Addresses of U. M. Rose 
 
 WITH 
 
 H Brief fDemoir 
 
 BY 
 
 GEORGE B. ROSE 
 
 CHICAGO 
 GEORGE I. JONES 
 
 1914
 
 Copyright, 1914 
 
 by 
 
 GEORGE I. JONES 
 
 UNIVERSITY OF SOUTHERN CALIFORNIA LIBRAffi
 
 122 
 
 CONTENTS 
 
 PAGE 
 
 MEMOIR 7 
 
 THE RISE OP CONSTITUTIONAL LAW ... 35 
 
 A Paper Read Before the Pennsylvania State Bar 
 Association at its Annual Meeting, June 25, 1901. 
 
 CONCERNING LAW REFORM COKE AND BACON . 71 
 
 Address delivered before the State Bar Association of 
 Virginia, at Old Point Comfort, on the evening of 
 July 16, 1896. 
 
 "THE PRESIDENT OP THE UNITED STATES" . . 113 
 
 Response to this Toast on the occasion of President 
 Roosevelt's Visit to Little Rock, October 5, 1905. 
 
 IMMUNITY FROM CAPTURE OP PRIVATE PROPERTY AT 
 
 SEA IN TIME OP WAR 119 
 
 Address at the Second Hague Conference, July 5, 1907. 
 
 ABRAHAM LINCOLN ... .... 133 
 
 Address on the One Hundredth Anniversary of Presi- 
 dent Lincoln's Birth, Delivered in New York City. 
 
 JEFFERSON DAVIS 169 
 
 Memorial Address on the Life, Character and Public 
 Services of Jefferson Davis, Delivered at the Hall of 
 the House of Representatives, Little Rock, Wednes- 
 day evening, December 13, 1889. 
 
 CONFEDERATE DEAD . . 193 
 
 Memorial Address at the Annual Ceremonies of the 
 Confederate Memorial Day. 
 
 JUDGE JOSEPH W. MARTIN 231 
 
 Extract from an Address Delivered on Presenting to 
 the Supreme Court of Arkansas the Resolutions on 
 the Death of Judge Joseph W. Martin.
 
 CONTENTS 
 
 PAGE 
 
 JOHN MARSHALL 239 
 
 Address on John Marshall Day The One Hundredth 
 Anniversary of his Appointment as Chief Justice of 
 the United States Supreme Court. 
 
 "CHANGES IN THE LAW AND ITS PRACTICE IN THE 
 HALF CENTURY OF MY OBSERVATION" . . . 259 
 
 Address Delivered Before the St. Louis Law School 
 Alumni Association at a Banquet Given in His Honor, 
 January 9, 1902. 
 
 TRIAL BY JURY IN FRANCE 277 
 
 Address Before the Missouri Bar Association, May 
 4, 1900. 
 
 To A GRADUATING LAW SCHOOL CLASS . . . 319 
 
 Address Delivered to Graduating Class of the Law 
 Department of the University of Arkansas, at Com- 
 mencement, Little Rock, Ark., June i, 1894. 
 
 To A GRADUATING CLASS . . ... . . 343 
 
 Address Delivered at the University of Arkansas, 
 Fayetteville, Ark. 
 
 STRIKES AND TRUSTS 365 
 
 A Paper Read at the Sixteenth Annual Meeting of the 
 American Bar Association August 13, 1893. 
 
 TRANSLATIONS 405 
 
 Zueignung (Introduction to Faust) Goethe. 
 
 "The Broken Vase" From the French of Sully Prud- 
 
 homme. 
 
 "Kennst du das Bild auf zartem Grunde" (The Eye) 
 Schiller. 
 
 Eine Leichenphantasie (A Funeral Dirge) Schiller. 
 Abschied.
 
 JUDGE U. M. ROSE
 
 JUDGE U. M. ROSE 
 
 Requested to write an account of his ancestry 
 and youth, Judge Rose wrote the following: 
 
 ' ' My father was Dr. Joseph Rose, son of Charles 
 Rose. Joseph Rose was born near Petersburg, 
 Va. While he was a child the family removed to 
 Western Pennsylvania, where Charles Rose pur- 
 chased a farm. His son, Joseph Rose, received a 
 fairly good education in the local schools, and on 
 his approach to manhood he was sent to Phila- 
 delphia, where he entered upon the study of 
 medicine. Having completed his studies, he 
 located in Pittsburgh. His father, Charles Rose, 
 dying about that time, left him a small estate, 
 which led him into a disastrous enterprise that 
 burdened his whole life. He and a few of his 
 friends started a manufactory of glass, then a 
 new industry in this country, at Pittsburgh, which 
 was then but a small town in comparison with 
 what it now is. The venture was signally unfor- 
 tunate. In a few years the firm failed, and the 
 partners gave their joint note for a large deficit. 
 
 "My earliest recollections are painfully con- 
 nected with that terrible debt, the skeleton in the 
 family closet. Creditors must have been very 
 indulgent in those early times. Some of the 
 partners died, and others were never able to pay 
 anything, so that the burden that fell on my father 
 greatly exceeded anything that he could have
 
 8 MEMOIB 
 
 expected. By some arrangement he was to pay a 
 certain sum annually, which he managed always 
 to do, though frequently with great difficulty. I 
 think that it was in 1847, which must have been a 
 quarter of a century after the debt was created, 
 that it was finally extinguished, and the note or 
 notes were sent to my father. I never heard him 
 complain of the matter or blame any one about it. 
 
 "My father married a Miss Armstrong in Pitts- 
 burgh, and about the period that his financial 
 enterprise was on hand she died, leaving him with 
 two young boys. He had a friend named Brad- 
 ford, who had emigrated to Kentucky, who, 
 hearing of his misfortunes, wrote to him and 
 finally induced my father to rejoin him there; 
 which he did in 1824. 
 
 "In a year or so he married my mother, Nancy 
 Simpson, who was much younger than himself. 
 She turned out to be a very domestic woman, of 
 delicate constitution, but of untiring energy, and a 
 most affectionate wife and mother. 
 
 "My father then bought a farm of 300 or 400 
 acres, I should think, on which was an old- 
 fashioned two-storied brick house, built on a hill, 
 and surrounded by a grove of trees. To the west 
 was a cliff overlooking a bright and beautiful 
 river, which within a mile formed a junction with 
 another river of the same kind and of nearly equal 
 size, neither of them being navigable. On the 
 farm there was a very large orchard, judging by 
 the standards of those days. The house, which 
 had no architectural pretensions, built by some 
 pioneer, was large and roomy and had a cellar,
 
 MEMOIR 9 
 
 which every winter was filled with apples. There 
 my parents kept an open house for many years, 
 exercising that kind of hospitality which was not 
 uncommon then ; but which, under changed condi- 
 tions, has become almost obsolete. In that home 
 I was born, the third son of my parents, on March 
 5, 1834. As my father and Bradford owned the 
 land between the two rivers, they laid off a town 
 there never destined to be important, which, when 
 I first remember, contained 300 or 400 inhabitants. 
 According to the fashion of the times it was called 
 Bradfordsville. My father's house and most of 
 the hamlet was burned during the Civil war in a 
 skirmish between Morgan's Confederates and 
 some Federal troops. My father had a notion that 
 education should begin in the cradle. He had a 
 passion for teaching his children, and I cannot 
 remember when I could not read. At five years I 
 was put to studying Latin. Not being satisfied 
 with the village school, my father employed a 
 private family tutor, James Martin, a man of 
 fairly good classical education, from the north of 
 Ireland; but Scotch rather than Irish, a bachelor 
 of fifty years, a Presbyterian of the strictest type. 
 I think that this excellent man was well fitted for 
 the place. He remained in the family until the 
 summer of 1847, after which I was sent to an 
 academic school in the country. 
 
 1 ' My mother died at the age of 43 in September, 
 1848, and my father died in the following April. 
 Then everything seemed to come to an end. I was 
 fifteen years old. The estate went into the hands 
 of an administrator, and I was thrown on my own
 
 10 MEMOIK 
 
 resources. I first got a place in a village store ,- 
 but I soon found that that would not do, as the 
 store kept open until ten o 'clock at night, leaving 
 me no time to read or to continue my studies. I 
 threw up the place and hired myself as a field hand 
 to a farmer at five dollars a month and my board. 
 I worked very hard, and so improved in health, 
 and I had my evenings to myself. I kept this up 
 for several months until one day an eminent, very 
 intelligent and kind hearted lawyer, B. H. Bound- 
 tree, whom I had never seen, but of whom I had 
 heard much, living at Lebanon, the county seat, 
 nine miles off, called at the farm house where I 
 was staying, and remained all night. I was much 
 overawed by this tall man of mature years, of 
 simple manners and grave but kindly expression 
 of countenance; but during the evening he man- 
 aged to draw me out to some extent. Next 
 morning he told me that if I desired it he would 
 give me a home in his house, and would have me 
 appointed to the position of deputy clerk at 
 Lebanon; and this offer I was only too glad to 
 accept. This fortunate circumstance gave me an 
 experience that proved immensely useful in my 
 later career ; for here I learned a great deal about 
 legal forms, and had an opportunity to witness the 
 proceedings of the local courts and to hear some 
 very distinguished lawyers at the bar. Among 
 these was the celebrated Ben Hardin, by far the 
 greatest trial lawyer that I have ever known, and 
 Joshua F. Bell, of Danville, whose pleasing, per- 
 suasive and powerful eloquence was always the
 
 MEMOIB 11 
 
 delight of every one that heard him; with many 
 others of lesser note. 
 
 11 Under the care and tuition of my patron and 
 benefactor, I began the study of law, striving in 
 the meantime to make up as far as possible the 
 defects of my early education; an enterprise in 
 which I have never succeeded. 
 
 " After the time thus spent I attended the lec- 
 tures of the law school of Transylvania University 
 at Lexington, Kentucky, where I graduated in 
 September, 1853. I obtained a license to practice 
 law from the Kentucky Court of Appeals, but did 
 not expect to engage in the practice of the law 
 in that state. My health had always been frail, 
 especially in the winter season; and I desired to 
 go to a warmer climate. On the advice of friends 
 I made up my mind to go to Batesville in the 
 northern part of this state. In the meantime I 
 engaged to be married, and was married on the 
 25th day of October, 1853, to Miss Margaret T. 
 Gibbs, of Lebanon. My wife and I celebrated our 
 golden wedding in 1903. 
 
 "On the 5th day of December, 1853, we started 
 for our new home, traveling nearly all the way in 
 river steamers, consuming fifteen days in the 
 journey. I have since traveled from Liverpool to 
 Little Rock more than once in less time. When I 
 made my trip from Kentucky I did not know a 
 single human being in this state. I found Bates- 
 ville a pleasant village of about 1,000 inhabitants, 
 agreeably situated on the upper White River, 
 about the head of navigation on that stream. I
 
 12 MEMOIR 
 
 bought a house in the village, and rented an office ; 
 but did not begin to practice regularly for about 
 two years, in the meantime devoting my time to 
 the study of the statutes and decisions of this 
 state. Afterwards I had reason to congratulate 
 myself on my success. In 1860 I was appointed 
 without my knowledge by Governor Conway, 
 chancellor of the Court of Chancery, held at Little 
 Rock, the seat of government. I did not wish to 
 accept, as I felt that I was too young for the posi- 
 tion; but, at the solicitation of my friends I was 
 induced to do so. In 1862 I removed from Bates- 
 ville temporarily to Washington, in this state, 
 which on the capture of Little Eock by the 
 Federals was made temporarily the seat of the 
 state government. At the close of the Civil war 
 I removed to Little Eock, and again engaged in 
 the practice of the law, which has been continued 
 until the present time. 
 
 ' * This is about all that relates to my early life ; 
 all very commonplace, and hardly worth telling. ' ' 
 
 To this sketch of his early days a few things 
 should be added. 
 
 His father was a profoundly religious man, a 
 devout member of the Christian Church, com- 
 monly known as the Campbellite. His preoccupa- 
 tion with the Old Testament history led him to 
 give his son the name of Uriah, which the latter 
 disliked so much that he never used it where its 
 use could be avoided. After the death of Mr. 
 Eose's mother Dr. Eose sank into a gloomy 
 fanaticism bordering on religious mania, which
 
 MEMOIR 13 
 
 spread an intolerable sadness over the home. The 
 reaction against this probably begat in his son 
 that fine spirit of toleration that characterized his 
 mental attitude throughout life. 
 
 He had made such progress in his legal studies 
 while in Mr. Roundtree's office that he graduated 
 at the law school after an attendance of six 
 months. He entered it in April, 1853, and received 
 his diploma in the following September. 
 
 The singular charm of manner which always 
 won for him the regard of everyone with whom he 
 came in contact and often their devoted attach- 
 ment must have been manifest in these early days. 
 Stopping at a farm one night in his travels, Mr. 
 Roundtree was so impressed with the slender, 
 delicate boy that he took him next morning to his 
 own home, made him his deputy and treated him 
 almost as a son. At that time Mr. Rose wrote a 
 most clerkly hand in the Spencerian style, very 
 different from the highly artistic but singular 
 handwriting of his later days. 
 
 But a more remarkable illustration of the 
 charm of his personality was afforded when he 
 went to Lexington to the law school. It had been 
 established and was presided over by Chief Jus- 
 tice Robertson, the greatest jurist that Kentucky 
 has ever produced. A man of immense ability, 
 in a comparatively brief career at the bar he 
 accumulated a large fortune. Then he built him- 
 self at Lexington a stately mansion surrounded 
 by extensive grounds, accepted the chief-justice- 
 ship and opened a law-school that at once became
 
 14 MEMOIR 
 
 famous. His home was the centre of the social 
 life of Kentucky. Every distinguished visitor to 
 the state became his guest as a matter of course. 
 
 When Mr. Rose, a youth of nineteen, went to 
 Lexington with the scant savings of his three years 
 in the clerk '& office, he stopped at a poor boarding- 
 house suited to his means. The fare was hard, 
 the beds harder, the manners of the host and 
 boarders harder still. It was an uncongenial place 
 for the delicate youth, so unusually sensitive and 
 refined. 
 
 Next morning he presented himself to the great 
 Chief Justice to arrange for admission to the 
 school. Judge Robertson at once became inter- 
 ested in him, and finally asked him where he was 
 staying. When Mr. Rose had told him where, he 
 said, "It is a pretty rough place, is it not?" Mr. 
 Rose explained that it was, but that it was as good 
 as he could afford to pay for. "How would you 
 like to board with me 1 ?" inquired Judge Robert- 
 son. The youth replied that he had not the means 
 to live in such style. * * That makes no difference, ' ' 
 said the Chief Justice. "I know that you would 
 not want to stay with me gratis ; so you can pay 
 me the same board that you are paying where 
 you are." So to his astonishment the young law- 
 student found himself installed in the splendid 
 mansion of the great jurist, and treated as a mem- 
 ber of the family. Here he met all the eminent 
 men of the time who visited Lexington. 
 
 At the law school two men made a lasting 
 impression upon him; and his distinguished suc- 
 cess at the bar was due to the fact that he mastered
 
 MEMOIR 15 
 
 the teachings of each. Judge Robertson was a 
 great constructive jurist. He despised technical- 
 ities, and, as far as his associates on the bench 
 would permit, he brushed them aside. His 
 powerful mind grasped the great elemental prin- 
 ciples of the law founded on right and justice, 
 expounded them with convincing eloquence and 
 applied them with an enlightened judgment. 
 Judge Marshall, on the other hand, his associate 
 on the bench and in the law school, was a master 
 of all the intricacies of special pleading, and 
 looked upon them as the very soul of the law. 
 The young man grasped both points of view. In 
 the years to come he became a broad-minded jurist 
 and also the most accomplished special pleader of 
 his state. 
 
 When he graduated he hesitated between 
 settling in Louisville or coming to Arkansas. The 
 frailty of his health led him to decide in favor of 
 Arkansas, on account of its milder climate and the 
 life in the open air that would attend the riding 
 of the circuit in a new country. 
 
 His bride had a small estate that she had 
 inherited from her father, and this made the young 
 couple independent until he could master the juris- 
 prudence of the new commonwealth, and equip 
 himself for serious work. From the first he held 
 himself high, and rarely accepted employment 
 save in the courts of record. 
 
 At this time the system of practice in Arkansas 
 was probably the most technical that the world 
 has ever seen. Chief Justice Ringo had pain- 
 fully sought out all of the technicalities that had
 
 16 MEMOIB 
 
 ever existed in common-law pleading through the 
 ages, and had put them all in force at once. Mr. 
 Rose perceived the power of the weapon that this 
 placed in the hand of the accomplished special 
 pleader, and devoted himself with especial energy 
 to the study of Chitty; so that he soon became a 
 potent factor at the bar. His adversary found 
 himself tripped up and thrown ignominiously out 
 of court, or saw final judgment entered against 
 him on a question of pleading, before he realized 
 that he was in peril. In a little while this delicate 
 beardless youth, who entered upon the practice 
 at the age of nineteen, was one of the leaders of 
 his circuit. In his heart he had a great contempt 
 for this artificial system, where not more than one 
 case in ten was decided upon its merits; but not 
 even Absolom Fowler was his superior in the use 
 of the two-edged sword which it put at his service. 
 The system had one advantage the ignoramus 
 could not stay in court at all, and the accomplished 
 lawyers had no rivalry to fear from the petti- 
 foggers who now infest the bar. So his merits 
 were recognized much more quickly than would 
 be the case to-day. 
 
 On one occasion he had an important case for a 
 gentleman of New Orleans. He won it, and his 
 client came up to gather in the fruits of success. 
 Entering the office, he asked for Mr. Hose. The 
 beardless youth, whose slender, delicate frame 
 made him look even younger than he was, replied, 
 "I am Mr. Rose." The gentleman patted him on 
 the head, and answered, "Oh, my boy, I want to 
 see your papa."
 
 MEMOIR 17 
 
 He told an anecdote which should be preserved 
 as illustrating the crudeness of life in those early 
 times. One bitter winter day he saw a man walk- 
 ing back and forth in front of his office, evidently 
 suffering greatly from the cold. Finally he went 
 to the door, and asked the man to come in; when 
 his visitor exclaimed in surprise, "Why, are you 
 there? I saw the door shut, and so I supposed that 
 nobody was at home." No wonder that tuber- 
 culosis was then unknown in Arkansas ! 
 
 With him his brother-in-law, William E. Gibbs, 
 came to Batesville, and they formed a partnership. 
 Mr. Gibbs was a good lawyer, but had not the 
 genius for the law that characterized his associate. 
 He took the mountain counties of the circuit, whose 
 hardships his more robust constitution enabled 
 him to support. Mr. Rose took the eastern coun- 
 ties, where the litigation was more important, 
 where he had to measure himself with the leaders 
 of the Little Rock bar, and where he soon taught 
 them that they had found in him a f oeman worthy 
 of their steel. Absolom Fowler was the one who 
 came most frequently. A powerful, aggressive, 
 bitter man, merciless in speech and a consummate 
 master of all the arts of special pleading, he was 
 feared by his brethren, who too often had cause 
 to resent his caustic tongue. But in the refined 
 elegance of Mr. Rose that was something that 
 disarmed his wrath, and he recognized in the 
 young man a mastery of his chosen weapon equal 
 to his own; so that to Mr. Rose alone of all his 
 adversaries he was uniformly courteous. 
 
 In fact, from the beginning Mr. Rose had the
 
 18 MEMOIR 
 
 rare faculty of protecting his client's rights with 
 extreme vigilance while retaining the good will 
 of his professional brethren. He never conducted 
 a lawsuit as a personal grievance. He was always 
 the advocate, representing his client, putting his 
 cause in the most favorable light, but never indulg- 
 ing in personalities. His exquisite refinement and 
 graceful courtesy made it impossible for the 
 coarsest vulgarian to insult him, and lifted the 
 conduct of litigation into a higher plane. 
 
 Then, as always, his most conspicuous personal 
 trait was grace. Tall and slender, every move- 
 ment was graceful. It seemed impossible for him 
 to do an ungraceful act ; as it was impossible for 
 him to utter an unbecoming speech. No one ever 
 heard him say an indecent word or tell a vulgar 
 anecdote; and vulgarity was impossible in his 
 presence. With his vast and varied reading it 
 was inevitable that he should have become 
 acquainted with all aspects of human depravity; 
 but he instinctively put aside all that was not 
 becoming to the high-minded gentleman. He had 
 a keen sense of humor, and his conversation was 
 full of amusing anecdotes and bright with a 
 scintillating wit. At every gathering of the bar 
 he was the centre of a delighted circle; but none 
 of the countless droll stories that he told would 
 have brought a blush to a woman's cheek. 
 
 While he lived at Batesville he studied French 
 first under a German and later under two well- 
 educated and aristocratic young women who had 
 come from Paris to join their brother. The 
 brother died, leaving them in straightened circum-
 
 MEMOIB 19 
 
 stances. Mr. Rose aided them in their distress, 
 and had them much in his home. In this way he 
 laid the foundation for the truly extraordinary 
 mastery of the French language that he after- 
 wards achieved. There was also at Batesville a 
 Madame Audigier, a French lady who supported 
 herself by teaching music and her native language. 
 Under her Mr. Rose also studied. During this 
 period her grandmother came from Paris to visit 
 her. Ninety-five years of age, but still bright and 
 vivacious as a girl, the old lady crossed the sea in 
 one of the wretched ships of those days, and 
 ascended from New Orleans on a steamboat. 
 Eighteen years of age at the time of the taking 
 of the Bastille, she had witnessed all the horrors 
 of the French Revolution; she had seen the King 
 and Queen, the Girondists, Danton and Robes- 
 pierre borne in the death-cart to the guillotine; 
 and amongst her most cherished possessions was 
 a handkerchief soaked in the blood of Robespierre. 
 It was perhaps in listening to her that Mr. Rose 
 acquired that deep interest in the history of the 
 French Revolution that led him in later years to 
 read so profoundly on the subject, and to seek 
 out all the places in Paris made memorable by 
 the events of that stupendous tragedy. After a 
 pleasant visit of some months' duration, the 
 sprightly old lady returned to her home in Paris 
 by the route she came. 
 
 In these early days Mr. Rose was laying the 
 foundations of the vast and singularly varied 
 knowledge that he afterwards acquired. The most 
 striking characteristic of his mind was an insati-
 
 22 MEMOIR 
 
 With the fall of Little Eock in 1863 the seat of 
 state government was transferred to Washington 
 on its southwestern border. Thither the chan- 
 cellor removed with his family. There was prac- 
 tically no business in his court, and he spent his 
 time mostly in study. 
 
 Perhaps no state save Virginia contributed so 
 large a quota to the Confederate service in pro- 
 portion to its population as Arkansas. In every 
 army numbers of Arkansans were enlisted. They 
 marched away, and frequently nothing more was 
 heard of them. The greater part were in the 
 armies of Virginia and Tennessee; but their dis- 
 tracted families knew not where. So Judge Rose 
 was requested to go to Richmond and make up a 
 roster of the Arkansas troops, that it might be 
 known what had become of them. On July 24, 
 1864, he started out upon his perilous journey; 
 sometimes on horseback, sometimes on trains, 
 crossing the Mississippi in a skiff exposed to the 
 fire of a Northern gun-boat, and passing with 
 many hardships through a territory devastated by 
 the horrors of war. Finally he reached Richmond, 
 met President Davis, Judah P. Benjamin and 
 other leaders of the Confederacy, and with infinite 
 toil completed the roster of the Arkansas troops. 
 Then he returned through a country still more 
 devastated, and reached home the day after 
 Christmas of that year. Unfortunately the bulky 
 roster was burned when Jackson, Mississippi, was 
 captured by the Federals, and the result of all his 
 labors perished. 
 
 In the fall of 1865 he removed to Little Rock
 
 MEMOIB 23 
 
 and formed a partnership with Judge Watkins, 
 formerly Chief Justice of the State, and a very 
 accomplished lawyer of broad and enlightened 
 views. This partnership continued until Judge 
 Watkins' death in 1872. The firm had a very 
 extensive business, probably the largest in the 
 state at that time. They were engaged in nearly 
 all of the most important cases. 
 
 During these days he made and published his 
 Digest of the Arkansas Reports, the first work of 
 the kind that had appeared. It was admirably 
 done, and proved a boon fo the profession. 
 
 In 1868 the question was presented to the people 
 whether the Reconstruction Constitution should 
 be adopted. Along with all men who had the wel- 
 fare of the state at heart Judge Rose resisted this 
 with all his might, making public speeches against 
 it; but the iniquitous machinery then in force 
 declared it adopted, and the saturnalia of carpet- 
 bag misrule began. 
 
 The practice was hard in those days. The 
 juries were composed largely of ignorant negroes 
 anxious to wreak their spite upon their former 
 masters. Some of the judges were honest ; others 
 were notoriously corrupt; and all were hostile to 
 the people whose rights they were called upon to 
 adjudge. But the change brought one blessing 
 all the technicalities of common-law pleading were 
 swept away, and gave place to an enlightened code 
 of procedure. Most of the old lawyers resented 
 the change. It deprived them of a weapon the 
 mastery of whose use had required years of labor. 
 Judge Watkins and Judge Rose alone welcomed
 
 24 MEMOIB 
 
 the new code, and Judge Rose at once became as 
 distinguished as a code-pleader as he had been as 
 a pleader at common law, stating his facts in the 
 simplest and plainest language. Indeed, he was 
 always an ardent legal reformer, and many of the 
 most enlightened statutes that have been adopted 
 in Arkansas owe their origin to him. 
 
 Throughout the days of reconstruction he con- 
 tinued to fight the battle of the people. He 
 defended Lieutenant Governor Johnson when the 
 party in power sought to impeach him, to make 
 way for a serviceable tool, and when in 1873 the 
 Brooks-Baxter war broke out he was one of Bax- 
 ter's most trusted advisors; for Baxter, whose 
 home was at Batesville, had long known his worth. 
 It was realized that the issue of the conflict must 
 be settled at Washington, and that a man of great 
 judgment and tact must be sent to represent the 
 people there. Judge Rose was chosen, and it was 
 largely through his able diplomacy that President 
 Grant 's government was induced to decide in Bax- 
 ter 's favor. He returned crowned with victory; 
 and thenceforth his serious troubles were over. 
 Though but forty years of age, he was generally 
 regarded as the leader of the bar of his state ; and 
 in the enjoyment of an extensive practice his busy 
 days flew by, divided between labor and study. 
 He had taken up German after the Civil war, and 
 he acquired such mastery of it that he was able 
 to make public speeches in that difficult tongue. 
 He studied the Civil Law, and a series of articles 
 published in the Southern Law Review on "Some 
 Controversies of Modern Continental Jurists"
 
 MEMOIR 25 
 
 awakened a wide-spread interest by reason of their 
 great learning and their enlightened comprehen- 
 sion of the guiding principles that should control 
 all jurisprudence. He was often importuned to 
 seek public office, and in 1877 a large majority of 
 the legislature offered him a seat in the United 
 States Senate; but he declined. The only posi- 
 tion that he accepted was one upon the commis- 
 sion of three to straighten out the tangled finances 
 of the state, which the carpet-baggers had thrown 
 into almost hopeless confusion a hard and thank- 
 less task with no reward save the consciousness of 
 duty fulfilled. 
 
 His influence over the bar of the state was enor- 
 mous and all for good. The exquisite courtesy of 
 his manner was a continual lesson in urbanity. 
 The high standard of professional ethics that he 
 maintained was a continual beacon, pointing out 
 the way to the younger men. The diligence with 
 which he prepared his cases and the high plane 
 on which he carried on the contest was a constant 
 call to better things. For a considerable time 
 chairman of the Democratic State Central Com- 
 mittee, he taught men how an earnest interest in 
 public questions could be free from all self-seeking 
 ambition. He taught the bar sobriety. When he 
 came to Little Kock, it was the custom for the 
 lawyers engaged in the trial of a case to go and 
 take a drink together at each adjournment of the 
 court, to prove that nothing that had occurred 
 had marred their kindly feelings toward one 
 another. Judge Watkins and Judge Rose were 
 both frail, and realized that these continual pota-
 
 26 MEMOIB 
 
 tions would undermine their health ; so they soon 
 declined to accept the customary invitations. At 
 first they gave great offense; but gradually their 
 example had its effect, and the Little Rock bar, 
 and, indeed, the bar of the whole state gradually 
 forsook its drinking habits, and became so abstem- 
 ious that now it is a rare thing to see a reputable 
 lawyer enter a saloon. 
 
 In 1872 Judge Eose began his travels with a trip 
 over Europe as far as Vienna and Naples. This 
 he repeated a number of times, including Scan- 
 dinavia, Eussia and Turkey in the lands he visited. 
 He also traveled in Mexico, the West Indies and 
 Hawaii, his mind always alive to new impressions, 
 his intellectual curiosity always keenly awake. 
 
 He remained to the last a tireless reader in 
 every field of human endeavor. He kept up with 
 all the discoveries of science and with all cunning 
 inventions. He was a great reader of history and 
 of memoirs. He read most of the poetry and 
 dramas that appeared in the languages that he 
 understood. Of books of travel he was an inces- 
 sant reader. He was deeply interested in all 
 metaphysical and philosophic movements. He yet 
 found time to read all the notable fiction of his 
 time. He accumulated a scientific and literary 
 library of more than eight thousand volumes, all 
 of which, save the works of reference, he had read. 
 He became much interested in the French bar, and 
 read very extensively on the subject. There is in 
 English no adequate history of the bar of France, 
 and he resolved to supply the defect. He wrote a 
 book, which, if published, would have made a vol-
 
 MEMOIR 27 
 
 ume of some six hundred pages. I was privileged 
 to read it. It was an admirable history, lucid and 
 well proportioned and presenting the subject with 
 great charm of style. I urged its immediate pub- 
 lication ; but he deferred it, and finally, in a fit of 
 excessive modesty, burned the book. 
 
 Full of thought and knowledge and gifted with a 
 rare felicity of expression, he was often called 
 upon to make public addresses, particularly at 
 gatherings of the bar, from Pennsylvania and Vir- 
 ginia in the east to Colorado in the west. As it 
 is the purpose of this volume to preserve a selec- 
 tion of these, they may be left to speak for 
 themselves. 
 
 He was always a Democrat, and believed earn- 
 estly in the ancient principles of that party. But 
 he lent himself to none of the vagaries which it 
 has of late years too often followed. He looked 
 upon the protective tariff as an abomination that 
 led to infinite corruption, and upon free silver as 
 the clamor of the dishonest for a scaling of their 
 debts. He stood firmly with Mr. Cleveland. 
 Indeed, Mr. Cleveland owed his nomination in no 
 small measure to Judge Rose. As head of the 
 Arkansas delegation in the convention that first 
 nominated him, Judge Rose succeeded in throw- 
 ing the whole vote of the state to Mr. Cleveland ; 
 and owing to its alphabetical position near the 
 head of the list, as the votes were called again and 
 again, the solid phalanx of Arkansas evoked much 
 applause and had a decided influence upon the col- 
 umn that followed. 
 
 Like every successful lawyer, he devoted much
 
 28 MEMOIR 
 
 of his time to the service of corporations, but 
 never did he wear their collar. He always main- 
 tained an attitude of dignified independence, and 
 he never permitted the interest of his clients to 
 sway his judgment on any public question. He 
 was first of all a man and a citizen, placing the 
 public welfare above every other consideration, 
 and uttering his views freely and fearlessly when- 
 ever he felt that the interests of the people were in 
 jeopardy. 
 
 Those who heard him in court, and saw with 
 what ease and grace he handled the questions 
 under consideration had no idea of the tremendous 
 labor that laid the solid foundation of his argu- 
 ment. There was no parade of learning and all 
 seemed facile and spontaneous. His briefs, too, 
 were short and to the point, characterized by 
 remarkable clearness of diction and a felicity of 
 style that made them delightful reading. But his 
 preparation of his cases was most laborious. 
 Before looking up the law he thoroughly mastered 
 the facts, so that he was sure of the ground upon 
 which he stood. Then he threw himself into the 
 investigation of the law with an earnestness that 
 bordered on frenzy. Often he would make himself 
 sick from overwork in the preparation of an 
 important case. When he had accumulated all 
 the law that was to be found in the books he did 
 not throw at the court the undigested mass. He 
 sifted the chaff from the wheat, and used only the 
 best ; presenting it in so persuasive a manner that 
 success usually crowned his efforts. 
 
 He was not a noisy speaker. His voice was not
 
 MEMOIR 29 
 
 strong; but it was well modulated and agreeable 
 to the ear. In oral discourse he had the same 
 felicity of diction as in writing. He never 
 repeated himself, never hesitated for a word ; and 
 his speeches, if taken down in shorthand, would 
 have been found to be models of literary style. He 
 excelled particularly in argument and exposition. 
 His vast knowledge of law and of history enabled 
 him to bring to bear upon any subject an extraor- 
 dinary profusion of persuasive illustrations. He 
 also had a fund of wit and humor that illumined 
 every discourse with delightful sallies. At times 
 he could be deeply moving ; and when his indigna- 
 tion was aroused, he was capable of the most 
 withering sarcasm and the most merciless ridicule. 
 
 In his relations with the courts he was a model. 
 He was courteous and respectful, but he exacted 
 an equal respect and courtesy in return. With 
 their mistakes he was patient; but when he 
 believed that they were acting from unworthy 
 motives, his indignation was expressed in the most 
 fearless manner. More than one unworthy judge 
 received at his hands a castigation that he never 
 forgot. 
 
 He was one of the happiest of after-dinner 
 speakers, witty, amusing and eloquent by turns. 
 These speeches were all extemporaneous and only 
 one of them was taken down in short-hand. This 
 is given in the following pages. 
 
 Early in 1907, Mr. Eoosevelt, then president of 
 the United States, passed through Little Rock. At 
 a luncheon given to him Judge Rose responded to 
 a toast in his honor. This made so favorable an
 
 30 MEMOIB 
 
 impression upon Mr. Roosevelt that he appointed 
 Judge Rose an ambassador to the Hague Peace 
 Conference of that year, along with Mr. Jos. H. 
 Choate and General Horace Porter. From the 
 day of his appointment Judge Rose devoted his 
 whole time to the study of international law, so 
 that when the conference assembled he was far 
 better equipped than most of the delegates. Added 
 to this was his perfect mastery of the French 
 language; and these, with the charm of manner 
 that made him a natural diplomat, gave him a 
 conspicuous position in that distinguished gather- 
 ing. The conference, of course, did not put a stop 
 to wars; but it did much to codify the law of 
 nations, and so to avoid future misunderstandings. 
 
 On October 25, 1903, he and Mrs. Rose cele- 
 brated their golden wedding. All their children 
 were with them save one, who had died in infancy. 
 Of the nine all but one were married, and each 
 brought to the gathering his first wife or her first 
 husband. The occasion was a memorable one in 
 the annals of Little Rock. Most of the city turned 
 out to congratulate the bride and groom, and many 
 friends came from a distance to do them honor. 
 
 It has been well said that lawyers usually work 
 hard, live well and die poor. Judge Rose was 
 certainly a tireless worker and he gave himself 
 and family every reasonable comfort; but for- 
 tunately he did not die in poverty. Though he 
 was reasonable in his charges and generous in his 
 donations to charity, the amount of business that 
 he dispatched was so enormous that after bring- 
 ing up nine children he was able to accumulate a
 
 MEMOIR 31 
 
 competency, so that his declining years were 
 passed in dignified ease. 
 
 When he reached seventy he realized that his 
 strength was failing ; so he retired from the active 
 practice, and devoted the remainder of his life to 
 study and travel. From time to time he would 
 take a case in the appellate courts that interested 
 him, and his briefs and arguments made at this 
 period of abundant leisure were probably the 
 ablest and the most profound of all. It was char- 
 acteristic of his chivalrous nature that his last 
 appearance in court was on behalf of an unfortu- 
 nate young woman who had been despoiled of her 
 very considerable inheritance under the pretence 
 that she was illegitimate. The spoilers had 
 buttressed themselves behind judgments and 
 confirmations until their position seemed impreg- 
 nable; but with an amount of labor and research 
 that was almost incredible, he succeeded in break- 
 ing down all their defenses and in restoring her to 
 the enjoyment of her rights. 
 
 To the end his mind retained not only its youth- 
 ful vigor, but its youthful outlook. Mentally he 
 never grew old, never became ultra conservative, 
 a laudator temporis peracti. He believed that the 
 world was on the whole continually growing bet- 
 ter, and he was interested in its every advance; 
 and this interest remained unabated to the last. 
 
 At the beginning of 1913 it was apparent that 
 his bodily strength was rapidly failing. His mind 
 remained as bright and clear as ever ; but he, who 
 had been a great walker, was unable to walk the 
 half dozen blocks from his home to his office. In
 
 32 MEMOIR 
 
 the early summer he had a fall. No bones were 
 broken, and no serious injuries were apparent; 
 but a fever set in that could not be checked, and 
 gradually the vital forces ebbed away until at 
 half past one on the morning of August twelfth, 
 in the presence of his weeping family, he sank 
 peacefully into that sleep from which there is no 
 waking. 
 
 He was buried on the fourteenth in Oakland 
 Cemetery at Little Rock. The funeral was from 
 his home and was without ostentation; but all 
 the state, city and county offices were closed by 
 public proclamation, an honor perhaps not shown 
 to any other private citizen of Arkansas. 
 
 When you find that a man has accomplished 
 great things, it is usually necessary to inquire 
 about his wife. A foolish wife can wreck the 
 career of almost any man. Judge Rose was for- 
 tunate in this respect, as in many others. Though 
 the father of ten children, nine of whom reached 
 maturity and eight of whom, with many grand- 
 children, survive him, no household cares were 
 suffered to intrude upon his studies or his labors. 
 So frail that there was never a time from the day 
 of his birth when any member of his family 
 expected him to live for ten years, and often 
 thoughtless of his own health, his wife's watch- 
 ful care prolonged his days till far into the 
 eightieth year. Once when a lady friend expressed 
 the hope that she might die before her husband, 
 Mrs. Rose replied, "That is not the way I feel. 
 My greatest fear is that I may die or become 
 incapacitated, so that I may not be able to care
 
 MEMOIR 33 
 
 for him and serve him to the end.'* Mercifully 
 her hope was granted, and his last moments were 
 brightened by her presence.
 
 A Paper Read Before the Pennsylvania State Bar Association 
 at its Annual Meeting, June 25, 1901
 
 THE RISE OF CONSTITUTIONAL LAW 
 
 When we look backward over a few hundred years the 
 scene is generally somewhat blurred; but as the future 
 is still more vague and indistinct, I trust that you will 
 excuse me if I indulge in a reminiscence, and endeavor 
 to glean something from the past; not a past that is 
 dead, but a past that is most intimately connected with 
 our present, and that must exercise a very controlling 
 influence on the future for all time. 
 
 When we are floating on some great river that is 
 silently approaching the sea, our attention is naturally 
 attracted to the passing vessels, to the flitting scenery on 
 the shore, the fields, the trees, the houses, the villages, all 
 of the successive changes of the landscape, without ever 
 thinking of the far off fountain in the wilderness in 
 which the mighty stream had its origin. So it is with 
 our institutions. We are interested in their modern 
 aspects, in their present operation, their actual influence 
 in our own day and time, without giving much thought 
 to the remote periods in which they had their birth. 
 There has long been, however, a school of jurists who 
 have insisted that the historical method is the true one 
 to be applied to legal studies ; but that is a question that 
 I do not care to enter upon at this time, further than 
 to suggest their opinion as an excuse, as far as it may 
 extend, for what I shall have to say on this occasion. 
 
 Our laws, like our language, have been derived from 
 many sources. Many of them can be traced to periods 
 as early as the Roman Republic; many were imported 
 by our ancestors from our mother country; vestiges of 
 
 37
 
 38 Addresses 
 
 the feudal system have survived though that system has 
 perished; while other laws are of indigenous growth; 
 but all of them are connected in some way with a past 
 somewhat remote, and with each other. Let us take our 
 system of constitutional law. In many respects it has 
 been expanded beyond all known precedents, so as to 
 have a stamp that is peculiarly American; nevertheless 
 it had a very vigorous origin among scenes the most 
 dramatic long before Columbus set his sails on his mem- 
 orable voyage of discovery. That origin is not lost in 
 the night of time; but may be traced with an unusual 
 degree of certainty. I purpose, with your kind indul- 
 gence, to say something about the birth of the principles 
 of constitutional government which in our country have 
 attained to such a vigor and predominance as have never 
 been known elsewhere, stating some of the facts closely 
 associated with that event. 
 
 If any of us had been living, and had been in the 
 cathedral of Worcester, England, on the seventeenth day 
 of July, 1797, he would have beheld a strange sight. The 
 doors of that immense building were closed and bolted 
 from within, and the light, sifting through richly stained 
 windows, revealed a group of men gathered around a 
 tomb of antique aspect which stood, and still stands, in 
 the choir just before the high altar. On the top of the 
 tomb was the recumbent figure of a man, his hands 
 encased in jewelled gloves, the palms pressed together 
 as if in prayer. Some of the men there present were 
 mechanics with hammers, chisels and crow-bars, with 
 which they proceeded to prize off the ponderous covering 
 of the tomb of which the marble effigy formed a part. 
 Beneath was found a coffin, likewise of marble, broken 
 across, as was supposed, long before that time, when the 
 tomb had been removed from some other part of the 
 building for the purpose of making repairs. 
 
 Nearly six hundred years had passed away since King
 
 The Rise of Constitutional Law 39 
 
 John had been laid to rest in that tomb, with an 
 unparalleled dearth of tears. 
 
 There had been some controversy as to the precise 
 spot in the cathedral in which lay the body of John; 
 some antiquaries contending that it lay beneath the 
 pavement where the tomb had formerly rested; a spot 
 still marked by a marble slab; and others contending 
 that John was buried at Croxton, as stated by one old 
 author. Finally Mr. Green, the historian of Worcester, 
 with some others, obtained the consent of the dean and 
 chapter of the cathedral that the tomb might be opened, 
 so that all doubts might be dispelled. When the lid of 
 the coffin was lifted it disclosed all that was left of the 
 dead monarch. A drawing was made of the open tomb 
 which has often been reproduced. The skeleton measured 
 five feet six inches in length, the forehead was heavy 
 and narrow, as shown in all of the pictures of John. 
 The truth of history was confirmed. When the king was 
 alive, one of his ambassadors had said of him: 
 
 "The King of England is about fifty years of age, 
 his hair is quite hoary ; his figure is made for strength 
 compact, but not tall." 
 
 Although the king's body had been embalmed by his 
 physician, Thomas de Wodestoke, abbot of Caxton, yet 
 the balsams and spices had not availed in the long war- 
 fare waged by the elements; and the flesh had disap- 
 peared. The body had been clad exactly as represented 
 by the effigy that lies on the tomb, except that the hands 
 were not encased in gloves, and that in lieu of a kingly 
 crown it wore a monk's cowl, put on at the king's dying 
 request, in the hope that it might scare the devil away, 
 or deceive the keen vision of the Angel of the Resurrec- 
 tion. It was in the same frame of mind that John 
 requested that he might be entombed in this spot so 
 that he might sleep near the bodies of the holy saints 
 Wulfstan and Oswald, who, as he trusted, would charit-
 
 40 Addresses 
 
 ably intercede for him at the last day. By means of 
 these prudent precautions he hoped to slip along with 
 the elect into the Kingdom of Heaven. 
 
 But let us look once more, and see what he had left 
 behind him in token of his mortal life. 
 
 The head having been slightly elevated, the skull had 
 become detached from the rest of the skeleton, which 
 had been clad in a long robe of crimson damask of pecu- 
 liarly strong texture. A part of the embroidery of the 
 robe remained near the right knee. The legs were cov- 
 ered with an ornamental close dress tied at the ankles ; 
 and the bones of the feet were visible through the decayed 
 parts of the drapery. A sword that had been clasped 
 in the left hand had been eaten by rust into pieces, 
 which lay scattered down the same side of the body. 
 The right hand, which had become detached, lay on the 
 right thigh of the skeleton. 
 
