further aid from the University) quickly to perfect himself in details of prac- tice and to ascertain by inquiry when it is that jury trials are held in Perry County and whether in Venango a mortgage is discharged by an Orphan's Court sale. University students must be in earnest. There is no place for triflers. The University authorities would not deal lightly with the youth who composed this epitaph Remarks of Francis L. Patton. 171 for his own tomb : " An indulgent son, ambitious for liis father, he was patient in the pursuit of pleasure." Your pardon for so long a speech. The subject and the occasion carry me out of myself. I shall not have failed in my purpose if I can convince you that the Uni- versity of Pennsylvania realizes the weight of the respon- sibility which is laid upon her in virtue of her glorious past and her opportunities for a still more glorious future. Realizing her responsibility is the first step towards the discharge of it. We are assembled together to signalize the visible result of her effort to do her duty in one of her many fields of activity. Gentlemen of the Philadel- phia Bar, I know I speak for the Provost when I say that yozc have made the Law School Building a possibility — a reality. You and the rest of the community occupy a similar position toward all the departments of the Uni- versity's work. Give her, my friends, your sympathy, your affection, your support. Stand by her in times of adversity. Rejoice with her in this season of prosperity. So shall you encourage her in her patient search for ulti- mate truth and strengthen her in her ceaseless struggle for a larger measure of culture and of light. The Toastmaster here departed from the printed program to call on Dr. Francis L. Patton, President of Princeton University, for a few remarks. President Patton spoke briefly on the relations of the theological and legal professions, and dwelt on the obliga- tion of the American Bar to the universities of the world for the work done by them in fundamental jurisprudence. "We have come to-day," he continued "to an era when the prevailing question is the social organism. There never was a time when we felt so much that the proper study of mankind is man. We must now consider the relations in which we stand to others, and make the practical application of the moral law in studies of the moral and social relations among new peoples. 1/2 "The American Lawyer." " I congratulate the University of Pennsylvania upon its work. I go home jealous to the last degree of your splendid position. I am ambitious that in time soon com- ing we may rival you in the establishment of a law school on these same lines, and wdth something like the same kind of equipment." To the toast " The American Lawyer" Mr. John E. Parsons, spoke as follows : Many here, no doubt, are familiar with the inscrip- tion over the principal portal of St. Paul's Cathedral in London, which commemorates the architect of the build- ing, Sir Christopher Wren, Si mommietitum requiris^ circimispice. If you would seek his monument behold, the toast " The American Lawyer " to which I am to re- spond here answers itself. The American Bar can furnish no more representative assemblage than is gathered to- gether in this place. All that is illustrious is represented by my brothers of the profession and by the distinguished judges who have graced this occasion with their presence. If one would know about the American lawyer, here are illustrations. Study their careers. Become familiar with their characteristics. To such I can say little, if anything, which does not come to your minds when you consider the noble science to which you have devoted your lives and recall that the history of the profession to which you belong goes back to the remotest antiquity, and that in its membership have been enrolled names of the most useful and distinguished men of ancient and modern times. It is essential to the regulation of society that there shall be a system of law and that it shall rule and regulate the transactions of men ; furnish security and protection ; to which all, rich and poor, high and humble, may appeal with full confidence that by it their rights will be protected and their wrongs redressed. The law is superior to force. It is stronger than the caprice of sovereigns. And as it is essential to Response of John E. Parsons. 173 its well-being that society shall be governed by such a system, so does it follow that there shall be a class upon whom shall be put the responsbility of representing those whose interests, whether of life or of property, shall be at stake, and who shall devote time and talent to fit them- selves to render just such service. It is of the American lawyer that I am to speak. As an American lawyer, I must avoid anything like vain- glory or unsuitable eulogy of the profession or of its members. The late distinguished Lord Chief Justice of England, Lord Coleridge, in his farewell address in New York on the occasion of his visit here, in contrasting his country with ours made little reference directly to Eng- land. His illustration of true greatness was taken from Holland, of which he spoke as a land rescued from the sea by the labor and intelligence of its inhabitants, and made a model of what could be accomplished by industry, intelligence and patriotism. The minds of his hearers were left to cross the Channel, and in thinking of the achievements of the country that was mentioned, to pic- ture the greater achievements of the country that was not. And so, perhaps, in any attempt to portray the American lawyer, it may not be amiss first to say a few words about the lawyers of England and France, between which countries and ourselves the relations have been the closest. Naturally our thoughts turn first to Eng- land. The story of its administration of the law and of its lawyers is preserved from the time of the Conqueror and before. It has been illuminated by some of the grandest names in English history. What lawyer can ever forget Eldon and Erskine, Hardwicke and Thurlow, the great Lord Mansfield, Lord Somers, Sir Matthew Hale, Sir Edward Coke? The list is endless. Lord Campbell has made us acquainted with their character- istics, their peculiarities of mind and temper. History tells of the achievements of these noble men. To a nota- ble career at the Bar most of them added invaluable 174 " The American Lawyer." service upon the Bench. And yet there is Httle similarity between the American lawyer and an English barrister, and less similarity between an American lawyer and an English attorney or solicitor. The division of the pro- fession into the two ranks creates a radical difference. Whether the system is wise or unwise by comparison with ours has been a fruitful subject of discussion. It is not easy to pronounce an absolute judgment in favor of one system or the other. I have no doubt that it is in the interest of those who practice law that there should be no such division. Mr. James Grant in his book on the Bench and Bar, published in 1838, says that at that time the number of gentlemen belonging to the English Bar was nearly 6,000; that of that number there were 1,500 whose names were upon the law list ; and yet that not more than per- haps seventy or eighty had anything to do worthy of the name of business. Nothing is more agreeable than the professional life of a successful barrister in London. His income is assured, his fees are paid in advance. Mr. Grant describes his income at that time as princely. It might reach to as high as six to eight thousand pounds, and in exceptional cases to even twelve thousand. But I confess that my sympathy has always been with those other members, to whom a guinea fee was a God- send, and who, having dined themselves into the profes- sion, soon reached a time when for them a dinner was impossible from the profession. I have often been in the English courts. I have witnessed the conduct of cases by such distinguished lawyers as Hawkins, Karslake, Coleridge, Henry James, Roundell Palmer, Sir Richard Webster. They are pro- found in their knowledge of the law ; convincing in argu- ment ; admirable in the directness and succinctness with which they go to the heart of their subject. But so far as concerns the interests of clients, I do not think that we need to fear in a comparison between them and the lead- Response of John E. Parsons. 175 ing members of the profession here. The relegation to solicitors and attorneys of the responsible preparation of the case frequently results in a want of original famili- arity with it by the barrister who is to conduct it. I think that the lawyers here will agree with me that to insure success, as far as possible the case should be thoroughly understood from the beginning and that what is possible should be known by the lawyer of the case of his adversary. We are apt to concede to the English Bar a more elevated standard of professional ethics than we claim, by and large, for ourselves. It may solace us to remem- ber that while England has furnished to the profession some of its noblest members, ignoble names too have crept into its ranks. In England there was a Jeffries. My friend and predecessor as President of the Bar Association of the City of New York, Mr. William Allen Butler, in his little pamphlet of " Lawyer and Client," in speaking of the disrepute into which the profession had fallen not long after Hampden and his noble band had fought their battle for English liberty and constitu- tional law, refers to tracts which were then being issued from the press with such titles as these : " The Downfall of Unjust Lawyers," " Doomsday Drawing Near," " The Thunder and Lightning for Lawyers" (1645, by John Rogers), " A Rod for the Lawyers " (1659, by William Cole). It was of English lawyers that these tracts were written. And for the matter of that, the opprobrium which at times has visited the profession has come largely from such great names in English literature as those of Milton, Wadsworth and Dean Swift, and they only echo what Juvenal had said