 A sword that time had broken as if in mockery, a 
 skull masquerading in the head-dress of a monk, a few 
 decaying bones and vestments were the only visible 
 remains of a once powerful monarch, the greatest enemy 
 of free government that was ever seen in England. It is 
 easy to conclude that these vestiges of mortality were 
 regarded by those present with curiosity rather than with 
 reverence. Other churches may contend in devout rivalry 
 as to the respective merits of saints whose relics, shrines, 
 or tombs they possess ; but it will perhaps be universally 
 conceded that the cathedral of Worcester holds enclosed 
 within its consecrated precincts one of the vilest of the 
 champions of wickedness. 
 
 The iniquities of John were so enormous and so numer- 
 ous as to stagger belief ; and some have been inclined to 
 distrust the veracity of the old chroniclers by whom 
 they have been recounted; yet these chroniclers furnish 
 most of the testimony on which all of the histories of 
 that period are based. Many of the most atrocious
 
 The Rise of Constitutional Law 41 
 
 crimes of John are perfectly well authenticated. No 
 one doubts that he murdered his young nephew, Arthur, 
 the rightful heir to the throne, though the precise man- 
 ner in which the deed was accomplished may be open to 
 dispute. A long and most appalling series of criminal 
 acts is equally well established. To kings in those days 
 much was forgiven ; but John acquired such a reputation 
 in the popular mind for depravity and villainy that in 
 the reign of Richard II the insurgents exacted an oath 
 that no king named John should ever sit on the English 
 throne. We may well conclude that a monarch that 
 could not engage the services of a single apologist was 
 immune to all the virtues. 
 
 There is a class of men whose business it is to exon- 
 erate and to justify illustrious scoundrels. We have 
 been told that Tiberius Caesar was possessed of many 
 virtues ; that he was rather remarkable for goodness and 
 wisdom. Walpole thought that Richard III had been 
 much maligned. In our own day we have seen volumes 
 in praise of Danton, Robespierre and St. Just ; and only 
 within the last few months a life of Marat has been 
 published, intended to prove that the Friend of the 
 People was a humane, good man misunderstood; but no 
 one, I believe, has ever aspired to rehabilitate King 
 John. The way is open; and here is a virgin field for 
 lovers of paradox. Of him I am willing, however, to 
 believe anything that is bad, and will trust the old 
 chroniclers, since they are not contradicted, and all they 
 say of him is wholly in keeping with his well-known 
 character. So terrible and enormous were his misdeeds 
 that it has indeed been suggested that he was insane; 
 but he was very cunning and crafty withal ; and unfor- 
 tunately a great amount of wickedness is not incompat- 
 ible with saneness of mind. I will only mention a very 
 few of the accusations made against him by writers who 
 knew more about him than we can possibly know.
 
 42 Addresses 
 
 The favorite residence of John was at Windsor. Hav- 
 ing divorced his first wife, he brought thither the fair 
 Isabella, whom he had married, after stealing her from 
 Guy de Lusignan, to whom she had been betrothed. 
 In the beginning he displayed an ardent devotion to his 
 new bride ; but he soon wearied of her also. Near by the 
 Norman Keep is a chamber made famous by the manner 
 in which John managed to vary the monotony of domes- 
 tic life. Suspecting a gentleman of the court of having 
 supplanted him in the queen's affections, he caused him 
 and two others, supposed to be his accomplices, to be 
 assassinated; and that evening when she retired to her 
 room, not suspecting what had happened, she found the 
 bodies of these three victims suspended over her bed. 
 
 John was prolific in his devices for raising money, 
 including slander and blackmailing ; thus he shamelessly 
 entered on his rolls memoranda such as this: "Robert 
 de Vaux gave five of his best palfreys that the king might 
 hold his tongue about Henry PinePs wife." In some 
 years he levied taxes on all movables of more than four- 
 teen per cent. Against all who offended him his 
 vengeance was swift and terrible. On one of his raids 
 on the Isle of Wight he made it a rule to fire every 
 morning the house that had sheltered him the night 
 before. Levying fines on Jews, and torturing them until 
 they surrendered the last penny, and making forced 
 levies on Christians were regular financial expedients. 
 
 If John was terrible to his enemies he was still more 
 formidable to his friends. Among the latter, bound by 
 the strongest ties, was William de Braose, fourth Lord 
 of Bramber, to whose warlike exertions John was chiefly 
 indebted for his crown. One day the king, being in need 
 of money, a very common circumstance owing to his 
 great extravagance, proposed to Bramber to sell him 
 lands of much value lying near Limerick in Ireland ; an 
 offer which was unfortunately accepted. Discovering
 
 The Rise of Constitutional Law 43 
 
 afterwards that John had no title to the lands, Bramber 
 imprudently refused to pay the purchase price agreed 
 upon. The king at once made war on him; and after 
 some bloodshed a truce was talked of; but the king 
 refused to sanction it unless his adversary would sur- 
 render his son as a hostage. When this demand was 
 communicated to Maud, Lady Bramber, she refused, 
 saying, "By my faith, the king did not take such care 
 of his nephew that I should trust my child to his hands ; ' ' 
 referring to the murder of young Arthur. The allusion 
 was bitter, and bitterly did she answer for it. John 
 proceeded to waste the lands and to burn the castles of 
 Lord and Lady Bramber. At last perceiving that they 
 were entirely helpless, Lady Bramber sent to John four 
 hundred white cows as a peace offering; which were 
 accepted by John in that sullen mood that characterized 
 nearly all of his acts, proposing a peace on payment of 
 an indemnity so large that he knew it to be impossible. 
 Lady Bramber sought safety in flight; but she and her 
 son were captured at sea just as they were nearing the 
 coast of France, were brought back to England, and 
 were thrown into the Norman Keep at Windsor, with 
 no other provisions but a sheaf of wheat and a piece of 
 raw pork. Let the chronicler tell the rest : 
 
 "For ten days they were left alone. On the eleventh 
 day the bolts were drawn, the doors thrown open. Mother 
 and son were dead. The young man had been the first 
 to fail. Seated on the floor, and leaning against the wall 
 he had met his lingering death. His head was bent a 
 little toward the ground. Maud was near her son. She, 
 too, was seated on the floor, her back against the wall; 
 but her face had fallen on her son's broad chest; and 
 there she lay embracing him with the last sigh of her 
 life. In that last sigh the savagery of hunger had broken 
 on her love. His cheek was gnawed. The mother's 
 farewell kiss had turned into a ravenous bite."
 
 44 Addresses 
 
 Lord Bramber succeeded in making his escape to 
 France, where, it is said, he soon afterwards died of a 
 broken heart. 
 
 It would seem that John had a passion for starving 
 his victims to death. Much given to gluttony himself, 
 he probably considered that the most painful punish- 
 ment that could be inflicted. Some years before his 
 war on Lord and Lady Bramber he had starved to death 
 twenty-two hostages in Corffe Castle. 
 
 I will not dwell farther on the long catalogue of bloody 
 crimes with which this dastardly king stained his hands. 
 But there were other misdeeds that called for the wrath 
 of God and the avenging fury of men. With licentious 
 passions the king sought to spread dishonor through 
 noble families until a cry arose against him such as had 
 been heard against Appius Claudius at Rome : 
 
 "Patient as sheep we yield us up unto your cruel hate; 
 But, by the shades beneath us, and by the Gods above 
 Add not unto your cruel hate your yet more cruel love." 
 
 I need mention only one single exploit of John that 
 contributed most powerfully to bring him to judgment. 
 When the mailed barons went forth with all of their 
 forces to settle their long account with the king, Robert 
 Fitz- Walter, Baron of Dunmow, rode foremost in the 
 van, having been elected as their leader under the title 
 of "Marshal of God and the Holy Church." Many in 
 that band had some personal wrong to be avenged ; but 
 by common consent it was conceded that none had been 
 so deeply wronged as he ; and in the tremendous catalogue 
 of his grievances the fact that John had set fire to his 
 castle, the ancestral home of his family, and had burned 
 it to the ground, went for nothing. After the death of 
 John, Fitz- Walter was a broken man. He went to Pal- 
 estine and fought against the infidel for the Sepulchre 
 of Christ. We hear of him actively engaged at the
 
 The Rise of Constitutional Law 45 
 
 siege of Damietta. In 1234 he died ; no one knows where, 
 or from what cause; but his tomb may still be seen in 
 Little Dunmow church. Very near it, and on the south 
 wall, is an altar-shaped tomb on which is carved in 
 alabaster the form of a girl of eighteen, richly dressed. 
 Her figure is tall, extremely slender, lithe and graceful. 
 She wears the head-dress of the period, fitting closely 
 over the brow; and her tresses are parted over an oval 
 face of singular sadness, sweetness and beauty. Her 
 open hands are held near together in an attitude of 
 resignation and prayer; but the unoffending grace that 
 lights up every feature tells that she had but few sins 
 to be forgiven. Nearly seven hundred years have gone 
 since the maiden gathered daisies in the English 
 meadows, and listened to the song of the lark soaring 
 toward Heaven. Not the gloom of penitential Lent, nor 
 the happy Christmas chimes rung out from the tower 
 above, nor the chants of the worshippers on each recur- 
 ring Sunday and festival, nor the deep tones of the 
 organ that shake the building to its foundation suffice 
 to rouse the pulse that seems as if just suspended. 
 
 "The fragrant tresses are not stirred, 
 That lie upon her charmed heart. 
 
 She sleeps; on either hand upswells 
 
 The gold-fringed pillow, lightly prest. 
 
 She sleeps, nor dreams, but ever dwells 
 A perfect form in perfect rest." 
 
 Gazing upon this reclining figure one might almost 
 deem that he had before him the Sleeping Beauty of 
 fable, lying here while the centuries are slowly tolled 
 away by the clock in the tower above, waiting for the 
 coming of the Happy Prince whose kiss shall waken her 
 to life and love. 
 
 The maiden thus sleeping has been the theme of count- 
 less ballads. She is the original of that Maid Marian that
 
 46 Addresses 
 
 has walked in glory through a thousand romances. Her 
 history has often been reproduced on the stage in dramas, 
 with every variety of transformation consistent with 
 the purity of her character ; though no pen save that of 
 Shakespeare himself could have done justice to her 
 pathetic fate. 
 
 That lady, thus commemorated in art, history, romance 
 and song, was Matilda, the daughter of that Robert Fitz- 
 Walter, who with his good broad sword rode in the van 
 of the army of the barons as it pursued the cowardly king 
 along the line of his dastardly retreat. She was the 
 light of his house, the joy of his heart. Her hapless story 
 is soon told. Just blooming into womanhood, the fame 
 of the wonderful beauty of Matilda Fitz-Walter was 
 spread abroad in all the land; and so it came to the 
 ears of the king, who caused her to be abducted by the 
 ruffians whom he kept in his pay. As she rejected his 
 advances, she was confined in the Tower in a room that 
 is still shown, next the roof in the round turret standing 
 on the northeast angle of the keep, where, after an 
 imprisonment of a few months, she was secretly poisoned 
 by order of the king. 
 
 We may wonder how with so many misdeeds such a 
 monster could have been permitted to live ; but it seems 
 quite probable that he was poisoned in the end; and 
 besides, a king in those days, defended by guards, was 
 also protected by influences that were overpowering in 
 the minds of men. 
 
 If we could go back to the times when the Indian 
 tribes roamed in these hills we should find that the chief 
 and the medicine man were closely bound together by 
 the ties of interest and sympathy. The alliance between 
 church and state in the days of John was natural, neces- 
 sary, inevitable. The bishops declared that the king 
 reigned by divine right, that he could do no wrong, that 
 to cross him or resist him was not only a crime but a
 
 The Rise of Constitutional Law 47 
 
 sacrilege. When the king went to war it often happened 
 that the bishop gathered his retainers and went along to 
 swell the royal forces ; and not unf requently he gave the 
 sanction of religion to some expedition of rapine and 
 plunder. In return the king granted special privileges 
 to ecclesiastics and to monasteries, so that the clergy 
 had come to own one-third of the lands of England ; and 
 every day their domains and revenues increased. If the 
 clergy condemned any one for heresy or other crime, he 
 was turned over to the secular arm, and was in a kindly 
 and neighborly way imprisoned, tortured, hanged or 
 burned, as his sentence might import. Though the king's 
 life might be far from virtuous, he assured his subjects 
 that when the bishop said that the slightest lapse from 
 virtue implied eternal torment unless relieved by ecclesi- 
 astical intervention, he only uttered a truth that admitted 
 of no doubt, and which it would be impious and fatal to 
 question. If this system had its defects, it was perhaps 
 the only one that had any chance of holding society 
 together ; for it required all the terrors of this world and 
 of the next, not to make men good, for that was beyond 
 hope, but to keep them from lapsing into a state of total 
 depravity. 
 
 Never was a darker period in history. The light of 
 humanity seemed to be going out forever. The social 
 system was disorganized, disintegrating day by day. For 
 several hundred years the world had been going back- 
 ward. During that time not a scientific or mechanical 
 discovery had been made, not a new thought produced, 
 or a book written that added to the intellectual treasures 
 of mankind. Men had gone off on the wrong track, 
 devoting the labors of generations to alchemy, to astrol- 
 ogy, to dogmatic theology. The splendid literature of 
 Greece and Rome had for the most part perished. The 
 few books to be had were in manuscript, hard to read, 
 costly in price ; and outside of the clergy, many of whose
 
 48 Addresses 
 
 members were utterly illiterate, it was a rare thing to 
 find a man that could write his name. As for women, 
 they made no pretence of such preternatural 
 acquirements. 
 
 Blood and carnage, wars, public and private, were the 
 order of the day. No books, no newspapers, no mails, 
 nothing new in science or art, no theatres, concerts or 
 operas, no household conveniences, no tolerable roads, or 
 means of getting about with comfort; had it not been 
 for the privilege of fighting and killing, ravaging lands 
 and destroying homes, life would have been only a 
 lethargy, death a rescue and a relief. 
 
 Society, such as it was, was based on principles of 
 universal robbery scientifically developed in that amazing 
 piece of perverted ingenuity called the feudal system; 
 while outside the meshes of feudalism the irrepressible 
 bandit plied his calling on every highway. The outlaw, 
 Robin Hood, popularly supposed to be the Earl of 
 Huntington, made his home in the Sherwood forest, more 
 admired by the populace than any man in England. His 
 surroundings were congenial; and he died a natural 
 death at the age of 84, much beloved, but not universally 
 lamented. 
 
 Every age has its own forms of insanity. Our own 
 is perhaps not unendowed in that way ; but that of John 
 was prolific in variety. One universal delusion was that 
 it was the duty of every man that had the means to go 
 to the ends of the earth, and to kill as many Turks as 
 possible, so as to rescue the Holy Sepulchre from the 
 hands of the infidel. And thus a million or so lives 
 were sacrificed, and twice the number were reduced to 
 penury, slavery and wretchedness. No period could be 
 more materialistic than that of John; but here was 
 Nature's eternal but ineffectual protest against mate- 
 rialism, against the theory that man can live by bread 
 alone. However oppressed and degraded, men still clung
 
 The Rise of Constitutional Law 49 
 
 to a higher ideal ; and were content to embrace and caress 
 an empty phantom, thanking God for that; and were 
 ready to go off and fight for it, and die for it; and, 
 trusting to some instinct that they could not fathom, 
 they went on planting lilies in the slough of despond, 
 and erecting the banner of hope at the gateway of the 
 tomb. Their unselfish enthusiasm lent a certain dignity 
 to their madness; but everything tended to the support 
 of despotism, because the law is silent amidst arms. 
 
 But finally the atrocities of John excited universal 
 terror that precluded delay. From out the heterogeneous 
 elements there arose a mighty purpose, not to destroy 
 the government in one giant and iconoclastic effort, a 
 remedy often tried, and always in vain ; but to reform it, 
 to readjust it on enduring foundations. 
 
 The barons of England were turbulent, much given to 
 quarrels and discord, but loyal, as the feudal tenures 
 required them to be. Nothing but the iniquities of John, 
 swollen beyond all endurance, cemented their union, and 
 nerved their arms for the final struggle. 
 
 Not that all of the barons were united. Some of them 
 still adhered to John and to his evil fortunes ; and at the 
 head of these was the great Earl of Salisbury; but the 
 enthusiasm that wins success found no rallying point 
 in the ignoble person of the king. At that time the 
 highest title of nobility in England was that of earl, 
 and the word barons was used to denote all members of 
 the nobility of whatever rank; but among those who 
 entered into the revolt against John were many men 
 belonging to what we should now call the middle class; 
 men of lands and substance, and of influence ; but having 
 no titles in the peerage ; men who more than made up for 
 any loss sustained by reason of the dissent of a few of 
 the barons. 
 
 The reign of King John and the successful revolt 
 against his tyranny present in a very striking way the
 
 50 Addresses 
 
 perplexing interaction of good and evil. The most 
 destructive thunder storm serves to purify the air; and 
 the rankest soil brings forth the most beautiful flowers 
 to captivate the eye, and to enrich the winds with their 
 perfume. Had John been a better or a wiser king, the 
 revolution, delayed through centuries of suffering, must 
 have broken forth at last with that devastating energy 
 that smooths the way for the career of a Robespierre or a 
 Danton. But enormous crimes awakened invention. 
 The idea of binding the king by a formal contract, the 
 king, ruling by divine right, the king, who was the 
 fountain of honor, and who could do no wrong, daring 
 in its novelty, was utterly at war with all the precedents 
 of history, all of the traditions of our race. Unworthy 
 kings might be dethroned or slain, to be followed by 
 others as bad, or perhaps worse; but to bind the king 
 and his heirs with a mere parchment assumpsit, was so 
 like the drawing out of a leviathan with a hook, or bind- 
 ing Samson with a packthread, that to many it must 
 have seemed audacity degenerating into frenzy. This 
 bold thought probably originated in the brain of Stephen 
 Langton, a name never to be mentioned without respect. 
 
 Langton was an Englishman; but the time and place 
 of his birth have baffled modern inquiry. He received 
 his principal instruction at the University of Paris, 
 where he became renowned for learning and ability; so 
 much so that, though a foreigner, he was made Canon of 
 Paris, Chancellor of the University, and Dean of Rheims. 
 
 In 1207 Langton was appointed Archbishop of Canter- 
 bury by Pope Innocent III, and proved to be a man of 
 great firmness and intrepidity of mind. Profoundly 
 scandalized by the crimes and indecencies of John, he 
 resolved to curb the power that rendered such infamies 
 possible. He found somewhere an old charter of Henry 
 I, dated about 1100, conceding certain privileges to his 
 subjects ; and of this he made good use, though it did not
 
 The Rise of Constitutional Law 51 
 
 purport to bind the successors of that monarch, and 
 hence had been generally forgotten. In the century and 
 a half that had elapsed since the time of the Norman 
 conquest, the Normans and the Saxons having become 
 thoroughly fused into one body, there was a growing 
 sentiment in favor of the restoration of the liberal and 
 less oppressive laws of Edward the Confessor. 
 
 A convocation of the peers and ecclesiastics having met 
 in 1214 in St. Paul's, Archbishop Langton read the 
 charter of Henry I, recounted some of the enormities of 
 John's recent conduct, telling them that if they were 
 willing to support this charter their long lost liberties 
 would be restored in all of their original purity of 
 character; which, we are told, "so animated the minds 
 of all present that with the greatest sincerity and joy 
 they swore in the archbishop 's presence that at the proper 
 season their deeds should avouch what they then 
 declared; and that even unto death itself they would 
 defend those liberties. ' ' Langton promised his co-opera- 
 tion and assistance, and assured the barons that the 
 covenant then made would reflect honor on their names 
 through successive generations. 
 
 It will be remembered that on the 23d of March, 1207, 
 all of England had been placed under an interdict by 
 the Pope, that John was excommunicated by the same 
 authority in November, 1209, and that in 1213 the Pope 
 issued a bull declaring John to be a traitor against God, 
 solemnly deposing him from the realm, absolving all his 
 subjects from their allegiance, and exhorting all Christian 
 princes and peers to unite in dethroning an impious king, 
 and in elevating another more worthy of the papal 
 authority. The clergy had therefore special reasons for 
 entering into a conspiracy against John. But the king 
 perceiving the gathering cloud, made his submission to 
 the Pope, conveyed to him and his successors forever the 
 whole kingdoms of England and Ireland, receiving them
 
 52 Addresses 
 
 back as the vassal of the Holy See ; upon which the Pope 
 recalled his bulls against John, and suspended from 
 office certain ecclesiastics who had disobeyed the king's 
 commands. 
 
 Langton, far from being appeased by this reconcilia- 
 tion, protested against the concession of John, and 
 continued in his first resolution; as did many of the 
 clergy, encouraged by his example. On the twentieth 
 of November, 1214, he met the barons at St. Edmund's 
 Bury, where a solemn oath was taken to preserve the 
 liberties of England ; and recourse to arms was resolved 
 upon. Destitute of means for defraying the expense of 
 a war, and deserted by most of his subjects, the king 
 endeavored to temporize. He would have been willing 
 to take any number of oaths ; but as he had already taken 
 many, and had violated them without compunction, no 
 one was willing to accept his most solemn pledges. 
 
 As the barons advanced the king retreated from 
 Oxford to London. His adversaries having opened com- 
 munication with the inhabitants of that city, followed 
 with a large army in the footsteps of John; the city 
 gates were thrown open to them on the twenty-fourth 
 of May, and the king hastened to shut himself up in 
 the Tower, whence, finding himself helpless in the midst 
 of his subjects, he began negotiations with the barons, 
 resulting in a promise to meet them at Runnymede on 
 the fifth of June. 
 
 The name Runnymede is derived from two Saxon 
 words meaning Council Meadow, because in the old 
 Saxon days it had been customary to hold the great 
 councils there from time immemorial. It is an island in 
 the Thames between the little village of Staines and 
 Windsor, a meadow of one hundred and sixty acres, 
 very level, and quite suitable for meetings such as were 
 held there. No more rural or peaceful scene could be 
 found than this spot where the greatest of all human
 
 The Rise of Constitutional Law 53 
 
 issues was settled by an event more important than any 
 battle that was ever lost or won. 
 
 In preparation for this meeting the barons, by the 
 aid of Archbishop Langton, had prepared certain articles 
 containing a schedule of the liberties upon which they 
 meant to insist; and these were substantially incor- 
 porated in the Great Charter which bears date June 15, 
 1215. The king had at first rejected the offered terms 
 which he said would reduce him to slavery; but finally 
 he succumbed. 
 
 The charter was not signed either by the king or by 
 the barons; but was simply attested by the royal seal, 
 as the custom was in those days; though fac similes of 
 this document are now commonly sold showing the sig- 
 natures of the king and of the barons, so as to render 
 them more attractive to purchasers. 
 
 For its better preservation it was executed in several 
 duplicates ; and these were deposited among the archives 
 of various cathedrals. It mentions as being present 
 Langton, Archbishop of Canterbury, primate of all 
 England, and Cardinal of the Holy Roman Church, nine 
 bishops, Master Pandulph, the Pope's Subdeacon, 
 Almeric, Master of the Knights Templar in England, 
 several peers and a like number of commoners. 
 
 Many of the abuses denounced by the Magna Charta 
 have long ceased to be living issues; but every part of 
 it is interesting as showing the evil customs that had 
 grown up; though I only purpose to mention the more 
 important features of that celebrated instrument. 
 
 The English church was to be free, and to have her 
 whole rights and her liberties inviolable. What we 
 should call the inheritance tax, and the right to extraor- 
 dinary aids were strictly limited. If the heir was a 
 minor he was to be exempt from the inheritance tax; 
 and the estates of minors were protected against unjust 
 exactions. The city of London should have its ancient
 
 54 Addresses 
 
 liberties and its free customs ; and so of all other cities, 
 burghs, towns and ports. The courts were no longer 
 to follow the person of the king; but were to be held 
 in a certain place. Punishments were to be propor- 
 tioned to the offence. In the administration of the 
 estates of deceased persons, relatives and friends should 
 be preferred. Horses and carts should not be impressed 
 without the consent of the owner ; and so of wood. For- 
 feitures for felonies should last only a year and a day. 
 There should be only one standard of weights and 
 measures. 
 
 In those days if one was arrested on any charge, and 
 put in prison, he was frequently left to languish there 
 indefinitely, unless he would pay liberally for an early 
 trial. To put an end to this practice of blackmailing, 
 the Magna Charta contains this clause, the germ of 
 the Habeas Corpus Act: "Nothing in the future shall 
 be given or taken for the writ of inquisition of life or 
 limb; but it shall be given without charge, and not 
 denied." 
 
 As the bailiffs were an inferior order of judges very 
 obsequious to royal power, and much given to black- 
 mailing, it was provided that no bailiff should cause 
 any one to be arrested on his own simple affirmation, 
 without credible witnesses produced for that purpose. 
 
 All merchants should have safety and security in 
 coming into England and going out of England, whether 
 traveling by land or by water; to buy and sell without 
 any unjust exactions, except in time of war; and even 
 in time of war if English merchants were granted safety 
 in the enemy's country his merchants should be safe in 
 England. And all persons should have the right to go 
 out of the kingdom, and to return at will, except in 
 war for some short space, and except prisoners and 
 outlaws. 
 
 The king was not to appoint any judicial officers
 
 The Rise of Constitutional Law 55 
 
 "excepting such as know the laws of the land, and are 
 well disposed to observe them." 
 
 The king was to restore all lands unjustly seized, and 
 to remit all fines unjustly imposed; and if any dispute 
 should arise on the subject it was to be decided by the 
 council of peers. 
 
 In the year 1215 no crusade in favor of woman's 
 rights had as yet been preached ; but the ladies were not 
 forgotten. 
 
 In those days of continuous hard fighting there were 
 always many widows in the land; and some of them 
 were rich. Certain astronomers think that the heat of 
 the sun is kept up by showers of meteors that are always 
 falling into it. In the reign of John rich widows were 
 utilized in keeping up the revels of the court. In fact 
 they were confiscated. Given a rich widow, she was 
 commanded to marry one of the royal favorites, who was 
 to divide the spoils with the king. When the king and 
 the royal favorite had squandered the widow's estate, 
 and had broken her heart, and, having accomplished her 
 via dolorosa, she was dead and buried in some spot of 
 consecrated ground, the royal favorite was ready for 
 another widow; and this law of supply and demand 
 operated unspent. 
 
 To remedy this evil the Great Charter provided that 
 no widow should be compelled to marry while she was 
 willing to live without a husband. 
 
 The charter farther provided as follows: 
 
 "A widow, after the death of her husband, shall imme- 
 diately and without hindrance have her marriage and 
 her inheritance; nor shall she give anything for her 
 dower, or for her marriage, or for her inheritance which 
 her husband and she held at the day of his death ; and 
 she may remain in her husband's house forty days after 
 his death, within which time her dower shall be 
 assigned."
 
 56 Addresses 
 
 No officer was to take any corn or other goods without 
 paying for them immediately. 
 
 Courts of assize were to be held four times a year in 
 each county. And then the Great Charter contains such 
 a guaranty of personal liberty as had never been dreamed 
 of before: 
 
 "No freeman shall be seized, or imprisoned, or dis- 
 possessed, or outlawed, or in any way destroyed ; nor will 
 we condemn him, or commit him to prison, except by the 
 legal judgment of his peers, or by the laws of the land. 
 To none will we sell, to none will we deny, to none will 
 we delay right or justice." 
 
 Respecting this clause Sir Edward Coke says : 
 
 "As the gold-finer will not out of the dust, threads or 
 shreds of gold let pass the least crumb, in respect of 
 the excellency of the metal, so ought not the learned 
 reader to pass any syllable of this law, in respect of the 
 excellency of the matter." 
 
 Again he says that this clause is "worthy to be written 
 in letters of gold." 
 
 The Magna Charta was not merely a covenant between 
 the king and the barons; but its light was reflected 
 through the whole social system; for at the close of it 
 provision is made in these words: 
 
 "Also all these customs and liberties aforesaid, which 
 we have granted to be held in our kingdom, for so much 
 of it as belongs to us, all our subjects, as well clergy as 
 laity, shall observe towards their tenants as far as con- 
 cerns them." 
 
 The chief infirmity of the charter of Henry I was that 
 it possessed no sanction, and could at any time be vio- 
 lated with impunity. But now for the first time in 
 history we have a charter that provides remedies for its 
 enforcement. The king declares: "But since we have 
 granted all these things aforesaid for God, and for the 
 amendment of our kingdom, and for the better extin-
 
 The Rise of Constitutional Law 57 
 
 guishing the discord which has arisen between us and 
 our barons, we being desirous that these things shall 
 possess unshaken stability forever, give and grant to 
 them the security underwritten." 
 
 The Charter then provides that the barons shall elect 
 twenty-five representatives who are to judge as to the 
 infringement of any of its covenants; and in case any 
 breach is found, the king says : ' ' And they, the twenty- 
 five barons, with the community of the whole land, shall 
 distress and harass us by all the ways in which they are 
 able; that is to say by the taking of our castles, lands 
 and possessions, and by any other means in their power, 
 until the excess shall have been redressed according to 
 their verdict, saving harmless our person, and the pre- 
 sons of our queen and children ; and when it hath been 
 redressed they shall behave unto us as they have done 
 before. And whoever of our land pleaseth may swear 
 that he will obey the commands of the aforesaid twenty- 
 five barons in accomplishing all the things aforesaid, 
 and that with them he will harass us to the utmost of 
 his power; and we publicly and freely give leave to 
 every one to swear who is willing to swear ; and we will 
 never forbid any to swear. But all those of our land 
 who of themselves, and of their own accord are unwilling 
 to swear to the twenty-five barons to distress and harass 
 us, together with them, we will compel them by our 
 command to swear as aforesaid." 
 
 This was pretty strong language, since it gave to the 
 barons the right of judging when the charter was 
 infringed, and the remedy to be applied. But this was 
 not all. The barons were to have the custody of the 
 city and tower of London until the fifteenth of August 
 then next ensuing, and until the charter should be 
 carried into execution. 
 
 It will be noticed that the king not only gave the 
 barons power to distress and harass him in case of infrac-
 
 58 Addresses 
 
 tion in every way within their power, but commanded 
 them to do so, and commanded all his subjects to assist 
 in the good work. This was done partly for the purpose 
 of silencing the thunders of the church. When accused 
 of sacrilege for having attacked the Lord's annointed 
 the barons hoped to be able to justify themselves by 
 producing the king's command. The twenty-five were 
 duly elected ; but here they were met with an unexpected 
 difficulty. John, who, though an unmitigated ruffian, 
 was not wanting in cunning, had one trump card left. 
 Having become a vassal of the See of Rome, he threw 
 himself on the protection of the Pope, who responded on 
 the sixteenth day of December, 1215, by issuing a bull 
 annulling the Great Charter as having been obtained by 
 duress, and excommunicating thirty -two of the insurgent 
 barons, including, of course, the twenty-five who had 
 been elected as guardians of the rights which it estab- 
 lished. It was quite true that the Charter had been 
 obtained by duress; but as the Norman claim to the 
 crown rested on no higher or better title than right by 
 virtue of conquest, honors were easy. Besides, the 
 doctrine of duress has no application to judgments 
 resulting from the arbitrament of the sword. 
 
 John from his point of view had no reason to be 
 pleased with the outcome of the meeting at Runnymede. 
 He was so infuriated that he resolved to consider the 
 Charter as absolutely void. Old Hollinshed tells us 
 that after he had sealed it "he was right sorrowful in 
 his heart, cursed the mother that bore him, the houre 
 that he was borne, and the paps that gave him sucke, 
 wishing that he had received death by violence of sword 
 or knife, insteade of natural nourishment; he whetted 
 his teeth; he did bite now on one staffe, and now on 
 another as he walked; and oft broke the same in pieces 
 when he had doone, and with such disordered behavior 
 and furious gestures he uttered his greafe, in such sort
 
 The Rise of Constitutional Law 59 
 
 that the noblemen very well perceived the inclination of 
 his inward affection concerning these things before the 
 breaking up of the councell, and therefore sore lamented 
 the state of the realm, gessing what would become of 
 his impatience and displeasant taking of the matter." 
 
 It is often said that governments are not made; but 
 that they make themselves. The Magna Charta, the first 
 germ of constitutional law, the first step in the path of 
 law reform, was not the product of academic or phil- 
 osophic leisure ; but it was a practical measure of relief 
 against evils that had become intolerable, a child of stern 
 necessity; though subsequent experience has vindicated 
 the unconscious wisdom that was born of despair. 
 
 John began to make war on his barons for the annul- 
 ment of his charter soon after it was sealed, relying 
 largely for success on the influence of the papal bull. 
 Late in September of the next year he reduced the city 
 of Lincoln, and distributed all the lands of the barons 
 lying thereabout among his followers. He then marched 
 toward Lynn where his supplies were deposited. Thence 
 he moved towards Wisbeach. He and his army safely 
 crossed the Wash, and then, looking back, he saw his 
 whole train of baggage and provisions swept away by the 
 rising tide. In this disaster he lost all of his money, 
 jewels, regalia, his crown, and the great seal. In the 
 direst distress he proceeded to the Cistercian Abbey at 
 Swineshead, where he contracted some malady, of which 
 he died on Wednesday, October 12, 1216, in the forty- 
 ninth year of his age, after a reign of seventeen years, 
 seven months and ten days. It is reported by some of 
 the chroniclers that he was poisoned by a monk, who 
 wished to rid the world of such a monster. According 
 to others he died from an act of gluttony; and the evi- 
 dence on this point seems to be pretty well balanced. 
 
 As I have mentioned the cathedral at Worcester, and 
 shall have to mention it again presently, and as I am
 
 60 Addresses 
 
 speaking to an audience of lawyers, I cannot refrain 
 from saying that there also lies our old friend Littleton, 
 whom we know mostly through the writings of Coke. 
 Perhaps a new edition of his works, in their old Norman 
 French, would not sell quite so extensively as some of 
 our modern novels; yet he did a good work in his day. 
 Death makes strange bedfellows. Here lies the old hard- 
 working lawyer, who first sought to explore in a thorough 
 manner the occult mysteries of the feudal tenures, within 
 a few paces of the last resting place of the king who by 
 his crimes laid the axe to the root of the feudal system 
 in England. Littleton ceased from his labors and entered 
 upon his rest in 1481. 
 
 The tomb of John is the earliest royal monument 
 ornamented with an effigy erected in England. It bears 
 no inscription; but in another part of the cathedral is 
 an old epitaph carved on a slab in the pavement, with- 
 out name or date, marking the last resting place of some 
 person unknown, whom "disaster followed fast and 
 followed faster," and consisting of the single word 
 Miserrimus, Surely if epitaphs were negotiable or inter- 
 changeable King John could have had no better epitaph 
 than this; for few men have had lives more wretched, 
 more unloved. David Hume, one of the ablest apol- 
 ogists of royalty, has left behind him this picture of 
 John: 
 
 "The character of this prince is nothing but a com- 
 plication of vices, equally mean and odious, ruinous to 
 himself, and destructive to his people. Cowardice, inac- 
 tivity, folly, levity, licentiousness, treachery, ingratitude, 
 tyranny and cruelty; all these qualities appear too evi- 
 dently in the several incidents of his life to give us room 
 to suspect that the disagreeable picture has been in any 
 wise overcharged by the prejudice of the ancient 
 historians." 
 
 When Nero died, loaded down with universal execra-
 
 The Rise of Constitutional Law 61 
 
 tion, some one came in the night time, and sprinkled 
 flowers on his grave. By some kindly deed he had 
 attached to him some not ungrateful heart. Of John, 
 alive or dead, we have no such reminiscence ; but in lieu 
 thereof the assertion of his chronicler, who, in speaking 
 of his death, tells us that "Hell felt itself defiled by the 
 presence of John." 
 
 During the reign of the feeble son and successor of 
 John, King Henry III, the Great Charter was confirmed 
 in 1216, 1224, 1236 and 1253. In 1264 the commons 
 were summoned to Parliament. Thus in less than half 
 a century the Magna Charta brought about a complete 
 revolution, and England entered upon a new career. 
 The Charter revived hope in human destiny at a time 
 when hope seemed to be expiring in universal gloom. 
 
 Of the several duplicates of the Charter deposited in 
 the different cathedrals, that which is to be seen in the 
 cathedral of Lincoln is said to be in the best state of 
 preservation. Two of them are to be found in the British 
 Museum. One of them was badly scorched by the fire 
 that occurred at Westminster on the twenty-third day 
 of October, 1731, which destroyed the building con- 
 taining the Cottonian and Royal Libraries. It is a 
 curious circumstance that that part of this copy which 
 remains most legible, and which is indeed perfectly 
 legible, is that portion that guarantees personal liberty 
 and trial by jury, compared by Coke to the gold of the 
 refiner. According to an account that we have, Sir 
 Robert Cotton discovered this copy of the Charter at his 
 tailor's just as he was about to cut it up for a pattern, 
 and bought it for a trifle. 
 
 Of all the triumphs of light over darkness, the Magna 
 Charta stands conspicuous. In this heterogeneous world 
 few are the great triumphs that are not stained with 
 blood, and that do not bring in their train some kind of 
 disappointment or disaster. But the revolution
 
 62 Addresses 
 
 inaugurated by the Magna Charta was the greatest and 
 the most peaceful that has ever been known. No Revo- 
 lutionary Tribunal was established in Westminster Hall, 
 no guillotine erected at Charing Cross. The Tower was 
 not destroyed by a howling mob, intent on murder, to 
 fix the date of an anniversary for national rejoicing. 
 The school for kings endowed at Runnymede has been 
 perpetuated; it represents the law, and is only terrible 
 for the enemies of liberty. 
 
 Strange thoughts come to one that looks at the ancient 
 Charter in the British Museum. Shakespeare puts into 
 the mouth of Jack Cade these words : 
 
 "Is not this a lamentable thing, 
 
 That of the skin of an innocent lamb should be made parchment ; 
 That parchment being scribbled o'er, should undo a man?" 
 
 So this parchment on which the Great Charter is 
 written is the skin of an innocent lamb that once bleated 
 in the English fields, which, being scribbled o'er with 
 words of magical import, written in a language long 
 since dead, while it brought the heads of Laud and 
 Strafford and Charles to the block, has given life and 
 hope to the oppressed, has opened the prison door for 
 the persecuted and the friendless, and shall do so again 
 for all generations, world without end. What a strange 
 potency in this little sheet of parchment. A breath of 
 wind might blow it away. But the head of the church 
 on earth had invoked the wrath of heaven upon it, kings 
 had renounced it, physical fire had charred it, and in 
 the irony of fate a pair of tailor's shears had threatened 
 it ; and yet here it remains, powerful and indestructible 
 as ever, announcing its deathless and indelible message, 
 speaking from eternity to eternity. This little sheet of 
 shriveled parchment has revolutionized the history of 
 the world. Without it the growth of England and the 
 political existence of America would never have been.
 
 The Rise of Constitutional Law 63 
 
 If we confine our attention to England alone how 
 great has been the change. Standing to-day on the 
 battlements of the Norman Keep at Windsor one sees 
 unrolled before him a rural landscape of wide extent, 
 whose quiet beauty is not surpassed the whole world 
 over. The castle, gray with age, is the most imposing 
 relic of the feudal time ; the home of the English sover- 
 eigns for eight hundred years. Its massive bastions and 
 towers produce an impression of strength, reminding us 
 that here for ages the principle of monarchy has sym- 
 bolized itself in enduring stone. But the prison beneath, 
 where Lady Bramber and her son were starved to death, 
 where a Scottish king and many others pined in captivity 
 in the ages gone by, is tenantless ; and all around on the 
 open lawns, the green grass, the unfolding flowers, the 
 waving trees, the clinging vines, the absence of military 
 signs and emblems, declare that if this is the home of 
 royalty, it is the home of a royalty that is no longer an 
 object of dread and terror, but a royalty which, however 
 high, is peacefully sheltered under the wing of the law. 
 As the eye wanders where the gleaming river cleaves its 
 emerald banks, two villages are seen near together, some 
 miles away. These are the villages of Egham and 
 Staines. Between Staines and Windsor the silver cur- 
 rent of the river is seen to divide so as to enclose a small 
 island, a gem set in its rim of shining waters. On the 
 island a cottage from which a column of white smoke 
 curls upward in the sunshine above a clump of trees. 
 Well may the eye rest on that vision with a sense of 
 pride and rapture; for there the greatest victory of all 
 times was won; and a glory hovers over that field that 
 never shone even on Marathon ; for that island is Magna 
 Charta Island, and the valley is the valley of Runny- 
 mede. Peaceful as it seems to-day, it was there that 
 the embattled barons marshaled their hosts, and held 
 King John at bay.
 
 64 Addresses 
 
 The long series of councils held at Runnymede, known 
 now only by vague tradition, was closed when the barons 
 dispersed. They had builded better than they knew; 
 and humanity had been baptized into a higher life. 
 Kings and priests might say what they pleased about the 
 great Charter; but, being once sealed, it entered on an 
 independent existence of its own. The mighty words 
 once spoken could never be recalled. Henceforth the 
 Charter was a part of man's inalienable inheritance. 
 Generations would come and go, but the work of the 
 barons was like the Bass Rock, around which the north- 
 ern seas may rage and break in vain. The indispensable 
 doctrine of personal liberty came into the world like 
 Minerva full armed from the brain of Jupiter. The 
 very phrases of the Great Charter remain our watch- 
 words yet. It is not only in England and its vast 
 possessions, and in America that its stimulating influence 
 has been felt. Other nations have kindled their torches 
 at this great beacon light. It has built up many things 
 of priceless value, and has destroyed many things that 
 needed to be destroyed. It was the clarion blast that 
 announced, though afar off, the decay and death of the 
 feudal system, the coming of a new order of things, 
 when the shackles should fall from serf and retainer, 
 when the people should appear on the scene of action, 
 and take charge of the helm of state; and when the 
 proudest claim of baron or king should be subordinate 
 to the majesty of the law. It foretold the day when 
 liberty shall be the birthright of every child that is born, 
 and when every man and woman shall have the right 
 to worship God according to the dictates of conscience. 
 It inaugurated freedom of speech, and that reign of free 
 institutions which, transplanted to all parts of the globe, 
 have proved to be equally well suited to every zone, and 
 to every climate. 
 
 These principles of the Magna Charta have been as
 
 The Rise of Constitutional Law 65 
 
 the laws of Nature, endowed with the inherent attribute 
 of self-vindication. James I, reviving the theory of 
 John that the subject holds life, liberty and property as 
 a mendicant on royal favor, left this doctrine as a 
 precious heritage to his son, who in a vain effort to apply 
 the principles thus inculcated, lost his crown, his throne 
 and his life. James II sought to restore the vassalage 
 of his subjects ; he found in Jeffreys an agent that would 
 have delighted the heart of John ; but the judge died in 
 prison, and James died a fugitive and an exile, fed by 
 the hand of charity. George III laid his interdict on 
 the liberties of the New World ; the British empire was 
 dismembered; and the king died "a driveller and a 
 show. ' ' 
 
 And this thought takes us back once more to the old 
 cathedral at Worcester. On the third day of September, 
 1651, a young man, self-absorbed and anxious in 
 demeanor, accompanied by two or three attendants, 
 entered this building, and, sweeping by the tomb of 
 John, he hastily ascended to the tower above. This was 
 Prince Charles, afterwards Charles II. From the sum- 
 mit of the tower he beheld the troops of Cromwell cross- 
 ing the river on a bridge of boats ; and it was not long 
 before the tower seemed to reel with the reverberation 
 of the opposing artillery. And then he beheld a few 
 hours later the irresistible Puritans driving the Royalists 
 on their last retreat through the lanes and streets of the 
 city. Descending from his lofty perch he endeavored to 
 rally them ; but in vain. Under the shadow of the cathe- 
 dral where his unworthy ancestor had been sleeping 
 for centuries, seeing that the die was cast, he exclaimed, 
 "I would rather that you would shoot me than to let me 
 live to see the sad consequences of this day." He was 
 at last to be King of England, not by right of conquest, 
 but only with the consent of her people, with not a 
 single word of the Great Charter effaced.
 
 66 Addresses 
 
 The barons did not content themselves with a mere 
 announcement of legal formulas. Their supervisory 
 council of twenty-five men was intended for temporary 
 emergencies; but as if by inspiration they decreed the 
 perpetuity and inviolability of trial by jury, trusting 
 hi the natural instinct of self-preservation in the popular 
 mind as the best and most effectual guaranty of liberty. 
 
 Freedom of speech and freedom of action are so 
 closely allied that when one is stricken down the other 
 cannot long survive. The last effort to inflict an 
 immedicable wound on the Magna Charta was in the 
 early part of the last century, when it was sought to 
 paralyze the functions of the jury in libel cases by 
 withholding from it the most material question to be 
 considered; and Lord Ellenborough was commissioned 
 to carry out the scheme, which he entered upon with 
 great spirit and resolution. When Home Tooke was 
 brought before him charged with libel, the accused took 
 high ground, saying to the jury: 
 
 "There are three efficient parties engaged in this 
 trial you, gentlemen of the jury, the public prosecutor, 
 and myself; and I make no doubt that we shall bring it 
 to a satisfactory conclusion. As for the judge and crier, 
 they are here to preserve order. We pay them hand- 
 somely for their attendance; and in their sphere they 
 are of some use; but they are hired as assistants only. 
 They are not, and never were, intended to be controllers 
 of your conduct." 
 
 The judge, in order to obtain a conviction, cajoled 
 and browbeat counsel, witnesses, prisoners and jurors 
 by turns; but all in vain. The prosecution failed as 
 that of the Seven Bishops had failed in the reign of 
 James II, and the public acclaim in all the streets 
 announced the popular rejoicing. 
 
 Bishop Turner accompanied Lord Ellenborough home 
 in his carriage that evening, the twenty-first day of
 
 The Rise of Constitutional Law 67 
 
 December, 1817. In order that it might appear that he 
 did not feel any mortification on account of his own 
 defeat, and that of the ministry, the judge, with an air 
 of indifference for the hilarity of the passing throngs, 
 stopped his carriage in the Strand to buy six red her- 
 rings. But six red herrings are a poor consolation for 
 wounded pride and a troubled soul. Lord Ellenborough 
 could not again look in the face the people whose liber- 
 ties he had vainly attacked. The sounds of the ensuing 
 Christmas rejoicings fell discordant on his ears. In the 
 street, in the forum, in the lecture room, in the pulpit, 
 in the press, freedom of speech remained unimpaired. 
 Lord Ellenborough sent in his resignation, and not long 
 afterwards died of vexation and chagrin. 
 
 The Great Charter was again victorious. Priests and 
 kings, ministers and judges, had conspired against it 
 without success. They might as well have tried to roll 
 the world back to primeval chaos. Lord Coke tells us 
 that before his time the Magna Charta "had been con- 
 firmed, established and commanded to be put in force 
 by no less than thirty-two several acts of Parliament;" 
 and up to this day no one has ever proposed to repeal a 
 single one of its provisions. 
 
 In speaking of the Great Charter Mr. Hallam says: 
 "The constitution of England has indeed no single 
 date from which its duration may be reckoned. The 
 institutions of positive law, the far more important 
 changes which time has wrought in the order of society 
 during six hundred years subsequent to the Great Char- 
 ter, have undoubtedly lessened its direct application to 
 our present circumstances. But it is still the keystone 
 of English liberty. All that has since been obtained is 
 little more than confirmation or commentary; and if 
 every subsequent law were to be swept away, there 
 would still remain the bold features that distinguish 
 a free from a despotic monarchy."
 
 68 Addresses 
 
 In the House of Lords on the ninth day of January, 
 1770, the great Earl of Chatham, in speaking of the 
 barons, said: 
 
 "My lords, I think that history has not done justice to 
 their conduct when they obtained from their sovereign 
 that great acknowledgment of natural rights contained 
 in Magna Charta. They did not say these are the rights 
 of the great barons, or these are the rights of the great 
 prelates. No, my lords, they said in the simple Latin 
 of the time NULLUS LIBER HOMO, and provided as care- 
 fully for the meanest subject as for the greatest. These 
 are uncouth words, and sound but poorly in the ears of 
 scholars; neither are they addressed to the criticism of 
 scholars; but to the hearts of freemen. These three 
 words, NULLUS LIBER HOMO, have a meaning which 
 interests us all; they deserve to be remembered; they 
 deserve to be inculcated in our minds; they are worth 
 all the classics." 
 
 William Pitt, in 1782, in speaking of the ill-advised 
 and disastrous war of Great Britain against the Amer- 
 ican colonies, referring to the Magna Charta, said that 
 ' ' every free state to maintain its liberty and the vigor of 
 its constitution must frequently be brought back to its 
 original principles." The Great Charter remains our 
 exemplar yet. 
 
 No one can sum up the debt that we owe to the Magna 
 Charta, the one great product of the Middle Ages. We 
 look back with feelings of aversion and pity to that 
 dark and troubled period; to its insane crusades, to its 
 fanatical intolerance, to its pedantic and barren litera- 
 ture, to its scholastic disputes, to its cruelty, rapine and 
 bloodshed. But the genius that presides over human 
 destiny never sleeps; and it was precisely in that most 
 sterile and unpromising age that the groundwork was 
 laid for all that is valuable in modern civilization. As 
 an unborn forest sleeps unconsciously in an acorn cup.
 
 The Rise of Constitutional Law 69 
 
 all the creations and all the potentialities of that civiliza- 
 tion lay enfolded in the guaranty of personal liberty and 
 of the supremacy of the law that was secured at Runny- 
 mede. The various bills and petitions of right, and the 
 Habeas Corpus Act, while they have given new sanctions 
 to liberty, are but echoes of the Great Charter ; and our 
 Declaration of Independence is but the Magna Charta 
 writ large, and expanded to meet the wants of a new 
 generation of freemen, fighting the battle of life beneath 
 other skies. 
 
 "Worth all the classics!" Yes, the classics that have 
 survived, and the classics that have perished. Dear as 
 might be to us the lost books of Livy, whose pictured 
 page is torn, just where its highest interest begins, or 
 even some song of Homer, which, now lost in space, 
 shall charm the ear and bewitch the human heart no 
 more, we could not exchange for them a single word of 
 those uncouth but grand old sentences, which, having 
 taken the wings of the morning, have incorporated 
 themselves with almost every system of laws in Christen- 
 dom, and which still ring out in our American constitu- 
 tions with a sound like that of the trampling of armed 
 men, marching confidently up to battle; words which 
 for ages have stayed the hand of tyranny, and which 
 have extended their protection over the infant sleeping 
 in its cradle, over the lonely, the desolate, the sorrowful 
 and the oppressed. Uttered by unwilling lips, and 
 believed by the wretch from whom it was extorted that 
 it had scarcely an hour to live, the Magna Charta marks 
 an epoch in the annals of mankind. It began a revolu- 
 tion that has never gone backward for a single moment ; 
 and was the precursor of that civilization the dawn of 
 which our eyes have looked upon with joy and pride, 
 and whose full meridian splendor can be foreseen by 
 God alone.
 
 CONCERNING LAW REFORM 
 COKE AND BACON 
 
 Address Delivered Before the State Bar Association of Virginia, 
 at Old Point Comfort, on the Evening of July 16, 1896
 
 CONCERNING LAW REFORM 
 COKE AND BACON 
 
 Sir Edward Coke used to say: "If I am asked a 
 question of common law, I should be ashamed if I could 
 not immediately answer it; but if I am asked a ques- 
 tion of statute law, I should be ashamed to answer it 
 without referring to the statute books." 
 
 If any one ever knew all about the common law, Coke 
 was undoubtedly the man. With a constitution that 
 was proof against illness and fatigue, with a memory 
 that never relaxed its grasp, he gave to the study of the 
 common law all his available time and energy from his 
 youth until he died in extreme old age. His learning, 
 vast but not varied, began and ended with the common 
 law, for which he entertained feelings of reverence 
 amounting to fanaticism. He said that there were rules 
 of the law for which no reason could be given; a cir- 
 cumstance that in his eyes clothed them with a myste- 
 rious sanction, and conferred on them an additional 
 value. A mere dry legist, he cared more for the six 
 carpenters than he did for the seven sages of Greece. 
 Possessing not the slightest tincture of general litera- 
 ture, scorning all foreign systems of law, as well as the 
 philosophy of law in general, which he considered to be 
 matters wholly irrelevant and speculative, he was per- 
 fectly at home with executory devises, contingent 
 remainders, shifting and springing uses, and all the 
 other technical creations of the law of tenures, which 
 made up a great part of the common law. One could 
 easily fancy that he lisped of these things in his cradle, 
 and that they peopled his dreams in later life. They 
 were to him as household words ; and he knew all of their 
 playful ways and cunning habits. Few men could say as 
 
 73
 
 74 Addresses 
 
 much ; for that kind of learning was extremely technical 
 and difficult; and Coke's pre-eminence in this respect 
 was universally conceded. Chance and circumstance had 
 had much to do with the development of the law of 
 tenures; but selfishness and perversity had operated to 
 render it so artificial and intricate that many of its 
 complications tasked or eluded the most highly trained 
 intellects; a fact of which Coke at one time furnished 
 a most striking illustration. 
 
 It is well known that Coke was consumed with ambi- 
 tion, and with avarice. Twice he increased his estate 
 by rich marriages; and the emoluments derived from 
 his practice were so great that by the time he got to be 
 chief justice of the Court of King's Bench he was one 
 of the largest land owners and one of the wealthiest men 
 in England. Hoping after his downfall that through 
 the influence of the King's favorite he might be restored 
 to power and position, he forced his daughter to marry 
 Sir John Villiers, the brother of the Duke of Bucking- 
 ham, preparatory to which union he drew up a settle- 
 ment by which he settled a large estate on the ill-assorted 
 couple. Of course such documents were closely scrutin- 
 ized; and the all-powerful and intriguing family of 
 Buckingham must on this important occasion have had 
 the aid of as good lawyers and conveyancers as could 
 be found; but when, years after the death of Coke, the 
 terms of the settlement were spelled out with the labor 
 that is required to decipher an Assyrian tablet, it was 
 discovered, to the surprise and admiration of lawyers 
 deeply versed in the technical learning of feudal tenures, 
 that the title to the estate, after performing various 
 unexpected and extraordinary feats, had at last vested 
 in fee simple in the right heirs of Sir Edward Coke; 
 where it still remains.* 
 
 *For an explanation of the method by which this was done, see 
 2 Wash. Real Estate, 294.
 
 Concerning Law Reform 75 
 
 It is needless to say that Coke was not a reformer. 
 His object was to perpetuate, and not to change. Indeed 
 reform was not the order of the day. It is difficult for 
 us now to picture his immediate surroundings. All the 
 English speaking people in the world in his time did 
 not equal the present population of the State of New 
 York; and London, a town of the Middle Ages, dim, 
 dingy, unlighted, uncared for, with its picturesque con- 
 trasts between royal pageantry and squalid poverty, 
 contained at that time probably not more than 300,000 
 inhabitants, crowded down close to the river under the 
 shadow of the Tower. The irregular and badly paved 
 streets, the rows of ancient houses in every stage of 
 decay, whose monotony was broken here and there by a 
 church or a residence of more pretensions, presented a 
 prospect that was not suggestive of impending change. 
 Things were much as they were in the days of the 
 Plantagenets ; and they would probably so continue. 
 As a lawyer, the owner of many broad acres, and with 
 such surroundings, it was not surprising that Coke 
 should favor the established order of things. 
 
 If we look back to the Elizabethan period we shall 
 find that the connection then existing with antiquity 
 was close and intimate. Whoever was educated at all 
 could read Homer and Plato in the original, and could 
 speak Latin, the common medium of communication 
 between persons of cultivation all over the world. A 
 slavish adulation of antiquity was the most prominent 
 feature of the civilization of the age. There was a pre- 
 vailing bigotry on the subject that could only be com- 
 pared with the ancestor worship of the Chinese. Pierre 
 la Ramee, a contemporary of Coke, a scholar, a virtuous 
 and an honorable man, was persecuted all his life, and 
 was finally assassinated, because he ventured to dispute 
 some of the theorems of Aristotle. Giordano Bruno, the 
 friend of Sir Philip Sidney, who visited England when
 
 76 Addresses 
 
 Bacon was a student at Gray's Inn, and whom Bacon 
 must have known, followed in the footsteps of la Ramee, 
 and suffered a like fate. He has left on record his 
 opinion of the course of teaching then in use in the 
 English universities. "Rhetoric, or rather the art of 
 declamation, ' ' he said, ' ' is their whole study ; and all the 
 philosophy of the universities consists of a purely tech- 
 nical knowledge of the Organon of Aristotle; and for 
 every violation of its rules, a fine of five shillings is 
 imposed. ' '* 
 
 Outside of theological writings, where there was an 
 occasional mention of the millenium, and outside of the 
 writings of Bacon, there was never any expression of 
 hope as to the future of our race; not even in the 
 writings of Shakespeare, in which almost everything else 
 can be found. The work of the world seemed to have 
 been done, and Time to be leaning on his scythe. Schol- 
 astics still continued languidly their war of words. 
 Nowhere did the spell of antiquity lie heavier upon the 
 minds of men than in England. We have the most 
 abundant evidence of the fact that the spoken language 
 of the time differed only very slightly from that which 
 we speak to-day; but the written language was com- 
 monly so affectedly archaic that if Coke or Bacon or 
 Selden had given a written order for a dozen of eggs 
 from a neighboring grocer's, he would have done so in 
 language such as was used 200 years before. 
 
 Coke was a tall, fine looking, handsome man, a man 
 of imposing aspect, strong in body, strong in mind. His 
 form and features have been so happily preserved for us 
 by the art of the painter, his character has been so 
 clearly portrayed by contemporaries, that we seem to see 
 him as he appeared as attorney general on his way to 
 Westminster to browbeat Raleigh, or to bully some other 
 
 'Giordano Bruno par Christian Bertholmess, Paris 1846, p. 102.
 
 Concerning Law Reform 77 
 
 hapless prisoner, who was denied the benefit of counsel, 
 and who, single handed, could ill withstand the torrent 
 of vituperation and abuse which were poured out on him 
 by the prosecution, or again as he appeared on his fre- 
 quent way to the Tower to examine prisoners subjected 
 to torture. On such occasions he walked very erect, 
 with an air of extreme self-reliance bordering on arro- 
 gance. A vigorous, pompous man that never deflated, 
 masterful and abounding in resources, he was dogmatic, 
 proud, revengeful, aggressive, rude, dictatorial, peremp- 
 tory, cruel, obstinate, unforgiving and tyrannical, a man 
 far better suited to excite fear than love. A terrible 
 reminder of him is extant in several volumes of exami- 
 nations of prisoners taken "before torture, during tor- 
 ture, between torture, and after torture," amid what 
 cries and bowlings we know not, all in his well known 
 handwriting. 
 
 Coke was unquestionably a man of distinguished 
 ability, and of great learning in his particular specialty ; 
 but as he thus passed along the streets of London and 
 Westminster, he often met two men so immensely supe- 
 rior to himself in point of intellect as to render com- 
 parison absurd; two men each of whom has formed an 
 epoch in the history of human thought ; Shakespeare, of 
 whose life we know almost nothing, and Bacon, of whose 
 life we know too much. One of these he hated, the 
 other he despised. 
 
 It is quite impossible that Coke should not have known 
 Shakespeare by sight; though it is extremely improb- 
 able that he ever spoke to one whom he regarded as an 
 idler and a reprobate, and whose manuscripts he would 
 gladly have tossed in the fire. His custom, when he 
 became chief justice of the Court of King's Bench, was 
 to charge the grand juries that all players should be 
 punished as vagrants ; that is, that they should be placed 
 in the stocks, and whipped from tithing to tithing. Yet
 
 78 Addresses 
 
 this man, who had probably never seen a play, was not 
 a Puritan; he was only by nature hard, stern, unimagi- 
 native and austere, a man of the type of the unbending 
 Pharisee. For this and for many other reasons Coke 
 has received but little mercy at the hands of lay his- 
 torians and biographers. As he never spared others so 
 they have not spared him. Macaulay, in speaking of 
 Coke's marriage with his second wife, Lady Hatton, 
 rejoices to know that "she did her best to make that 
 bad man as miserable as he deserved to be. ' '* His great 
 enemy, Bacon, appreciated the value of her services. 
 When he came to die he left her a legacy in his will. 
 
 With lawyers, Coke has fared far better than with 
 laymen. He was not altogether a bad man, as Macaulay 
 would have us believe ; and if we had to make a critical 
 estimate of his character we should be compelled to vote 
 on him by sections. He was 
 
 " like the toad, which, ugly and venomous, 
 
 Wears yet a precious jewel in its head." 
 
 One of the things that is most highly prized by 
 lawyers is an able, learned, unbiased, fearless and inde- 
 pendent judiciary; having the qualities that Coke un- 
 doubtedly possessed, as conceded by his enemies, and 
 even by Bacon himself. 
 
 One of his odious characteristics was his extreme 
 pedantry; for he was the greatest pedant of a pedantic 
 age. When, after having been chosen speaker of the 
 House of Commons, he was presented at the bar before 
 Queen Elizabeth for her approbation, he began his 
 address in this delicate and pleasing vein : 
 
 "As in the heavens a star is but opacum corpus until 
 it hath received light from the sun, so stand I corpus 
 opacum, a mute body, until your highness' bright shining 
 hath looked upon and allowed me." 
 
 *Essay on Bacon.
 
 Concerning Law Reform 79 
 
 Much more followed of the same sort. Why it was 
 that the earth did not immediately open and swallow 
 him up, is a mystery that has never been satisfactorily 
 explained. 
 
 But we lawyers remember another scene in which Coke 
 appeared to more advantage, a moment when he nobly 
 cast to the winds the honors and emoluments of office, 
 and all the benefits to be derived from royal favor, 
 at a time when royal favor and royal resentment were 
 well nigh omnipotent. When James I., called in those 
 days the "Solomon of the North," having resolved to 
 finish the work of subjecting the English people to 
 slavery so nearly accomplished by the Tudors, and 
 having the twelve judges on their knees before him, 
 asked them whether in the future they would not refuse 
 to decide anything adverse to the royal prerogative, upon 
 which eleven of them answered in a chorus "Yes"; in 
 that critical juncture Sir Edward Coke, forgetting to 
 chop Latin, and talking as good Anglo-Saxon as ever 
 yet man spoke, answered with sublime simplicity, and 
 in words that are immortal: "When the case happens 
 I shall do that which shall be fit for a judge to do." 
 We remember too how, when obsequious deference to 
 kingly power was almost universally prevalent, after 
 years of striving against adverse circumstances, he at 
 last got through the Parliament that "Petition of 
 Rights" which finally stayed the exactions of the 
 Stuarts, and placed English liberty upon an imperish- 
 able foundation. Remembering these things, remember- 
 ing also that Coke's is still the greatest name in the 
 history of our jurisprudence, that he has been quoted 
 a hundred times where any other judge or law writer 
 has been quoted once, recalling also the fine expiatory 
 discipline of Lady Hatton, we are disposed to forgive 
 him all his sins. 
 
 Coke, who had resolved to know nothing but the
 
 80 Addresses 
 
 law, and the common law at that, and Bacon, who had 
 taken all knowledge for his province, seemed to have 
 been born to be enemies. Coke often scoffed at the wide 
 and miscellaneous learning of Bacon, who in his turn 
 was exasperated by the narrowness and bigotry of Coke. 
 It was not difficult to make an enemy of Coke; but 
 Bacon was an agreeable person, learned, witty, wise, an 
 entertaining and instructive companion, a forcible and 
 persuasive speaker, by temperament bland, affable, chari- 
 table, liberal and conciliatory. Excepting Coke it would 
 seem that he never hated anybody; but the gratuitous 
 insults and contumely publicly and repeatedly bestowed 
 on him by Coke finally stirred up in him a sentiment of 
 hatred that was foreign to his tolerant nature, a feeling 
 of hostility that afterwards never slept. They were 
 rivals in everything, even in love ; if a headlong steeple- 
 chase for the hand of a rich widow can be called by that 
 name; and neither of them ever asked for quarter, or 
 made the slightest concession. History hardly presents 
 another example of individual hostility so deeply seated, 
 so unremitting, so long continued. No feud of the Capu- 
 lets and the Montagues or of the Guelphs and the 
 Ghibelines ever developed more ill will. It seems a pity 
 that these two extraordinary men should have been con- 
 temporaries; for without the other either might have 
 had all the wealth and honors to which they both aspired 
 with all the zeal which ambition and avarice could breed. 
 As it was their antagonism embittered and blasted the 
 life of each. It was largely through the influence of 
 Bacon that Coke was stripped of the ermine, and con- 
 signed to the Tower, where he had been times without 
 number to see the rack and the thumb-screw applied to 
 the helpless victims of the law. The gloomy structure 
 must have had a strangely familiar look to him when 
 the huge iron doors closed upon him. But his day of 
 triumph came when he helped to drag Bacon from the
 
 Concerning Law Reform 81 
 
 woolsack, and to stamp on his brow the indelible mark 
 of infamy. 
 
 It has been said that every man is, consciously or 
 unconsciously, a follower of either Aristotle or of Plato ; 
 but Bacon was not a disciple of either. With that fine 
 comprehensive glance which enabled him to dispose of 
 a whole system in a few words, he said that Plato subor- 
 dinated the universe to thought, while Aristotle subordi- 
 nated it to words. With Bacon the universe stood not 
 solely for either intellect or for logic; but every phe- 
 nomenon required a separate and an unbiased study for 
 itself. Only by the evidence of the senses, painfully 
 and laboriously employed in every possible direction, 
 could the secrets of the sphynx be discovered. Bacon 
 was the first and the greatest of the moderns. Without 
 assistance he closed the record of the past, and raised 
 the curtain upon the modern world. The phrase "the 
 interpretation of nature ' ' was invented by him to denote 
 a process seemingly the most obvious of all; but which 
 was the last thing thought of. Of all the ancients he 
 most closely resembled Socrates, who had indeed told 
 men that their generalizations were based on no accu- 
 rate knowledge. But Socrates confined the field of his 
 inquiries to questions of intellect and of morals; by 
 which unfortunate limitation he delayed the progress of 
 civilization for more than 2,000 years. 
 
 In 1592, when Bacon was 31 years of age, he pro- 
 posed in the House of Commons a plan to amend, con- 
 solidate and condense the whole body of English laws, 
 to reduce them in bulk, to simplify them in form, and 
 to render them consistent, leaving out all repetitions and 
 whatever was obsolete. 
 
 Coke, who was nine years older than Bacon, and was 
 also in Parliament at that time, was in the plenitude 
 of his powers, and had almost reached the meridian of 
 his fame. No proposition could have been made to
 
 82 Addresses 
 
 which he would have been more averse. Coming from 
 any one it would have been odious; coming from Bacon 
 it was detestable. Everything was a mystery in those 
 days, even the making of shoes and hats; and it was 
 due to the dignity of the law that it should be the 
 greatest of all mysteries. In the good olden time its 
 mystery had been properly guarded and preserved, 
 because legal proceedings were recorded in law Latin 
 which Cicero could not have read, or in law French 
 which no living Frenchman of woman born could under- 
 stand; but now in a less reverent and more iconoclastic 
 age such proceedings were required to be preserved in 
 English, which was only rescued from vulgarity by many 
 technical terms borrowed from other languages, and by 
 a peculiar and antiquated phraseology. The proposition 
 to deprive the law of the last vestige of clothing, and 
 thus to expose it naked to the laughter of its enemies, 
 was no less sacrilegious than indecent. The simplifica- 
 tion of the law would be the undoing of it, since no one 
 would respect what every one could understand. The 
 English Constitution would be overturned, life would 
 lose its sweetness, chaos would come again, and death 
 would be the only refuge. We may be sure that Coke 
 said something about the rash presumption of inexperi- 
 enced youth. He probably concluded by denouncing 
 Bacon as an enemy of mankind and a traitor to his 
 country. 
 
 In this contest the odds were greatly in favor of 
 Coke; a fact which he knew full well. As a scholar in 
 politics Bacon excited a certain amount of distrust, 
 which was enhanced by the novelty of his proposition. 
 As a politician Coke was immeasurably his superior. 
 Long afterwards Bacon, looking back over his career, 
 said of himself that he was better suited to hold a book 
 than to play a part. In an extremely conservative age 
 the precedents of centuries weighed heavily against him.
 
 Concerning Law Reform 83 
 
 Nothing of the sort had been tried since the compilation 
 of the old Byzantine codes, of which but few legislators 
 had ever heard. In this respect as in many others Bacon 
 was very far ahead of his age. Had he succeeded, the 
 evolution of our law would have been wholly changed; 
 and English jurisprudence, instead of lagging behind 
 the continental systems, would have led the van in the 
 march of reform. In England his effort fell stillborn; 
 but it attracted marked attention abroad, and served to 
 accelerate the development of the law in alien lands. 
 
 Bacon, great as he was, was in no sense a universal 
 genius, as he has sometimes been pictured in imagination. 
 Never save in fancy did the universal genius ever exist. 
 Outside of the sphere of his genius Bacon was shorn of 
 his strength, and was like unto other men. Though he 
 had the flight of an eagle yet he always skimmed along 
 close to the surface of the earth. He tried his powers 
 in architecture, both theoretically and practically; but 
 the results were unqualified failures; and his metrical 
 translations of the Psalms must always take rank along 
 with the worst specimens of poetry ever produced in 
 our language. He had unbounded genius for whatever 
 is practical ; but farther his genius did not go. Curiously 
 enough, the civilization which he projected, wonderful 
 beyond conception, partakes largely of all of his defects. 
 As the law is, or ought to be, above all things practical, 
 it was strictly within his domain. He had not the mar- 
 velous technical knowledge of the common law that made 
 of Coke an oracle in his profession ; but he possessed a 
 comprehensive insight into the spirit, adaptability and 
 philosophy of jurisprudence which Coke could never 
 have acquired. 
 
 So thoroughly conscious was Bacon of the necessity 
 of the work for which he had endeavored to obtain the 
 sanction of Parliament, that he afterwards resolved to 
 carry it out as an individual enterprise. In his "Pro-
 
 84 Addresses 
 
 posal for Amending the Laws of England," addressed 
 to James I., he showed that he had thoroughly matured 
 his scheme, and that he contemplated nothing revolu- 
 tionary. "I dare not advise," he said, "to cast the law 
 into a new mold. The work which I propound tendeth 
 to pruning and grafting the law, and not to plowing it 
 up and planting it again; for such a remove I should 
 hold indeed for a perilous innovation. ' ' 
 
 This great work, which might have been the crowning 
 glory of almost any lifetime, was never to be accom- 
 plished. Bacon spoke of it in his last years regretfully 
 as a work that required assistance, and that he had been 
 compelled to forego. The failure has been a loss irrep- 
 arable; for no one that ever lived was better qualified 
 for such a task than Bacon. It seems strange that in 
 his busy life, animated by such extensive designs, filled 
 with so many vicissitudes, he should have formed this 
 plan so early and should have brooded over it so long. 
 Bacon's capacity for labor was something marvelous. 
 During the four years that he was chancellor he cleared 
 off the long arrears of Ellesmere, and passed judgment 
 in 36,000 cases, though during that period he presided 
 over the House of Lords, was active in all affairs of 
 State, participated in all kinds of social functions, and 
 added largely to his voluminous writings, most of which 
 were translated into Latin, either by himself or by others 
 under his supervision. From early manhood he was a 
 frequent debater in Parliament, and, until he ascended 
 the bench he was engaged in an extensive practice in the 
 courts; so that although it might seem that his printed 
 writings would exhaust the labors of a lifetime, yet they 
 represent but a small part of the work that he per- 
 formed; hence it is only matter for surprise that he 
 accomplished as much as he did. 
 
 Though the more important works of Bacon were pub- 
 lished in Latin in order to render them everywhere
 
 Concerning Law Reform 85 
 
 current among scholars, yet they were very soon trans- 
 lated into several modern languages, so that they might 
 be made accessible to a still larger circle of readers. 
 They produced a profound impression; but their scope 
 was not fully understood; and it cannot be said that 
 they were received with much favor. Church and State 
 remained attached to the old moorings; and the bar, 
 always conservative save where a principle of public 
 liberty is involved, adhered rigidly to the methods of 
 Coke. The great majority of scholars were blindly, 
 fanatically attached to the old order of things. Outside 
 of a very small circle of personal friends, such as Sir 
 Henry Wotton and Hobbes of Malmesbury, it is doubt- 
 ful whether Bacon up to the time of his death had made 
 a single convert; and the subsequent progress of his 
 doctrine was slow, being achieved in spite of many 
 obstructions. When Dr. Johnson, a little more than a 
 hundred years ago, spoke of the study of science as 
 being derogatory to the higher faculties of the mind, he 
 echoed the sentiment of a great majority of his country- 
 men. Newman said that even in his time Oxford was 
 a mediaeval university.* It is only within the last twenty 
 or thirty years that the Baconian philosophy can be said 
 to have attained to a definite triumph ; and even now a 
 belated combatant occasionally fires a random shot at 
 the advancing column; but no damage is done, and the 
 incident is soon forgotten. 
 
 Bacon is the only great and radical reformer who 
 was not at the same time an ardent propagandist. 
 Judging from the effect of his teachings the man that 
 fired the Ephesian dome was but a timid conservative 
 compared to him; but he promised no Utopia, and 
 besought no man to enlist under his banner. Indeed, 
 so frequent and impressive was his advice against a rash 
 
 'Apologia pro vita sua, p. 149.
 
 86 Addresses 
 
 acceptance of any novel doctrine that it may almost be 
 questioned whether he himself did not entertain mis- 
 givings as to the beneficial effects to be anticipated from 
 the tremendous mine that he was engaged in planting 
 under the venerable bastions of antiquity. Convinced 
 that everything is experimental, and that caution should 
 preside where the issues are uncertain, and are so 
 immense as to affect the entire future of humanity, he 
 said: "It were good therefore that men in their inno- 
 vations would follow the example of time itself, which 
 indeed innovateth greatly, but quietly, and by degrees 
 scarce to be perceived;" and he recommended that 
 "novelty, though it be not rejected, yet be held for a 
 suspect. ' ' But it is difficult to believe that when he said 
 in his last will: "For my name and memory I leave 
 it to men's charitable speeches, and to foreign nations, 
 and to the next age," he did not anticipate the final 
 success of a revolution compared with which all other 
 revolutions were only the dust of the balance. 
 
 It would require volumes to recount the triumphs of 
 utilitarian science founded on the philosophy of Bacon, 
 including all the inventions and discoveries of modern 
 times, which constitute the theme of common declama- 
 tion. Doubtless the debt we owe to him exceeds all of 
 our powers of computation; but it is not possible to 
 make a gain in one direction without a corresponding 
 loss in some other. If Bacon really had any misgivings 
 as to the ultimate effects of his teachings, events have 
 proved that his fears were not wholly without founda- 
 tion; for the countless victories of science have failed 
 to bring to our race that spirit of peace and contentment, 
 rarer even than happiness itself, which has been the 
 dream of the wise and the good ever since the world 
 began. While we boast of our increasing knowledge, 
 we must confess that our progress has raised up social 
 questions that seem to defy solution, and that threaten
 
 Concerning Law Reform 87 
 
 to overturn the framework of society; that the present 
 age is in profound revolt against ills of life that seem 
 to be incurable, and that were formerly borne almost 
 without complaint; and that the constantly increasing 
 complexities of modern life tend continually to make of 
 existence a more deadly and desperate struggle. 
 
 If it would be difficult to count up the debt that we 
 owe to Bacon, it is equally impossible to compute what 
 we have lost. A hundred years ago one of the first 
 judges of the Supreme Court of the United States spoke 
 of the Scotch philosophy of Thomas Reid as being as 
 great a discovery as the discoveries made by Sir Isaac 
 Newton. But alas for the mutability of things, the 
 philosophy of Thomas Reid interests the present genera- 
 tion no more, while all the other systems of philosophy 
 from Thales to Compte and Schopenhauer are drifting 
 out of sight. It is a subject worthy of reflection that 
 these tremendous derelicts, embodying the speculations 
 of many of the greatest minds that ever lived concerning 
 the faculties, the surroundings, the origin and destiny 
 of man, hardly produce a ripple in the current of modern 
 thought. 
 
 If one should spend his life in counting, weighing 
 and classifying grains of sand in a valley, he would, no 
 doubt, in the course of time acquire a wonderful dex- 
 terity in that pursuit; but he would hardly possess 
 a fit conception of the beauty and grandeur of the outline 
 of the surrounding hills. "The business of the poet," 
 said Imlac in Rasselas, "is to examine, not the indi- 
 vidual, but the species; to remark general properties 
 and large appearances; he does not number the streaks 
 of the tulip, nor describe the different shades in the 
 verdure of the forest." 
 
 No; he deals not with minute details and sundries; 
 and in an age of details and sundries we have elimi- 
 nated the poet. If Bacon planted the seeds of a revolu-
 
 88 Addresses 
 
 tion that overturned the work of Coke, he has rendered 
 another Shakespeare impossible. Not by the aid of 
 parliamentary grant or congressional appropriation, nor 
 by the organization of gigantic corporations, can the 
 sacred muse be wooed back to a world which she has 
 deserted. The legitimate drama has been banished from 
 the stage, or returns only after long intervals to revisit 
 the scenes of her former triumphs. Barren as were the 
 Middle Ages in most fields of thought and action, yet 
 they brought forth new types of architecture that have 
 been found worthy to take their place alongside of the 
 immortal creations of Greece and Rome; while we, in 
 the way of originality, only succeed in producing hideous 
 sky-scraping structures that, as seen from the surface of 
 the moon, cast their long, black, revolving shadows over 
 the neighboring houses and streets. If at times we dis- 
 play great interest in the arts of painting and sculpture, 
 it is mostly of the kind that is got up to order; but of 
 that exquisite sense of the beautiful that made the 
 illiterate Athenian multitude the finest art critics that 
 the world has ever seen, we have not a trace; and in 
 the absence of it we pin our faith to the guide books. 
 Our literature, made up now almost wholly of works of 
 fiction, is nearly as ephemeral as the publications of the 
 amateur writers of stories in the daily papers. At inter- 
 vals of a few months some novel is acclaimed as immor- 
 tal by enthusiasts that could not tell the name of it a 
 year later. 
 
 The eloquence of the statesman has degenerated into 
 the rant of the demagogue. Chrysostom and Savana- 
 rola, Bossuet and Massillon, Stillingfleet and "Wesley 
 and Whitfield sleep in their hallowed tombs, and have 
 left no successors. It would be a pleasant thing for us 
 to have at the bar such men as Erskine and Curran 
 and Webster and Pinkney ; but the age does not produce 
 them, and we get along the best we can without them.
 
 Concerning Law Reform 89 
 
 It was said long before Napoleon that there is but one 
 step from the sublime to the ridiculous; but in an age 
 in which we have become painfully conscious of the 
 limitations of our powers, the ridiculous has gradually 
 encroached on the sublime until there is only a fading 
 line between them; and in deadly and constant fear 
 of crossing it, we timidly take refuge in the common- 
 place. Music itself, heavenly maid, of all the fine arts 
 the oldest, the most faithful and the tenderest friend 
 of man, she who has soothed and comforted his sad 
 heart in every time of sorrow ever since the morning 
 stars sang together, is said by some to be undergoing 
 a like eclipse. 
 
 This also was in our destiny. "Wonderful as are the 
 advantages that we have derived from the scheme of 
 Bacon for the improvement of mankind, yet it cannot 
 be denied that in some respects our adoption of it has 
 been like the second eating of the forbidden fruit. This 
 was the inevitable consequence of his teachings, the sum 
 and substance of which was that we should put lead on 
 our wings; that we should no more be led by sentiment, 
 nor seek the inaccessible, nor dally with the vague and 
 the undefined. And we have kept the faith; and are 
 keeping it more and more strictly as the years go by, 
 with more and more emphatic results. It is only the 
 other day that Professor Goldwin Smith declared that 
 if he lives a few years longer, he expects to see the last 
 poet, the last horse, and the last woman ; three things 
 that will certainly be missed. A little reflection would 
 have convinced him that the last poet has already 
 passed by. 
 
 These are things that we cannot help. Though we 
 may sometimes look regretfully to the past as Schiller 
 looked back to the Gods of Greece, or as Mary of Scot- 
 land gazed on the receding shores of France, yet our 
 way is onward; and we shall never more be content to
 
 90 Addresses 
 
 sit down by the deserted hearthstones of our ancestors. 
 Perhaps hereafter some genius as original as Bacon, 
 and equally unheralded, shall reveal to men some better 
 way that is now hidden from our eyes. 
 
 If the law in its higher aspects has failed in its 
 development in respect of harmony, or symmetry, or 
 unity, or facility of being understood, that result has 
 been reached through causes that Bacon distinctly 
 pointed out and repeatedly warned us against. Although 
 he recommended the closest, most analytical and most 
 discriminating scrutiny of individual instances, thereby 
 opening the door to infinite diversity, yet he urged in 
 the most impressive manner that through this diversity, 
 by means of arrangement, coordination and scientific 
 classification, we should reestablish unity and harmony 
 and symmetry on larger, truer and more intelligible 
 foundations; a process not applicable to poetry and the 
 fine arts, which were not within his scheme, but one 
 which is above all things applicable to the law. 
 
 No one was ever so great a destroyer as Bacon; but 
 he did not destroy for the sake of destruction ; but only 
 for the purpose of building again with lasting materials 
 on a more secure basis. Everywhere he inculcated the 
 necessity of classifying and organizing all facts of exter- 
 nal observation, not only with a view to the preservation 
 of knowledge, but also with a view to facilitate the 
 making of new discoveries, looking also possibly to that 
 unification of knowledge, which up to this time remains 
 no more than a pleasing dream. 
 
 It might have been supposed that the law, being 
 largely experimental, and naturally adjusting itself 
 easily to comprehensive rules, would have offered the 
 most obvious and inviting field for the exhibition of 
 the theories of Bacon ; but his teachings have had per- 
 haps less effect on English law than on any other science. 
 The practice of reporting individual cases which he
 
 Concerning Law Reform 91 
 
 found established, was an anticipation to some extent 
 of his methods of critical inquiry as to individual 
 instances; but the legal profession rejected his doctrine 
 of careful classification and constant and scrupulous 
 revision upon every new accession of knowledge. It is, 
 however, a safe prediction that his doctrines, triumphant 
 in all other fields of inquiry, must eventually prevail in 
 English and American law also, the most intractable of 
 all materials yet encountered. 
 
 With his greater singleness of purpose Coke was 
 enabled to accomplish, though in a very different way, 
 a task that Bacon was compelled to forego. Though not 
 the author of the English system of reporting, he brought 
 the art to a degree of perfection never before attained, 
 and rarely reached in later times; he gave to the office 
 of reporter a new dignity and importance; while in his 
 Commentaries upon Littleton he covered the whole field 
 of English law as it then existed. His reverence for 
 antiquity prevented him from discriminating between 
 things in full force and things obsolescent and things 
 obsolete; and hence he devoutly preserved every tech- 
 nicality that was anywhere imbedded in the law; thus 
 hampering legal development along the lines of natural 
 justice and equity, and raising up that large and influ- 
 ential body of lawyers, who, adhering always to the 
 strictest letter of the law, made a fetish of every con- 
 ceivable technicality, lawyers who rendered perpetual 
 homage to the deified Quibble; who shuddered at the 
 thought of an erasure in a deed, who were ready to go 
 into convulsions at a suggestion to amend a pleading, 
 and who seemed really to believe that the universe would 
 some day be derailed and destroyed by a misplaced 
 comma. 
 
 There is no doubt but that Coke's work was and 
 remains a collossal monument of labor and industry. 
 He was the Moses that led the profession out of the
 
 92 Addresses 
 
 wilderness of the year books, the abridgments, the 
 unwritten, the confused and undefined customs. Before 
 this, the law was but poorly understood, or was not 
 understood at all; but Coke flattered himself that with 
 his commentaries, which offered a short road to knowl- 
 edge, a man might hope to attain to some acquaintance 
 with the common law after the lucubrations of twenty 
 years; a saying that must have filled the hearts of the 
 students of the Inner Temple with exceeding joy. 
 
 When the crowning edifice of the common law was 
 thus made complete, Bacon had already set at work the 
 forces that were to effect its demolition. The common 
 law established a lay and an ecclesiastical hierarchy 
 reaching from the serf to the throne. The political 
 fabric was mortised and riveted together in every pos- 
 sible way. The penal laws were hardly less bloody than 
 those of Draco. The feudal system of land laws, with 
 its fantastic complications, its oppressive exactions, 
 afforded a striking example of the culmination of aris- 
 tocratic misrule. Though the institution of chivalry, 
 now an object of universal derision, had struck the first 
 blow in her interest, woman, by the common law, 
 remained a slave from her cradle to her grave. In short 
 there was some reason for saying that the law as it then 
 existed was "the result of the blundering and chican- 
 cery of several generations that in legal language is 
 called the wisdom of ages." 
 
 The common law possessed, however, one virtue that 
 redeemed many sins. It was instinct with that political 
 liberty that was born and nurtured among the tribes 
 that lived in the shadows of the great oaks of Germany 
 for ages before Tacitus placed their simple customs in 
 contrast with the meretricious manners of imperial 
 Rome. 
 
 But whatever its virtues or faults may have been, it 
 was not endowed with the permanence which the rigidity
 
 Concerning Law Reform 93 
 
 of its structure gave to it in the eyes of Coke. The 
 chancellor was already engaged in smuggling into the 
 country the equitable principles of the civil law, which 
 were at a later day to filter into the common law courts 
 until the whole lump should be leavened; and the new 
 civilization, starting into life at the voice of Bacon, was 
 to render the affairs of life so varied and complex as to 
 make the common law system wholly inadequate to the 
 wants of men. 
 
 What Bacon desired was that Parliament should enter 
 upon a career of cautious, prudent and enlightened law 
 reform. The work of Coke was conceived in a different 
 spirit ; but his name as a jurist was so great, his accuracy 
 so surprising, that his summing up of existing law 
 acquired an authority almost as absolute as that of a 
 legislative enactment. They were both great men, and 
 great lawyers; but their methods were essentially dif- 
 ferent. Coke had all the qualities of a great judge, 
 and Bacon had all the qualities of a great judge except 
 the indispensable virtues; one was the greatest' of 
 reformers, the other belonged to the ranks of the most 
 extreme conservatism. 
 
 After the death of Bacon, there ensued a period of 
 200 years, during which the spirit of Coke lay heavy 
 on tower and tree, and during which no one even so 
 much as mentioned the name of law reform. Scientific 
 men stole the ideas of Bacon without remorse, without 
 acknowledgment, and lawyers discredited him because 
 he had shone in fields which they were disqualified to 
 enter. But when Blackstone had presented his stately 
 and classical outline of English law Bentham fired his 
 signal gun of revolt. When the discussion on the reform 
 bill of 1832 admitted some rays of light into the mediae- 
 val dungeons of English law, crustaceans began to lose 
 their vitality and to disappear, and insurgents like Mill, 
 Langdale, Mackintosh, Romilly and Brougham took up
 
 94 Addresses 
 
 the task where Bacon had left off. They fought often 
 unprevailing, but with occasional victories the value of 
 which no one at present disputes. Time would fail me 
 to speak of the manner in which the warfare has been 
 carried on by Field and by others in our own country. 
 But the contest begun by Bacon still remains undecided. 
 
 The most common objection to allowing the law to 
 reveal itself in a statutory form, as Bacon proposed, is 
 that case law is much more flexible than statutory law. 
 If flexibility is what is desired, manifestly the best thing 
 to do is to leave all questions to the discretion of the 
 judge. But the quality of inflexibility, supposed to 
 inhere in statutes, is a delusion. Most of us have heard 
 how it was that the Statute of Uses, passed with great 
 deliberation by King, Lords and Commons, had no other 
 effect than that of adding three more words to convey- 
 ances of land ; and most of us have observed how numer- 
 ous statutes which seemed to a casual observer to be 
 solid and rigid, under the skillful manipulation of the 
 courts have first become flexible, then plastic, then fluid, 
 until at last becoming gaseous, we have seen them exhale 
 and disappear into interstellar space. What in our 
 ignorance we had taken to be a promontory of firm land 
 proved to be only an evanescent fog bank. 
 