centuries before. Mr. Butler repeats Ben Johnson's epitaph on Justice Randall as condensing in a couplet the popular estimate of the profession : God works wonders now and then, Here lyes a lawyer, an honest man. 176 "The American Lawyer." The history of the law and of lawyers in France ex- tends to the time when Gaul was a Roman province. There lawyers have played a more important part in public affairs than has ever been the case in England. French writers claim for their lawyers greater brilliancy of eloquence than consorts with our more plain, direct and practical Anglo-Saxon mode. I have occasionally been in the French courts. While doubtless they reach accurate results, their system is so unlike ours that they do not appeal strongly to me. Napoleon had frequent occasion to employ lawyers. To them in principal part he owed the Civil Code, with which his name will always be associated ; and yet he entertained the feeling of in- difference or antipathy which I have often met in France towards her lawyers, save in the case of a limited number of exceptional distinction, who have been as prominent, if not more prominent, out of the profession than in it. Louis XVI selected for his trial two lawyers. Turgot, in a public lettter to the Moititetcr, excused himself in terms which revealed the extreme of pusillanimity. Tron- chet stood by the king ; and to the credit of the profes- sion everywhere, and in vindication of the French bar from criticism, which is prone to be carping, it should always be remembered that Malesherbes, at seventy-one, volunteered to defend the king, although it brought him to the scaffold, and that De Seze stood by his royal client with a boldness and courage which left nothing to be desired, saving himself by flight. I must not forget that it is of the American lawyer that I am to speak. How does he rank with his brethren across the sea? Standing here one must remember that if the founder of Pennsylvania had had his way, either there would be no profession of the law, or its members would be in sorry plight. "Peace-makers" were the functionaries upon whom William Penn preferred to rely to adjust the differences which would arise, even in a community which was composed chiefly of Friends. Response of John E. Parsons. 177 From the earliest period it was necessary that from such a tribunal there should be an appeal to a regularly con- stituted court. The late Mr. David Paul Brown, in his work, the " Forum," gives the history of the establishment of the Pennsylvania Courts, of their development, and mentions many of the distinguished names — Shippen, Willing, McKean, Dallas, and a numberless list of others whose achievements have made of Philadelphia lawyers a dis- tinct class. When we recall such lawyers as Jay and Hamilton, Webster and Wirt, Choate, Marshall and Story, Henry and Lowndes, the late Mr. O'Connor, the late Judge Benjamin R. Curtis, Black and Butler, and the distin- guished Philadelphians whom I have mentioned, we must be sensible that the standard of the profession among us has been high, and that, without boastfulness, we may claim that the American lawyer stands well in comparison with the lawyers of England and of the Con- tinent. It has never seemed to me that those who aspire to become members of the Bar need fear, because they are sensible that they do not possess the highest order of intellectual endowment. Few in any walk of life do. The fable of the hare and the tortoise is often illustrated among lawyers. Mere brilliancy will make a lawyer neither useful to his client nor successful in his practice. Absolute integrity, fidelity to those who entrust him with their interests, a conscientious bestowal of his best efforts to the work in hand — these are the characteristics which, in my judgment, will give to an American lawyer a cred- itable career, even if he fails to reach the highest rung of the ladder. A bill in the Legislature of my State is being opposed by our Bar Association. It might read " An act to make John Smith a lawyer." I do not need to tell you that the John Smith of the bill is a leading politician ambitious to enter the ranks of the profession from the humbler 178 "The American Lawyer." position which he now occupies. In no such way can a lawyer be made. Work — earnest, steady, untiring work — is essential to turn the ordinary man into the ordinary lawyer. But my experience of the past forty years assures me that, if there be this willingness to work, the aspirant for professional success does not need to fear. I claim for the profession in America a high degree of moral excellence. To no members of society come the same temptations ; none have the same opportunity of benefitting themselves at the expense of others. During the last forty years I have been acquainted with a large proportion of the large number of lawyers in New York. I can remember only four occupying anything Hke a prominent position, who, in yielding to temptation, have been untrue to themselves and to the profession. In no other place