 Flexibility is only another name for uncertainty; and 
 proverbially the highest excellence of the law consists 
 in its freedom from uncertainty. The law is supposed 
 to be made up of rules ; and flexibility or uncertainty is 
 that which renders any rule ineffectual. Whatever is 
 intelligible must have some definite form, or some power 
 of resistance, or some consistency. The lawyer who wants 
 flexible rules, is like the carpenter or the geometer who 
 should attempt to draw straight lines along the edge 
 of an unconfined shoe string. Consciously or uncon- 
 sciously he favors that laxity which makes of the law a 
 snare for the ignorant and the unwary, and accomplice
 
 Concerning Law Reform 95 
 
 of fraud and crime. The laws which "palter with us in 
 a double sense" are worthy of the malediction which 
 Macbeth at last bestowed on false prophets that 
 
 " keep the word of promise to our ear, 
 
 But break it to our hope." 
 
 When laws are few, like those of Solon of Lycurgus, 
 it is not difficult to reduce them to a written form. 
 When they increase in number the difficulty increases. 
 Thus the difficulty of making a code increases just as the 
 need of a code becomes more urgent. With us the under- 
 taking is so immense that we hardly dare give it a 
 serious thought. The endeavor seems like that of put- 
 ting the ocean into a pint cup. Increase of knowledge 
 brings confusion, and confusion requires a reduction to 
 method. But our collection of card houses, made up of 
 case law, is so extensive, so ramified, so void of contour, 
 such a wilderness of perplexity, that we are afraid for 
 any one to touch it. There is no map or bird's-eye view 
 of it, no living guide that knows a tithe of its convolu- 
 tions, labyrinths and entanglements, so that no lawyer 
 is willing t trust any other lawyer or set of lawyers to 
 undertake Tvhat seems to be a hopeless task. We know 
 that the intelligent advocate of a code does not propose 
 to change the law itself, but only to change the form in 
 which it is expressed, canceling whatever is obsolete, 
 contradictory, or redundant, reducing the remainder to 
 an orderly arrangement. But the Italians have a well 
 known saying that the translator always betrays; and 
 as the proposed change of form is a kind of translation, 
 we tremble for the result. We are afraid that while the 
 wine is being decanted from one vessel into another some 
 drop of the precious fluid may be lost; or that some 
 fermentation may supervene that may impair the flavor 
 of the whole. We recall the pleasant story told by Vol- 
 taire of the way in which the Sultan Haroun al Raschid
 
 96 Addresses 
 
 caused all the wisdom of his vast library to be condensed 
 first into 500 volumes, then into one volume, and then 
 into a single sentence, with an unexpected and dis- 
 appointing result. 
 
 But every great change is attended with fears, many 
 of which are usually groundless. By whomsoever done 
 the work will no doubt bear that stamp of imperfection 
 which seems to be the trade mark of the visible universe ; 
 but it can hardly be worse than our present state in 
 which the law is fast drifting from the region of the 
 unknown to the region of the unknowable. After all, 
 though the talents of Coke and the genius of Bacon 
 would not be amiss in the accomplishment of such a 
 task, yet the qualities required, though of a high order, 
 are not really of the highest ; patience, fidelity and accu- 
 racy being most in demand. 
 
 Cardinal Wolsey, who was certainly a sincere friend 
 of the cause of education, desired to raise a fund out 
 of the proceeds of confiscated estates to establish a uni- 
 versity in London for instruction in the civil' and com- 
 mon law ; a measure which was defeated by the rapacity 
 of the courtiers of Henry VIII. 
 
 Noticing this incident Lord Campbell says: "Such 
 an institution is still a desideratum in England ; for with 
 splendid exceptions, it must be admitted that English 
 barristers, though very clever practitioners, are not such 
 able jurists as are to be found in other countries where 
 law is systematically studied as a science." 
 
 Just here he struck a very sore spot. We have thou- 
 sands of individual instances, mere snap shots of the 
 law under the rack, showing the law in countless con- 
 tortions, a wilderness of notes without any text ; but we 
 have no scientific system. 
 
 In no way has the insular condition of England been 
 more fully shown than in the development of her laws. 
 Without dwelling on the European continental system,
 
 Concerning Law Reform 97 
 
 I may say in a few words that by that system the laws 
 are reduced to written codes; that the courts do not as 
 such make any laws, their decision in one case not being 
 authority in another. A council of revision looks after 
 the written law, suggesting needed changes as experi- 
 ence may suggest. In some countries this council is 
 permanent; in others it is appointed from time to time 
 as may seem needful. It is of course in communication 
 with distinguished judges and jurists throughout the 
 country; and its influence on the legislative department 
 is paramount, though not decisive. 
 
 Comparative jurisprudence is a subject so extensive 
 that it is necessarily but little understood; but it must 
 not be inferred that English law has not been studied by 
 continental jurists. It has been studied closely by spe- 
 cialists ; and one of its institutions, that of trial by jury, 
 has been in modern times adopted into various conti- 
 nental systems. Nevertheless I believe that it would be 
 quite impossible to find that any continental jurist has 
 ever expressed a preference for judge-made law, that 
 peculiar institution of the English speaking races. 
 
 The entire adoption of the continental system is not 
 practicable, and is really not desirable. Our lawyers 
 would never consent to a change so radical as that which 
 would result from the adoption of the practice of the 
 continental courts, which in deciding cases, briefly recite 
 a few facts, and then pronounce judgment without citing 
 authorities beyond perhaps an occasional reference to 
 the code. The question is whether Bacon was right in 
 thinking that case law should be regarded as only pro- 
 visional, and that it ought to be revised, arranged, con- 
 densed and re-uttered in statutory form, so that the 
 whole law might be briefer, more systematic, more com- 
 prehensive, more intelligible and more authoritative. 
 
 It is said by historians that just before the compila- 
 tion of the codes of Justinian, the Roman law had become
 
 98 Addresses 
 
 so voluminous that no one could understand it, and that 
 the books which contained it would have made a load 
 for many camels ; but it would be easy to show that our 
 law books are far more numerous than could ever have 
 been those of Rome, or indeed of any other country. 
 
 Our law is fragmentary. It is like the broken mirror 
 of Richard II.; and day by day it is broken into still 
 smaller pieces. It is for the most part a vast and 
 heterogeneous collection of individual instances. Since 
 the time that Coke made his accurate survey of English 
 law the great books of the common law have never been 
 adequately posted up. Since that time, now more than 
 250 years, entries have only been made in journals, 
 blotters, day books, in loose memoranda on detached 
 sheets; and by almost any one that desired to write on 
 the subject. When we want to know how any particular 
 account stands, we refer to all manner of writers and 
 judges as experts, who disagree after the manner of 
 experts. The courts are perpetually in conflict. If 
 Charles V. could not succeed in making a few clocks 
 keep time together, it would be sheer madness to expect 
 that a hundred or so of courts whose reports are printed 
 could be kept in accord. On almost every question they 
 are found to vary; and they are generally as divergent 
 as Samson's foxes. 
 
 We have had various labor saving devices, Leading 
 Cases, Selected Cases, American Decisions, American 
 Reports, and so on. Then we have annual volumes on 
 certain topics of the law, legitimate successors of the 
 annual Keepsakes, Tokens, and Books of Beauty, issued 
 by Lady Blessington and others in the first half of this 
 century. Then we have digests and text-books on all 
 subjects without number. But these we can hardly use 
 in court; for while one section or one page may be 
 favorable to our views, the next will be hostile ; so that,
 
 Concerning Law Reform 99 
 
 whatever we may use in the seclusion of our chambers, 
 what we require in the court room is the uncontra- 
 dicted, the immaculate, the austere, the uncriticised 
 original report. 
 
 Where there is such a conflict among the authorities 
 uniform results are not to be expected. A judge may 
 decide almost any question any way, and still be sup- 
 ported by an array of cases; and his decision will at 
 last probably be the result of temperament or of pre- 
 possession. It is one of the maxims of our law that that 
 law is the best that leaves the least discretion to the 
 judge. But in the existing conflict of authorities a 
 judge can hardly decide anything without exercising his 
 discretion. A choice between antagonizing cases involves 
 a large discretion. I apprehend that if by some photo- 
 graphic process we could get a visible outline of our 
 nebular system of law, it would appear very much in the 
 shape of the chancellor 's foot. The mere fact that every 
 judge attempts to express his conception of the law in 
 his own language must of itself be productive of endless 
 controversy. 
 
 Our text-books are for the most part collections of 
 multitudinous head notes, which are no more than com- 
 pressed tablets of the law, warranted to keep in all 
 climates, convenient for administration to all the courts ; 
 but as no two of them are alike, and as they are liable 
 to interact upon and to neutralize each other, their 
 effect on the judicial economy is only a matter of con- 
 jecture. The glorious uncertainty of the law which was 
 some time a proverb has become a truism. 
 
 A man's library is often a fair index to his character. 
 Coke 's library consisted of folios, not many in number ; 
 for in those days there were only twelve volumes of 
 reports, of which nine were year books. Besides these 
 he had the statutes of the realm, and various abridg-
 
 100 Addresses 
 
 ments. His library, though exhaustive, was not large. 
 We may suppose that a single shelf might hold all the 
 books of a law library of that time. 
 
 Nothing is more in contrast with the age of Elizabeth 
 than the modern deluge of books. There are now added 
 to the National Library in Paris about 60,000 volumes a 
 year, making about 6,000,000 volumes in the course of 
 a century, even if there should be no increase from 
 year to year. In various other public libraries the 
 number of annual additions is perhaps no less. Of this 
 60,000, it is quite impossible that more than 500 volumes 
 can have any reasonable or even tolerable excuse for 
 being. When we look at the books and pamphlets that 
 litter our book stalls, for the most part mere sweepings 
 of vacant chambers, it seems a pity that most of them 
 shall be handed down to a remote posterity like the 
 mummied cats of Egypt. If things go on in this way 
 for a thousand years it is hard to see how such vast 
 collections as must accumulate can be housed and cared 
 for. As books continue to breed like rabbits in Australia, 
 the time may come when it may be a thing to mention 
 in one's epitaph as commending him to all ages that he 
 never wrote a book, and when the man that utterly 
 extirpates a book will receive more honor than one who 
 has written a hundred; but before that time comes it 
 would be a public boon if the Malthusian doctrine for 
 the restriction of population could be applied to the pro- 
 duction of books. It seems a pity that the tribunal 
 composed of the barber and the curate that disposed of 
 the library of Don Quixote could not have been per- 
 petuated with an immense increase of jurisdiction. But 
 no books increase faster than our law reports. It is 
 deplorable that there can not be some kind of central 
 clearing house, where reported cases may cancel each 
 other, leaving us some net and intelligible result. If 
 things go on at the present rate, the time must soon
 
 Concerning Law Reform 101 
 
 come when any new Omar will be hailed as a deliverer 
 and as a public benefactor. 
 
 Years ago they had a law in Sweden that possessed 
 some excellent features. Whoever wrote a foolish or an 
 evil book was condemned to eat it under penalty of 
 death. He thus appeared in the character of Saturn 
 devouring his own children. By a humane provision the 
 author was allowed to serve up his book with such 
 ingredients as might render it most palatable. Theodore 
 Reinking, having written a stupid book in Latin on 
 political subjects, was condemned under this law in 1644. 
 It is said that he cooked his book up into some kind of a 
 sauce, in which form it no doubt acquired a piquancy 
 that it had not before possessed. The punishment was 
 presumably effectual, as there is no evidence that he 
 appeared again as an author, probably having lost his 
 taste for books. Such a law would not only lessen the 
 number of books, but it would promote brevity and sim- 
 plicity of style ; for if a man were in danger of having 
 literally to eat his own words, it may be supposed that 
 he would not use any more than were necessary, and 
 that he would avoid sesquipedalian words, any one of 
 which would suffice for a hearty meal; while the rigid 
 enforcement of such a law would tend greatly to promote 
 the improvement of culinary art, to say nothing of the 
 accurate knowledge that would be acquired as to the 
 effect of different kinds of literary diet on the digestive 
 organs. 
 
 A year or so ago, I read what seemed to me to be a 
 very sensible report by one of your committees on the 
 subject of the avalanche of law books that daily issues 
 from the teeming press. Soon afterwards I saw a notice 
 of this report in a publisher's circular, in which the 
 publisher said that if lawyers did not want new books, 
 the remedy was easy; they need not buy them. It was 
 very kind of him to say so ; and what he said was true ;
 
 102 Addresses 
 
 but it was not the whole truth. Collectively we could 
 refuse to buy such books, individually we can not. We 
 are like the armed powers of Europe. Each and all 
 would be benefited by a general disarmament, but 
 neither can disarm unless all the rest will do so. As 
 nearly all of our law stands, on the shifting sands of 
 individual cases, and as every new case, like every new 
 child that is born, is fraught with unknown possibilities, 
 self-preservation requires that we shall keep up with the 
 disorderly and rapidly moving procession as well as we 
 can; and as we cannot remember one case out of a 
 hundred, even if we had time to read them all, we have 
 to buy digests and text-books without number, good, bad, 
 and indifferent, to serve as convenient indexes. If we 
 fail to act thus dire will be our fate. If, for instance, we 
 have occasion to refer in argument to the Dartmouth 
 College case, we may apprehend that our adversary, 
 holding aloft a late issue of some reporter, will triumph- 
 antly announce that that decision has been overruled by 
 the Supreme Court of Alaska, a fact that he supposed 
 was known to every practicing lawyer; or, if emulating 
 the eloquence of Patrick Henry, we refer to the Magna 
 Charta, our opponent will announce with fiendish exulta- 
 tion that he holds in his hand a book fresh from the 
 press, a book destined to form an epoch in the history of 
 jurisprudence, a mature work on the Statute of Limita- 
 tions as applied to Estrays, written by a retired minister 
 of the gospel of several years standing, which demon- 
 strates conclusively that the Magna Charta was never 
 enacted in the manner required by the English constitu- 
 tion. Happy shall we be if we shall be able to produce 
 some printed paragraph saying that the learned judges 
 of the Supreme Court of Alaska have fallen into an 
 error as to the Dartmouth College case, or that the 
 extremely erudite author of tKe text-book mentioned has 
 drawn his conclusion from insufficient data. Thus it is
 
 Concerning Law Reform 103 
 
 that we have to buy all the latest books, if for nothing 
 else in order to defend ourselves against the bad law 
 that is constantly being exploded on the profession. To 
 a traveller from Cathay it might well seem that the legal 
 profession is organized and maintained solely in the 
 interest of booksellers. 
 
 To the really thoughtful mind the expedient of a 
 strike must sometimes have suggested itself. If we were 
 only organized, and had a master lawyer, who could tell 
 us how and when to strike, and if we could manage to 
 evade Federal injunctions, we might march on the prin- 
 cipal publishing centers, and, firing their immense mag- 
 azines of unsold law books, we might feel one moment 
 of delirious joy to see the landscape illuminated by what 
 Coke called ' ' the gladsome light of jurisprudence. ' ' 
 
 Or if we preferred milder measures, we might issue 
 an ultimatum, saying: "We do not want any more of 
 your books. If the law is a science at all, anything 
 capable of human comprehension, we have more books 
 now on that subject than there are on all other scientific 
 subjects put together, leaving out of course all those 
 that are wholly obsolete on either side. Mind cannot 
 master them, the memory cannot retain them. Extremes 
 meet, and too much law is the same as no law. By dint 
 of endless repetitions counsel is darkened, by reason of 
 multitudinous illustrations the rule is lost sight of." 
 
 In arguing the case of Jones vs. Randall, Cowp. 38, 
 before Lord Mansfield, Mr. Dunning said: "The laws 
 of this country are clear, evident and certain; all the 
 judges know the laws, and, knowing them, administer 
 them with uprightness and integrity." 
 
 Mr. Dunning certainly displayed a keen sense of 
 humor; but Mansfield, true to his Scotch origin, 
 answered seriously, saying: "As to the certainty of 
 the law mentioned by Mr. Dunning, it would be hard 
 upon the profession if the law was so certain that every-
 
 104 Addresses 
 
 body knew it; the misfortune is that it is so uncertain 
 that it costs much money to know what it is, even in 
 the last resort." 
 
 The rule, correctly stated, is that all men are pre- 
 sumed to know the law except the judges of the courts. 
 They are not presumed to know it; and hence they can 
 not be held responsible for any official conduct based on 
 ignorance or misconception of the law. The courts, 
 which are only the judges idealized, are, however, pre- 
 sumed to know the law ; a presumption that can be safely 
 indulged, since it involves no personal liability; a mere 
 complimentary fiction, as most lawyers know, like the 
 presumption that all men are innocent. 
 
 None of us pretend to know the law, or if we know 
 it at all it is in a very general way, something like the 
 manner in which we know our native country, by maps, 
 by boundaries, by great mountain ranges, and by a few 
 landscapes, being ignorant of the most of the multi- 
 tudinous details. When asked a question about the law, 
 whether written or unwritten, we answer with a modesty 
 and distrust not innate, but which is the fruit of many 
 surprises and disappointments. We never could have 
 known much of such a boundless subject; and much 
 that we may have known has been forgotten. 
 
 Mr. Livingston, in his report on the penal code of 
 Louisiana, said : ' ' Is it not a mockery to refer me to the 
 common law of England ? Where am I to find it ? Who 
 is to interpret it for me ? If I should apply to a lawyer 
 for a book that contained it, he would smile at my 
 ignorance, and, pointing to about 500 volumes on his 
 shelves, would tell me that these contained a small part 
 of it; that the rest was either unwritten, or might be 
 found in London or New York, or was shut up in the 
 breasts of the judges at Westminster Hall." 
 
 At present an American lawyer, pointing to shelves 
 containing at least 5,000 volumes, would say that no one
 
 Concerning Law Reform 105 
 
 knows, or pretends, or hopes ever to know the law. 
 Were Coke alive now he would not pretend to know 
 all the unwritten law. Such stupendous knowledge was 
 never vouchsafed to mortals. We are soon to have a 
 digest that is to contain references to nearly 500,000 
 American cases, overflowing, like the floods of Egypt, 
 through all the letters of the alphabet. 
 
 Our statutes are for the most part as fragmentary 
 as the unwritten law. Drawn up often by some rural 
 member who is trying his prentice hand on legislation, 
 and who would not hesitate to change the orbits of the 
 planets if he had a chance, mutilated in the legislative 
 mill, thundering in the preface with preposterous titles 
 and irrelevant preambles, contused, riddled and broken 
 by discordant and conflicting amendments, dislocated 
 and distorted by impossible provisos, they inspire us 
 with a sense of dismay; so that after perusing them 
 repeatedly we are fain to confess that they are like 
 the "idle tears," and that we "know not what they 
 mean." Or if the statute is more carefully drawn, and 
 by a more competent hand, it will generally be found to 
 be a mere stone or log thrown in for the purpose of 
 checking or diverting some current of judge-made law, 
 with the unexpected result of overflowing remote gardens 
 and plantations of which the author of the statute had 
 never a thought. 
 
 The time was when it was supposed to be a reproach 
 to call one a case lawyer ; but now we are all either case 
 lawyers, or are not lawyers at all. Cases are our coun- 
 ters, and there are no coins. Our legal arguments are 
 for the most part a mere casino-like matching and 
 unmatching of cases, involving little or no intellectual 
 effort. The law is ceasing to be a question of prin- 
 ciples, and is becoming a mere question of patterns. 
 Often we have to snatch the cases from the vast moulder- 
 ing heap in haste. Some of them may have been over-
 
 106 Addresses 
 
 ruled, others may be moribund; some may be like 
 Thoroughgood vs. Bryan, overruled by the court that 
 made them, or like Dumpor's case, repealed by act of 
 Parliament, but still having a posthumous existence in 
 some of our States. We do not know how the matter may 
 stand ; but we walk out on the unsteady footing of these 
 cases to the extreme limit, and marshal the court the way 
 it should go. The judge may be learned; but he may 
 know no more of these particular cases than we do. 
 The familiar sound of Brown vs. Jones may awaken some 
 far-off memory like the reminiscences of childhood; and 
 on the faith of that case he may decide the question 
 one way or the other, only to find out afterwards that 
 he was in error, as the case that he recalled was another 
 case between the same inveterate litigants. 
 
 Brown and Jones, whose quarrels live after them, have 
 been overtaken by a strange destiny. They disputed 
 perhaps about an ox found damage feasant, levant and 
 couchant ; and, going to law tooth and nail, they hurled 
 sulphurous imprecations at each other, and cherished a 
 mutual hatred that might be compared in intensity to 
 that which animated Coke and Bacon. Their warfare 
 is over, and they have long since been buried in remote 
 and forgotten graves; but now by the irony of fate 
 they appear in all law books bracketed together in an 
 eternal embrace, like Francesca da Rimini and her lover 
 in the shades below; and their united names serve as 
 a tag to indicate some particular principle or axiom 
 of the law over which new controversies arise from time 
 to time. Seeing them so often engaged in this pas de 
 deux this modern Damon and Pythias might seem to be 
 as inseparable as the Siamese twins ; but at rare intervals 
 we catch a glimpse of one or the other of them walking 
 alone, ex parte, as if in a trance, "wrapped in the soli- 
 tude of his own originality." Obscure as they were, a 
 certain amount of mystery attended their coming hither
 
 Concerning Law Reform 107 
 
 and their going hence ; but if, either jointly or severally, 
 they served to make clearer the difference between tres- 
 pass and case, or to explain the true inwardness of the 
 Absque Hoc, surely they did not live in vain. 
 
 The trial of each case in our courts brings with it a 
 retrial of many former cases ; and each lawyer engaged 
 in court sets up his own mental alembic in order to 
 distil the law of the cases cited by him from the con- 
 crete facts in which it is embodied; a task requiring 
 time, patience and discrimination, but which must often 
 be accomplished with a degree of haste which renders 
 anything like accuracy impossible. In many instances 
 we simply call over our rosary of cases, pitting against 
 one decision by Chief Justice Marshall ten later ones 
 rendered by Mr. Justice Shallow, without any attempt 
 at discrimination as to facts, partly because lack of time 
 forbids that necessary process. 
 
 With proper relays of books there is no reason why 
 under our system a legal argument should not go on 
 forever, provided the principal actors could be rendered 
 immortal, and could be made proof against exhaustion. 
 As the matter stands, after the incumbent of the bench 
 has been pelted with cases of every degree of relevancy 
 and irrelevancy for some hours, during the latter part 
 of which time, being now thoroughly hypnotized, he has 
 been engaged in a vain effort to find out what the uni- 
 verse was made for, he finally recovers sufficient anima- 
 tion to pass on the question, "so ably and exhaustively 
 discussed at the bar," as he is pleased to remark, decid- 
 ing, perhaps, as charitable people are wont to do, in 
 favor of the most importunate beggar, who is generally 
 the worst of the lot. For no truer thing has been 
 uttered than was spoken by Judge Dillon, who says: 
 
 "When the judges resort, as they frequently do, to 
 analogies supposed to be furnished by previous cases 
 for the rule of decision to apply to the case in hand, it
 
 108 Addresses 
 
 must often be extremely uncertain in advance what the 
 result will be; and it is frequently doubtful whether, 
 fettered in this way, they reach as sound results as if 
 governed by general considerations of what is right and 
 just."* 
 
 I have made no special estimate; but I think I can 
 not be far wrong in supposing that there are in this 
 country to-day in common use at least ten times as 
 many law books as there were forty years ago; and 
 during the last twenty years the progressive increase in 
 the number of such books has been greatly in excess of 
 all previous calculations. A short chapter, in Black- 
 stone's Commentaries, on Corporations is now expanded 
 into the magnum opus of Judge Thompson on that sub- 
 ject, consisting of six volumes of more than a thousand 
 pages each, of which a proper index, as the publishers 
 inform us, would require a volume of from 400 to 800 
 pages. 
 
 The most of the new cases that are reported are in 
 principle mere repetitions of former cases; and as such 
 they are not only useless, but detrimental. More than 
 200 years ago the Statute of Frauds of Charles II. was 
 enacted. It seemed to be simple enough, comprising 
 only a few sections; but the last work on the subject of 
 this statute is a bulky volume, containing reference to 
 thousands of cases. It must be plain that if with all of 
 these adjudications we do not understand the statute, 
 then we never can do so. Indeed the statute is so stuck 
 all over with cases, just as the hull of a ship is some- 
 times stuck all over with barnacles, that we hardly ever 
 see it; and whenever we consult that branch of the law 
 we lose ourselves among the glosses that have been put 
 upon it. In short, our legal science tends rapidly to a 
 
 Law and Jurisprudence of England and America, p. 272, n.
 
 Concerning Law Reform 109 
 
 mere strife of words not unlike that in which scholastic 
 learning finally broke up and disappeared. 
 
 Of course one may be an advocate of codification 
 without approving of many wild optimistic theories that 
 have emanated from its most enthusiastic partisans. If 
 Bentham seems to belong to that class it must be remem- 
 bered that when he took up arms against the existing 
 state of the law, English jurisprudence was burdened 
 and disgraced by many absurdities which have since 
 disappeared under an influence which Bentham was the 
 first to inspire into the public mind. It must also be 
 conceded that the excessive zeal of reformers is some- 
 times beneficial in redressing the balance that is ruled 
 by an equally unreasonable conservatism. 
 
 A medium course would no doubt be safest. A few 
 judicious additions to our Statute of Frauds, for 
 instance, might condense and give definite expression to 
 whole volumes of case law. Recently the commercial 
 law of England has been enacted as a statute consisting 
 of a hundred sections, reducing the volume of the law 
 on that subject, as was estimated by the author of the 
 statute, to about one five thousandth part of its former 
 bulk. In this country the reduction by the same process 
 would hardly be less than to one fifty thousandth part. 
 
 The statute referred to seems to have given very 
 great satisfaction in England; but some such work is 
 much more needed here than there, both on account of 
 the greater number of our law books, and on account 
 of an anomaly that exists nowhere else. Ever since 
 the decision in Swift vs. Tyson it has been held by the 
 Federal courts that they are not bound to follow the 
 decisions of the State courts of last resort in respect of 
 questions of general commercial law. Thus it often hap- 
 pens that a State court and a Federal court sitting side 
 by side will purposely decide cases on a like state of
 
 110 Addresses 
 
 facts differently. This gives to the complaining party 
 in many instances not only a choice of forums, but also 
 a choice of results ; an evil which ought not to exist, an 
 evil which would not exist if the law on this subject 
 were reduced to the form of a statute, either State or 
 Federal. Perhaps if Congress could be induced to pass 
 an interstate and international commercial code, all the 
 States would soon adopt it ; and this would certainly be 
 a great improvement on our present chaotic methods. 
 There are other branches of the law that, like commer- 
 cial law, naturally lend themselves to codification; and 
 prudence would suggest that they should first receive 
 attention, the process being gradually extended to other 
 topics. 
 
 In England the constitution is unwritten. It is noth- 
 ing but a collection of customs more or less vague. 
 There is a notion that in order to be respected it must 
 be concealed, or wrapped in mystery like the veiled 
 prophet. No one knows what it is, and any one can 
 claim for it whatever he likes. We in America assume 
 that we occupy in this regard a much more enlightened 
 position. Our. organic law is all written, so that any 
 one can read it that pleases. It is more important than 
 all other laws put together. It sums up all the guar- 
 anties of rights of property, of life and of liberty, 
 precious heirlooms acquired after ages of deadly strife 
 and warfare, sealed with the blood of a long line of 
 patriots and brave men. While we do not question the 
 necessity of expressing the fundamental law relating 
 to these vital principles in terse and deliberate language 
 through the organ of conventions composed chiefly of 
 laymen, we scruple to undertake the perilous task of 
 reducing to peremptory and plain written words the 
 law relating to bills of exchange and promissory notes. 
 
 "The frightful accumulation of case law," said Sir 
 Henry Maine, "conveys to English jurisprudence a
 
 
 Concerning Law Reform 111 
 
 menace of revolution far more serious than any popular 
 murmurs, and which, if it does nothing else, is giving to 
 mere tenacity of memory a disgraceful advantage over 
 all the finer qualities of the legal intellect." 
 
 In this country of course the case is far worse. Com- 
 pared with that of the American lawyer, with his 
 prodigious collection of cases, the condition of the Chi- 
 nese printer with his hundred thousand separate blocks 
 with which to set up the printed page, is enviable. 
 
 Reviled or contemned, whoever favors a rational law 
 reform may possess his soul in peace. The stars in 
 their course fight for him. Sooner or later the present 
 system must break down under its own weight. Every 
 new case that is decided, every new digest or text-book 
 that is issued, but hastens the day when the great Pon- 
 tine marsh of case law shall be drained. 
 
 When Napoleon at St. Helena looked back over the 
 past, he said: "My code is the sheet anchor that will 
 save France, and will entitle me to the benediction of 
 posterity." 
 
 His genius and energy had sufficed to compress the 
 evolution of centuries into less than a lifetime ; and now, 
 when his scepter had turned to ashes, when all his con- 
 quests had been wrenched away, and he was a lonely 
 prisoner far from the scenes of his triumphs, something 
 told him that beyond his victories on the field of battle, 
 more enduring than towering arch, or stately column, 
 or marble sepulchre, would be a work of peace to which 
 he had given only a part of four months of his time, a 
 work unstained with blood, unpolluted with crime. 
 
 Perhaps I cannot better close what I had to say this 
 evening on a topic that requires much more ample and 
 profound consideration than I have been able to give it, 
 than by quoting the language of a modern writer : 
 
 "A petty State, having little to boast of, may well 
 keep its laws, or what are called its laws, hidden in
 
 112 Addresses 
 
 obscurity ; but a great country loses half its dignity and 
 strength when it cannot in an orderly and methodical 
 way give some account to all whom it may concern of 
 the main reasons why its social progress and the con- 
 tentment of its citizens have been so well assured."* 
 
 *1 Paterson, Lib. Subject, 175. 
 Village Communities, p. 347.
 
 "THE PRESIDENT OF THE UNITED 
 STATES" 
 
 Response to This Toast on the Occasion of President Roosevelt's 
 Visit to Little Rock, October 5, 1905
 
 "THE PRESIDENT OF THE UNITED 
 STATES" 
 
 I will reply to that toast by saying that it seems to 
 me that the most agreeable and encouraging retrospect 
 in American history is to be found in the lives of our 
 American presidents. Here is a fine opening for an 
 extensive dissertation ; but as this is neither the time nor 
 the place for anything of that kind, I refrain, contenting 
 myself with a few words. 
 
 One of the chief grounds of opposition to the adoption 
 of the federal constitution was the liberal grant of power 
 to the president; a very vulnerable point of attack, 
 because men who had experienced the tyranny of George 
 III. and who had succeeded in establishing their liber- 
 ties only at the price of a long and bloody war, were 
 naturally suspicious of the one-man power. 
 
 For many years after that great controversy was 
 settled European writers on political topics habitually 
 prophesied that this extensive grant of power would 
 soon lead to the overthrow of the government, and to the 
 establishment of a despotism in its place. 
 
 We have now had a long succession of presidents 
 belonging to many political parties; but these dire pre- 
 dictions have never been realized. On the contrary, 
 our presidents have all been upright and patriotic men, 
 attentive to their official duties, seeking in every way 
 to promote the best interests of the country according 
 to their several abilities and opportunities ; thus putting 
 to shame the longest and most illustrious line of kings 
 that ever alternately blessed or afflicted mankind. 
 
 The event has proved that our presidents have been 
 more conservative and more mindful of constitutional 
 
 115
 
 116 Addresses 
 
 limitations than the legislative department; so that by 
 this long and consistent course of wise and prudent con- 
 duct the presidential office has acquired honor and 
 dignity not directly derived from the constitution, thus 
 affording new guarantees for the future. 
 
 Our presidents have all had many difficult problems 
 to deal with; and none of them have escaped censure; 
 for Calumny, like Death, loves a shining mark. Wash- 
 ington in his declining years said that he had been 
 accused of every crime that Nero ever committed; and 
 his immediate successors were continually assailed by the 
 most foul and improbable slanders ; falsehoods concocted 
 by the American demagogue that walketh in darkness 
 and lieth at noonday ; or at least did so in former times ; 
 for we may now congratulate ourselves in our more 
 enlightened age that the American demagogue, like the 
 mammoth and the mastodon that once inhabited our 
 forests, has ceased to exist ; and that his siren voice is no 
 longer heard in the land. 
 
 It is fortunate for us that political differences of 
 opinion must always exist ; for otherwise we should soon 
 sink into a state of mental and moral degredation, wholly 
 incompatible with liberty or progress ; but it is a mistake 
 to regard each recurring presidential election as a savage 
 foray of revenge and extermination, instead of being, as 
 it was intended, a peaceful method of solving political 
 questions, and a necessary requisite for the continua- 
 tion of a government of law and order. 
 
 It would certainly be better if our political contests 
 could be carried on with less rancor ; if we could 
 
 " do as adversaries do in law, 
 
 Strive mightily, but eat and drink as friends." 
 
 But it is still more unfortunate when the bitterness of 
 controversy is carried over after the contest is ended; 
 bad policy, too, on the part of the disappointed, since
 
 "The President of the United States" 117 
 
 patience and good humor take away half the sting of 
 defeat, and signs of anger and resentment but serve to 
 increase the triumph of the enemy, tending to make him 
 forget that in this strange world of ours the victor of 
 today is frequently the vanquished of tomorrow. 
 
 Most of our political opinions are by no means axio- 
 matic truths, and none but a blind fanatic can imagine 
 that virtue, good sense and patriotism are only to be 
 found in his own political party; hence, however great 
 our political differences may be, they sink out of sight 
 when we meet, as we do on this occasion, to do honor to 
 the president of the United States, who is not the presi- 
 dent of any political party, but whose proudest title is 
 that he is president of every man, woman and child 
 under the protection of the American flag, whether on 
 land or sea; a sentiment that has been often and most 
 forcibly expressed by the words and by the acts of our 
 most highly honored guest of this auspicious hour. 
 
 The occasion that has brought us together is not one 
 of unmeaning compliments and of merely ceremonial 
 display. The great and enthusiastic multitudes that fill 
 our streets, our parks and other public places, with their 
 hearty greetings, your present assemblage, gentlemen, 
 within this hall, the kindly words that have been spoken, 
 will, we trust, carry home to our honored guest the pro- 
 found assurance that this homage is not paid exclusively 
 to the president, but that it is no less a heartfelt tribute 
 to the scholar, the writer, the soldier, the patriot and 
 the statesman ; one who does not fear to take the public 
 into his confidence; one who has acquired wisdom from 
 a long and varied experience in public affairs ; one who, 
 moreover, is a mighty hunter before the Lord; worthy 
 to have hunted with old Nimrod himself, or in latter 
 times with Israel Putnam, or with Daniel Boone, when 
 bears were to be found on every hillside. 
 
 The present visit will always be the source of pleasant
 
 118 Addresses 
 
 and grateful recollections on the part of the people of 
 this state and city; and we would venture to hope that 
 it may be repeated in even happier days, when the many 
 cares of state may permit, or when these shall have been 
 exchanged for the more tranquil pleasures of private 
 life. We trust that our honored guest may be blessed 
 with health, strength and length of days ; that his admin- 
 istration may redound to the best and most lasting 
 interests of the country, and to his own honor; that 
 after the toil and responsibility of his great office are 
 over, he may be cheered by the approving voice of his 
 grateful countrymen and the serene consciousness of 
 duty wisely, faithfully and successfully performed. We 
 have the satisfaction of knowing that whatever difficul- 
 ties may arise we have a strong man at the helm, one 
 worthy to join in the procession of the great and illus- 
 trious men who have gone before, who have reaped the 
 reward of their services in the gratitude of their country, 
 and who have been crowned with undying fame. 
 
 The president has lately achieved a result that I believe 
 has had no precedent in the past. By a timely and tact- 
 ful interposition he has been largely instrumental in 
 arresting the torrent of blood that deluged the soil of 
 another hemisphere, and filled the world with horror; 
 thus substituting the white banner of peace for the 
 terrible ensigns of war. If it be true, as the poet tells 
 us, that 
 
 "Peace hath her victories 
 
 No less renowned than war." 
 
 here is a victory that, as it has not caused a sigh or a 
 tear, far outshines the triumphs of Blenheim or Waterloo. 
 May his other successes, if not always so resplendent, 
 be such as will always promote the happiness of 
 mankind. 
 
 (The address of Judge Rose was enthusiastically applauded at 
 intervals, and was heartily received by the president.)
 
 IMMUNITY FROM CAPTURE OF 
 
 PRIVATE PROPERTY AT 
 
 SEA IN TIME OF WAR 
 
 Address at the Second Hague Conference, July 5, 1907
 
 IMMUNITY FROM CAPTURE OF 
 
 PRIVATE PROPERTY AT 
 
 SEA IN TIME OF WAR 
 
 H. Exc. M. Renault ; third French Delegate : If these 
 views are, as we believe, correct, the right of capture 
 appears to be a measure directed by one belligerent state 
 against another belligerent, this measure forming a part 
 of the operations by which one state endeavors to reduce 
 its adversary to terms, having no particularly severe 
 quality ; hence there is in our opinion no sufficient reason 
 for its abandonment. 
 
 H. Exc. U. M. Rose ; Delegate from the United States 
 of America : 
 
 In the addresses just delivered we have heard a good 
 deal about the rights of captors and belligerents, tending 
 to show that their rights are very nearly, if not quite, 
 commensurate with their might, but nothing that tends 
 to define the rights of private persons owning property 
 on the sea in time of war ; from which it might well be 
 inferred that the rights of private persons to property at 
 sea are a very negligible quantity. 
 
 Just a hundred years ago Lord Brougham said : 
 
 "The private property of pacific and industrious 
 individuals seems to be protected, and, except in the 
 single case of maritime capture, it is spared accord- 
 ingly by the general usage of all modern nations. 
 No army now plunders unarmed individuals ashore 
 except for the purpose of providing for its own sub- 
 sistence. And the laws of war are thought to be 
 violated by the seizure of private property for the 
 sake of gain, even within the limits of the hostile 
 
 121
 
 122 Addresses 
 
 territory. It is not easy at first sight to discover 
 why this humane and enlightened policy should still 
 be excluded from the scenes of martime hostility, 
 or why the plunder of industrious merchants, which 
 is thought disgraceful on land, should still be 
 accounted honorable at sea." 
 
 Another writer of distinction has said: 
 
 "There is no doubt that the widespread irritation 
 occasioned by the capture of private property at 
 sea, as much as on land, is one of the main provoca- 
 tives of enduring national hatred." 
 
 His Excellency, Mr. Choate, has cited many other 
 expressions of a similar character emanating from states- 
 men and jurists of the highest standing and of different 
 nationalities. I say nothing about treaties in which the 
 principle for which we contend was embodied. 
 
 At the very beginning of our labors, His Excellency 
 M. de Martens, said in his opening address, wisely and 
 appropriately : 
 
 "We should now do for maritime war what the 
 Second Commission of the last Conference did for 
 war on land : define the principles whose application 
 will have for their object the prevention of conflicts 
 and misunderstandings." 
 
 This is precisely what we are striving to accomplish 
 in the pro jet now under discussion; that is to say, we 
 seek to give uniformity to the humane rules of warfare 
 thus indicated as far as they depend upon moral prin- 
 ciples, so as to protect the rights of non-combatants at 
 sea as well as on land. 
 
 The humane rule as to the inviolability of unoffending 
 private property on land in time of war, except in cases 
 of contraband or of military necessity, though of com- 
 paratively recent origin, resting as it does on principles 
 of justice universally recognized, is now so firmly estab-
 
 Capture of Private Property at Sea 123 
 
 lished in the public conscience and in international law 
 that it is not questioned by our friends on the other side, 
 or by any one else ; and it certainly is not easy to see why 
 the same rule shall not be applied under similiar condi- 
 tions when the property of the innocent private owner 
 happens to be found at sea. Cicero, centuries ago, 
 declared that the natural law of justice is the same at 
 Rome, at Athens and everywhere else ; a saying that has 
 probably been quoted with approval by every distin- 
 guished modern writer on international law. Justice 
 does not change with degrees of latitude or longitude; 
 with hill or plain; with times or seasons; nor does it 
 stop with the land. To say, then, that principles of 
 natural justice, acknowledged to be controlling on land, 
 have no application at sea, seems to us to be in practice 
 an anomaly and in argument a paradox. 
 
 The theory suggested that wars are rendered less fre- 
 quent and shorter by increased severity and injustice 
 is an ancient one that has been long since exploded. It 
 is closely akin to the theory that criminal laws are 
 efficient in proportion to the terror which they are calcu- 
 lated to inspire. In England, at the close of the 18th 
 century, it was by law made a capital offense to steal 
 an article worth three shillings or more, and the law 
 affixed the penalty of death to 160 offenses. On the con- 
 tinent a similar stringency prevailed. The result was 
 that when a man, in an hour of temptation, had com- 
 mitted a small offence, knowing that his life under the 
 law had become forfeited, and that no chance of reforma- 
 tion was left, he grew desperate, became a professional 
 outlaw, gathered evil doers around him, betook himself 
 to the road or the forest, and kept up a war on society 
 in which the principle of immunity of private property 
 was not recognized; and if, in the midst of his later 
 criminal career, one of these robbers was finally caught 
 and executed under the law, he was punished for a thou-
 
 124 Addresses 
 
 sand crimes instead of one. Thus the law defeated its 
 own ends, and multiplied malefactors. The jails were 
 always filled with prisoners ; the hangman was kept busy ; 
 but crime increased, and the courts were powerless in 
 their efforts to vindicate the majesty of the law. 
 
 So it is with cruelty and injustice in the prosecution 
 of war, whether on sea or land ; and these inevitably tend 
 to render wars more frequent and more prolonged. We 
 admit that it has sometimes happened that a conqueror 
 has by indiscriminate pillage and wholesale slaughter 
 made a desert and called it peace ; but that is not the kind 
 of peace that we are seeking to promote. 
 
 At the beginning of every war, there is usually on 
 either side a war party and a peace party ; but every act 
 of arbitrary injustice by either belligerent naturally 
 creates feelings of resentment on the other side that 
 inure to the benefit of the war party, and to the detri- 
 ment of the peace party ; repeated acts of injustice have 
 ultimately the effect to unite the whole population in a 
 sentiment favorable to war; and in proportion to the 
 resentment thus created the hopes of peace languish and 
 expire. 
 
 In periods of intense excitement every man is a hero 
 to himself ; and the time comes when after many wrongs, 
 insults and indignities mere material interests vanish 
 out of sight, when human passion demands revenge; 
 when the individual is ready to say: "You may con- 
 fiscate and steal my property, you may burn my house 
 and devastate my lands, but I will no longer tamely 
 submit to repeated acts of injustice and insolence; and 
 I will stake my life upon the result of my endeavors to 
 make return in kind for the exasperating treatment that 
 I have received." When the war feeling has reached 
 this stage it is not to be easily appeased or to be silenced 
 by soft words; under such conditions even the most 
 reasonable proposals for reconciliation are often rejected
 
 Capture of Private Property at Sea 125 
 
 with scorn and indignation; and thus the war goes on 
 with its sanguinary consequences until exhaustion is 
 reached. 
 
 We have many concrete examples of the fact that 
 injustice and cruelty in war do not lessen the number 
 of wars. In ancient times wars were conducted with 
 much more cruelty and injustice than now ; and yet wars 
 were very much more frequent than they are at present. 
 Coming down to later times, Louis XIV. and his minis- 
 ter Louvois, prosecuted war with savage atrocity. They 
 burned more than a hundred cities and towns in the 
 Low Countries ; they laid waste with fire and sword the 
 rich and populous Palatinate, and left it a smoking 
 wilderness. And yet the reign of Louis was made up 
 of an almost unbroken succession of wars, until at last 
 he had to succumb to a combined opposition cemented 
 by the persistent cruelty with which these wars had been 
 waged. 
 
 Do confiscation and cruelty make wars end the 
 sooner? Let the nation whose generous hospitality we 
 now enjoy return the answer. The war between Spain 
 and the Netherlands was conducted, on the one side 
 at least, with a savage and ferocious inhumanity 
 almost unparalleled: and yet no war in modern times 
 ever lasted so long. 
 
 But it is asserted that if the principle contended for 
 on the other side cannot be justified on moral grounds, 
 it is vindicated by public policy, because the liability to 
 seizure of private property at sea has the effect to com- 
 pel the commercial class to throw their influence on 
 the side of peace, with a tendency to make wars less 
 frequent and less prolonged. 
 
 This argument seems to us to be equally unsound. 
 Wars are not made or unmade in counting rooms, or by 
 boards of trade; and merchants are not organized into 
 a separate class for political purposes. At present there
 
 126 Addresses 
 
 is no commercial nation in the world in the sense that 
 Genoa and Venice were formerly commercial nations, 
 nations nearly destitute of manufacturers and agricul- 
 ture, and depending almost exclusively on commerce for 
 national existence. In their day when all ships were 
 made of wood, a merchant vessel could easily and 
 rapidly be transformed into a man of war, whose owner 
 might enrich himself by capturing the vessels and car- 
 goes of the enemy in a species of warfare differing but 
 little from piracy. At present wars offer no such 
 resources to the mercantile trader or capitalist. How- 
 ever liberal you may make the rules in his favor he must 
 always incline to peace, if, for no other reason, because 
 war with its interruptions of communications, and its 
 blockades of ports, with its withdrawal of large bodies 
 of men from the fields of production of themselves neces- 
 sarily paralyze commerce ; and so the merchants are the 
 last people in the world to encourage the war spirit. 
 If the case were otherwise, the commercial class having 
 interests at sea, though a large and important one, is 
 completely outweighed by the manufacturing, agricul- 
 tural, laboring, mining, political and other classes, so 
 that it is reasonably certain that merchants will never 
 be important factors in promoting feelings that result 
 in war. By the very nature of their calling merchants 
 are the firmest allies of peace. They do not need to 
 be deterred from war, because in their case war means 
 for them only loss and ruin. And yet the rule now in 
 force punishes the very class that constitutionally favors 
 peace and not war. Among the many benefits conferred 
 on mankind by commerce, one of the most important is 
 that it tends to bind the nations together in the bonds of 
 a common interest and friendship, thus preventing fre- 
 quent and unnecessary wars. To accuse merchants of 
 being stirrers up of strife and promoting war, is as unjust 
 as the principle in whose interest this unfounded charge
 
 Capture of Private Property at Sea 127 
 
 is made. To open robbery it adds the iniquity of 
 duplicity and false pretence, thus justifying the argu- 
 ment of the wolf as set forth in the fable of ' ' The Wolf 
 and the Lamb." 
 
 When war was imminent between the United States 
 and Great Britain in 1809, and a preliminary embargo 
 on commerce was laid by Congress, merchants having 
 interests at sea almost as one man organized in favor 
 of peace and denounced all warlike preparations with 
 the utmost vehemence and energy. Nevertheless the 
 war came on, and was fought to a finish; not at the 
 instigation of merchants but against their united 
 remonstrance. 
 
 If it were true that merchants are inclined to favor 
 war rather than peace, we cannot understand how this 
 fact can justify the confiscation of the property of the 
 private owner who is in no wise responsible for the 
 opinions or conduct of the merchant who carries his 
 goods, and whom he probably never saw, any more than 
 we can understand why the merchant should be 
 denounced for sentiments that he never entertained. 
 
 But if good policy and an exalted sense of duty require 
 the support of this predatory system at sea for the 
 coercion of maritime merchants, it would seem that the 
 same preventive rule should be applied to persons dealing 
 with merchants on land, so that all merchants should 
 alike be driven into the orthodox fold, not of peace 
 lovers only, but of furious and fanatical lovers of peace 
 who may be willing to take up arms and fight for peace 
 as against their own countrymen. An international 
 millenium does not seem to us to lie in the direction of a 
 doctrine that in self justification stops far short of any 
 logical conclusion. 
 
 Even if we should admit that we are wrong in these 
 views, we should still be of the opinion that -the position 
 occupied by our friends on the other side is liable to the
 
 128 Addresses 
 
 most serious criticism. We are not here to advocate the 
 practice of privateering; but privateering is certainly 
 an effective means of defense in the hands of a weak 
 power as against a stronger one. In the war between 
 England and America in 1812 the commerce of England 
 sustained greater loss from American privateers than it 
 ever suffered in any war before or since. During our 
 Civil War the Confederacy had no navy ; and yet, as we 
 have been told by His Excellency Mr. Choate, the armed 
 cruisers of Semmes and his coadjutors swept the entire 
 American commerce from the seas. Nothing strikes such 
 terror to the merchant marine as the knowledge that a 
 Sir Francis Drake, a Paul Jones or an Admiral Semmes 
 is cruising in the open seas or is lurking in the byways 
 and inlets. By the Treaty of Paris privateering was 
 abolished; and our opponents justify that action as 
 humane and just : but if the object which they say they 
 wish to obtain is to intimidate the commercial class and 
 to disincline them from war, why abandon the efficient 
 means of privateering in favor of a pitiable and ineffi- 
 cient policy which allows the seizure here and there of 
 a ship or a bale of merchandise belonging to an innocent 
 non-belligerent for which neither the army nor navy 
 has the slightest use, and which, if made useful at all to 
 the captor, is only worth the price that it will bring at 
 a remnant sale? Why throw away a most effective 
 weapon in favor of another which is comparatively 
 powerless and unavailing? In principle the policy con- 
 tended for involves the same incongruity that I have 
 heretofore indicated. It abolishes privateering, but 
 establishes and consecrates the principle of capture of 
 private property at sea, the very principle on which 
 privateering is based, and that for which it is condemned 
 by our adversaries in the present discussion. It would 
 seem to require no argument to show that what is injus- 
 tice on land must be injustice at sea, or that if the
 
 Capture of Private Property at Sea 129 
 
 seizure of private property by privateers regularly com- 
 missioned by the government is wrong in principle and 
 deleterious in practice, it must be equally wrong and 
 injurious if the act is done through the agency of a 
 regularly equipped and commissioned man of war. The 
 immorality of the act does not depend on the agent, but 
 on the quality of the act itself. 
 
 The principle for which we contend is not an especially 
 American doctrine. It is the doctrine of humanity at 
 large ; one that has received, and still receives, the warm- 
 est support of European communities, jurists and states- 
 men ; and we are now only advocating the doctrine that 
 these have previously and more forcibly asserted. 
 
 In a very able and thoughtful editorial article in the 
 London "Tribune" of July 1st, the editor reviews the 
 admirable discourse made by His Excellency Mr. Choate 
 in this Chamber, characterizes the opposition to the prin- 
 ciple for which we contend as ' ' bordering on the absurd, ' ' 
 and asserts that : 
 
 "If it were accepted and applied logically the 
 Conference would in fact be engaged, not in extend- 
 ing but in demolishing the existing rules of 
 warfare." 
 
 To this I may add, that it would also be endorsing a 
 principle that would destroy much of the good that it 
 has previously accomplished. 
 
 We are not surprised that our contention should meet 
 with strenuous opposition, or that we should be told that 
 it cannot be considered until various other knotty ques- 
 tions are discussed and settled; that the question now 
 under discussion is not yet ripe; that it should be put 
 off for a more convenient season ; and that it is impera- 
 tive that the law of contraband, in particular, must first 
 be amply discussed, before taking up anything else, 
 though the proposition that we endeavor to support has
 
 130 Addresses 
 
 no connection with the law of contraband since it only 
 applies to property not contraband by any rules now 
 existing or that may hereafter be in force. 
 
 Nor are we cast down or discouraged by any considera- 
 tions that plead for delay. All great reforms have met 
 with opposition not only from the ignorant and the per- 
 verse, but also from men that were wise and good. In 
 the present instance the solemn and striking fact remains 
 that the principle that formerly justified wanton and 
 indiscriminate pillage on land, condemned alike by 
 humanity and by common honesty, has, like the Gadarine 
 swine, been driven out to sea, where "they aint no ten 
 commandments," and where they have intrenched them- 
 selves, and have found a sanctuary. 
 
 We hear now for the first time that the rule that 
 forbids pillage on land was not founded mainly on 
 humanitarian views, but was adopted for the purpose of 
 preventing demoralization among the soldiery. We are 
 aware that cynics have asserted that our best actions 
 have their origin in selfish motives ; but we are not willing 
 to accept a theory so revolting ; one that deprives virtue 
 of every ennobling element and denies to it what is 
 often its last and only reward, the consciousness of good 
 deeds honestly performed. 
 
 H. Exc. Sir Edward Fry, first delegate of Great 
 Britain expressed himself as follows: 
 
 I ask to be heard on only one of the subjects under 
 discussion. The American delegate whom we have heard 
 with so much interest, has said much about the cruelty 
 attending the exercise of the right of capture of private 
 property. This in my judgment is an error. It is true 
 that in all the methods of war there is something barbar- 
 ous, but in all of them there is none so humane as the 
 exercise of this right. Consider, I beg of you these two 
 cases : on the one hand the capture of a merchant vessel
 
 Capture of Private Property at Sea 131 
 
 at sea, and, on the other, the operations of an armed 
 enemy on land. In the one case we see a superior force 
 against which no resistance can be made ; no one is killed, 
 no one is even wounded ; the proceeding is wholly pacific. 
 But what do we see in the other instance? we see the 
 country desolated, cattle destroyed, houses burned, 
 women and children fleeing before hostile soldiers, and 
 probably other horrors concerning which I prefer to be 
 silent. To complain then of the capture of merchant 
 vessels at sea and at the same time to permit war on land 
 is to decide in favor of the greater of two evils. 
 
 H. Exc. Eigo Rangabe, first delegate from Greece, 
 said: 
 
 Seeing that according to the exchange of views that we 
 have just heard concerning the American proposition as 
 to the inviolability of private property in maritime 
 warfare will not receive a final solution during the pres- 
 ent conference, the Greek delegation, wishing to indicate 
 the point of view which the Royal Government is dis- 
 posed to take with regard to an ultimate settlement of 
 the question, merely desire to say that they approve of 
 the opinions expressed by H. Exc. M. de Beaufort in the 
 name of the delegation from the Netherlands at the 
 beginning of this sitting. 
 
 H. Exc. M. A. Beernaert, first delegate from Belgium, 
 remarked that the many and interesting opinions 
 expressed demand a response ; but, owing to his fatigue, 
 he will ask, not an adjournment of the discussion, but 
 permission at some later time to hear certain remarks 
 which he desires to make if this discussion is to be 
 continued. 
 
 H. Exc. M. Leon Bourgois, first French delegate said : 
 
 The question now under discussion is one of the most 
 important that has been presented to the conference. 
 At its first sitting we heard theses of an absolute char- 
 acter ; and we have heard to-day what I may call relative
 
 132 Addresses 
 
 theses; but we must also remember that the question of 
 immunity of private property at sea depends on other 
 questions relating to blockade of belligerent ports and 
 the seizure of contraband of war. It has been made to 
 appear from the different views presented that it is 
 possible along these lines of thought to render mari- 
 time war more humane; but does it not seem that this 
 question demands an additional session? (General 
 assent.) 
 
 On motion of the President the continuation of the 
 discussion is fixed for Wednesday, July 10, at 10 :30 a. m. 
 
 The sitting closed at 5 o'clock, p. m.
 
 ABRAHAM LINCOLN 
 
 Address on the One Hundredth Anniversary of President 
 Lincoln's Birth, Delivered in New York City.
 
 ABRAHAM LINCOLN 
 
 This day just one hundred years ago, Abraham Lin- 
 coln, only son of Thomas and Nancy Hanks Lincoln, 
 was born in Harden County, Kentucky, in the darkest 
 and most cheerless season of the year ; the very keystone 
 of the winter solstice, amid surroundings dreary and 
 depressing in the extreme. At that time Kentucky, one 
 of the newest of the States, having been admitted into 
 the Union in 1792, was very thinly settled by hardy 
 pioneers from States east of the Allegheny Mountains; 
 most of them being natives of Virginia, to which State 
 the Territory of Kentucky had formerly belonged. 
 Hardin County, in the central part of Kentucky, where 
 Mr. Lincoln was born, was then practically further from 
 New York and Philadelphia than St. Petersburg is now. 
 A journey thither from the country east of the Alle- 
 gheny Mountains occupied many days, was attended 
 by incessant discomforts, and was exposed to perils of 
 many kinds. 
 
 The grandfather of Abraham Lincoln, after whom he 
 was named, emigrated from Virginia to Kentucky in 
 1782, and made himself a home near the site of the 
 present city of Louisville. Some years later he was shot 
 by an Indian from ambush and was killed. One of his 
 surviving sons was Thomas Lincoln, who grew up and 
 lived until his death in the year 1850 without ever hav- 
 ing learned to read or to write. He was the father of 
 Abraham Lincoln, who afterwards became President of 
 the United States. 
 
 There must be many persons in the world not unlike 
 Thomas Lincoln, whose life is a long record of continu- 
 ous failure ; though for obvious reasons, their names can 
 
 135
 
 136 Addresses 
 
 rarely find a place in history. He remains one of the 
 most conspicuous of those who drift through life with- 
 out aim or purpose, having apparently no grasp on the 
 practical affairs of life, destitute of ideals of every kind, 
 disinclined to exertion, incapable of ambition, accom- 
 plishing nothing very good or very bad. He was one of 
 the most shiftless and inert of all those whose names 
 have been in any manner preserved, extremely nomadic, 
 never staying long in one place, always mildly discon- 
 tented, always drifting hither and thither as if by some 
 blind impulse or uncontrollable instinct. Wherever he 
 made a temporary stop, he erected a rude "camp" or 
 hut, or cabin, made of logs, with but scant regard either 
 for looks or for comfort, just as an Arab would pitch 
 his tent wherever he meant to pass the night. He was 
 an experienced and successful hunter; and the chase 
 was about his only means of obtaining a livelihood for 
 himself and his family. 
 
 When a young man Thomas Lincoln, no doubt on the 
 urgent advice of his family, resolved to learn the car- 
 penter's trade; and so one day he entered the shop of 
 Joseph Hanks at Elizabethtown, then an insignificant 
 hamlet in Hardin County, Kentucky, for that purpose. 
 
 Among other claims to respect and attention, Joseph 
 Hanks had a niece named Nancy Hanks, living across 
 the line in Washington County; a young woman of 
 twenty-three, frail in appearance, but pretty, as 
 described by those who knew her when she was blooming 
 in her brief spring of life more than a hundred years 
 ago. Sometimes this young woman, who was a penniless 
 orphan, living with her relations, and dependent on them 
 for support, visited her uncle and his family at Eliza- 
 bethtown; and there she met Thomas Lincoln. The 
 couple found favor in each other's eyes; and so they 
 were married with much rustic parade and ceremony, 
 amid great rejoicing and amid meagre prospects, at the
 
 Abraham Lincoln 137 
 
 house of the bride, all in the summer weather, on the 
 12th day of June, 1806. 
 
 One of the contemporaries of the bride says: 
 
 "Her hair was dark, her eyes were gray, her fore- 
 head was high, and her demeanor was reserved and sad. 
 However, in that primitive region, where there were 
 scarcely any schools even for the better order of people, 
 she had picked up considerable education. She was intel- 
 lectual in her ambition and tendencies, and she had an 
 excellent memory, good judgment, and a fine sense of 
 propriety. Her nature seems to have been conserva- 
 tive rather than aggressive. Although her ambition 
 was above her surroundings and apparent destiny, she 
 seemed to have considered her humble lot and condition 
 in life to be inevitable, and to have made no radical 
 effort to change it, resting content in faithfully per- 
 forming her wifely and motherly duties." 
 
 There is no reason to suppose that Thomas Lincoln 
 was willingly unkind to the wife who had entrusted her 
 destiny to his keeping. So far as known he was good 
 natured, popular with his neighbors, sociable and some- 
 what jocular in temperament, given to telling anecdotes 
 after the fashion of his illustrious son, his real and 
 supreme fault being that he was careless to the very last 
 degree, incapable of taking any more thought of to- 
 morrow than if it were an authenticated fact that to-mor- 
 row would never come. 
 
 The newly married pair went to housekeeping in a log 
 cabin fourteen feet square, at Elizabethtown ; and there 
 in the following year a daughter was born to whom they 
 gave the name of Sarah, destined to be the playmate and 
 the companion of the future President for years; one 
 that he loved and whose memory he cherished to his 
 latest hour with extreme devotion. 
 
 Thomas Lincoln soon afterwards bought a small piece 
 of ground, partly cleared, within three miles of another
 
 138 Addresses 
 
 hamlet in Hardin County, called Hodgensville, on which 
 plot was situated another log cabin quite as small and 
 uncomfortable as that which he had just abandoned. 
 The land thus purchased was so thin, poor, stony and 
 barren that it was hardly susceptible of cultivation ; but 
 little better than waste land at best. 
 
 The situation could hardly have been more depressing. 
 The cabin was but little more than a shanty, built of 
 unhewn logs, a mere wart on the bleak hillside, in the 
 midst of a small clearing with scattered stumps of trees, 
 where but lately the primeval forest had stood in its 
 proud array. It contained at that time only a small 
 square unglazed window, a door, across which a deer 
 skin was hung in order to keep out the wind and the 
 rain, which descended pretty freely down an enormous 
 outside chimney, built of sticks and mud, hugely dis- 
 proportioned in size to the slouching and ungainly 
 structure against which it leaned for support. This 
 chimney, which seemed to be reeling on its foundation, 
 only reached about half way from the ground to the 
 ridge of the roof. The interior of the building corre- 
 sponded very well with the exterior. The floor was fire- 
 proof, being made of nothing more combustible than 
 our mother earth. The furniture was of the rudest and 
 simplest kind, even when judged by the fashions of the 
 time and place. The bed was made of poles inserted 
 in the cracks between the logs in one corner of the 
 cabin coverging on a forked branch of a tree, the lower 
 end of which was firmly set in the solid ground. The 
 mattress was made of coarse cloth, filled with dry leaves, 
 or husks of Indian corn. The bed covers were mostly 
 skins of animals, domestic or wild. The table was con- 
 structed of a half section of a huge log of wood, split 
 open in the middle, set on four stout legs, with the flat 
 side turned upward. There was a bench with two or 
 three stools, all made in the same manner, and without
 
 Abraham Lincoln 139 
 
 backs. We may suppose that at that inclement season 
 a cold rain may have been falling, or that the earth 
 was wrapped in a mantle of snow. Certainly the cabin 
 afforded but little protection against the wind that fre- 
 quently howled along the desolate hillside, passing in 
 and out through the spaces between the logs, and between 
 the rough and clattering boards on the roof, as freely 
 as it would have done through a picket fence. The 
 gaping fireplace in which at this season huge logs were 
 piled, served equally for the admission of light, for 
 cooking, and for household warmth. The culinary 
 utensils consisted of a few kettles and pans, with some 
 pewter plates, and a few knives and forks, all of the 
 cheapest description. 
 
 Such was the humble abode of stern and undisguised 
 poverty, where luxury would never lull idleness to 
 sleep, where freaks of fashion would find no stage of 
 action, and pride could collect no trophies. Compared 
 with this habitation, the tents of the Indians who had 
 lately roamed through the country were in a high degree 
 picturesque and comfortable. Knowing the habits of 
 Thomas Lincoln as we do, it is safe to conjecture that 
 on the day of which this is the anniversary there was 
 not food enough in the house to last three days. It is 
 hard for us who live in happier times to have a con- 
 ception of an isolated cabin in the wilderness, so lonely, 
 so unadorned, so comfortless, where no postman ever 
 called, where no newspaper or periodical was ever seen, 
 where a random letter caused such apprehension of ill 
 tidings, and formed an epoch from which dates were 
 counted; a spot contrasted with which the "lonely 
 moated grange" of Mariana was a palace of delight, a 
 scene of gayety and revelry. 
 
 The unfathomable mystery and marvel of the birth of 
 a child in this cheerless and solitary hut, and amid such 
 sordid conditions, was not a thing to invite much atten-
 
 140 Addresses 
 
 tion. There was no blowing of trumpets, no beating of 
 drums, or thundering of cannon, no singing of anthems, 
 or burning of incense ; not a flower was blooming on the 
 barren waste, not a bird was chirping in the leafless trees. 
 In the widespread barrenness and universal desolation of 
 the winter scene, this birth had about it something of 
 the sadness and solemnity which we usually associate 
 with the idea of death. The very beginning of life 
 seamed almost a tragedy. 
 
 The ordinary observer might plausibly have drawn a 
 horoscope of the newly arrived stranger within certain 
 limits with great facility. Amid the privations and 
 exposure of the rude and wild frontier the child would 
 hardly attain to manhood, or if he did, lacking both 
 training and education, his would be the common lot, or 
 even something worse; and so he would eventually die, 
 "unwept, unhonored and unsung." Such was the rea- 
 sonable inference; but in the providence of God it was 
 to be otherwise. 
 
 From the wretched cabin on the hillside, open to the 
 wind and the rain to the palatial mansion where the 
 nation honors its chief magistrate, the journey is long 
 and uncertain. Many men of high talents and of 
 resplendent attainments have essayed it in vain, though 
 in some instances a large following and great enthusi- 
 asm seemed to guarantee success. The barefoot boy, 
 destitute alike of family influence, of wealth, of power- 
 ful friends, without that grace of personal appearance 
 that conciliates favor at first sight, without education, 
 would have seemed to be cut off from all dreams of com- 
 petition for such a shining prize. 
 
 In 1816 Thomas Lincoln removed to Indiana. He 
 and his wife traveled on foot while the two children, 
 aged respectively seven and nine, with various articles 
 of personal property, were transported on two borrowed 
 horses.
 
 Abraham Lincoln 141 
 
 With characteristic want of foresight, Thomas Lincoln 
 had put off his flight until late in the autumn, when the 
 weather was cold ; and, as all the family were but poorly 
 clad, and indeed were in rags, the discomforts of the 
 journey can hardly be imagined in these days of rail- 
 ways and auto-cars. 
 
 Without domestic animals of any kind, and without 
 any assistance except from members of his family, 
 Thomas Lincoln began life again on what was known as 
 Pigeon Creek, by building what was called a "camp"; a 
 hut made of poles pinned to trees with wooden pegs, the 
 whole forming a small half-house with one side wholly 
 open, so as to front a huge fire of logs, to be used alike 
 for cooking and for comfort. In this uninviting hovel, 
 exposed to all the vicissitudes of the weather, the family 
 remained an entire year. On the arrival of spring, they 
 all went out to clear a plot of ground for a farm. The 
 father cut down the trees, and the mother chopped off 
 the smaller branches, while the children helped to drag 
 the brush into piles for the purpose of burning them. 
 Among the four there was not a single pair of shoes. 
 When at last a cabin was built it was constructed on a 
 plan no better and no worse than the one they had last 
 occupied before removing to their new abode, with the 
 exception of one addition, made afterwards, consisting 
 of a loft, which might be reached by a perpendicular row 
 of pegs driven into the wall, up which the future Presi- 
 dent used to climb in evenings, in order to sleep in a 
 bed made of loose dry leaves. 
 
 And now comes the saddest part of the strange history. 
 The land that had been thus selected was quite as barren 
 as that which Thomas Lincoln had left in Kentucky. 
 The cabin has vanished long ago, and the land remains 
 uncultivated to this day ; though the country has become 
 thickly settled. To make matters worse, that district of 
 country was extremely sickly, the population being sub-
 
 142 Addresses 
 
 ject to a very mysterious and dangerous malady known 
 as the milk sickness, which attacked cattle and human 
 beings alike. Soon after Thomas Lincoln and wife 
 arrived at Pigeon Creek, they were followed by an 
 uncle and an aunt of hers from Kentucky. In less than 
 two years from the first settlement of Thomas Lincoln 
 in this fatal spot, his wife and her uncle and aunt all 
 died of this dreadful disease. 
 
 Nothing can better illustrate the loneliness and soli- 
 tude of this lodge in the wilderness than what then hap- 
 pened. Thomas Lincoln with the aid of a neighbor and 
 a whip-saw, constructed coffins for the dead out of the 
 trees of the forest ; much coarser receptacles ' ' than those 
 in which fruit trees are transported by nurserymen at 
 this day," and in those the dead were buried, "without 
 ceremony, unanointed and unaneled." 
 
 Sad and mournful must have been the parting of the 
 mother from her children amid the desolate and heart 
 breaking scenes that surrounded her dying bed. Other 
 women have lived lives of disappointment, suffering and 
 sorrow ; but few are the figures that reappear out of the 
 dark and sombre past more affecting or pathetic than 
 that of the mother of Abraham Lincoln. 
 
 When Abraham Lincoln had attained to sufficient dis- 
 tinction in later years to attract attention, he had been 
 burdened with another great sorrow. His sister, almost 
 his only playmate for years in the lowly habitations 
 where he had grown up, and who, at the age of eighteen 
 had married one Aaron Grigsby, had died in childbirth, 
 a year later. Remembering those sorrows, intensified by 
 loneliness and solitude, we cannot be surprised that 
 always afterwards Mr. Lincoln's countenance, when in 
 repose, wore an expression of pain and sadness. 
 
 When the uncle and aunt of Mr. Lincoln died, they 
 left a son named Dennis Hanks, about the age of young 
 Lincoln ; and he at once became a member of the Lincoln
 
 Abraham Lincoln 143 
 
 family; now in a sad condition of bereavement. It can 
 hardly be supposed that Thomas Lincoln would be a 
 very popular candidate for a second matrimonial alli- 
 ance; but he bethought himself of an expedient. In his 
 youth he had had a love affair at Elizabethtown with 
 Miss Sallie Bush, who had, however, married one John- 
 ston, who had afterwards died, leaving three children, 
 the oldest, John Johnston, being nearly of the same age 
 as Abraham Lincoln, the two younger being girls. 
 
 Having waited the conventional period of one year, 
 Thomas Lincoln turned up at his old home in Elizabeth- 
 town one afternoon. The next day he was duly married 
 to the lady of his former love. The bride, being pos- 
 sessed of various articles of useful household furniture 
 which she wished to transfer to her new home on Pigeon 
 Creek, Thomas Lincoln borrowed a wagon and four 
 horses from a brother-in-law, loaded it up with these 
 impedimenta, and with his wife and three children, 
 they made their way in grand style to the cabin and the 
 small clearing in Indiana. 
 
 The new wife turned out to be just the thing most 
 needed in that forlorn retreat. She was endowed with 
 a remarkable share of energy, discretion and practical 
 sense. Out of her two feminine eyes she saw the world 
 in about the proper light ; and best of all, her motherly 
 heart was over flowing with genuine love and kindness. 
 Taking all the children into her affection, she never 
 afterwards showed the least difference in her conduct 
 towards them, but sympathized with them all alike in 
 their joys and their sorrows. Her beneficial influence 
 was at once felt in the improvement of the surroundings ; 
 though, of course, Thomas Lincoln could no more change 
 his character than a leopard can change his spots. No 
 mother could be more beloved than she was by her step- 
 son, who was equally beloved and cherished by her. She 
 lived to see him President of the United States; a thing
 
 144 Addresses 
 
 that no human being a few years before could ever have 
 dreamed of. 
 
 No sooner had the second Mrs. Lincoln been installed 
 in the uninviting cabin on Pigeon Creek than she made 
 her presence felt in many visible ameliorations and 
 improvements. A "shutter" was soon found on the 
 doorway where lately the deer skin had hung; and in 
 many ways she proceeded to improve the bare and bleak 
 surroundings. A warm mutual attachment speedily grew 
 up between her and all the children not of her own 
 family. Long after young Abe had grown up, and had 
 gone away, she used to say of him, "He was the best 
 boy that I ever saw, or ever expect to see. ' ' Mr. Lincoln 
 always spoke of her in tones of the most affectionate love 
 and gratitude. 
 
 There is something so singular, romantic and inter- 
 esting in the life of Mr. Lincoln that there have already 
 been printed about 900 copyrighted biographies devoted 
 to that subject ; a fact perhaps unparalleled in literature. 
 
 I think that I may safely infer that you are all fam- 
 iliar at least with the main outlines of his life; and 
 hence I will pass on without further delay to the con- 
 sideration of the other matters which I trust may 
 probably be less familiar, though probably not more 
 instructive. 
 
 Mr. Thomas Lincoln, the father of Abraham Lincoln, 
 was emphatically ' ' a man of one book ' ' ; but not a man 
 to be dreaded in any controversy on that account; for 
 he could not read a word of it. That book was the 
 accepted English version of the Bible. No doubt his 
 son was taught his letters by his mother when he was 
 still in his infancy, after which he went to country 
 schools in the woods in a desultory and interrupted way 
 for less than a year in all. In the meantime he got hold 
 of another book written in biblical style, Bunyan's 
 Pilgrim's Progress ; and certainly if he could have hunted
 
 Abraham Lincoln 145 
 
 through the whole range of literature he could not have 
 found better models of English composition for imitation 
 than these deep wells of English, pure and undefiled. 
 It may be doubted whether the boy was not better off 
 with these two books than he would have been with 
 the thousands of picture books and fairy tales with which 
 childhood is now barricaded. 
 
 Perhaps these two books had much to do in forming 
 the written and spoken style which Mr. Lincoln after- 
 wards developed; a style so clear and limpid as to be 
 utterly transparent; a style simple, idiomatic, personal, 
 compact, terse, picturesque and urgent in the highest 
 degree, often epigrammatic and eminently suggestive; 
 hardly inferior to that of any writer or speaker of his 
 day. When President he had in his cabinet men of the 
 highest literary education and training, Seward, Chase, 
 Stanton and Bates, eloquent and forcible writers and 
 speakers ; and yet neither of them, nor all of them collec- 
 tively, could have written the Gettysburg address, or 
 either of the inaugural addresses of Mr. Lincoln any 
 more than they could have written "Paradise Lost." 
 The questions which Mr. Lincoln discussed have already 
 turned the corner that leads to oblivion ; and yet his 
 speeches and his papers are still read with the deepest 
 interest on account of the clearness and lucidity of the 
 medium in which his thoughts are conveyed. 
 
 Mr. Lincoln's intellectual development was not rapid. 
 He was a constant reader and a laborious student who 
 gave much time to the study of the law, and of the 
 history of his country. Reading slowly, he assimilated 
 what he read, and would never leave a subject until he 
 had mastered it. In literature his favorite author after 
 arriving at manhood was Shakespeare, in whose display 
 of titanic and elementary passions, and in whose varied 
 and wonderful creations he found perpetual food for 
 thought.
 
 146 Addresses 
 
 It may be regarded as strange that though Lincoln 
 grew up to be a tall, strong and active boy, and though 
 the country was full of game, he never engaged in the 
 sport of hunting, though such was the regular vocation 
 of his father. The explanation may lie in the fact 
 that he was kept pretty constantly at work ; a conclusion 
 that may be inferred from the circumstance that after 
 the removal of the family to Illinois, his father some- 
 times hired him out to labor for others at the rate of 
 twenty-five cents per day. The probability would seem 
 to be that the youth spent most of what little spare 
 time he had in reading and studying. 
 
 There is another fact more singular, and which even 
 the moral training of his excellent step-mother cannot 
 wholly account for. Lincoln in his youth and early 
 manhood was constantly associated with young men of 
 his own age having the rude manners and habits of the 
 frontier, habitually given to drinking, gambling and 
 horse racing; and who were sometimes violent and law- 
 less; and yet he never contracted any of these con- 
 tagious vices. Near the close of his career he said that 
 he had never taken a drink of spirits in his life, or used 
 tobacco in any form. 
 
 Though the intellectual development of Mr. Lincoln 
 was surprising, his character, which was of Doric sim- 
 plicity, displayed a remarkable uniformity through life. 
 Often the case is far otherwise. Nero, we are told, wept 
 when called on to sign his first death warrant. The 
 latter part of the life of the Emperor Augustus was so 
 much better than the first part, that when he died it 
 was commonly said that it would have been happy for 
 the Roman people if he had never been born, or if he 
 had lived forever. 
 
 No such changes were visible in Mr. Lincoln. Whether 
 in a hovel or in a palace, in a court room, or in Congress, 
 the essential traits of his character remained unchanged
 
 Abraham Lincoln 147 
 
 through all the vicissitudes of a most eventful life. At 
 first he seemed destined to drift about without aim or 
 purpose, much as his father had done; hiring himself 
 out to clear land, to split rails, to work in the fields, in 
 short, to do anything that could be expected from a robust 
 young man of scant education. Among other things he 
 hired himself as a man of all work on a flat boat loaded 
 with merchandise for New Orleans, then the largest 
 city in the United States, for the compensation of eight 
 dollars a month. Then he turned up as captain of vol- 
 unteers in the Black Hawk War, where he first met 
 Jefferson Davis, Zachary Taylor and Robert Anderson; 
 the latter one day to command Fort Sumter in Charles- 
 ton Harbor; none of them foreseeing the great things 
 that were to happen in their time, and in which they 
 were to play leading parts. 
 
 Of all the great men that have ever lived Mr. Lincoln 
 was undoubtedly one of the most intensely human and 
 one of the most original. The thread of his life is one 
 that can never be taken up by any one hereafter, and 
 probably no one will ever undertake to imitate a char- 
 acter so much out of the common run. The only way 
 to imitate him would be to be original; and that would 
 be not to imitate him at all. 
 
 In order to understand the career and the mission of 
 Mr. Lincoln, it is absolutely necessary to understand the 
 political principles on which his action was founded ; for 
 he was undoubtedly a man of principles, and not a man 
 of expedients. You may read all his writings and 
 speeches through without finding a trace of the spurious 
 and insincere appeals to passion and prejudice that give 
 color to the effusions of the cheap demagogue of modern 
 times. 
 
 Mr. Lincoln in his speeches frequently referred to the 
 Declaration of Independence, with expressions of admira- 
 tion for the principles embodied in that instrument.
 
 148 Addresses 
 
 In the long disputes concerning slavery, one class of 
 the disputants referred to the Constitution of the United 
 States, which expressly recognized slavery, while the 
 other always referred to the Declaration of Independence, 
 which declared that all men are born free. Thus the dis- 
 putanta had a double standard, and the two standards 
 did not agree, though generally admitted to be of equal 
 value. 
 
 At the time of the adoption of the Declaration of 
 Independence, Washington, Jefferson, Madison, Pendle- 
 ton, and all the leaders of public opinion in Virginia 
 were opposed to slavery, and believed that it must 
 come to an end at no distant day. Mr. Clay was later 
 of the same opinion. In writing the Declaration, Jeffer- 
 son felt that, standing, as it were, on a mountain top, 
 he was addressing not only the world at large, but also 
 all future generations to the very end of time. He found 
 here a priceless opportunity to proclaim a complete code 
 of human liberty in a few words, suited to all ages and 
 to every clime, the equality of all men before the law, 
 and the inalienable right of the people to change their 
 forms of government. Regarding slavery as only a 
 temporary evil, he simply ignored it. At that time 
 slavery still existed in twelve out of thirteen of the 
 colonies. The question as to emancipation had not as 
 yet assumed a sectional aspect. Morally the institution 
 was looked on favorably by the great majority of the 
 people. Many thought that the slaves were better off 
 in a state of servitude than they were among the can- 
 nibal tribes in Africa, where every man was the slave 
 of some chief, and the victim of many cruel supersti- 
 tions. Besides, the condition of the working classes at 
 that time in the Old World was but little better than 
 African slavery; and in many cases it was even worse, 
 since famine and starvation were added to the wretched- 
 ness of the lower classes.
 
 Abraham Lincoln 149 
 
 As to the Declaration of Independence at the time of 
 the Lincoln and Douglas debates, many and diverse 
 opinions had been expressed. Very commonly it was 
 said that the general principles announced in the Declara- 
 tion were mere abstractions ; this by persons who did not 
 consider that the abstract and the concrete walk through 
 this world hand in hand. 
 
 During the decline of the Roman Empire, a church 
 council was held in Home to ascertain and to declare 
 authoritatively the nature of Christ. So intently did its 
 members engage in the discussion that they did not 
 hear the barbarians thundering at the gates of the city. 
 It was finally agreed that the personality of Christ con- 
 sisted of two natures, one divine and the other human. 
 
 Secularly speaking this was the merest abstraction that 
 could be imagined; and yet it changed the whole cur- 
 rent of history for more than a thousand years. The 
 decree may have established the divinity of the church ; 
 but it said nothing about the divinity of kings; never- 
 theless it was seized on to support the assertion that 
 kings are divinely appointed by miraculous selection; 
 that they are divinely directed in every act; that they 
 can do no wrong; that however seemingly wrong a 
 king's actions may be, the only duty of his subjects 
 consists in passive and implicit obedience, under penalty 
 of temporal and eternal punishment; that if royal rule 
 is tyrannical, it is only because God means for some 
 wise and benevolent purpose to chastise his wicked and 
 rebellious sinners by means of his vice-regent on earth. 
 
 Such was the doctrine that was almost universally 
 taught and believed throughout continental Europe, and 
 in England until the revolt in the reign of Charles I., 
 and which largely survived that stormy period. 
 
 We may judge of the profound hold that the doctrine 
 of the divine right of kings and the duty of passive 
 obedience acquired over the minds of men by two singu-
 
 150 Addresses 
 
 lar incidents. As late as the eighteenth century the 
 'Scotch, though puritans of the most advanced type, 
 whose resentment against the Roman Catholic Church 
 was so inveterate and intense that the term Anti- 
 Christ was the mildest name they had for the Pope; 
 yet when the Roman Catholic Pretenders invaded Scot- 
 land in 1745, they enlisted under their banner because 
 they did not dare to refuse the call of the Lord's 
 anointed. 
 
 When this dark cloud of king worship settled over 
 Europe, all real progress was at an end, and a general 
 and stupefying stagnation ensued that lasted for cen- 
 turies, during which nothing was invented and no book 
 of any value was written. The king, taught from the 
 cradle that he could do no wrong, had small induce- 
 ment to do right. Looking on common men as inferior 
 beings, he saw them slaughtered in battle without pity 
 or compunction, and usually made his life a succession 
 of acts of tyranny and crime; hence wars were almost 
 incessant, public morals were corrupted, and the world 
 sank deeper and deeper into ignorance and gloom. 
 Royal villainy, so to speak, had become canonized; the 
 vice-gerent of God on earth set the worst example pos- 
 sible to the rest of mankind. 
 
 It was against these inveterate and desperate evils 
 that the Declaration of Independence was directed. In 
 the eyes of Mr. Lincoln, that fulmination was neither 
 an abstraction nor "a string of glittering generalities," 
 as had been frequently asserted. It was a new evangel, 
 intended not only for the emancipation of America from 
 the tyranny of George III., but for the emancipation 
 of the human race from every form of tyranny; and it 
 was in that sense that it was understood by Mr. Lincoln 
 when he paraphrased and condensed it by speaking of 
 a government of the people, by the people and for the 
 people, just as the French had paraphrased it three-
 
 Abraham Lincoln 151 
 
 quarters of a century earlier in their watchword, "Lib- 
 erty, Equality, Fraternity." In every instance the 
 meaning was the same. 
 
 Considering the situation of the world in 1776, the 
 words in the Declaration of Independence were of the 
 weightiest that ever fell from uninspired lips. They 
 summed up in a few words the principles announced in 
 the Magna Charta, and in the various English petitions 
 and bills of rights, with much more besides. We can 
 see this much more clearly than Mr. Lincoln could in 
 his day. The charters under which the colonies were 
 organized accustomed the American colonists to govern- 
 ment defined in written instruments, thus leading to 
 written constitutions based on the will of the people, 
 guarantying the rights of the people. In the rest of the 
 world, save in England, there were no written consti- 
 tutional guaranties. 
 
 We can now judge of the awakening influence of the 
 words of Jefferson when we note that every nation in 
 Europe now has a written constitution, including such 
 backward nations as Russia and Turkey, and that Japan 
 and Persia have joined in the general advance, while 
 China and Siam are momentarily expected to fall into 
 line, so that we can now foresee the complete decline 
 and fall of organic tyranny the world over. 
 
 Jefferson and Clay did not agree entirely on the con- 
 struction of the Constitution ; but on the slavery question 
 they were in perfect accord. They both believed that 
 slavery was a curse to the south, in so much as it kept 
 out immigration, discouraged manufacturers, hindered 
 education and discouraged progress. At present these 
 views, reinforced by a long and formidable array of 
 statistics, will hardly be denied by any intelligent person. 
 
 However high the ideals of the people of the south 
 may have been, with their system of labor those ideals 
 could never be realized. Mr. Jefferson and Mr. Clay
 
 152 Addresses 
 
 agreed fully about one thing. They were both opposed 
 to slavery on both economical and moral grounds. Mr. 
 Jefferson endeavored to introduce a system of gradual 
 emancipation in Virginia. He said : "I tremble for my 
 country when I remember that God is just." He was 
 equally attached to the union of the states. When he 
 heard of the running of an imaginary line between the 
 free and the slave states, he said that the act filled him 
 with alarm like the sound of a fire bell at night. Mr. 
 Clay, a Virginian by birth, followed in the footsteps 
 of Jefferson. He began his political career in 1799 by 
 endeavoring to get the State Constitutional Convention 
 to adopt the system of gradual emancipation favored 
 by Jefferson. Both these great men failed in their 
 efforts ; but their mantle fell on Abraham Lincoln, their 
 legitimate successor, who, believing as they did, suc- 
 ceeded where they failed. 
 
 The moral revolt against slavery, having had its 
 origin with the Quakers, was of slow growth. It culmi- 
 nated with the beginning of our Civil War; but long 
 before that time it had been out of keeping with the 
 spirit of the age. 
 
 On the day after Mr. Lincoln's first inauguration, 
 Alexander II., autocrat of all the Russias, emancipated 
 by imperial decree all the serfs within his dominions, 
 and six weeks later the Civil War which involved the 
 existence of African slavery in this country began. 
 
 Mr. Lincoln was unalterably opposed to the extension 
 of slavery to new territories, which seemed to him to be 
 in principle identically the same thing as the reopening 
 of the African slave trade ; and he did not believe that 
 the Constitution guaranteed such extension. 
 
 Mr. Lincoln loved the Union, and was proud of its 
 traditions and of its history ; he believed that its destruc- 
 tion would extinguish the brightest hopes of mankind 
 for the future the whole world over, and would be one
 
 Abraham Lincoln 153 
 
 of the heaviest calamities that ever befell our race. He 
 was a man that believed in law and order, in plighted 
 faith, in the saeredness and inviolability of contracts; 
 hence he was opposed to interference with slavery in 
 the states where for many long years it had been recog- 
 nized without question. If the Union could only be 
 preserved he felt sure, with Jefferson and Clay, that 
 slavery would, before a great while, disappear. He 
 knew that a strong moral sentiment, long dormant, was 
 growing up against it; he believed that somehow or 
 other, if present conditions could be maintained, slavery 
 would vanish just as many other evils had disappeared. 
 He looked forward to that time with hope. He felt 
 that there never had been a perfect union of the states, 
 and never could be, as long as the slavery contest 
 continued. He knew by experience that one crossing 
 Mason and Dixon's line in either direction, felt that 
 he was entering another country. Still he was not will- 
 ing to resort to any unconstitutional measures in order 
 to remedy the evil. It is not a little singular that one 
 entertaining these moderate views should have succeeded 
 in accomplishing that wherein many more extreme men 
 signally failed. 
 
 Washington, more than any man of his time, foresaw 
 something of the coming glory of America. To Lincoln, 
 coming later, even a larger vision was unfolded. He 
 had seen the American flag advanced from the Rocky 
 Mountains to the western sea, and he had heard the 
 wide reverberation when Commodore Perry broke down 
 the iron gates of the east. He had the faith of an 
 anchorite in the unbounded possibilities for good of a 
 united and powerful nation inhabiting a continent, most 
 of whose incalculable resources were as yet undeveloped 
 and even undiscovered. No such beacon light had ever 
 before been reared and kindled by human hands, and 
 if now extinguished great would be the darkness that
 
 154 Addresses 
 
 would ensue, loud the lamentations of generations yet 
 to come. The notion of a dissolution of the United 
 States was abhorrent to him. He could not bear to gaze 
 on a condition of things when the American citizen 
 could not cross the Potomac or the Tennessee rivers, or 
 visit the tomb of Washington without a passport, or 
 without running the gauntlet of prying and suspicious 
 or insolent revenue officers. 
 