is the public life of a country so dependent upon lawyers as with us. From the formation of the government they have controlled in the Houses of Congress, in State Legislatures, in public place. Here there is a marked difference as compared with England. It has often been remarked that lawyers have not been a success in the House of Commons. In America legislative action and the conduct of the government are largely dependent upon them. From my own observation and experience, I claim for the members of the Bar that they will be found in the forefront of movements for reform, that in the main they may be depended upon to be on the right side in public matters. The interests of the State are largely dependent upon the American lawyer. The interests of his clients are absolutely dependent upon him. Whether it is the fee which he receives or the public duty which he recognizes, the American lawyer is committed to a course of truth, fidelity and uprightness. It is easy to sneer. We who belong to the profession have the right to take pride in the fact that we are American lawyers. Response of Richard C. Dale. 179 The last toast of the evening was " The Philadelphia Lawyer," to which Mr. Richard C. Dale, of the Phila- delphia Bar, responded as follows : The Philadelphia lawyer has the incentive of a great past. The pacific temper of the founder of this Common- wealth gave no intimation that the City of Brotherly Love would be the first home of the American lawyer. In the body of laws framed in England for the colon}^ in 1682 it was provided : " That in all courts all persons of all persuasions may fully appear in their own way, and according to their own manner, and there personally plead their own cause them- selves, or, if unable, by their friend, with the further requirement that " Before the complaint of any person be received he shall solemnly declare in court that he believes in his con- science his cause is just." This attempt to conduct the controversies of the community without the aid of a trained Bar soon demon- strated its inherent impracticability. In the earliest State Constitution of 1776 we find the lawyer recognized in the clause : " That in all prosecutions for criminal offences a man hath a right to be heard by himself or his counsel." But long before the Constitution of 1776 the Phila- delphia lawyer made himself heard. In 1735 Andrew Hamilton, called by Gouverneur Morris " The Day Star of the American Revolution," was summoned from Philadel- phia to defend before the Provincial Court of New York John Peter Zenger, indicted for a seditious libel against the Governor General of the province. Declining any fee for his services, he was presented with the freedom of that city in a gold box. Referring to Hamilton's defence of this case Mr. Binney says : " It is worth remembering, and to his honor, that he was half a century before Mr. Erskine and the declara- i8o "The Philadelphia Lawyer." tory act of Mr. Fox in asserting the right of the jury to give a general verdict in Hbel as much as in murder, and, in spite of the Court, the jury believed him, and acquitted his cHent." The courage, vigor of thought and eloquence of Andrew Hamilton marked an era in colonial history, and the sentiment with which he closed his great address to the jury is worthy of perpetual preservation : " The liberty both of exposing and opposing arbitrary power by speaking and writing truth." Andrew Hamilton shortly after this trial became a Judge of the Admiralty for the province of Pennsylvania, and upon his death was succeeded by Tench Francis, of whom it was said by Chief Justice Tilghman in Lyle f. Richards : " In the year 1745 it was supposed that Mr. Francis was the most eminent lawyer in Pennsylvania. He appears to have been the first of our lawyers who mastered the technical difficulties of the profession. His precedents of pleadings which have been handed down, and his com- mon lavv^ book, are evidence of his great industry and accuracy." The records, however, of the Colonial Bar are so meagre that Mr. Binney, in his '' Reminiscenes of the Old Bar," began the history of that Bar with the men who were its leaders after the Revolution, saying : " Of the primitive Bar of the province we know nothing, and next to nothing of the men who appeared at it from time to time up to the termination of the Col- onial Government." We may be certain, however, that even before the Revolution its standard of learning was high and its character is evidenced by the men who were leaders immediately after. Upon the adoption of the Federal Constitution, the Supreme Court of the United States held its sessions in Philadelphia until 1798. The reports of its decisions, as found in the volumes of Dallas, show that during these Response of Richard C. Dale. i8i early years a large majority of all the cases were pre- sented by Philadelphia lawyers. William Lewis, Edward Tilghman, Jared Ingersoll and the elder Rawle appear in continuous reiteration. These were the men who gave to the name of Philadelphia