 Instead of new iron bands to bind ever in closer 
 union communities of kindred speech and race, he saw 
 long lines of frowning and hostile fortresses, bristling 
 with cannon, garrisoned by alien troops, under differ- 
 ent flags, the chartered abode of undying rancor, hatred, 
 malice and all uncharitableness, where lately only 
 imaginary lines that cast no shadow had been drawn by 
 friendly hands. He foresaw that if the work of disin- 
 tegration was once begun, it would proceed until the 
 country should be parceled out amongst small and hos- 
 tile nationalities, each impeding the progress of the 
 others, until they might become an easy prey to such 
 foreign powers as might for the time dominate the 
 world. Slavery was a transient sore, in its nature 
 ephemeral, doomed to decay and death. It only existed 
 in the smaller area of our vast territory ; and if it could 
 be confined within its present limits, its ultimate eradica- 
 tion could not be very remote. Secession, he believed, if 
 successful, would hasten its end. If a southern confed- 
 eracy should be established, slavery would always be 
 insecure and unprofitable in the border States, where 
 it would soon die out, leaving new border States to 
 submit to the same influence, and to undergo the same 
 destiny. Nor would secession tend in any degree to the 
 introduction of slavery into Kansas or Nebraska. 
 
 Mr. Lincoln was elected to Congress in 1848. During 
 the session he introduced a bill providing for the aboli- 
 tion of slavery in the District of Columbia on condition
 
 Abraham Lincoln 155 
 
 that the people of the District should approve the 
 measure; providing also that the United States should 
 pay the owners the value of their slaves. It should have 
 passed without debate. The South had nothing to lose 
 by it. The existence of slavery in the District was for 
 many persons whose duties called them to the seat of 
 government, a painful and disagreeable fact; and the 
 constant friction this produced could benefit no one. 
 
 But the anti-slavery leaders were as much opposed to 
 the measure as were the Southern leaders. From an 
 economical point of view the sum involved was insig- 
 nificant. England in 1833 had paid out 20,000,000 
 pounds sterling to owners of slaves in order to extinguish 
 slavery in her dominions. The opposition to Mr. Lin- 
 coln's bill from the anti-slavery camp resulted from an 
 excessive tenderness of conscience. Horace Greeley and 
 his colleagues always asserted that they would never 
 consent to pay a single dollar for the emancipation of 
 slaves, because such an act would serve to make them 
 accomplices in the crime of slavery by reason of an 
 admission of its validity, which they supposed would be 
 clearly implied. Had the proposal of Mr. Lincoln been 
 adopted, some peaceful settlement of the slavery ques- 
 tion might have been possible, and a vast expenditure 
 of blood and treasure might have been obviated. Slav- 
 ery was still not a purely local question, since it had 
 had its origin in delusions and blunders common to all 
 the original colonies, in all except one of which slavery 
 existed when the Declaration of Independence was 
 adopted. In proposing this measure Mr. Lincoln dis- 
 played a degree of foresight, a spirit of independence, 
 a genuine patriotism, and a love of peace that distin- 
 guished him from many politicians of the period whose 
 principal aim seemed to be to precipitate a civil war. 
 His bill was received with such a storm of abuse from 
 every quarter that it never came to a vote.
 
 156 Addresses 
 
 When Lincoln challenged Douglas hi 1858 for a joint 
 political debate, many intelligent persons regarded the 
 incident as the joke of the season ; the impotent defiance 
 of a dwarf to a giant. The political plans of Mr. Douglas 
 proved so disastrous that we are apt at present to under- 
 rate his abilities; which, nevertheless, were of a very 
 high order. By his Kansas-Nebraska bill, his repeal of 
 the Missouri Compromise and the passage of the stringent 
 Fugitive Slave Act of 1854, he shattered his political 
 party, and paved the way of Mr. Lincoln to the Presi- 
 dency. Yet he was a man of great intellectual power, 
 acknowledged to be the finest dialectician and debater 
 that the country had produced; also an orator easily 
 taking rank along with the highest and the best. In 
 conversation he was so engaging, so entertaining, so 
 brilliant and so attractive, that he always had a large 
 following of devoted personal friends. Over young men 
 he seemed to exercise an influence at once magical and 
 contagious. 
 
 Mr. Douglas' plan was at first sight not without its 
 attractions. Let the first settlers in every new territory 
 settle the slavery question for themselves. That was 
 good democratic doctrine; and democracy is a good 
 thing ; but he forgot that every good thing when carried 
 to extremes becomes a vice. His plan was certain to 
 produce strife and violence, leading to civil war, as was 
 later palpably demonstrated. 
 
 The speeches of Lincoln and Douglas were reported 
 day by day for weeks by the press of the country, and 
 never before had any discussion excited an interest so 
 earnest and so intense. The speeches of Mr. Lincoln 
 came as a revolution, and great was the surprise when it 
 was discovered that the academic addresses of Sumner, 
 Gerritt Smith and Wendell Phillips, and even the tre- 
 mendous discourses of Theodore Parker, paled their 
 ineffectual fires before the eloquence of a country lawyer
 
 Abraham Lincoln 157 
 
 from the prairies of Illinois, who had never seen the 
 inside of a college, and rarely the interior of a backwoods 
 country school. Owing to the votes of the hold-over State 
 senators, Douglas secured his election to the United States 
 Senate; but as Lincoln had a majority of the popular 
 vote, the moral victory belonged to him; and from that 
 time the career of Mr. Douglas was practically ended. 
 His nomination for the presidency was a forlorn hope. 
 He died on the 3d day of June, 1861. 
 
 Honesty, such as Mr. Lincoln always displayed, both 
 in speech and act, thought by many to be a homely 
 virtue, is yet one of transcendent importance. The poet 
 tells us that "An honest man's the noblest work of 
 God." It is the virtue that all vices war against. Many 
 men are honest without being very wise; but in so far 
 as they are honest they are wise; and if one could be 
 perfectly honest with himself, his fellow men and his 
 Maker, he would possess all the virtues under heaven. 
 
 Mr. Lincoln was not only honest, he was one of the 
 kindest of men. His sympathy was always liberally 
 extended to the sorrowful and the afflicted. His candor 
 and sincerity were equally remarkable. No man was 
 more conscientious. You may read all his writings and 
 speeches without finding the least trace of the arts of 
 the demagogue. Perhaps this was one of the secrets of 
 the success of his oratory. The people learned to appre- 
 ciate the delicate compliment implied in lifting political 
 discussion above the common low and miasmatic level; 
 and so they came to know him, to love him and to trust 
 him. 
 
 At the time of the Lincoln-Douglas debates, Mr. Lin- 
 coln estimated the value of the slaves in the South at 
 one thousand million dollars, precisely the amount of 
 the war indemnity exacted by Germany from France in 
 1871. And this was undoubtedly a very low estimate. 
 As the South was in 1858 immensely inferior to France
 
 158 Addresses 
 
 in point of wealth in 1871, the loss to the South by 
 emancipation, however, brought about, would be crush- 
 ing, bringing instant bankruptcy to many thousands of 
 families, and producing such a general financial ruin 
 as had hardly ever been witnessed in modern times. 
 There was then a perfect deadlock. The amount of the 
 loss to be incurred by emancipation was apparently 
 more than the South could bear, and more than the North 
 was willing for the nation to assume. Mr. Lincoln 
 appreciated the real difficulty of the situation, and with 
 that magnanimity which distinguished him above all the 
 statesmen of his time, he refrained from violent censure 
 of the South. In his great speech in answer to Douglas 
 on the 4th of October, 1854, at Peoria, in speaking of the 
 Southern people, he said: 
 
 "They are just what we would be in their situation. 
 If slavery did not exist among them, they would not 
 introduce it. If it did now exist among us, we should not 
 instantly give it up. * * * I surely will not 
 blame them for what I should not know how to do myself. 
 If all earthly power were given me, I should not know 
 what to do with the existing institution." 
 
 Mr. Lincoln was outraged by the repeal of the Mis- 
 souri Compromise. He had a right to be so. It was an 
 act of bad faith ; moreover it was an act of extreme folly 
 and madness. If slavery could have been legislated into 
 Kansas and Nebraska, the inclemency of the climate in 
 those territories would have rendered its continuance 
 impossible. Considering the opposition to be encount- 
 ered, nothing could be more Quixotic. But, deeply 
 incensed as he was, Mr. Lincoln was before and above 
 all things tolerant and just. And such was the spirit 
 that he manifested to the last. In his second inaugura- 
 tion address in 1865, he said: "But let us judge not, 
 that we be not judged," and declared that he was pur- 
 suing his official course "with malice toward none and
 
 Abraham Lincoln 159 
 
 with charity for all. ' ' His public utterances were always 
 free from vituperation and invective, and never did he 
 speak harshly of the brave men that fought under the 
 banner of Lee and Johnston and Stonewall Jackson. 
 
 At the time of the Hampton Roads conference it must 
 have been clear to Mr. Lincoln that the result of the 
 war was a foregone conclusion. Foreign intervention 
 had failed. The North possessed vastly superior 
 resources of all kinds, and had the whole world as a 
 recruiting station, including the South itself ; for during 
 the war 179,000 colored troops were enlisted in the 
 Union army, nearly as many soldiers as Napoleon mar- 
 shalled at Waterloo. In the meantime Mr. Lincoln 
 continued to manifest that vigilance, patient persever- 
 ance and remarkable ability at home and abroad that 
 rendered Southern success impossible; but even then he 
 was willing to make almost any concession consistent 
 with the perpetuity of the Union. 
 
 Mr. Lincoln, the restorer of the Union, has often been 
 likened to Washington, its founder; and they undoubt- 
 edly had many traits in common; the same earnestness 
 and fixedness of purpose, the same courage and fortitude 
 under the most harrassing and desperate surroundings, 
 the same patience in the midst of adversity, the same 
 toleration, the same indefatigable perseverance, the same 
 power of resistance to public clamor, the same devotion 
 to a sense of duty. It may well be that this resemblance 
 was partly due to the continual contemplation by Mr. 
 Lincoln of the exalted character of one whom he always 
 regarded as the loftiest model of an unselfish patriot 
 and a wise and farseeing statesman. Both sprang from 
 the people, and their characters in some respects were 
 not unlike. 
 
 Of all the men who knew Mr. Lincoln intimately I do 
 not know of any one who has left so striking a picture 
 of him as he appeared in social life as that left by
 
 160 Addresses 
 
 Alexander H. Stephens, who boarded and roomed in 
 the same house with him during the years when they 
 were in Congress together, and who, after Lincoln 's death 
 wrote as follows: 
 
 "Mr. Lincoln was careful as to his manners, awkward 
 in his speech ; but was possessed of a very clear, strong 
 and vigorous mind. He always attracted the riveted 
 attention of the House when he spoke; his manner of 
 speech as well as thought, was original. He had no 
 model. He was a man of strong convictions, and was 
 what Carlyle would have called an earnest man. He 
 abounded in anecdotes; he illustrated everything that 
 he was talking or speaking about by an anecdote; his 
 anecdotes were always exceedingly apt and pointed ; and 
 socially he always kept his company in a roar of 
 laughter." 
 
 It has been remarked that persons gifted with a keen 
 sense of humor are often found to be peculiarly subject 
 to periods of depression and melancholy. The same dis- 
 criminating insight that enables them to perceive 
 ludicrous disparities, also brings into clear light the 
 harrowing vicissitudes, incongruities and disappoint- 
 ments that go so far to make up the sum of human 
 sorrows. All who knew Mr. Lincoln with anything like 
 intimacy say that his countenance, when in a state of 
 repose, always wore an expression of sadness; and it 
 seems quite certain that few persons have felt 
 
 "* * * the heavy and weary weight 
 Of all this unintelligible world" 
 
 more than he did in his hours of reflection and 
 meditation. 
 
 Mr. Lincoln was a man of peace, a man of kindly and 
 humane feelings to whom war was utterly abhorrent ; he 
 believed with Mr. Sumner and the ancient Romans, that
 
 Abraham Lincoln 161 
 
 no garlands could grow on the fields of battle of a civil 
 war; he was averse to weighing money against human 
 life, and when the war was costing the North four million 
 dollars a day, he proposed to pay the slaveholders four 
 hundred million dollars for the sake of peace upon the 
 sole condition that the Union should be restored and 
 perpetuated. Such a consummation at that time was 
 not possible; but the offer shows how afflicting and 
 painful the fratricidal war was to him. 
 
 When we look over the acrimonious debates in Con- 
 gress for several years preceding the Civil War, the 
 participants seem to be men fighting in the dark, dis- 
 puting about slavery in the Territories when the very 
 foundation of slavery itself was already undermined all 
 over the world by an irresistible tide of moral sentiment. 
 
 If any one had said to the angry disputants in Con- 
 gress in 1860 that in a few years slavery would be 
 abolished at an expense to the North and the South each 
 many times greater than the value of the slaves, and 
 that the South would be glad of it, he would have been 
 considered as demented; and yet that is just what 
 happened. The dream of Jefferson has been verified. 
 Slavery has been abolished. The dream of Lincoln has 
 come true. The Union has been preserved. True, if we 
 had only known we could have got these things at far 
 less than half price, without the loss of a single life, 
 without arresting the march of prosperity and civiliza- 
 tion for so long a time ; but great blessings come fright- 
 fully dear; and we cannot haggle with the decrees of 
 fate. 
 
 Astonishing as it may seem, the South could not only 
 have freed the slaves without compensation, and could 
 even have paid millions for the privilege of doing so; 
 and could still have come out ahead; to say nothing 
 about the devastation, destruction and loss of life occa- 
 sioned by the war. Considered in a pecuniary light
 
 162 Addresses 
 
 solely, the South lost the slaves and paid for them 
 besides, while the North expended far more than the 
 value of the slaves without any compensation to any one. 
 And yet unconsciously and blindly they were both 
 attacking the same problems from different points, and 
 were striving with equal ardor, though with diverse 
 motives, to destroy slavery, and to perpetuate the Union 
 of the States. If they had both been working in perfect 
 and conscious harmony they could not have accomplished 
 these grand results half so well ; could only have passed 
 some Missouri Compromise one day to have had it 
 repealed the next. 
 
 The rehabilitation of the South has been one of the 
 most surprising of human events. Usually nothing is 
 slower than the recovery of a country from the desolation 
 and ruin of a war of occupation. Palestine, harried and 
 depopulated by the Eoman legions eighteen hundred 
 years ago, has never been re-peopled. Italy, invaded by 
 hordes of barbarians centuries ago has never recovered 
 from the ravage of the spoilers. 
 
 The war in the South did not end until 1877. No 
 one can compute the loss that her people sustained by 
 the war. We may count up the loss by reason of the 
 emancipation of the slaves and by the cotton tax; but 
 the immense value of human lives destroyed admits of 
 no computation. Pericles said that when the young men 
 of a country are slain in battle it is as if the year had 
 died in its spring. Such was the greatest loss sustained 
 by the South, even judged merely from an economical 
 standpoint. Moreover the South has paid her part of 
 the national debt and of the pensions of the Union 
 soldiers growing out of the Civil War. 
 
 Nothing could prove more conclusively than this sud- 
 den recovery from such enormous and multiplied losses 
 the value and the inspiration of an undivided country, 
 and that slavery was always an impediment and a blight
 
 Abraham Lincoln 163 
 
 to the South so long as it endured. We speak of the 
 emancipation of the negroes; but we had just as well 
 speak of the emancipation of the whites of the South; 
 for slavery was as hard on the whites in the long run as 
 on the blacks. Mr. Lincoln always asserted that slavery 
 was a fatal impediment on Southern progress; and 
 to-day there is not a man in the South that does not 
 regard its destruction as the most unqualified of 
 blessings. 
 
 Slavery which hindered the progress of the South 
 during peace was fatal in war. Without it England and 
 France would have recognized the Confederacy in Sep- 
 tember, 1862. Nothing but the able leadership of the 
 Southern generals and the valor of the Southern troops 
 could have prolonged the war as it was prolonged. In 
 the meantime the vigilance, perseverance and ability of 
 Lincoln in the management of affairs both at home and 
 abroad rendered Southern success ultimately impossible. 
 
 Our Civil War excelled for magnitude all wars ever 
 known. Though it was a dark and troubled time; a 
 time of universal mourning and affliction; I am not 
 sure that it could have been avoided by the utmost 
 exercise of human wisdom. It was amidst tremendous 
 convulsions that the mountains were upheaved and the 
 seas were assigned to their bounds before the earth was 
 prepared for the abode of man ; and even now the proud- 
 est city reared by human hands may be turned to dust 
 and ashes before the footsteps of the earthquake or the 
 breath of the tempest. 
 
 I am not sure that any great nation has ever been 
 born unless in throes of agony. Look at the civil wars 
 of England from the heptarchy and the Wars of the 
 Roses down to the Great Rebellion; look at the wars of 
 the Pretenders between England and Scotland that 
 obliterated the names of the Stuarts, and made of the 
 two countries one. Trace back the history of France,
 
 164 Addresses 
 
 Germany, Austria, Russia, Italy, Greece, Spain and all 
 the other great nations that ever existed; and in every 
 instance the same sad story is rehearsed, and we see our 
 own history mirrored in that of the nations that went 
 before, while paper constitutions and parchment treaties 
 could not long hold together Belgium and Holland, 
 Denmark and Norway or Norway and Sweden. If we are 
 to regard the teachings of history it would seem that 
 permanent and perfect national unity can only be welded 
 in the lurid flames of civic discord. 
 
 But the times of fermentation and destructive energy 
 are succeeded by long period of quiet. The earthquake 
 is stilled, the tempest is becalmed, and Nature, renewing 
 what she had destroyed, spreads a carpet over scenes of 
 ruin and desolation; and there the flowers will bloom, 
 and the trees will grow, and the birds will sing their 
 still unforgotten songs. It is gratifying to us to know 
 that the war cloud so long hovering over our country has 
 been dispersed and that 
 
 "No more shall the war cry sever 
 Or the winding rivers be red." 
 
 Perhaps there will never be a time to come when the 
 sufferings and bereavements of the civil war will not 
 awaken 
 
 "* * * the Virgilian cry, 
 The sense of tears in mortal things." 
 
 But let us be comforted. The one great and para- 
 mount question concerning our national perpetuity that 
 Statesmen could not solve, that darkened the mind of the 
 patriot, that saddened the poet's song, and that was 
 wont to silence the voice of mirth, shall vex the world no 
 more. Problems we may have to solve, difficulties to 
 encounter, but we can henceforth meet them courage-
 
 Abraham Lincoln 165 
 
 ously, conscious of mutual aid, and of mutual sympathy 
 sustained and supported by the same lofty hopes and by 
 the undying inspiration of a common destiny. 
 
 The sensations first produced by the cruel, dastardly 
 and cowardly assassination of Mr. Lincoln occur when- 
 ever the event is recalled. Nothing could present in a 
 more revolting form the problem of the existence of evil 
 in the world. Looking back over the succeeding years 
 we cannot fail to recognize the fact that by that crime 
 the greatest loss ever sustained was incurred in this coun- 
 try by the death of a single individual. Mr. Lincoln was 
 the only man in all history who, being by his very con- 
 stitution and immutable temperament a friend of peace, 
 ever conducted a great and difficult war to a successful 
 issue. With this fact in view it would seem to go without 
 saying that his services in restoring peace to the dis- 
 tracted country, had he lived, would have been no less 
 efficient. 
 
 Before the assassination of Mr. Lincoln the war had 
 ended. In the South the enormity of the crime aggra- 
 vated the sense of the general calamity, and excited 
 serious apprehensions that were soon to be realized. Dur- 
 ing the long war Mr. Lincoln had been grossly misrepre- 
 sented; but by the time that it closed the Southern 
 people had learned to know him better ; and had learned 
 to rely on his charitable judgment ; and it was not diffi- 
 cult for them to realize that his taking off was one of 
 the greatest calamities that could have occurred. Per- 
 haps no one was more deeply mourned than was Mr. 
 Lincoln by the army and all over the North. An Amer- 
 ican poet expressed the general sentiment concerning the 
 nation's loss in a few lines in which his genius reached 
 its high water wark : 
 
 "0 Captain! my Captain! our fearful trip is done; 
 The ship has weathered every tack, the prize we sought is won,
 
 166 Addresses 
 
 The port is near, the bells I hear, the people all exulting, 
 While follow eyes the steady keel, the vessel grim and daring: 
 But O heart! heart! heart! 
 
 O the bleeding drops of red! 
 
 Where on the deck my Captain lies, 
 
 Fallen cold and dead." 
 
 "O Captain! my Captain! rise up and hear the bells; 
 Rise up for you the flag is flung for you the bugle thrills; 
 For you bouquets and ribboned wreaths for you the shores 
 
 a-crowding; 
 
 For you they call, the swaying mass, their eager faces turning. 
 Here Captain! dear Father! 
 This arm beneath your head! 
 It is some dream that on the deck 
 You've fallen cold and dead. 
 
 "My Captain does not answer, his lips are pale and still; 
 My father does not feel my arm, he has no pulse nor will; 
 The ship is anchored safe and sound, its voyage closed and done; 
 From fearful trip the victor ship comes in with object won: 
 Exult, O shores! and ring, O bells! 
 But I with mournful tread, 
 
 Walk the deck my Captain lies, 
 Fallen cold and dead." 
 
 Louis XVI of France, who aided our countrymen of 
 other times to throw off the yoke of George III, perished 
 on the scaffold; Alexander II, autocrat of all the 
 Russias, who liberated all the serfs in his wide domin- 
 ions, and Abraham Lincoln, who freed four million of 
 African slaves on this continent, perished at the hands 
 of ruthless assassins. So true is it that 
 
 "He who surpasses or subdues mankind 
 Must look down on the fate of those below." 
 
 So true is it that he who undertakes any great moral, 
 social or political reform, may well expect to incur 
 corresponding perils. "Paradise," said Mahomet, "lies 
 under the shadows of swords. ' ' 
 
 Sad as these things may seem to us, it must be plain
 
 Abraham Lincoln 167 
 
 that if the exercise of the highest virtues were always 
 attended in this world by adequate rewards, unselfish 
 and self-sacrificing devotion would have no place in 
 human experience, the loftiest heights of moral achieve- 
 ment would be forever inaccessible; and we should seek 
 in vain for a hero amid a race of hirelings.
 
 JEFFERSON DAVIS 
 
 Memorial Address on the Life, Character and Public Services 
 
 of Jefferson Davis, Delivered at the Hall of the House 
 
 of Representatives, Little Rock, Wednesday 
 
 Evening, December 13, 1889
 
 JEFFERSON DAVIS 
 
 At the public meeting of citizens on the 13th inst., on 
 the occasion of the death of the Hon. Jefferson Davis, 
 Judge Rose, on the invitation of the Committee of 
 Arrangements, delivered the memorial address. He said : 
 
 It was the admonition of an ancient philosopher that 
 we should count no man happy until he dies; and by a 
 modern one we are told that "Death hath this also, that 
 it openeth the gate to good fame, and extinguisheth 
 envy. ' ' I would that it might be so ; and that we might 
 speak of the dead equally without envy or malice, but 
 still not without that finer sense of charity, the attain- 
 ment of which is the most difficult and the highest 
 achievement of humanity. When a man who has occu- 
 pied a prominent place in the age in which he has lived, 
 a man who has made his mark upon his era by bold, 
 decisive and aggressive action, ceases to live, there is at 
 first a confused murmur of many voices, in which the 
 discordant notes of indiscreet praise and unwise censure 
 most loudly fall upon the ear. But in the solemn hour 
 of death, when human passion stands confronted with a 
 mightier presence, before which every one sooner or later 
 must bow in humble and silent submission, it is not to 
 these that the votary of truth would yield his confidence ; 
 rather would he listen to a more circumspect and dis- 
 passionate finding as to questions upon which the world 
 may never be wholly agreed. And yet how shall the 
 fit words be spoken that are "like apples of gold in 
 pictures of silver;" and how is it possible for us to 
 regard the life of a man so full of striking events, so 
 much made up of action having the most extensive effects 
 on important political questions that have excited the 
 
 171
 
 172 Addresses 
 
 enthusiasm or animosity of mankind, at a time when 
 very many of his contemporaries, friends and enemies, 
 are still living and he, himself so long the center of 
 absorbing interest, has been but for a few hours locked in 
 that sleep which closes for good or ill all the records 
 of his life ? 
 
 The eyes that will read the dispassionate history of 
 Jefferson Davis are as yet unborn. As for us, we live 
 too near the thrilling events, the tremendous concus- 
 sions, the strife, the passion, the crash and the conflict 
 of the period in which he played a principal part. Time 
 was when the ancient Egyptians had a constituted 
 tribunal, whose solemn function it was to pass on the 
 merits of the dead before they were committed to sepul- 
 ture. At a period when there were fewer written mem- 
 orials, when oblivion more quickly trampled under foot 
 the memories of men, when all the elements of life were 
 simpler, this speedy method of adjudication may have 
 been deemed appropriate; but we cannot but suspect 
 that beneath the stern aspect of the judges who were to 
 pass on those who were insensible to rewards and beyond 
 the reach of punishment, there was latent that aggrega- 
 tion of human infirmities that more or less affected the 
 decision, which was still liable to be reversed at some 
 later time by a more enlightened public opinion. Not 
 Talleyrand, not Bertrand, or Bourrienne, knew half as 
 much about Napoleon, though they sat at the same table, 
 and were deep in his counsels, as we who never saw him 
 know to-day ; and so of Jefferson Davis, many memorials 
 as yet unwritten, and existing only in the minds of his 
 contemporaries, many documents as yet unpublished, 
 must be collated, before a fairly just estimate can be 
 taken of his extraordinary character. The labor and 
 the duty of making up that discriminating apprecia- 
 tion which is called the verdict of history, must rest 
 for a later generation, made up of men and women who
 
 Jefferson Davis 173 
 
 will be strangers to that vast political convulsion that 
 has darkened the process of many of our years, for a 
 generation that will be far removed from that scene of 
 strife and collision which have left their deep impress 
 on everything that we see around us to-day. Few are 
 the names that are called before that august and solemn 
 tribunal which gives the final verdict on the unreturn- 
 ing past; for it deals not with the deeds or memory of 
 common men; and its impressive adjudications are so 
 supreme and decisive that, overriding all temporary 
 passion and prejudice, displacing all the illusive devices 
 of deceitful men, it has stripped the ermine from the 
 backs of unjust and wicked judges, has removed the 
 mask of hypocrisy from the face of the pretended saint, 
 it has deprived kings and emperors of robe and scepter, 
 has explored all the recesses of baseness and cupidity 
 in high places, and has distributed the world's honors 
 anew, lifting into fame the worthy and obscure, and 
 fixing its indelible mark of condemnation on the 
 unworthy and the vile of whatever rank or station. 
 
 Before that tribunal, in its high session, shall be 
 called in due time the name of him that died but yes- 
 terday ; and few names more imposing ; for, however its 
 verdict may be, none will deny that the investigation 
 is fraught with that interest that is everywhere attracted 
 by a great and unusual career. We may also foretell 
 that if posthumous criticism shall number and define 
 many mistakes that he may have made in the most 
 embarrassing, difficult and dangerous emergencies 
 those terrible straits that most try the strength, the 
 hearts and the souls of men that that later and more 
 mature expression of justice, long deferred, will give 
 him credit for having acted from motives as high, and 
 as pure, and as free from all taint of sordid ambition 
 as any patriot that ever wore the crown of victory 
 acquired on a more successful field of battle; and that
 
 174 Addresses 
 
 in personal and moral courage to sustain his convic- 
 tions, he has had no superior among the children of men. 
 
 The exact measure of praise or censure that should 
 be meted out to Mr. Davis it is not for us to assert ; but 
 as the world believes in the principle of representation 
 in punishments as well as in honors, we know that he 
 has been made the scape-goat for many sins that should 
 be laid at the doors of others; and that as for us in 
 the South who participated in the measures of the war, 
 early or late, there is no reprobation that can be visited 
 on him that will not also fall upon ourselves. 
 
 I know that the war, like all other great social wars, 
 had long roots in the past, reaching back to the time 
 when the good Spanish priest Las Casas advised that 
 negro slaves might be imported into America, so as to 
 relieve the native Indians from enforced labor; to the 
 time when the good Puritan brethren of New England, 
 with many a prayer, and never a misgiving, fitted out 
 their ships for the African coast, expecting profitable 
 returns of ivory and slaves. 
 
 I am far from thinking that slavery was the direct 
 cause of the war; for Mr. Lincoln and those who acted 
 with him announced at the beginning of the conflict that 
 they had no purpose to overturn that institution; but 
 slavery had made a very visible line of distinction 
 between the Northern and Southern parts of our coun- 
 try. Its extension was deprecated, its existence deplored, 
 and there was a growing moral and religious sentiment 
 that was hostile to its continuance. 
 
 When Mr. Davis was born into the world, which he 
 was destined to find so full of trouble, less than ten years 
 had elapsed since Washington, the great first President, 
 had been consigned to rest at Mt. Vernon amidst the 
 mourning of the people; and yet even then differences 
 were beginning to be felt, that grew out of the unhar- 
 monious development of the North and the South. That
 
 Jefferson Davis 175 
 
 sectional feeling which has been the bane of our National 
 existence, and which may yet prove to be our ruin, was 
 a part of his sad inheritance as it has been of ours. It 
 seemed at that time to be but a little flame that might 
 be easily extinguished; but it is with nations as it is 
 with men, their wisdom generally comes too late for 
 practical and successful application. 
 
 Later on, Calhoun did indeed foresee the threatened 
 catastrophe, which he thought to guard against by arti- 
 ficial balances of power that should have the effect to tie 
 up forever the hands of both contending parties. Equally 
 clear was the mental vision of Henry Clay; and he 
 sought to provide a remedy of compromise and concilia- 
 tion. Afterwards, when his life was drawing to an hon- 
 ored close, he saw that temporary expedients could not 
 be relied on for permanent relief; and for the removal 
 of the principal cause of dissension, he recommended a 
 system of gradual emancipation. Unfortunately his 
 plan was not adopted ; and the state of the country grew 
 year by year more gloomy and threatening. 
 
 One deeply-seated ground for apprehension was found 
 in the fact that no definite remedy had been provided 
 by the founders of the Republic if any State, or any 
 number of States, should attempt, in their sovereign 
 capacity, to withdraw from the Federal Union a cir- 
 cumstance which the founders of our Government hoped 
 might never occur. No resort to arms was ever con- 
 templated by them; for civil war is not a part of the 
 scheme of any organic government, and no peaceable 
 remedy was suggested for an emergency that patriotism 
 deemed improbable. 
 
 It is not to be imagined that any ideal harmony ever 
 existed among the States. A condition of peace may be 
 foreshadowed in another world; but it has no place in 
 this. There were bickerings, old and new, and some of 
 them had their origin far back in the Colonial days; so
 
 176 Addresses 
 
 that when Washington presided over the convention that 
 formed the Constitution of the United States, he listened 
 to the diverse and discordant utterances of which our 
 civil war was a late and violent echo ; and when the Con- 
 stitution was presented to the people and to the States 
 for adoption, it was done in an ambiguous way that was 
 intended to obviate objections, and which actually had 
 that effect, though it was thereby made afterwards well- 
 nigh impossible to say whether the ratification of that 
 instrument was due to the action of the people directly, 
 or to the corporate assent of the States. Moreover, the 
 instrument itself, dealing as it did, with great subjects 
 briefly expressed, and being a result of a series of com- 
 promises between men of opposing views, was susceptible 
 of a great variety of interpretations; so that every man 
 reading it in the light of his preconceived opinions, saw 
 in it a reflection of his own individual views, and Alex- 
 ander Hamilton took it to be a warrant for a strongly 
 centralized Government, while Thomas Jefferson empha- 
 sized in his own mind the guarantees of individual rights 
 which it contains. In the light of history, it is perfectly 
 just to say that the framers of that Constitution had not 
 been educated to believe in the continuance of any form 
 of government by mere physical force. They had 
 revolted from the British Crown, and had achieved their 
 independence by force of arms; and they had entered 
 into the articles of confederation, which had established 
 a government based on patriotic sentiment and moral 
 suasion alone. Though it was intended that the Govern- 
 ment of the United States should be much more efficient 
 than that which it superseded, yet there was no hint 
 that the Constitution conferred any power of coercion 
 over any State that should grow weary of the Federal 
 yoke; and it is hardly to be doubted that if a clause 
 importing a right to coerce an unwilling State had been 
 proposed, it would have been almost or quite unani-
 
 Jefferson Davis 177 
 
 mously rejected, as being at variance with the Declara- 
 tion of Independence, that Governments "derive their 
 just powers from the consent of the governed," and 
 "that whenever any form of Government becomes 
 destructive of these ends, it is the right of the people to 
 alter or abolish it, and to institute a new Government, 
 laying its foundations on such principles and organizing 
 its power in such form as to them shall seem most likely 
 to effect their safety and happiness." 
 
 It would appear that most if not all of the founders 
 of the Government regarded it as being in the nature of 
 an experiment; though they had great hopes of its suc- 
 cessful operation, and were perhaps sanguine on the 
 subject of its perpetuity. We find accordingly that 
 neither Webster, the great expounder, or any other great 
 leader who succeeded them at any time declared it as a 
 principle that the State Governments were subject to 
 coercion if they should endeavor to withdraw peace- 
 ably from the Federal bond of Union. Much as they may 
 have deprecated and condemned any such step as being 
 unwise and criminal, fraught with danger and disaster, 
 they never asserted that the Constitution contained any 
 clause justifying a resort to force as against any seced- 
 ing State or States of the Union. Nor did Andrew 
 Jackson, in his Charleston letter, or when he declared 
 his readiness to hang Calhoun and his followers higher 
 than Haman, have reference to the secession of a State, 
 but to the announced policy of certain citizens of South 
 Carolina of staying in the Union, and still nullifying 
 and disobeying the Federal laws; though certainly no 
 one ever had a stronger attachment for the Union, or a 
 stronger conviction of the moral wrong of secession, and 
 the evils that would flow from an attempted withdrawal 
 of any State from the Union than he. The argument for 
 coercion on Constitutional grounds, rarely heard, was 
 always attended with the difficulty that the Government
 
 178 Addresses 
 
 of the United States was confessedly one of conceded 
 powers alone, and that nothing looking to the coercion 
 of a State was to be found in that instrument. 
 
 This state of affairs was extremely unfortunate, for 
 it gave rise to doubts of the stability of our Govern- 
 ment, and the security of all the institutions that depend 
 upon it; but for a long time there was hardly any con- 
 tention on this subject that assumed anything like a 
 sectional character corresponding with the sectional line 
 of slavery; for the first threat of secession came from 
 New England during the war of 1812, and not from any 
 part of the South. 
 
 I make these remarks because some understanding of 
 these matters is necessary for anyone who would place 
 himself in a position to judge dispassionately of the 
 career of Mr. Davis, and because they are facts which 
 in the present condition of our affairs we are apt to 
 overlook ; for it is a part of our fundamental law at this 
 time that the Union is a perpetual one, and that no State 
 or number of States has the right to withdraw from the 
 obligations justly imposed by the Federal Government; 
 but it is also true that that was not a part of the Federal 
 Constitution when Mr. Davis performed that part in 
 the world's history by which he will be always remem- 
 bered; nor has any such provision been inserted by the 
 process of judicial interpretation, but it has been so 
 settled by the final determination of a resort to arms 
 from which there is no appeal. 
 
 It is often said indeed that war settles nothing; but 
 there is no government existing to-day whose internal 
 organization and external policy have not been largely 
 determined by the results of war. Of the governments 
 of England, and of all other European nations, it may 
 be said that their present forms, outlines and constitu- 
 tional guarantees are only the net result of a long series
 
 Jefferson Davis 179 
 
 of civil wars, the conclusions of which have been accepted 
 in good faith as the basis of peace. 
 
 We of the South have been so long denominated rebels 
 and traitors by those who preferred epithets to argu- 
 ments, that we have become quite indifferent to such 
 terms; but in point of fact no such case was or could 
 be made out. Mr. Davis was imprisoned on an unwritten 
 charge of treason, and thousands of men were indicted 
 on a like charge in the Federal Courts; but there was 
 no law on the statute book on which any one could be 
 convicted for having followed the fortunes of his State 
 in a civil war, and no one was ever brought to trial on 
 that charge ; the only statute that contemplated anything 
 of the kind being an act passed long after the war 
 became flagrant ; and to have convicted under that would 
 have been to convict under an ex post facto law, and 
 would have been a plain violation of the Constitution 
 of the United States. 
 
 Upon that point, however, it is but just to say that 
 though there was no law under which such a conviction 
 could be had, the lenity and moderation exhibited by 
 the conquerors in the hour of triumph, in that regard, is 
 unexampled in history. For, as Caesar said: "The laws 
 are silent amidst arms;" and on previous occasions the 
 victors in violent civil wars troubled themselves but 
 little about legal or constitutional rules. This is a fact 
 that should be borne in mind ; for if we would have jus- 
 tice done to ourselves, we must do justice to others. It 
 is not our part to detract from the merits of any man 
 who took an honorable part in that memorable struggle. 
 A handful of brigands may join together for the pur- 
 pose of plunder, but there is no great war involving the 
 spontaneous action of a free people, that does not rest 
 upon that strong moral sentiment that justifies an appeal 
 to the God of battles. There were men on either side,
 
 180 Addresses 
 
 lofty minded, pure in heart, men of undaunted courage, 
 men who in every respect were the worthy successors 
 of Bayard, the knight that was without fear or reproach. 
 Never before in human history had so many men of that 
 stamp gathered together in deadly conflict. It does 
 honor to the American character to know that as there 
 had never been a war of similar magnitude, so there 
 never was one so clearly based on principle, one so little 
 marked by wanton cruelty, and in which a respect for 
 law so well survived every catastrophe. 
 
 It was, however, a war of giants; and it is appalling 
 to look back upon that dreadful interval between the 
 wordy contention and that final settlement, and to mark 
 how everything was disjointed, wrecked, torn up, dis- 
 placed, and how the whole world rang and re-echoed 
 with our unparalleled conflict. 
 
 At the beginning of the contest the South possessed an 
 unusual number of able and brilliant men; men strong 
 in body and mind, strong in popular favor and affection ; 
 men long trained in the arduous duties of public life; 
 men distinguished in war. distinguished in peace; men 
 that would have been fit leaders in any enterprise requir- 
 ing vigor of mind, courage of heart, and the sagacity 
 that comes of close observation and long experience ; but 
 so pre-eminent were all the characteristics of Mr. Davis 
 that when the choice of a leader in an enterprise of the 
 greatest magnitude and the greatest peril came up for 
 consideration, no other name was brought in competi- 
 tion. His superiority over all others was obvious and 
 self-evident. He had served in many capacities, and in 
 no case had he betrayed a trust or disappointed public 
 expectation. He had received a military education, and 
 thrice had he responded to the call of his country on 
 the tented field. His career in arms had been exten- 
 sive and illustrious. When a young man he had served 
 with distinction in the Northwest in the Black Hawk
 
 Jefferson Davis 181 
 
 War. Again in the Indian War of 1834 and 1835, he 
 had borne a conspicuous part. When the Mexican War 
 broke out he had resigned his seat in Congress to join 
 that army in which he achieved the highest honor for 
 courage, sagacity and brilliancy of execution. Return- 
 ing home again he was elected to a seat in the United 
 States Senate at a time when the doors of the Senate 
 were opened to superior worth and ability alone, and 
 when a place in that body was not the prize of wealth, 
 or something to be attained by the arts of the dema- 
 gogue. When he took his seat he had for colleagues, 
 men not unworthy the Roman Senate while Rome sur- 
 vived ; for Webster, Clay and Calhoun were still there ; 
 and he saw the setting of those intellectual suns, whose 
 memory still gilds the past, and whose brilliant beams 
 still linger high in our political heavens ; and with these 
 were others of lesser note, but still remarkable for learn- 
 ing and talent ; and in that company of statesmen, chosen 
 from every State in the Union, Mr. Davis had stood 
 easily among the highest. At that time, not yet over- 
 burdened by public duties, he was recognized as a 
 cultivated gentleman of pleasant and agreeable manners 
 gentle and courteous toward friend and foe ; a ready, 
 fluent and skillful debater, an elegant, forcible and pol- 
 ished writer, possessed of those engaging and nameless 
 qualities that serve to cement the friendships that are 
 destined to stand all the storm and stress of time and 
 chance; so that any one seeing him there in the dis- 
 charge of his public duties, or in the charmed social 
 circle which he adorned, would never have dreamed that 
 his name in a few years would become the watchword 
 of a conflict that would make our rivers run with blood ; 
 for at that time, and down to a much later period, he 
 numbered among his warmest personal friends many 
 who would have been classed as his most determined 
 political adversaries. After a service in the Senate that
 
 182 Addresses 
 
 flung an additional lustre over his own past, he became 
 secretary of war, a position for which he was peculiarly 
 well qualified, and which he filled in a manner that 
 showed his especial fitness for the place ; for, during his 
 occupancy of that position, he greatly improved the 
 equipment, the discipline and the organization of the 
 military service. As the appointed leader of the Con- 
 federacy, it has been customary to load upon him all the 
 accumulated obloquy of its rise, its continuance, and 
 its downfall ; and its whole creation, it has been assumed, 
 had its origin in his fertile and deceptive illusions of 
 empire. And yet nothing is apparently farther from 
 the truth, which in its naked simplicity is, that with the 
 possible exception of his great coadjutor, Lee, no man 
 entered upon the formation of a new government with 
 more reluctance and regret. Let it be laid to his charge 
 that he labored under deplorable and fatal mistakes; 
 that he thought that it was possible or right to perpetu- 
 ate an institution unwillingly imposed upon his genera- 
 tion, when it had come to be opposed by the predominant 
 moral and religious sentiment of the civilized world; 
 that he deemed that in an age of railroads and elec- 
 tricity, a smaller people, placed under many disadvan- 
 tages, could defend their territory as the Spaniards 
 defended theirs against the French, as the Swiss 
 defended theirs in former times, when such potent agen- 
 cies were undiscovered ; and that he dreamed that a new 
 nation could be created, whose principal boundary should 
 be unmarked save by an imaginary line errors demon- 
 strated by the war itself, and which before were doubt- 
 ful or unknown. It is easy now to speak of these things 
 with an air of superior wisdom. When the storm has 
 lulled, and the sky is clear, the merest tyro can explain 
 to the experienced navigator by what blunder his boat 
 went down; and can even point out on the chart the 
 rock on which it was split; serenely regardless of the
 
 Jefferson Davis 183 
 
 fact that in the midst of the tempest the chart is less 
 distinct, the judgment more unsteady. 
 
 It would have been easy for the southern people at 
 the close of the war to attempt to throw a great part 
 of the blame for its results upon Mr. Davis ; and if it is 
 creditable to them that no such effort was made, it is 
 equally creditable to him that he made no effort to 
 excuse himself at the expense of others, or to avoid his 
 full share of responsibility for whatever had been done. 
 
 The most important part of the public career of Mr. 
 Davis, I must leave untouched; for with the time at 
 my command I can not attempt to present even an out- 
 line of that part of his eventful life which became closely 
 and indissolubly identified with the Confederacy over 
 which he presided; and I must content myself with the 
 expression of the common sentiment that in that pro- 
 longed and distressing crisis of our history there was no 
 one in the South that could so long and so successfully 
 have resisted the assaults that were made by an enemy 
 strong in valor, invincible in determination, and who 
 speedily developed such resources as filled the world 
 with surprise and astonishment. 
 
 But the end came at last, and Mr. Davis found him- 
 self a prisoner in the hands of an enemy whose ven- 
 geance he had in no manner sought to appease. 
 
 I remember that about two years after the close of 
 our Civil War, I went down to breakfast in a hotel in 
 Baltimore one morning. There were but few in the 
 room, and while I was eating I became aware that there 
 was an unusual hush as if something had taken place 
 or was expected. On looking around I found that the 
 servants and the guests that were present were gazing 
 with silent interest at a person who was quietly eating 
 his morning meal and who seemed to be absorbed in his 
 own memories, which would not seem to be very dis- 
 quieting, for his demeanor was calm and self-contained.
 
 184 Addresses 
 
 The man was Jefferson Davis, who had only been released 
 the day before from his prison in Fortress Monroe, and 
 who had arrived in Baltimore during the night. He was 
 somewhat pale and emaciated, but not the direst vicis- 
 situde, nor the chill, apathetic air of the dungeon had 
 detracted from the dauntless energy of that eagle glance ; 
 for his was that kind of fortitude that asserts itself 
 where ordinary men quail with fear; that enduring 
 determination which marks the born leader of men in 
 every crisis that comes attended by all the attributes of 
 doubt and peril. He had survived a catastrophe almost 
 unparalleled in history, a catastrophe compared with 
 which even the terrible consummations of the Greek 
 drama might seem to be almost trivial ; for when I had 
 looked upon him last he was the trusted leader of a 
 people in the most tremendous war of modern times. Of 
 all the names of the living or the dead, his had been the 
 most on the lips of men. Its sound had cheered men 
 onward when they assailed the imminent deadly breach, 
 and had revived in the dying soldier an enthusiasm 
 which nothing but death could quench. For years, 
 nations had gazed with undisguised astonishment at the 
 prodigies of military energy and valor which had been 
 displayed under his leadership, doubting whether his 
 paramount statesmanship and genius would not in the 
 end make up for every kind of disadvantage, and com- 
 pensate for the appalling disparity of resources, of men 
 and of money. From being more than a monarch, he 
 had become a wanderer, a captive, a prisoner; and now 
 that he was again released, he was alone. The friends 
 who had stood around him in the darkest hour were 
 dead on many a battlefield, were expatriated, or scat- 
 tered far and wide ; his relatives and his family victims, 
 also, of the same widespread calamity were far away. 
 Discarding all that Mr. Davis may have said or done, he 
 suffered that which to avoid Sardanapalus had given
 
 Jefferson Davis 185 
 
 himself to the blazing pyre, and Cato had fallen upon 
 his sword, deeming death better than defeat. 
 
 There are indeed situations when it demands an 
 exalted courage to meet the requirements of fate and 
 live. More vividly than to us, who were mere spec- 
 tators, the extent of that reverse was visible to Mr. 
 Davis. It was known to him that ill-success makes few 
 friends, and that blame, cruel and uncharitable, is sure 
 to follow close in the footsteps of misfortune ; that deser- 
 tion, injustice and detraction are the inseparable attend- 
 ants of those who fail in any high enterprise. 
 
 When Napoleon fell from his lofty eminence Lord 
 Byron somewhat ungenerously taunted him with his 
 overthrow : 
 
 "If thou hadst died as honor dies, 
 Some new Napoleon might arise 
 
 To shame the world again 
 But who would soar the solar height 
 To set in such a starless night?" 
 
 Mr. Davis knew that language not dissimilar would 
 be addressed to him ; but there was no other resemblance 
 between his fate and that of the great Corsican except 
 the common fact of defeat; for the French despot had 
 driven the rude plowshare of war over the fairest fields 
 that the sun shone on, and, with no other incentive than 
 wanton personal ambition, he had brought murder and 
 bloodshed, woes unending and immeasurable, to many 
 peaceful and unoffending lands in Europe, in Asia and 
 in Africa ; whereas whatever had been done by Mr. Davis 
 had been done in defense of the soil on which he was* 
 born and reared. So that he no doubt consoled himself 
 with the reflection that, like Arminius, he and his had 
 been fighting for their altars and their firesides. 
 
 It is greatly to the credit of the people against whom 
 Mr. Davis had carried on four years of warfare that
 
 186 Addresses 
 
 they were less disposed to be vindictive towards their 
 fallen foe than could have been expected from many 
 previous utterances. His great rival, who had as large 
 a heart as any, and whose services in the pacification of 
 the country after the conflagration of the war had ceased, 
 would have been of supreme importance, had been dis- 
 patched by the hand of an assassin. Others survived, 
 who were akin to him in magnanimity of feeling; and 
 when Horace Greeley, the life-long political enemy of 
 Mr. Davis, volunteered to go on his bond to release him 
 from prison, he performed an act that will continue 
 to grow brighter and brighter as the years go by. 
 
 And, indeed, the man that was incarcerated in that 
 fortress, whose gloomy battlements fronted the sea, was 
 of a character to make his keepers pause. The caged 
 lion, condemned to roam his native wilds no more, is a 
 lion still; and there is that majesty in the air of the 
 dethroned monarch of the forest that commands respect. 
 We are told that when Caius Marius had been reduced 
 to captivity, a slave was sent to take his life; but that 
 when he looked on the stern and commanding counte- 
 nance of the overthrown dictator, he threw aside his 
 dagger, and he that had stabbed many a meaner victim 
 to the heart, fled in terror, crying, "I cannot kill 
 Caius Marius ! ' ' 
 
 Mr. Davis never appeared to better advantage than 
 when his power had been broken, his hopes destroyed. 
 The man that had braved a thousand deaths on many a 
 field of battle, where many a comrade came to give up 
 his life; who had taken upon himself the most tremen- 
 dous responsibility that man can assume ; who for years 
 had heard the thunder of the besieging guns of a 
 million of men that threatened his beleaguered capital, 
 was not apt to blanch even in an hour like that. 
 
 When Mr. Davis was set at liberty his public life was 
 closed, for he might already be called "an old man,
 
 Jefferson Davis 187 
 
 broken by the storms of State." His public acts will 
 always be a proper subject of criticism, and the time 
 is yet distant when full justice can be done; but even 
 now it may be said that though, as might well be 
 expected, there is hardly a disparaging epithet that has 
 not been applied to him, yet it is to be observed that 
 those who have thus indulged in vituperation have dealt 
 in generalities, and have either made no specific charges, 
 or only such as have been easily disproved. There is not 
 a sustained charge against him of cruelty or avarice or 
 self seeking, of pledges unredeemed, of promises unful- 
 filled, of friendship betrayed, of obligations undis- 
 charged. With the wealth of Ormus and of Ind at his 
 disposal, the end of the war found him poor and needy. 
 With that unlimited power which he possessed as com- 
 mander-in-chief of armies, and which he might have 
 used as a dictator, it is not recorded that he ever abused 
 it for any purpose of oppression or self-aggrandizement. 
 Because he had stern duties to perform, he has been 
 regarded by many as a stern man. That he was a man 
 of positive and decisive character is a fact well known. 
 Friend or enemy, he occupied no doubtful place. His 
 views on most questions were well defined; they were 
 not rashly or lightly changed, and he possessed a certain 
 kind of persistence and obstinacy which is usually char- 
 acteristic of great men. 
 
 The events of a man's life may be regarded as the 
 outward trappings and habiliments with which he has 
 been invested by a more or less implacable destiny ; and 
 after all categories are exhausted we do not see the man 
 himself, nor perceive the indefinable and subtle elements 
 that go to make up a distinct personality. I think that 
 to most men Mr. Davis would appear, in imagination, 
 like Wolsey. 
 
 "Lofty and sour, to them that loved him not; 
 
 But, to those men that sought him, sweet as summer."
 
 188 A ddresses 
 
 Of course, his position during many years must have 
 given him an appearance of isolation; but it is certain 
 that to those who were intimately acquainted with him 
 he gave the impression of kindliness of heart, of 
 geniality of disposition, and of a cheerful demeanor. He 
 had a peculiarly strong hold on the friends that he 
 made, and he made friends during every period of his 
 life. The long devotion of his former slaves to him, 
 ending only with death, is a conclusive testimony of the 
 humane tenor of his feelings. Persons whom he had 
 met in his campaigns in the Black Hawk War, when he 
 was reputed to be the handsomest, the most free-hearted 
 and companionable of all the young officers in the serv- 
 ice, remembered him after very many years with the 
 warmest affection, which was not effaced by the hostili- 
 ties that divided them in interests and in hopes. Some 
 of these visited him in his latest years, and evinced all 
 the tenderness of friendship which time and war could 
 not destroy. As a husband, a father, a neighbor, he dis- 
 played the kindest and most affectionate disposition. 
 
 A stormy life was followed by a quiet old age, which 
 he devoted largely to a vindication, less of himself than 
 of the people who had entrusted their fortunes to his 
 keeping. If in the early period of his retirement he 
 sometimes grieved his friends by public expressions that 
 recalled too vividly the bitterness of the past, the feel- 
 ings of which these were the evidence find no trace in 
 the book in which he recorded his mature judgment of 
 the decisive events in which he played such a prominent 
 part. Reconciled with the irrevocable past, he was able 
 to perceive that our great Civil War had worked out 
 many beneficial results, and that the future might open 
 up to the united American people such an immense field 
 of usefulness and prosperity as would dim even the 
 brightness of their own past. For that work we owe
 
 Jefferson Davis 189 
 
 him a debt of gratitude; for, having been much read 
 abroad, it has had the effect to greatly mitigate the 
 harshness with which our people have often been judged. 
 Born on the very day when Napoleon had reached 
 the zenith of his power, and in the very month in which 
 it began to decay, and dying in his 82nd year, no man 
 of our time ever had so many and such striking vicissi- 
 tudes as Mr. Davis. From the days of Adams and Jef- 
 ferson, through the long period that terminated in his 
 death, he was personally acquainted with almost every 
 distinguished man of his country and his time; and he 
 beheld such changes in all the varied affairs of humanity 
 as far transcended the dreams of any generation that 
 had preceded him. Outliving all the chief actors in the 
 great drama in which he had played a principal part, 
 surviving Lincoln, and Seward, and Grant, and Lee, and 
 Jackson, and Stewart, how full of memories must his 
 mind have been, as he trod the shores of that southern 
 gulf that broke in harmonious sounds by his secluded 
 home! Perhaps to him, as to many others, that com- 
 plaining sea, extending far beyond the reach of human 
 vision, containing in its sombre depths so many mys- 
 teries forever unexplained, presented the emblem of that 
 wide eternity upon whose echoless shore are hushed all 
 the sounds of human strife. Or perhaps when the tem- 
 pest spread its black wings over the angry waves, it 
 recalled the stormy scenes in which his life had been 
 so largely spent; and it may be that in the succeeding 
 calm that brooded on the quiet waters he perceived the 
 type of that peace that awaits the tired mariner when 
 the uncertain voyage of life is over. Surrounded by 
 friends and family that had long been as dear to him 
 "as the ruddy drops that visited his sad heart," it may 
 be that, weary of a world of turmoil, where we see but 
 darkly and are oppressed with doubt, he was pleased to
 
 190 Addresses 
 
 find in the bottom of the bitter cup of life that drop 
 of anodyne, that "sweet oblivions antidote," that lulls 
 every care to sleep. 
 
 But even now dust to dust, ashes to ashes. So all 
 things mortal end. The flowers have been strewn; the 
 voice of the priest is silent; the final requiem has been 
 sung; the last vibrations of the funeral bell still linger 
 faintly on sea and land ; and the chieftain, whose strange 
 career is so deeply impressed on the page of history, 
 having received God's great amnesty, has entered upon 
 that last repose which shall never more be disturbed by 
 the voice of praise or blame. 
 
 RESOLUTIONS 
 
 The chair then announced music by the choir "0, 
 Lord, Kebuke Me Not," which was effectively rendered. 
 
 The following resolutions were read by Hon. W. E. 
 Hemingway, and on motion were adopted by unani- 
 mous vote: 
 
 To the Hon. John G. Fletcher, Chairman: 
 
 The brilliant career of Jefferson Davis has drawn to 
 a close. 
 
 Millions of enlightened beings lavished upon him the 
 bounty of their love; from many millions more he 
 extorted admiration. 
 
 Nature gave to him her rarest talents; discipline 
 exhausted its skill and powers in their development. 
 
 He explored all the sources of knowledge, the mines 
 and the heights, and acquired a learning that was uni- 
 versal and a culture that was perfect. 
 
 He entered the arena of life equipped for all its 
 emergencies. Scholar, soldier, orator, statesman, author 
 great as either, great as all, he stood foremost 
 among the illustrious men of his time, and no part of 
 his complete manhood suffered by any contrast. On the
 
 Jefferson Davis 191 
 
 field of battle, in the halls of Congress, in the cabinet 
 of the nation, and as president of the Confederacy, he 
 met the fullest expectation of his friends and disarmed 
 the exacting criticism of his enemies, by a uniform dis- 
 play of courage, intelligence and devotion to duty. 
 
 In the seclusion of his home, bearing upon his devoted 
 head the concentrated suffering of our people in defeat, 
 he illustrated the principles of heroic fortitude and 
 sacrifice to convictions, that increased our love and 
 reverence. 
 
 In every field of his endeavor, genius directed the 
 use of his faculties and wrought great deeds. His ideas 
 of the true principles of government were well defined, 
 and with the resolve of a patriot, in the light of con- 
 scientious guidance, he sought to maintain them, and 
 thereby promote the welfare of his country, and the 
 prosperity and happiness of his countrymen. 
 
 If at any time during the course of his exciting career 
 it was not given him to see the right, it was to be 
 ascribed to the frailties which inhere in humanity 
 the constancy of a lifetime testifies to the rectitude of 
 his purpose. In the evening of his life he saw all his 
 great contemporaries Lee, Grant, Lincoln, Jackson and 
 the rest pass away. Through the golden sunset he has 
 gone to join them, where, with the film of humanity 
 removed, they will know that each struggled for the 
 right as it was given him to view it. 
 
 "In private life he preserved his integrity unstained 
 and practiced the best rules of morality." He was a 
 worthy exponent of a people's aspirations and deserved, 
 won and enjoyed their undivided admiration, confidence 
 and devotion, increasing with the years. Therefore, be it 
 
 Resolved, That we mourn with his countrymen the 
 loss of his presence, and acknowledge, with pride the 
 hallowed legacies of his genius to mankind. 
 
 Resolved, That we point to his heroism, culture and
 
 192 Addresses 
 
 purity of life as an example for our youths, who aspire 
 to high and heroic things; and we patiently and confi- 
 dently await the time when just public judgment will 
 assign to him the place he deserves among the world's 
 great men. 
 
 Resolved, That we tender to his bereaved family the 
 sincere assurance of our sympathy. 
 
 W. E. HEMINGWAY, 
 W. S. DUNLOP, 
 W. E. WOODRUFF, 
 BEN S. JOHNSON, 
 G. W. CABUTH, 
 
 Committee.
 
 CONFEDERATE DEAD 
 
 "Memorial Address at the Annual Ceremonies of the Confederate 
 Memorial Day
 
 CONFEDERATE DEAD 
 
 In accordance with a custom that has now been conse- 
 crated by time and a long approval, we meet on this 
 anniversary to pay a tribute of respect and honor to 
 the gallant dead, who, gathered here from all parts of 
 our wide territorial empire, now rest, peacefully, side 
 by side, under the spell of that last sleep which no 
 magician's wand can break. 
 
 Nearly a quarter of a century has elapsed since the 
 American people, in an hour of enthusiasm such as 
 serves to mark an epoch in the history of a nation, 
 appealed to the arbitrament of the sword and dared to 
 invoke the dread name of the God of Battles. 
 
 The contest that ensued was of a magnitude commen- 
 surate with the destiny of our people. Never before in 
 the annals of mankind had war been waged on a scale 
 so gigantic. From one end of the land to the other there 
 was a marshaling of hostile forces, and the continent 
 seemed to reel under the tread of contending armies. 
 In every village was heard the martial drum-beat, and 
 the glittering ensigns of war floated on every breeze. 
 
 To this fell work of mutual destruction the American 
 people brought to bear all of that directness, earnest- 
 ness and energy which had characterized them in civil 
 life. The carnage was immense. The fields, the rivers 
 and the seas were incarnadined with fraternal blood, 
 and for four long years of the agony of our national 
 Gethsemane the cry of anguish arose from millions of 
 breaking hearts to the unrelenting heavens; and at last 
 when the combat was over and the rainbow of peace 
 revealed itself on the retreating clouds of war, and we 
 had leisure to count the cost of our audacious experi- 
 ment, we found that we had expended an amount of 
 
 195
 
 196 Addresses 
 
 treasure which, being ' judiciously applied, would easily 
 have solved all the difficulties of a pecuniary or material 
 sort for which the war was begun, and would still have 
 left an immense fund which might have been wisely 
 employed in educating the masses of the poor, in pro- 
 viding for the wants of the sons and daughters of afflic- 
 tion, in hastening the march of national progress and 
 in promoting that general welfare of the people for 
 which our government was organized. 
 
 Instead of these beneficial results, which might have 
 been achieved with the treasure expended, we found an 
 empty exchequer, a public debt of alarming proportions, 
 lonely and desolated landscapes, the wrecked homestead 
 and the ruined city, a disorganized society, all that tre- 
 mendous variety and accumulation of sorrow and afflic- 
 tion that follows wherever the red plowshare of war 
 has been driven. 
 
 Certainly, it may well be concluded that the science 
 of government is still in its infancy, since, though long 
 foreseen, it could not avert such a terrible calamity. 
 
 But, on the other hand, let us not repine. "Para- 
 dise," said Mahomet, "lies beneath the shadow of 
 swords. ' ' If material and pecuniary interests alone had 
 been at stake, the war would have been easily prevented. 
 Whatever may be said of the depravity of man, it should 
 be some consolation to reflect that no great war between 
 civilized nations or communities has ever been waged for 
 material interests alone. To move great masses of man- 
 kind, to render them forgetful of the pleasures and 
 security of home, and insensible to the hardships and 
 dangers of war, it is necessary to appeal to some intel- 
 lectual or moral ideal, some principle of right to be 
 defended, some feeling of injustice to be avenged. To 
 them must be proclaimed the necessity of a belief hi 
 the unity of God, or they must be told that the sepulchre 
 of Christ is being defiled by infidels, that liberty is in
 
 Confederate Dead 197 
 
 danger, or that the laws are being trampled on, so that 
 the people may verily believe that their cause is just 
 and pure in the sight of high heaven. As the Christian 
 and the Saracen fought for the honor of the same God, 
 as each believed that God to be, so even in all wars such 
 as I have mentioned it is the same worship of the same 
 ideal seen from different points of view, that animates 
 the hostile legions when they stand arrayed against each 
 other on the edge of battle. 
 
 Think of the men that lie here on either side of us 
 in their crowded graves. Was it any taint- of selfish- 
 ness or baser sentiment that has assembled them here in 
 their last retreat? No! Each one of them fell a sacri- 
 fice to some ideal that soared as far above his daily life 
 as yonder sky soars above the grave where he lies; the 
 source of an enthusiasm that made him oblivious to 
 wounds and to death. 
 
 A zeal of that kind that influences whole communities 
 is not born in a day. Eevolutions, it is said, have long 
 roots in the past. The germs of our Civil "War were 
 planted long before our government was formed. It 
 was in vain that the fathers of the republic recognized 
 their existence and sought to deaden their influence; 
 they grew with our national growth; and the various 
 checks and palliations applied from time to time by the 
 great legislators and expounders of the Constitution, 
 only served, by postponing the conflict, to make the 
 explosion more terrible and fatal in the end. 
 
 But let us not complain. No nation has ever attained 
 to wealth, power and prosperity without experiencing 
 the evils of civil war. The vigorous tree of Anglo-Saxon 
 liberty, which now extends its protecting branches over 
 the most flourishing regions of the earth, and which con- 
 tinues to thrive with perpetual vigor, was planted on the 
 field of civil strife, and for centuries it has been rocked 
 by storm and watered with human blood.
 
 198 Addresses 
 
 With that conflict of interest and sentiment which was 
 the inevitable outcome of the rapid development of our 
 resources, the expansion of commerce and industry, the 
 swift advance of our civilization, and our different 
 environments, it was necessary that we should pay the 
 heavy penalty of our greatness. 
 
 But that penalty has not been without some compen- 
 sating advantages. On both sides the war was nobly 
 fought ; and wherever the combat raged American forti- 
 tude and valor received new illustrations; nor are the 
 annals of our deadly strife stained with the cruel 
 slaughter of the helpless and the innocent, as has too 
 often happened in other lands, where the voice of human- 
 ity has been stifled by the clash of arms; nor has there 
 been any other instance in the long and bloody record 
 of civil wars in which the slaughter ceased when the 
 curtain fell on the last field of battle. Nor has the pro- 
 tracted and desperate encounter served in the least to 
 dwarf our destiny, or to check our onward career; but, 
 on the contrary, we are now entering upon a loftier and 
 nobler scene of usefulness than ever before. 
 
 I have mentioned the vast and incalculable national 
 losses caused by the war ; but these were not the heaviest 
 that we sustained. Bountiful nature has woven her 
 carpet of grass, and sprinkled it with flowers, where once 
 the embattled armies stood; and the diligent hand of 
 man has replaced what the fury of war had destroyed ; 
 but where, where! are the generous youth who 
 marched out under the hostile banners, elate with cour- 
 age and devotion, resolute to conquer or to die? Let 
 these mute but eloquent monuments of the dead, these 
 cypresses that fling their shadows over the roses in 
 bloom, make their mournful and solemn response. 
 
 That was a loss that can never be made good, and 
 which no man can compute. The young heroes went 
 forth on either side, the hope and pride of the country,
 
 Confederate Dead 199 
 
 only to be mowed down in their ranks, where Death, the 
 great reaper, was gathering his sheaves by the lurid 
 light of battle. These headstones are the silent memo- 
 rials of men whose genius in later years might have 
 moved the world by the splendors of eloquence or song; 
 who might have enlarged the boundaries of science and 
 of art, or whose active benevolence might have alleviated 
 many a sorrow ; but now over all these potentialities for 
 good and for usefulness rests the sombre and leaden pall 
 of death. 
 
 Nearly twenty years have gone by on rapid wing since 
 the sword was returned to its sheath and the last hostile 
 shot was fired, and as many times has returning spring 
 shed God 's benediction of flowers on these lowly graves ; 
 and yet when the sun goes down tonight the aged mother 
 will sit in the waning twilight, and will try to still the 
 beatings of her heart, so that she may hear once more 
 the footsteps of her son in the echoing halls of memory ; 
 and the woman whose golden or whose raven hair is 
 streaked with silver, will recall with a silent tear the 
 betrothed of her heart, who sleeps on the field of honor ; 
 while many a friend and brother, and father and sister, 
 still mourns for the unreturning brave. To them, and 
 to all of us, sad memories come trooping back from those 
 cruel years to haunt and lay siege to the stricken heart. 
 
 An ancient historian has left us an account of the 
 funeral ceremonies performed at Athens, on the occa- 
 sion of the reception of the first victims slain in the 
 Peloponesian War; the tents that had been spread for 
 three days to receive the bodies of the heroes ; the affect- 
 ing sight of their swords and shields ; the empty couches 
 that represented those whose bodies could not be found ; 
 all the outward signs and manifestations of grief; the 
 tears and sobs of fathers and mothers, of brothers and 
 sisters; the uncontrollable lamentations of the afflicted 
 multitude.
 
 200 Addresses 
 
 On that occasion Pericles, the greatest man and the 
 most eloquent orator of his age, delivered an oration 
 in which he said that ' ' when young men die, it is to the 
 country as if the year had died in its spring. ' ' 
 
 Yes, and so it was with those whose deeds and whose 
 fame we commemorate today. The year has died in its 
 spring ; arrayed in its leafy garments, and crowned with 
 roses ; the tender light of the vernal sun faded from its 
 eyes, which are forsaken of the hope of the golden har- 
 vest and the reeling profusion of the autumnal vintage. 
 
 On the same occasion the orator also said: 
 
 "In giving up their lives for their country, they have 
 acquired a fame which shall never grow dim, and the 
 most splendid sepulture. I speak less of the place 
 where they are buried than of the vast tomb of their 
 glory made memorable for all time; in which they 
 repose forever. For the whole world is the mausoleum 
 of illustrious men; and it is not merely a column or an 
 inscription which shall, speak to their country of the 
 virtues of the honored dead." 
 
 On another and a similar occasion, the burial of the 
 dead slain at Cheroneia, Demosthenes said: 
 
 "Wherever men go into battle, some must come out 
 as victors and sonr . .. iquished; but I do not hesitate 
 to say that those I in battle on either side are 
 
 not to be reckoner , the defeated ; and that they 
 
 all have equally gain>\, e victory. As for those who 
 survive, the honor of tl e'contest must be awarded accord- 
 ing to the will of the gods ; but all those who have fallen 
 in the ranks have made equal sacrifices to obtain it." 
 
 These utterances that come to us across wide seas 
 and the wider waste of long centuries, uttered in a 
 language that has long ago died on the lips of men, words 
 that would speak peace to the heart of Rachel weeping 
 for her children and refusing to be comforted because 
 they are not as well suited to the present occasion as
 
 Confederate Dead 201 
 
 they were to those on which they were spoken are as 
 the deep calling to the deep, proclaiming the eternal 
 brotherhood of man in that sentiment of bereavement 
 and sorrow which is the sad heritage of his race. 
 
 I have been told that sometimes during our civil strife, 
 when opposing forces would be encamped on different 
 sides of a stream, it would happen that, in the silent 
 watches of the night, soldiers on either side would hold 
 converse across the winding river; and, that at such 
 times, mindful of the uncertain issue of the morrow's 
 fray, and, remembering their common lineage, all feel- 
 ings of bitterness would be laid aside. 
 
 And so it is here in this last encampment of recon- 
 ciliation and peace. The once hostile soldiers whose 
 tombs fair hands will deck with impartial flowers today, 
 rest here upon their arms by the great and silent river 
 of death, with no vestige of human -passion or pride to 
 divide them in their unbroken slumber. 
 
 But, do they, indeed, rest here, speechless by that dim 
 and mysterious river? 
 
 "He that hath found some fledged bird's nest, may know, 
 
 At first sight if the bird be flown, 
 But what fair field or grove he ' ' in now, 
 That is to him unknown." 
 
 In other times and among c .- ..CBS, it was thought 
 that the souls of dead heroes cred in the beautiful 
 Elysian fields; or that they sat fin Valhalla, with the 
 immortal gods at their high feast; or that they were 
 transported to the happy hunting grounds of the Great 
 Spirit. Perhaps that which most serves to proclaim the 
 superiority of man is not to be found in the long line 
 of his victories over unfriendly circumstances and over 
 himself, but rather, in the fact, that in all time, just 
 where Nature and Destiny seem to have conspired for 
 his perfect overthrow, amid the darkness of the grave
 
 202 Addresses 
 
 and the desolation of the tomb, he has defiantly planted 
 the proud banner of his undying hope. In spite of the 
 sternness of his reiterated summons, he audaciously 
 denies the prerogative of Death, and believes in a world 
 beyond, upon which no mortal eye has rested. 
 
 Your oblations are not proffered in spirit to lifeless 
 ashes or insensate clay; nor are they dedicated, alone 
 to memory; they are dedicated also to hope, which, 
 drop by drop, shall put memory to sleep. Time, 
 the destroyer, is also time the consoler. What are 
 the sorrows of a single generation compared with the 
 duration of national life? To some of us it seems but 
 as yesterday that the battle flags were furled at the sun- 
 rise of peace; and yet in that little period one-half of 
 the human race as it then existed, have departed for 
 that silent land toward which all earthly footsteps tend ; 
 and when that brief interval shall be doubled, only a 
 handful of veterans will remain of those who partici- 
 pated in the greatest war of modern times; and then 
 in a few years that war, with all of its incidents, will 
 be as exclusively a matter of history as the wars between 
 Rome and Carthage. Thus it is that every generation 
 bears its load of sorrows but a few short steps, and then 
 deposits it in the capacious receptacle of the tomb. 
 
 Repair, then, with your lovely flowers, to adorn the 
 graves of the dead. Time was, when these stainless lilies 
 and these red and white roses that grew side by side 
 in the same garden, vieing with each other in beauty, 
 and shedding their mingled perfume on the wandering 
 air, were made the unwilling badges of hostile squad- 
 rons ; but today we consecrate them to a more congenial 
 and a nobler use. Cultivated and improved by the hand 
 of man, they seem to attend on his footsteps through life 
 as if quickened by some divine instinct of love and grati- 
 tude; they smile on the couch of the new-born child, 
 they crown our festive boards; they shed their beauty
 
 Confederate Dead 203 
 
 and their fragrance on the spotless brow of the blushing 
 bride in the hour of joy, and in their timid loveliness 
 they wind their wreaths about the portals of the tomb, 
 as if seeking for us to dispel the gloom that pervades 
 the house of death. They appeal to us in a language 
 that no words can express. In them Nature, as if weary 
 of trying to instruct us by her laws, seems to breathe 
 her silent blessing upon us as we pass. What were all 
 pictures and works of art, if these lovely symbols of 
 immortality should bloom no more ! 
 
 These flowers that you have brought are among the 
 richest of our possessions. ' ' Solomon in all his glory was 
 not arrayed as one of these." We, like them, are but 
 the children of an hour ; and very soon it will not mat- 
 ter whether we have died at four score or in the morning 
 of life. 
 
 "Die we early, die we late, 
 God's design is consummate." 
 
 It is the memory left behind which may kindle the 
 grave with glory, or shroud it with gloom. In that 
 respect those whose tombs we visit today are most happy ; 
 for the pyramids that weigh on the proud dust of 
 Egypt's kings, reared by unwilling hands, are but petty 
 monuments of human vanity, compared with the sponta- 
 neous offerings of Nature and affection with which a 
 united people shall today adorn the last resting place of 
 the unforgotten and heroic dead.
 
 BECCARIA AND LAW REFORM 
 
 Address Delivered as President of the Arkansas State Bar Asso- 
 ciation at its Meeting Held at Little Rock, 
 on January j, /poo
 
 BECCARIA AND LAW REFORM 
 
 For the brief time that is allowed me to throw myself 
 on your indulgence on this occasion, I wish to say some- 
 thing of the services rendered to the world at large by 
 Beccaria, the author of that remarkable book called 
 "Crimes and Punishments"; a work that has had an 
 immense influence in shaping the laws which at present 
 prevail in all of the civilized countries of the earth ; and 
 which marks one of the most curious episodes in the 
 history of jurisprudence. 
 
 If we except Montesquieu, whose work was rather crit- 
 ical and suggestive than constructive, Beccaria was the 
 first of the modern law reformers in point of time ; and, 
 if we judge solely by benefits conferred, he was by far 
 the greatest of all. 
 
 Paradoxical as it may seem, the fame of Beccaria has 
 been dimmed of late years by the good fortune which 
 crowned his labors. He does not survive, as does Charles 
 Darwin, who, by first giving a definite form to theories 
 partly scientific and partly speculative, has linked his 
 name with a controversy that will probably endure as 
 long as the origin of our race shall continue to be a 
 subject of dispute. Beccaria may rather be compared 
 to John Harrison, the inventor of the chronometer, 
 which he presented to the world in such a state of per- 
 fection that it was accepted at once; an invention that 
 affords security to sailors on every sea, and that pro- 
 tects in calm and in storm the vast marine commerce 
 of the world; thus conferring incalculable blessings on 
 millions of men, of whom not one perhaps of ten thou- 
 sand ever heard his name. 
 
 No one can understand the results of the teachings of 
 Beccaria without acquainting himself with the legal and 
 
 207
 
 208 Addresses 
 
 social system that existed in his day and time; but the 
 subject is so vast and painful that I cannot attempt to 
 explore it, except in a cursory manner, without running 
 the risk of exhausting your patience. I must content 
 myself by noting a very few of the evils then existing. 
 
 It may be considered as an accepted fact that acquired 
 habits persisted in for several generations become to a 
 greater or less extent hereditary; and that they will 
 continue until counteracted by other influences. This 
 principle applies to man morally, intellectually, and 
 physically; and to the lower animals as well. It is not 
 a discovery due to scientific research, but was known 
 in times remote; as was evident whenever men spoke 
 of family traits and of ancestral vices and virtues; and 
 is summed up in the biblical phrase that tells us that the 
 sins of the fathers are visited upon the children to the 
 third and fourth generation. 
 
 It is only during the present century that humani- 
 tarian views have come to be generally received. Pre- 
 vious to that time continual wars and habits of oppres- 
 sion and brutality had well-nigh extinguished all senti- 
 ments of that kind; so that, except where men were 
 bound together by ties of kinship or love or friendship, 
 pity for the sufferings of others was rarely visible in 
 the conduct of life. Had the result been otherwise the 
 rule that I have mentioned as to the transmission of 
 acquired qualities would have been completely disproved ; 
 for the cruel instincts of men had been most assiduously 
 cultivated at the expense of all other qualities for many 
 centuries. Burke, in the year 1756, computed the num- 
 ber of those slain in war from the earliest dawn of 
 history down to that date at 3,500,000,000, which hap- 
 pens to be as estimated just two and a half times the 
 present population of the globe. This takes no account 
 of the maimed and the wounded, of the sorrows of the 
 survivors, of families broken up and reduced to penury
 
 Beccaria and Law Reform 209 
 
 and want, of whole nations sold into slavery, of the two 
 grim phantoms of famine and pestilence, faithful attend- 
 ants on the chariot of the god of war, that, following 
 in his footsteps, destroyed immense numbers of the rem- 
 nant that he had spared. Nor does it take into account 
 the general demoralization that war inevitably produces. 
 
 These interminable wars, which were all wicked and 
 unjust on one side or the other, and often on both sides, 
 serve to indicate unmistakably that indelible strain of 
 insanity in our blood that is more conspicuous in the 
 history of nations than in the lives of individual men. 
 This is generally referred to as the imperfections of 
 human nature; but the term is too mild. The lower 
 animals have imperfections ; but they do not lead to such 
 terrible results. There is small consolation in reading 
 of the accumulated horrors of the past derived from this 
 source, though they are now covered by the ashes of 
 eternal silence. 
 
 The early Romans were not a cruel people, even when 
 judged by modern standards; but by reason of wars, 
 both foreign and domestic, the national character was 
 revolutionized until their descendants reached a degree 
 of ferocity that at present only excites sentiments of 
 horror and detestation. 
 
 With the Romans war was the normal condition ; and 
 the government was a well organized system of robbery 
 and plunder. For 700 years the temple of Janus was 
 only closed thrice; and then only for brief intervals. 
 The gladiatorial exhibitions sum up, though they do not 
 exhaust, the catalogue of Roman cruelties. On the occa- 
 sion of an unimportant victory the Emperor Trajan 
 gave an exhibition in which 10,000 gladiators engaged in 
 the work of mutual extermination for the amusement 
 of the people of all classes and ranks. On such occa- 
 sions ladies of the highest station gave the silent signal 
 which consigned the unskillful or unlucky combatants
 
 210 Addresses 
 
 to instant death. Choice seats were reserved for the 
 Vestal Virgins whose lives were consecrated to the service 
 of the gods. These exhibitions were given in every con- 
 siderable town and city throughout the vast dominions 
 of Rome for 600 years. We may judge of the number 
 of the slain in these contests when we are told by 
 Justyn Martyr that 80,000 gladiators perished in the 
 revolt of Spartacus. 
 
 It was this feeling of insensibility to human suffering 
 that constituted one of the principal legacies that dying 
 Rome left to the petty nations that parcelled out among 
 themselves her immense domain; and which soon bet- 
 tered the instruction that they had received. 
 
 The Middle Ages, beginning with the fall of the West- 
 ern Empire, about the year 500, and extending to about 
 the year 1500, may well be said to embrace about the 
 darkest period of our race. Its history is little else 
 than a narrative of incessant wars, tyranny unbridled, 
 ignorance, superstition, persecution, murders, massa- 
 cres, and misrule. No doubt there were many good men 
 and women in those days of crime and disorder, treading 
 the narrow and unsafe path of duty with fidelity to the 
 highest ideals that have been conceived; but they were 
 not sufficiently numerous to give direction to public 
 affairs; and their names, unstained by the prevailing 
 guilt, have been omitted from the pages of history. 
 Their influence may have survived to some extent; but 
 their memory for the most part has perished. 
 
 The close of that era was marked by the revival of 
 learning; but when the new wine was put into the old 
 bottles they burst; and social conditions, so far from 
 showing any improvement, for a long time were worse 
 than they were before. Nearly 300 years of turmoil 
 and bloodshed were to ensue before the angry elements 
 began to subside, and more rational views of life could 
 be seriously entertained. In times comparatively mod-
 
 Beccaria and Law Reform 211 
 
 era, Louis XIV. waged war in the spirit of Attila or 
 Genghis Khan. He burned more than a hundred towns 
 and cities in the Low Countries, and made of the rich 
 Palatinate a desert. 
 
 I have said nothing about the thousand and one 
 religious persecutions, kindled and kept alive by 
 fanatics who had conceived the strange fancy that they 
 could people heaven by depopulating the earth ; a delu- 
 sion that filled the centuries with sorrow and lamenta- 
 tions. The subject is so dark and uninviting that few 
 care to dwell on it now; it is one of the nightmares of 
 history that we are glad to forget. 
 
 It was inevitable that a passion that was well-nigh 
 universal should invade the realms of literature and art. 
 Dante, drawing aside the curtain that concealed the 
 unknown future, regaled mankind with the spectacle of 
 agonies that fortunately they were unable to inflict, but 
 which art strove to fix on canvas and to perpetuate in 
 marble. Descending to easier themes, sculptors and 
 painters filled the world with figures of saints expiring 
 under every conceivable variety of martyrdom; and 
 with startling pictures of the danses macabres, illus- 
 trating the terrible supremacy of death. The dignity of 
 death itself was degraded. The mild and pensive genius 
 of the inverted torch, as imaged by the Greeks, gave 
 place to a grisly skeleton, armed with a scythe, grin- 
 ning in mockery and derision at the terrors of his unwill- 
 ing victims. 
 
 In the eyes of men there was but one panacea for all 
 social ills. To instruct the ignorant, to reclaim the 
 erring, to subdue all unworthy passions, to enforce 
 obedience, recourse must be had to abject terror ; terror, 
 the all-sufficient philosopher's stone that alone would 
 transmute all base elements into gold. 
 
 It was equally inevitable that the laws should be 
 colored by the same influences.
 
 212 Addresses 
 
 The laws must always reflect the chief characteristics 
 of the people among whom they originate, or of the 
 rulers by whom they are imposed. Accordingly, we find 
 that the laws prevailing in Europe up to the middle 
 of the eighteenth century abounded in provisions of the 
 most extreme cruelty. 
 
 Sir William Blackstone published the first volume of 
 his Commentaries in 1765; and in that work he tells 
 us that there were then in England one hundred and 
 sixty offenses made punishable with death by various 
 acts of Parliament. It was a capital offense to steal 
 anything of the value of a shilling; and many minor 
 offenses were punished with equal severity. On the 
 continent the average of capital offenses seems to have 
 been something over 300; but what was perhaps worse 
 was that generally no fixed penalties were prescribed; 
 the matter of punishment being left to the judges, on 
 the theory that the degree of guilt depended on the 
 motive with which it was committed, and not on the 
 harm inflicted on society ; hence that punishments could 
 not be classified. The judges usually availed themselves 
 of this wide latitude to resolve all doubt in favor of the 
 State; and to impose heavy punishments according to 
 the most approved ancient precedents. They were not 
 really judges as we understand the word. It was then 
 thought that the judiciary was merely a branch of the 
 executive department. The judges were the principal 
 prosecutors of all accused persons brought before them ; 
 and after prosecuting them with extreme zeal the judges 
 proceeded to pass on their fate, without changing, as 
 they supposed, their attitude in the least. On the conti- 
 nent of Europe this system still prevails ; and it is only 
 in England and America that the rule obtains that an 
 accused person shall not be bound to criminate him- 
 self. On the continent the judge still uses all of his 
 skill to extort a confession, or to lead the accused into
 
 Beccaria and Law Reform 213 
 
 inconsistent statements which may tend to like results. 
 This is what Bentham called the inquisitorial method as 
 opposed to what he called the litigious method used in 
 England. 
 
 Judicial torture was not abolished in England until 
 the reign of George IV. ; but public sentiment even in 
 the time of James I. was largely opposed to it as being in 
 violation of the Magna Charta; and it fell into disuse 
 in the reign of Queen Anne. But all over the conti- 
 nent, except in Sweden, where it had been abolished, 
 torture formed a regular part of nearly every trial for 
 aggravated offenses until the latter years of the 
 eighteenth century; and a considerable portion of the 
 time of the judges was necessarily spent in the torture 
 chambers, writing down the utterances of men and 
 women in a state of delirium resulting from the inflic- 
 tion of the last drop of agony that human ingenuity 
 could extract. A physician was always present to indi- 
 cate when dissolution was so imminent that there should 
 be a temporary suspension of proceedings ; but in spite 
 of this wise precaution, kindly death frequently put an 
 end to the exercises. 
 
 Nothing more horrible than one of these torture cham- 
 bers can be conceived; and yet they were formerly con- 
 sidered as absolutely essential to the stability of social 
 and religious institutions. The mere sight of one, though 
 long disused, inspired a modern poet to write one of 
 the noblest sonnets in our language. 
 
 There were two kinds of torture, the preliminary and 
 the supplemental. The first was used before conviction 
 to compel the prisoner to confess the offense with which 
 he was charged, while the second was employed after 
 conviction to extort from him the names of his 
 accomplices. 
 
 In France, after the publication of Beccaria's book, 
 preliminary torture was abolished by Louis XVI. ; and
 
 214 Addresses 
 
 supplemental torture was afterwards abolished during 
 the Revolution. 
 
 If by means of the preliminary torture anything like 
 a confession could be obtained, the labor of the judges 
 was at an end; though it was well known that in many 
 instances prisoners subjected to prolonged and extreme 
 torture had confessed to crimes that they had never com- 
 mitted. Yet as the rack and the thumb screw had been 
 recommended for ages as the most satisfactory test of 
 guilt, the courts regarded confessions made voluntarily 
 as being of but little value unless repeated by the pris- 
 oner when suffering under the most intense agony that 
 the utmost refinement of art could devise. 
 
 Peter the Great does not seem to have possessed much 
 originality; but his imitative faculties were well-nigh 
 unparalleled. When he visited France in 1713, being 
 desirous of transplanting into his own country all of the 
 appliances of civilization, he spent much of his time in 
 the torture chambers in order to learn the various 
 instruments used, and the most skillful manner of apply- 
 ing them so as to achieve the best results. Acquiring 
 a complete outfit of such implements, he carried them 
 home with him, and used them as models for the fabri- 
 cation of many of like kinds. 
 
 The unit of Peter's system was a doubina, or big 
 stick, which he laid on the shoulders of his familiars 
 with a degree of prodigality and impartiality that 
 showed that he possessed a soul that rose above all dis- 
 tinctions of rank, age, or sex. But he soon established 
 torture chambers that for perfection of equipment quite 
 equalled those of more highly civilized communities. 
 We read that he established fourteen torture chambers 
 in a single village. Bound by no vulgar prejudices to 
 one dull routine, he revelled in variety. Women, after 
 torment, he buried alive, because he found that this 
 method of punishment struck most terror to the female
 
 Beccaria and Law Reform 215 
 
 soul. It is curious to note that in his gentler moments 
 he returned to ancestral methods, and cut off the heads 
 of his victims with his own hands ; an exercise in which 
 he displayed unusual dexterity. By prolonged and 
 excessive torture he put his own son to death. 
 
 Under the practice prevalent when Beccaria wrote, 
 if the prisoner could not be forced to confess, witnesses 
 were adduced. Hearsay evidence was admissible ; and if 
 two rumors affecting the prisoner's supposed offense, or 
 tending to prove any immoral act committed at any 
 time during his whole life, could be traced to two differ- 
 ent sources, they were equivalent to the testimony of one 
 eyewitness. Nothing was more common when one was 
 on trial for his life, say for stealing, than for the prose- 
 cution to introduce evidence by common rumor, or other- 
 wise, that when a boy he had thrown stones at his grand- 
 mother, or that at other times he had shown an evil 
 disposition. Of course, no one could be prepared to dis- 
 prove all the charges, covering a whole lifetime, that 
 idle gossip or malice might have suggested. And then 
 there was a hideous maxim that had drifted down from 
 the Middle Ages to the effect that where the crime 
 charged was particularly atrocious, convictions might 
 be had on slight evidence, or on mere suspicion. 
 
 It will be seen that under these forlorn conditions 
 there was but small hope for the prisoner ; and that an 
 inquisitorial trial was very much like the ancient trial 
 by ordeal, by which, if the accused person walked bare- 
 footed over red hot plowshares without burning his feet, 
 he was to stand acquitted, otherwise he should be con- 
 demned. 
 
 The fact is that but few that were charged with 
 offenses escaped from the clutches of the trial courts 
 unless through the favor of some one in power. 
 
 It is known that very many innocent persons were 
 put to death under these forms; such results being the
 
 216 Addresses 
 
 more common because all trials were conducted in secret, 
 and the accused was denied the benefit of counsel. 
 