lawyer that peculiar tone which we hope will always be theirs. Of Edward Tilgh- man it was said by Judge Duncan : "That he could untie the knots of a contingent remainder or executory devise as familiarly as he could his garter." And yet Mr. Binney was able to say of him, also : " With juries he was nearly irresistible. He talked to the panel as if he were one of them." Of Jared Ingersoll, Mr. Binney referring to the fact that he and Mr. Sergeant had been students in Mr. Ingersoll's office, said : " A name that I can never mention without the pro- foundest veneration, as my master and guide in the law." After such praise from such a source nothing more can be added. When the Supreme Court was removed to Washing- ton we find the Philadelphia lawyer continuously appear- ing, and until 1835, Horace Binney, John Sergeant and Joseph Hopkinson, the leaders of the second generation, held a prominent place in the great arguments before that court. With the growth of population, the establishment of new centers of industry and learning, the legal business of the country localized, and no city bar could gather to itself the litigation of a nation, but the Bar of Phila- delphia still maintained its high standard. At the end of the century as we look back at the galaxy who from 1830 to 1880 maintained the succession — the men at whose feet we sat — we understand how it has earned for the Philadelphia lawyer a name which opens for him with a welcome the doors of every court house from Maine to Oregon and Texas. i82 "The Philadelphia Lawyer." To the Bench and Bar of the jurisdictions gathered with us to-night, I tender the thanks of the Philadelphia lawyer for this welcome. The relations which have existed between the Seniors and Juniors of the Bar through these successive genera- tions have happily been most intimate. The accumulated wisdom and experience of years has been freely placed by the sages at the command of every eager aspirant. This tradition of true learning could never have been found in the books, and from it, and the habits of thought consequent, much of the distinction of this Bar has come. Mr. Binney gives testimony to it in his remi- niscences, saying : "A lawyer who has passed his youth and early man- hood in the society of such men is the happier for it through life, and especially in old age," We have heard from the older generation how in their youth Mr. Binney paid to his juniors the debt in- curred through his relations with what to him was the " Old Bar," and the great majority of those present here to-night have themselves the most vivid appreciation of my meaning, for the same debt was repaid to this genera- tion in the amplest measure by Judge John Cadwalader, George W, Biddle and Richard C. McMurtrie. The Philadelphia lawyer has had fame not only for learning. The traditions of the Bar have required every man who claims the name to recognize the obligations which membership in the profession entails. The Philadelphia lawyer, as he has been known, as we hope he will always be known, is the member of a profession, an officer of the law. The only service he undertakes is the service of the law. While there is no degree " Sergeant at Law," we claim to be servientes ad legem I We avouch our allegiance to one jealous mis- tress, and know no other master. Clients stand to us as they did in the days of ancient Rome, persons seeking our protection, but never entitled to command our actions. Remarks of Wu Ting-fang. 183 They may require us to invoke the law in their aid ; they may never demand that we nulhfy any law for their advantage. Standing on this plane, we may be ever mindful of our oath of admission. "With all fidelity to the Court, as well as to the dient." I opened by saying the Philadelphia lawyer has the incentive of a great past. That there may be a great future is the cherished hope of every man here to-night. For the fulfillment of that hope we chiefly look to the school, which now enters upon a new era. The names of the great Philadelphia lawyers of the past have fittingly been identified with the new building. May we not antici- pate that their mantle will fall upon those to whom will be committed the name and fame of the Philadelphia lawyer for the century that is to come ? As the company was about to disperse, the toast- master called upon Mr. Wu Ting-Fang for a speech. Mr. Wu protested that it was not fair to ask him to address the company. Confucius, the great Chinese sage, had said that a person should not talk at dinner. Being a follower of Confucius, he felt himself bound to observe his doctrine, but, being a lawyer, and as the company were then smoking, and not eating, he sup- posed he would be justified in breaking silence. Mr. Wu then spoke for a few minutes, in his inimi- table style, and concluded by proposing the health of the toast-master ; after which the company dispersed. 1 84 Bar Dinner. DIAGRAM OF TABLES AND SEATS IN HORTICULTURAL HALL, SHOWING LOCATION OF GUESTS. 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