 We can judge of the fallibility of these proceedings 
 by the numerous trials for witchcraft, a crime supposed 
 to consist of personal interviews with the devil, resulting 
 in a promise by the witch to serve him faithfully, in 
 return for which she received a gift of supernatural 
 powers. There were such things as wizards; but this 
 offense was thought to be confined mostly to women. 
 Now we know as well as we know anything that this 
 supposed crime was in its very nature impossible ; hence 
 that all those that were convicted of it were innocent of 
 the offense with which they were charged. 
 
 While witches were being hanged in Massachusetts 
 they were being burned in England and Scotland; but 
 the European continent was much more infested with 
 them than England or America. 
 
 Michelet tells us that 7,000 witches and wizards were 
 burnt at Treves ; that at Geneva 500 were burnt in three 
 months, 800 at Wurzburg, and 1,500 almost at once in 
 Bamberg; and that among these were girls not more 
 than eleven years old. In Toulouse and several cities 
 of Spain the number was still greater. So desolating 
 were these prosecutions that the Emperor Ferdinand II. 
 of Germany, who might have disputed the prize of cru- 
 elty with Nero and Caligula, felt bound to interpose 
 some slight restraint, saying that as things were going 
 on his dominions would soon be depopulated. 
 
 The delusion was worse than a pestilence. In Lor- 
 raine one judge, named Remy, sent more than 800 
 witches and wizards to the stake. He boasted that his 
 judgment in such matters was so unerring that it often 
 happened that persons who were arrested practically 
 confessed their guilt by committing suicide. Though 
 the offense of witchcraft was purely imaginary, yet 
 the trials did not at that time differ from other trials;
 
 Beccaria and Law Reform 217 
 
 and the same quantum of evidence was required to 
 justify a conviction. 
 
 Judgeships were put up and sold to the highest bid- 
 der; and judges were notoriously unfit for their places. 
 Early in the reign of Louis XIV., the Minister Colbert, 
 wishing to select from the various parliaments judges 
 to form a special tribunal for the trial of Fouquet, 
 wrote to the various prefects for their opinions of the 
 judges within their department. The reports which he 
 received represented them as being almost universally 
 ignorant, drunkards, debauchees, and generally worth- 
 less. These reports are still preserved in the French 
 archives. They hand down the names of the judges 
 to an immortality far worse than oblivion. The reports 
 are no doubt true; but caricature could hardly have 
 done worse. 
 
 The victims of the law that I have mentioned are 
 only a very few out of the many thousands that suffered 
 in the same way, equally innocent. 
 
 Besides these secret trials there were other ways of 
 disposing of obnoxious persons. One of these was by 
 the issue of what were called in France lettres de cachet, 
 by which, without any formulated charge, the victim 
 was consigned to prison during the pleasure of the king ; 
 and the king's pleasure often lasted for many years, or 
 for the life of the prisoner. In the reign of Louis XV. 
 a man was found in the bastile who had been confined 
 there for thirty-five years. He had never known why 
 he had been imprisoned; and no one else knew. Under 
 the circumstances it was thought best to discharge him; 
 but when he had taken a look at the outside world, he 
 begged that he might be allowed to return to his familiar 
 cell; and his request was granted. 
 
 For very petty offenses, many of them not now con- 
 demned by law, there were various punishments, many 
 of which were more to be dreaded than death. Thou-
 
 218 Addresses 
 
 sands of convicts were annually sent to the galleys, 
 where, during working hours, except in very inclement 
 weather, they were chained to the shuddering oar with- 
 out any vestige of clothing. Their food was poor and 
 insufficient. The result was that the death rate was 
 something frightful; and the exceptionally strong who 
 survived the ordeal were frequently kept in chains for 
 ten to fifteen years after their terms had expired. 
 
 I need not notice the foul and overcrowded prisons for 
 debtors that abounded everywhere. 
 
 The terrible punishments denounced by law had the 
 effect to defeat the ends which the law was intended 
 to accomplish. If one had committed some slight offense 
 punishable with death he had nothing left but to join 
 some troop of brigands in which he would take his 
 chances in a permanent war on society. Thus it was 
 that crime constantly increased, though bodies of sup- 
 posed malefactors were always swinging on the gallows 
 as a warning to evildoers. To meet the rising tide of 
 crime, death was clothed with additional terrors, and 
 convicts were burnt at the stake, broken on the wheel, 
 or hung, drawn and quartered, having been previously 
 whipped from the jail to the gibbet. In France and 
 various other countries the tongue of the convict in 
 certain cases was cut out before he headed the procession 
 to the gallows. But nothing did any good; crimes con- 
 tinued to increase, and the hangman was everywhere 
 busy. 
 
 I have perhaps said enough to show the wretched con- 
 dition of the criminal laws throughout Europe up to 
 the last half of the eighteenth century. Owing to the 
 greater amount of liberty enjoyed in England, and the 
 institution of trial by jury, the laws were generally, 
 but not always, enforced with considerable impartiality ; 
 but not so on the continent; the rich and powerful 
 despised them, and treated them with ill-concealed con-
 
 Beccaria and Law Reform 219 
 
 tempt, while the law operated on the poor and the weak, 
 and often on the innocent, with the utmost severity. 
 
 Cesar Bonesano, Marquis of Beccaria, the son of a 
 noble but impoverished family, was born at Milan in 
 1735. Soon after attaining his majority he published 
 a work on the subject of the debased condition of the 
 Italian coins that attracted general attention in his 
 native country. 
 
 In 1764, he had, at the age of twenty-nine, completed 
 his celebrated book on "Crimes and Punishments." 
 Having shown it to some of his friends, they advised 
 him not to publish it, because it contained sentiments 
 that might bring him into collision with the government, 
 and might subject him to the punishments denounced 
 by the inquisition, which was then unshorn of its 
 powers. Beccaria himself had very serious misgivings 
 on the subject ; but Count Veri, his most intimate friend, 
 urged on him that the work should be published from 
 a sacred sense of duty. Accordingly, it came out in the 
 year last mentioned. Its success was instantaneous, and 
 almost unparalleled. It went through three editions in 
 the course of a few months, and in a short time was 
 translated into all the languages of Europe, including 
 modern Greek, a language then almost unknown, Greece 
 being at that time an obscure province of Turkey. 
 Catherine II. of Russia was so much pleased with it that 
 she caused it to be printed as a part of her code. 
 
 Nevertheless there were not a few in Italy that 
 asserted that the author had expressed seditious senti- 
 ments for which he ought to be dealt with promptly and 
 severely, as a punishment for the offense, and as a warn- 
 ing to all evil disposed persons in like case. From this 
 unpleasant contingency Beccaria was saved by Finniani, 
 who was then the Austrian governor of the Milanese, and 
 who seems to have been a man of intelligence and worth. 
 
 The book made a great stir everywhere ; but more espe-
 
 220 Addresses 
 
 cially in Paris, which was then the center of literary 
 culture. But before speaking of its critics I will notice 
 the work itself. It forms only a small volume that any- 
 one can read through easily in two or three hours. 
 Most of its propositions seem today to be no more than 
 truisms; but they were startling enough when first 
 brought to light. 
 
 In his introduction, the author says: "In defending 
 the rights of humanity and of eternal truth, if I might 
 aid in saving from death some of the trembling victims 
 of tyranny, or of ignorance, which is equally fatal, the 
 benedictions and tears of a single innocent person 
 restored to joy and liberty would console me for the 
 contempt of the rest of mankind." 
 
 He began his treatise by saying that the advantages 
 of society should be equally distributed among all of 
 its members; a sentiment which he repeats in a form 
 which has now become an aphorism: "The object of 
 government should be the greatest possible good to the 
 greatest number." 
 
 The following is submitted as a brief summary of the 
 reformation that Beccaria recommended. 
 
 The laws (generally written in Latin at that time) 
 should be written in the vulgar tongue, so that they 
 may easily be understood by the people. Every offense 
 should be rigidly defined; and a punishment strictly 
 proportioned to its magnitude should be prescribed with 
 the greatest precision possible, so that the least possible 
 discretion should be left to the judge. 
 
 The efficiency of punishment depends more on its 
 certainty than on its severity. If laws are well defined 
 and properly executed each citizen will know the conse- 
 quence of a criminal act; and the innocent will feel 
 secure in the enjoyment of life, liberty, and property. 
 The press should be free, so that men may have the 
 benefit of free discussion, and be able to form reasonable
 
 Beccaria and Law Reform 221 
 
 and correct opinions. (It is perhaps needless to say 
 that at that time the press everywhere, save in Eng- 
 land, was under a strict censorship.) 
 
 Judges should be assisted by laymen chosen by lot in 
 all criminal trials. All trials should be public. Women 
 should be allowed to testify as witnesses the same as 
 men. (They were generally excluded from the witness 
 stand in Italy at that time.) Defects of moral character 
 should not exclude a witness; but should only go to his 
 credibility. 
 
 To justify conviction the evidence should be free from 
 doubt; more especially where the offense charged con- 
 sists wholly or in part of spoken words; such words 
 being often wrongly reported, while their meaning 
 depends largely on tones and gestures that cannot be 
 reproduced in the court room. 
 
 No one should be bound to criminate himself. Tor- 
 ture, which condemns the feeble and exonerates the 
 robust, should be abolished. 
 
 Capital punishment should be superseded by impris- 
 onment at hard labor for periods proportioned to the 
 offense. No punishment should exceed what is needful 
 to deter men from crime. Confiscation of property 
 (then almost universal in cases of conviction) should 
 be abolished, because it inflicts punishment on the inno- 
 cent family of the offender. The time of imprisonment 
 before trial should be as short as may be compatible 
 with a full and fair trial. If the accused is guilty, 
 promptness of punishment renders the law more effi- 
 cient; if innocent, he should be restored to liberty at 
 the earliest possible moment. 
 
 Offers of rewards for accused persons, dead or alive 
 (then very common) should be forbidden. Duelling 
 should be prohibited; and it should be shown that the 
 law is the arbiter of disputes. Smuggling (then punish- 
 able with death) should not be punished capitally. The
 
 222 Addresses 
 
 government could lessen the violations of the law in this 
 respect by lowering the duties. 
 
 Towns and cities should be lighted at the public 
 expense; as crime would thereby be much diminished. 
 
 Punishment of suicide (then inflicted by burial of 
 the body of the offender with a stake driven through it 
 at midnight at a cross roads, and by confiscation of 
 property) should be abolished, as it only falls on the 
 innocent. Laws against emigration should be repealed, 
 as being an unreasonable restraint on personal liberty. 
 
 The law should never undertake to control men's 
 opinions, or to punish criminally mere breaches of 
 morals. "To attempt," said the author, "to subject a 
 multitude of intelligent beings to the invariable regu- 
 larity of inanimate machinery, is to indulge in a false 
 notion of utility. ' ' Liberty and law should march hand 
 in hand. 
 
 No confession should be admitted in evidence unless 
 voluntarily made. Judges should not act as prosecutors ; 
 but should be impartial between the State and the 
 defendant. The law should disregard all distinctions 
 of rank and station. 
 
 The author closed with these words: 
 
 "If punishment is not to be a mere act of violence 
 on the part of one person or more, it should be public, 
 prompt, necessary, as mild as possible, proportioned to 
 the offense, and fixed by the laws." 
 
 Such is the substance of this little book which was 
 written in a modest style that did not invite contro- 
 versy. The author prudently avoided comparisons, or 
 criticisms of existing institutions. He only said: "Such 
 is the sad condition of the human mind that we have 
 a better knowledge of the revolutions of the heavenly 
 bodies than of moral truths that lie very near us, and 
 which are intimately connected with our happiness. 
 Truths that concern us most are uncertain, encircled
 
 Beccaria and Law Reform 223 
 
 with darkness, and adrift on the whirlpool of our 
 passions. ' ' 
 
 The book was certainly received with general favor; 
 but not with universal approval. It was promptly con- 
 demned by the inquisition in Venice. 
 
 A monk named Corfri, living in a monastery in Val- 
 lombrosa, published a book in which he hurled at Bec- 
 caria all the anathemas that had accumulated in the 
 arsenals of theological controversy for centuries. He 
 said that Beccaria had distilled a gall of unexampled 
 bitterness ; that to shameful contradictions he had added 
 secret and perfidious traits of hypocrisy; that his book 
 was horrible, venomous, licentious, impious, infamous, 
 filled with impudent blasphemies, insolent ironies, 
 indecent pleasantries, dangerous subtleties, scandalous 
 railleries, and outrageous slanders. 
 
 This good monk had no doubt of the punishment that 
 Beccaria deserved, or of the final destruction by which 
 he would be overtaken. On these subjects his notions 
 had all of that definiteness that Beccaria desired that 
 the laws should assume. 
 
 At that time Linguet and Brissot, one of the future 
 leaders of the Girondists, were writing on different news- 
 papers in Paris. They had formerly been on the staff 
 of Freron, the well known editor of a Parisian period- 
 ical, where they had quarreled bitterly; a quarrel that 
 was definitely ended when the}" were both guillotined 
 during the reign of terror. 
 
 Linguet, who was an obscurant of the most pro- 
 nounced type, wrote a review in which he denounced 
 Beccaria 's book with the utmost vehemence, and in which 
 he told various lies about the author. Brissot wrote a 
 review in which he highly eulogized the work on 
 "Crimes and Punishments," concluding by saying that 
 the author had secured an additional triumph by reason 
 of the censure of Linguet.
 
 224 Addresses 
 
 Perhaps the most extraordinary production called 
 forth was from one Vouglans, who had formerly been 
 one of the judges of the Parliament Maupeou. He and 
 his fellows having been turned out to grass by Louis 
 XVI., he found time to write two folio volumes in 
 denunciation of Becearia; in which he urged that the 
 reason there was so much crime was that the laws were 
 not severe enough, and that many crimes were not made 
 punishable by law at all. 
 
 The work on ' ' Crimes and Punishments ' ' undoubtedly 
 hastened the step of the French Kevolution. It was the 
 textbook of its principal leaders. By sending a search- 
 ing ray of light into the dark recesses of the criminal 
 law it showed the folly and injustice of most of the 
 existing institutions; and excited in France a spirit of 
 general revolt. 
 
 The Revolution began very well. One of the first 
 things to which the Constituent Assembly turned its 
 attention was the preparation of a criminal code based 
 on the suggestions of Beccaria. The result was a code 
 which is hardly open to intelligent criticism; and, with 
 but few changes, it still remains in force. 
 
 When, under the reaction against ancient abuses, the 
 Revolution, unable to steer between the Scylla of 
 tyranny and the Charybdis of anarchy, adopted the 
 methods that it had denounced, and substituted the 
 Revolutionary Tribunal in place of the worst of those 
 that had existed under the old regime, such a sudden 
 lapse from high ideas must have grieved the heart of 
 the Italian jurist. We cannot doubt that he was pained 
 to perceive that right triumphs in this world very much 
 as wrong triumphs. He could not foresee that out of all 
 that turmoil would come, far off, the unification and the 
 enfranchisement of his native land; objects that he 
 coveted, but for which he dared not hope. 
 
 The victory of Beccaria has become complete. The
 
 Beccaria and Law Reform 225 
 
 principles that he announced are now embodied in every 
 criminal code in Christendom ; and they have even pene- 
 trated the distant Orient. Japan years ago adopted 
 a criminal code based on his views. 
 
 During the late war between China and Japan the 
 Japanese government threw troops into Korea, and ruled 
 the country as long as the war lasted. At the end of the 
 war Japan showed that her people were not thoroughly 
 civilized, or at least not deeply imbued with the spirit 
 of modern Christianity, by freeing Korea from the Chi- 
 nese yoke, hauling down the Japanese flag, withdrawing 
 her troops, and leaving the Koreans to work out their 
 own political salvation. 
 
 Since that time the king of Korea has introduced 
 various reforms. On the 8th day of January, 1895, he 
 issued a proclamation containing these words, taken 
 almost literally from Beccaria: 
 
 "Civil law and criminal law must be strictly and 
 clearly laid down; none must be imprisoned or fined in 
 excess, so that security of life and property may be 
 ensured for all alike." 
 
 Beccaria 's book had the honor of being translated into 
 French by the Abbe Morellet, at the suggestion of 
 Malesherbes; and of being annotated by Diderot, who 
 was then a great light in the literary firmament. He 
 was a man of ability, and of wonderful information; 
 but in this instance he failed completely. He favored 
 the abolition of preliminary torture, but recommended 
 that supplemental torture be perpetuated, notwithstand- 
 ing the fact that long experience had shown that crim- 
 inals under torture were much more likely to implicate 
 innocent persons than to denounce their friends. He 
 also had unbounded faith in the omnipotence of the law. 
 He said: "Where the laws are good, men are good ; and 
 where the laws are bad, men are bad;" thus mistaking 
 the effect for the cause.
 
 226 Addresses 
 
 Voltaire published a pamphlet anonymously, in which 
 he defended the theories of Beccaria, and enforced them 
 by various historical references. 
 
 It is not surprising that a revolution so extensive as 
 that contemplated by Beccaria should have met with 
 opposition. Errors particularly if they are of long 
 standing die hard. Outside of poetry they rarely die 
 at all; but are continually made to assume new forms, 
 and are reissued. Hence life is what it has always been, 
 a combat. 
 
 Cicero approved of the gladiatorial shows because, he 
 said, they taught men how to die ; and Pliny the younger, 
 perhaps the most refined man of antiquity, thought that 
 they should be encouraged. 
 
 In our own times we have many brutal exhibitions, 
 which are faithfully reported by the press ; and the law 
 has to require that public executions shall take place 
 within closed walls in order to prevent them from degen- 
 erating into popular spectacles. 
 
 Sir Matthew Hale, a very learned man, said that any 
 man who denied witchcraft was an atheist. He proved 
 his faith by causing two old women to be burned for 
 that offense. Blackstone published the fourth volume of 
 his Commentaries in 1769. He had read the treatise of 
 Beccaria; and it had evidently modified his high tory 
 and reactionary views to some slight extent, as is shown 
 in his last chapter; but he believed in witchcraft as 
 devoutly as any Senegambian now living. Speaking of 
 witchcraft, he said: " The thing itself is a truth to 
 which every nation in the world hath in turn borne 
 testimony, either by examples seemingly well attested, 
 or by prohibitory laws; which at least suppose the pos- 
 sibility of commerce with evil spirits." 
 
 Some years ago a distinguished jurist published an 
 article to prove that war is the nurse of all the nobler 
 virtues. The nursing has been so prolonged and exten-
 
 Beccaria and Law Reform 227 
 
 sive that probably many of them have been nursed to 
 death. Not long ago I read a paper written by some 
 French writer in which he said that public trials of 
 criminals are only schools of crime. Consequently he 
 contended that all such trials should be in secret, as in 
 the good old days. 
 
 When, in 1899, the peace conference met at The 
 Hague the two great Anglo-Saxon nations, claiming to 
 be in the van of civilization, refused to give up the dum- 
 dum bullets because just at that time they happened to 
 be engaged in the spread of the gospel of peace among 
 heathen nations. 
 
 Not long ago I heard an address which dealt with the 
 question of friendly arbitration of disputes between 
 nations. The orator gave a history of such arbitrations, 
 and presented a glowing picture of the coming day when 
 spears shall be beaten into plowshares, swords shall 
 be beaten into pruning hooks, and the white dove of 
 peace shall spread its wings over landscapes of universal 
 reconciliation ; but he wound up by telling us that there 
 were a few wars so divine, so holy, so preeminently 
 sacred, that they commended themselves to the universal 
 conscience of mankind; and that chief among these, 
 consecrated by all of the blessings of heaven, was our 
 present war on the Filipinos. He then proceeded to 
 develop a code of international morals, which, if not 
 superior to the Sermon on the Mount, was at least 
 different from it. 
 
 But notwithstanding all objections, and some vitu- 
 peration and abuse, the book of Beccaria commended 
 itself to most fair-minded and intelligent men. 
 
 His doctrines have not only changed the whole system 
 of the criminal laws, but they have stimulated inquiries 
 into civil laws as well, and have resulted in a new science 
 of jurisprudence based on reason, and not dominated 
 by ancient custom, or enslaved by wornout precedent.
 
 228 Addresses 
 
 Bentham, Romilly, Pastoret, and all of the great law 
 reformers of the present century, have frankly acknowl- 
 edged their obligations to the pioneer in their wide field 
 of labor. 
 
 The rest of the life of Beccaria is soon told. For 
 some years he and some of his friends published in Milan 
 a periodical called the ' ' Coffee House, ' ' after the manner 
 of Addison's "Spectator." Not long after the publica- 
 tion of his book on "Crimes and Punishments" he 
 planned an extensive work on Legislation; but seeing 
 that such a work would bring him in conflict with those 
 who were in power, he abandoned the enterprise. He 
 was like the mariner, who, having narrowly escaped 
 shipwreck on his first voyage, resolves to tempt no more 
 the stormy seas. He was happily married, and little 
 children were growing up around him. He said him- 
 self: "I sought to defend humanity, without becoming 
 its martyr." 
 
 Beccaria was appointed professor of political economy 
 in the Palatine College of Milan in 1768, a position in 
 which he maintained himself with distinction. Two 
 volumes of his lectures have been published since his 
 death. In 1771 he was made a member of the supreme 
 economic council; and in 1791 he was made a member 
 of the board for the revision of the code, in which 
 capacity he rendered valuable services. He died of 
 apoplexy at the age of 60, "lamented," as was said 
 by a contemporary and a fellow countryman, "by all 
 who knew him, and worthy of being known and 
 lamented by the whole human race." 
 
 His work was done. He had spoken a little word in 
 due season, and it was destined to live forever. In the 
 first edition of his book he had favored imprisonment 
 for debt. In a later one he expunged the passage, and 
 said : "I blush to have written so cruel a thing. I have 
 been accused of being seditious and impious when I was
 
 Beccaria and Law Reform 229 
 
 neither; but when I attacked the sacred rights of 
 humanity no one raised his voice against me." 
 
 Beccaria was extremely fortunate in the time of the 
 publication of his famous book. Fifty years earlier it 
 would have been fatal to its author ; fifty years later his 
 labors would probably have been forestalled. M. Dupin, 
 one of the most distinguished of the French lawyers of 
 this century, has said of Beccaria: "He was remarkable 
 less for the profundity of his views than for the gener- 
 osity of his sentiments ; his treatise is rather an earnest 
 plea for humanity than a scientific work; and the name 
 of Beccaria will pass with posterity, not as that of a 
 great publicist, but as that of one who deserved well of 
 the human race." 
 
 Immanuel Kant, who was profound often even to 
 obscurity, reproached Beccaria for leaning too much to 
 humanitarianism. 
 
 Beccaria was no doubt a humanitarian, if that is good 
 ground for censure ; but he was not a sentimentalist, like 
 Rousseau, who believed, or affected to believe, that all 
 men would be good and happy if all laws were repealed. 
 He stood for reasonable laws rigidly enforced; and he 
 deprecated the injudicious use of the pardoning power 
 as tending to bring the law into contempt. His book 
 may not seem very profound as compared with studies 
 in jurisprudence that have since appeared. He labored 
 for practical results, and not to show his learning. It 
 is the old story of Columbus and the egg. Anyone 
 could stand the egg on end after Columbus had shown 
 him how to do it. If Beccaria was not a great man he 
 accomplished great results. Generations of able jurists 
 had lived before him without seeing anything objec- 
 tionable in the barbarous codes existing in their day. 
 Men are the slaves of custom, and are apt to overlook 
 the faults and incongruities of institutions that have 
 always been unchallenged, and that have become vener-
 
 230 Addresses 
 
 able by reason of their antiquity. But Beccaria per- 
 ceived the prime defects in the governments and laws 
 of his time, and pointed them out with unerring accu- 
 racy, suggesting reformations that have been adopted 
 in all civilized lands. There are no doubt many cor- 
 porals in our army who, if furnished with modern appli- 
 ances of warfare, could capture another Tyre in less 
 time than it took Alexander; but it does not follow 
 that they are greater than Alexander. It may be that 
 Beccaria was not profound; but he was a thoroughly 
 sane man, with that rare kind of common sense, pos- 
 sessed by men like Washington, which easily adjusts 
 itself to great subjects. As a literary man he could 
 not compare with his grandson, Manzoni, the poet, and 
 the author of the only classic novel that Italy has pro- 
 duced; but the world could better have done without 
 "The Betrothed" than to have done without the trea- 
 tise on "Crimes and Punishments." 
 
 It does indeed seem not improbable that Beccaria 
 sought to do good rather than to acquire fame. We 
 may underestimate his abilities; but it would be hard 
 to overestimate the value of the work which he 
 accomplished. 
 
 If a shining angel had appeared in his chamber at 
 night, and had shown him a book of gold, containing 
 the names of all the great ones of the earth, and had 
 told him that his own was not enrolled therein, Beccaria 
 might have 
 
 " * * * spoke more low, 
 But cheerly still; and said, I pray thee, then, 
 Write me as one that loves his fellow-men."
 
 JUDGE JOSEPH W. MARTIN 
 
 Extract from an Address Delivered on Presenting to the 
 
 Supreme Court of Arkansas the Resolutions on the 
 
 Death of Judge Joseph W. Martin
 
 HON. JOSEPH W. MARTIN: 
 MEMORIAL 
 
 At such a time, when our thoughts revert to the irrev- 
 ocable past, we are apt to recall things that had been 
 but dimly remembered. Since the death of Judge Mar- 
 tin I have more than once recurred to an important 
 trial that took place in the House of Lords in England 
 nearly three hundred years ago; a trial involving the 
 titles and estates of the Earls of Oxford, of the great 
 house of DeVere, which had existed in England for 
 five centuries in extraordinary power and splendor; but 
 which, as it was contended, had ceased for want of 
 heirs. The evidence was obscure and conflicting, the 
 issue doubtful. A great judge of that period, distin- 
 guished alike for learning, high character and ability, 
 in delivering his opinion on that occasion, said, in words 
 that will be long remembered: 
 
 "I have labored to make a covenant with myself that 
 affection may not press upon judgment; for I suppose 
 there is no man that hath any apprehension of gentry 
 or nobleness but his affection stands to the continuance 
 of a house so illustrious, and would take hold of a twig 
 or twine-thread to uphold it. And yet time hath his 
 revolutions; there must be a period and an end to all 
 temporal things, finis rerum, an end of honors and dig- 
 nities, and whatsoever is terrene and why not of 
 DeVere? For where is Bohun? Where is MowbrayT 
 Where is Mortimer? Nay, which is more and most of 
 all, where is Plantaganet? They are entombed in the 
 urns and sepulchres of mortality. Yet let the name of 
 DeVere stand as long as it pleaseth God!" 
 
 And where is the judge that uttered these words, and 
 where the royal personages, statesmen and gentlemen 
 
 233
 
 234 Addresses 
 
 and ladies of high rank that eagerly listened to them? 
 They, too, sleep in the urns and receptacles of mortality ; 
 and over most of them has settled the pall of oblivion 
 that shall outlast all monuments. 
 
 These, and all of the departed that walked with us 
 but yesterday, and are seen with us no more, were 
 spirits, masked and embodied for a time in human form. 
 One whose inexhaustible genius has not only fertilized 
 all the fields of literature and art, but has extended and 
 enriched the whole wide domain of thought, in what is 
 considered to have ,been probably the last product of 
 his mighty pen, ascending to the highest heaven of 
 invention, as if in the conscious accents of a magnificent 
 and sad farewell, has said: 
 
 "Our revels now are ended. These our actors, 
 As I foretold you, were all spirits, and 
 Are melted into air, into thin air; 
 And, like the baseless fabric of this vision, 
 The cloud-clapp'd towers, the gorgeous palaces, 
 The solemn temples, the great globe itself, 
 Yea, all which it inherit, shall dissolve, 
 And, like this insubstantial pageant faded, 
 Leave not a wrack behind. We are such stuff 
 As dreams are made of; and our little life 
 Is rounded by a sleep." 
 
 The thought was not a new one; for expressions of 
 the want of permanency of all things that we see, and 
 of the earth on which we dwell, are scattered through 
 ancient writings, both sacred and profane; but never 
 before had it been conveyed so impressively ; so impress- 
 ively, indeed, that a great poet in a foreign land long 
 subsequently declared that, having first read them, he 
 was never the same man afterwards. 
 
 Whatever is dissolved is not utterly destroyed; but 
 has only undergone a temporary change. If we can 
 only dimly trace the successive vicissitudes and trans-
 
 Judge Joseph W. Martin 235 
 
 formations of our little planet during the long ages 
 of the past, its future is enveloped in still deeper mys- 
 tery. But if this small floating island, from which we 
 look out on the universe as we pass, shall eventually 
 perish, as scientific men predict, it will, as compared 
 with the countless worlds around us, be but as the dis- 
 appearance of a grain of sand on the seashore. 
 
 Strange stories are told us in these later years as we 
 look up at the starry skies. They no longer speak to 
 us of individual destinies. It matters not under what 
 star we are born, under what star we die. Science will 
 point out to us a single luminary in the kindling 
 heavens, and will tell us that it is a central sun so vast 
 that the imagination cannot grasp its dimensions; and 
 that it, with all its attendant retinue of worlds, 
 inhabited, as we may trust, by beings wiser and better 
 and happier than we are, is forever dropping headlong 
 and silently through illimitable space with the speed 
 of a thunderbolt ; pursuing a cycle so immeasurably vast 
 that millions of years may be consumed in a single 
 revolution; and yet that it is so infinitely remote from 
 us that from the earliest dawn of history down to the 
 present moment, notwithstanding the inconceivable 
 space that it has traversed, it has not changed its appar- 
 ent place in the visible sky. It will tell us that all 
 central suns, including our own, reckoned not by mil- 
 lions, but by hundreds of millions, with their subordi- 
 nate worlds, are moving in the same manner in their 
 appointed orbits that can never be measured by man. 
 It will tell us that certain stars once noted and catalogued 
 have deserted the wide expanse of heaven ; while others 
 have blazed up into gorgeous splendor for a season, and 
 have then disappeared; that the destruction of one of 
 these systems results in a vast fire mist from which, 
 under the operation of laws now in force, there will be 
 evolved a new heaven and a new earth; and that this
 
 236 Addresses 
 
 process, requiring the infinitude of ages, is now going 
 on under the eyes of men. It will tell us that in the 
 wise economy of Nature matter and force, though they 
 undergo many wonderful transformations, are inde- 
 structible; and that, if language were framed on a 
 strictly scientific basis, the word annihilation would be 
 unknown, since the thing thus denoted has never existed 
 and cannot exist. If these things, confirmed in every 
 branch of science, are true, they demonstrate that all 
 the processes of Nature tend to perpetuity, and not to 
 decay and death ; and as we know that in our own world 
 the advance of development has always been on the 
 ascending scale from the lowest to the highest forms, 
 we have reason to suppose that such will be the case in 
 future throughout the universe; and that every succes- 
 sive creation will be more grand and beautiful than 
 those that went before. 
 
 Science, which has rectified many errors, and has dis- 
 pelled many illusions, has furnished new conceptions 
 of permanence and duration amidst constantly chang- 
 ing conditions, thus contributing a powerful support to 
 the oldest and most universal of human beliefs, that of 
 the immortality of man, which lies at the foundation of 
 law and order, without which science could never have 
 the opportunity or the leisure to disperse the thick cloud 
 of ignorance that long weighed upon human progress. 
 That this solemn and abiding conviction is deeply 
 stamped on the hearts of men for a benevolent purpose, 
 we cannot doubt, since in all ages and in all lands it 
 has afforded consolation to thousands of sorrowing souls 
 to whom all other hope was denied, has repressed many 
 a guilty thought, and has so far influenced even the 
 most depraved of men that they are sometimes over- 
 awed by the imperishable conviction of our race. 
 
 I know that there have been of late years a very 
 few men endowed with eminent talents that tell us
 
 Judge Joseph W. Martin 237 
 
 that we should form no opinion of what may happen 
 after death, because such conclusions cannot be based 
 on the experience of living men; but their lives belie 
 their creed; because in all conjectures they, like our- 
 selves, habitually act on probabilities that are far from 
 convincing ; and because their very negation implies that 
 they must sometimes indulge in reflections that tran- 
 scend the multiplication table or the exact demonstra- 
 tions of science; and that at times they must harbor 
 "the thoughts that wander through eternity." The 
 greater part of our knowledge is not based on exact 
 demonstration, but on intuitions and inferences. If 
 these should be withdrawn, the atmosphere of our lives 
 would be so sterilized that its vivifying properties would 
 be gone; and the proposition thus set forth, requiring 
 us to think only in demonstrations, would put an end 
 to scientific investigation itself, since it forbids us to 
 consider theories as yet unverified by evidence equivalent 
 to mathematical certainty ; thus denying the very process 
 by which science has made its conquests at every stage 
 of its progress. 
 
 I do not believe that the influence of a good man can 
 ever perish. Largely derived from other sources, it will 
 in its turn be transmitted, and will linger on when he 
 is gone. 
 
 We cannot think of our departed friends as mere 
 physical wrecks on the desolate shores of Time. If we 
 should adopt that grossly materialistic conception of 
 death, and should continue to cherish their memory, and 
 to erect statues and monuments in their honor, we should 
 only act in obedience to that fetishism that is practiced 
 by the lowest savage tribes, whose faculties scarcely rise 
 above the level of those of the brute creation, and should 
 perceive behind all the beneficient designs of Providence 
 nothing but the gloomy and revolting picture of Saturn 
 forever engaged in devouring his own children.
 
 JOHN MARSHALL 
 
 Address on John Marshall Day The One Hundredth Anni- 
 versary of his Appointment as Chief Justice of the 
 United States Supreme Court
 
 JOHN MARSHALL 
 
 I am not here to pronounce a eulogy on John Marshall ; 
 but the language that would express the most sober and 
 discriminating estimate of his character might easily 
 be mistaken for eulogy. There is not a man living that 
 could add anything to his fame, or that could pluck a 
 single leaf from the ehaplet of laurel with which he was 
 crowned by public acclamation long ago. Though 
 younger in years, he was contemporaneous with that 
 remarkable galaxy of men that sat around the cradle of 
 American liberty; men such as Washington, Hamilton, 
 Franklin, Madison, Jefferson, and a score of others that 
 might be mentioned, all men of extraordinary ability, 
 all animated by the same devotion to the cause of their 
 country, which was at the same time the cause- of human- 
 ity. Never since the age of Pericles had a country so 
 small in population produced so many men in the same 
 generation of such splendid endowments. Born with a 
 keen thirst for knowledge, and impelled by an ardent 
 emulation to profit by their illustrious example, John 
 Marshall had the advantage of knowing personally in 
 their declining years all of these great fathers of the 
 Republic, of observing their lives, and storing in his 
 memory words of wisdom which in after days served 
 him for guidance and for inspiration ; so that his whole 
 life became a sort of continuation of their traditions 
 and of their manly virtues. 
 
 The name of Marshall is as inseparably connected 
 with the Constitution of the United States as that of 
 Hamilton or Madison or of anyone else that helped to 
 frame it. If others conceived the form of government 
 which it was to ordain, it was Marshall that, more than 
 
 241
 
 242 Addresses 
 
 any other one man, gave precision to its meaning, and 
 translated it from a seeming abstraction into a practical 
 force, suited to the varied exigencies of national life. 
 The value of the instrument and of the interpretation 
 which it has received are both attested by the fact that 
 under their combined influence we have increased in 
 wealth, in population and in intelligence in a ratio of 
 which history has never recorded a kindred example. 
 If we have failed in some things, and if, considering our 
 opportunities, we are neither as good nor as wise as we 
 ought to be, the fault has not been with the Constitution, 
 nor with the decisions of Marshall, but with ourselves. 
 We have had the largest measure of personal freedom. 
 We have had the selection of our own rulers ; so that we 
 cannot lay any serious miscarriage to the form of our 
 government. It is imperfect, as all things that we know 
 are imperfect ; but it is extremely doubtful whether any- 
 thing better could be devised. Judging from the result 
 of experiments that have been made in other countries 
 we have abundant reason to be content with the instru- 
 ment itself, and with the interpretation of the powers 
 of the government by the great Chief Justice and his 
 colleagues to whom this grave and important duty was 
 intrusted ; reflecting that there is no government that by 
 its own unaided action will of itself work out satisfac- 
 tory results. A popular government must always reflect 
 the follies and demerits of those by whom it is controlled, 
 as well as their virtues; and eternal vigilance is not 
 only the price of liberty, but it is the price of almost 
 everything else that is worth having. 
 
 Mr. Gladstone spoke of the American Constitution as 
 "the most wonderful work ever struck off at a given 
 time by the brain and purpose of man." This saying 
 has been made the subject of rash and unmerited criti- 
 cism, as if it had been intended to convey the idea that 
 the Constitution owed nothing to pre-existing institu-
 
 John Marshall 243 
 
 tions, to the lessons of history, or to the labors of many 
 illustrious men in the science of government. It is 
 needless to say that if the framers of that instrument 
 had discarded such obvious means of enlightenment their 
 work would have proved but an abortion. In one sense 
 it is certainly true that there is nothing new under the 
 sun. It detracts not from the fame of the inventor of 
 the steam engine to say that he only made use of a well- 
 known force and of well-known materials to accomplish 
 his results. So it was with the framers of the Constitu- 
 tion. The materials with which to accomplish their 
 task were at hand; but the work of combination and 
 adjustment between the powers of the Federal govern- 
 ment and those of the several States, and between the 
 different departments of the Federal government, 
 required a discriminating wisdom which might well 
 excite the admiration of the great English statesman. 
 But Gladstone was not alone in his opinion; for the 
 American Constitution has been used as a model for 
 every written constitution that has been formed in any 
 part of the world since its adoption. If imitation is the 
 sincerest form of flattery it is because it affords evidence 
 of real admiration. 
 
 The Constitution of the United States was indeed the 
 result of a long and a complex evolution. The Con- 
 tinental Congress, organized in 1774, by the assumption 
 of powers not expressly granted, and by a display of 
 vigilance rarely equalled, managed for six years to pre- 
 serve the country from the most fatal of calamities ; but 
 when it was superseded by the Articles of Confederation 
 the bonds of union were practically dissolved, and the 
 government fell into such a state of impotency that it 
 was powerless to enforce its edicts, or to command respect 
 either at home or abroad. The creation of this phantom, 
 miscalled a government, added untold difficulties to the 
 task set before Washington, which was already burdened
 
 244 Addresses 
 
 with inconceivable embarrassment. On the 7th day of 
 June, 1781, just before the disbanding of the army, he 
 addressed a circular letter to the governors and presi- 
 dents of the States, urging the necessity for a closer 
 union; but the time was not yet ripe for any definite 
 action. In the meantime the States proceeded on their 
 several ways, each endeavoring to enrich itself in the 
 good old medieval fashion. New York levied heavy 
 duties on every vessel that entered her ports, on all mer- 
 chandise that crossed her border, on every wagon load 
 of wood that came from Connecticut, on all of the mar- 
 keting that came from New Jersey. Connecticut retal- 
 iated by a league of her business men agreeing not to 
 have any commerce or intercourse with New York or her 
 people. New Jersey retaliated by taxing at the rate of 
 $1,800 a year a small lighthouse that New York had 
 erected within her borders on an acre of sandy beach 
 that she had bought for that purpose. A colony from 
 Connecticut having settled in the Wyoming valley in 
 Pennsylvania, the legislature of Pennsylvania sent a 
 troop of soldiers to seize their lands, which they had 
 bought and paid for, and to drive them into the wilder- 
 ness. Their homes were burnt, five hundred people were 
 turned out of doors, many died from sickness and expo- 
 sure, and seventy-six were captured, handcuffed and put 
 in jail. All of the States, except Delaware and Con- 
 necticut, were seized with a frenzy for the issue of paper 
 money, which, declining steadily in value, produced 
 widespread calamity and distress, ending in riots and 
 open resistance to the holding of the courts and the col- 
 lecting of debts. Every State had some quarrel with its 
 neighbors, and the country was fast drifting into anarchy. 
 Commerce languished, public credit expired, business of 
 all kinds was paralyzed, and intelligent men in the old 
 world made up their minds that the American experiment 
 had speedily come to a disastrous end; while not a few
 
 John Marshall 245 
 
 on this side of the water were inclined to the same dis- 
 mal conclusion. But in the impending gloom Washing- 
 ton still preserved his faith in that community of sym- 
 pathy and interest which at a later date the greatest of 
 civil wars could not obliterate. In the darkest hour of 
 that period of discord and despondency, he wrote: "It 
 is as clear to me as A, B, C, that an extension of Federal 
 powers would make us one of the most happy, wealthy, 
 respectable and powerful nations that ever inhabited the 
 terrestrial globe. Without them we shall soon be every- 
 thing which is the direct reverse. I predict the worst 
 consequences from a half-starved, limping government, 
 always moving upon crutches, and tottering at every 
 step." 
 
 It may seem now to have been an easy thing for Wash- 
 ington to predict the future greatness and prosperity of 
 his country ; but at that time his prophecy was no doubt 
 regarded with a good deal of incredulity. It was at a 
 still later date that as bright a man as Fisher Ames, in 
 speaking of the unoccupied territory of the United States, 
 said: "It is an immeasurable wilderness; and when it 
 will be settled is past calculation. Probably it will be 
 near a century before these people will be considerable. ' ' 
 
 After many abortive efforts the States were induced 
 to send their delegates in a half-hearted way to the 
 convention that met in Independence Hall, at Phila- 
 delphia, for the purpose of forming a more perfect 
 union. 
 
 During the session of that convention Washington one 
 day made a few remarks that probably have had an 
 immense effect on the destiny of our country. It often 
 happened that when a proposition was made some mem- 
 ber would object to it, not because it was not wise, but 
 because if inserted in the Constitution, the Constitution 
 would not be adopted by the people of the States. Hav- 
 ing heard this objection often repeated, Washington at
 
 246 Addresses 
 
 last rose from the chair in which he was presiding, and 
 said with some emotion : 
 
 "It is but too probable that no plan that we propose 
 will be adopted. Perhaps another dreadful conflict is 
 to be sustained. If, to please the people, we offer what 
 we ourselves disapprove, how can we afterwards defend 
 our work? Let us raise a standard to which the wise 
 and the honest can repair; the event is in the hand of 
 God." 
 
 From that time the argument in favor of a makeshift 
 Constitution was heard no more. 
 
 The formation of the union of the States was primarily 
 due to Washington. Without his enormous influence 
 the task would have been hopeless. Grayson, who 
 opposed the adoption of the Constitution, said : 
 
 "Were it not for one great character in America so 
 many men would not be for the government. We do not 
 fear while he lives ; but who besides him can concentrate 
 the confidence and affections of all America?" Monroe 
 wrote to Jefferson : "Be assured Washington 's influence 
 carried this government. ' ' 
 
 Mr. Bancroft says that if the idea had not prevailed 
 that Washington would accept the presidency, the Con- 
 stitution could not have been adopted. But the form 
 which the Constitution assumed was due to Madison more 
 than to any other man ; and he was fitly called the father 
 of the Constitution. 
 
 It was in the Virginia convention convoked to consider! 
 the question of the adoption of the Constitution that we 
 first catch a glimpse of John Marshall in a scene worthy 
 of his talents. 
 
 "Conspicuous in the ranks of Federalists, and unsur- 
 passed in debate," says Mr. Fiske, "was a tall and gaunt 
 young man, with beaming countenance, eyes of piercing 
 brilliancy, and an indescribable kingliness of bearing, 
 who was by and by to become Chief Justice of the United
 
 John Marshall 247 
 
 States, and by his masterly and far-reaching decisions 
 to win a place side by side with Madison and Hamilton 
 among the founders of our national government. John 
 Marshall, second to none among all the illustrious jurists 
 of the English race, was then, at the age of thirty-three, 
 the foremost lawyer of Virginia. He had already served 
 for several terms in the State legislature ; but his national 
 career began in this convention, where his arguments, 
 with those of Madison, re-enforcing each other, bore 
 down all opposition." 
 
 Yet in that convention the Constitution was only car- 
 ried by ten votes. In New York it was only adopted by 
 a majority of three votes, notwithstanding the super- 
 human efforts of Hamilton ; and after that so little inter- 
 est in the new government was felt in that State that 
 her people took no part in the first election of Washington 
 to the presidency. 
 
 When Marshall accepted the position of Chief Justice 
 we may well suppose that he did so with great reluctance. 
 Now when our country has become a giant among the 
 nations of the earth it is difficult for us to have a realiz- 
 ing sense of the feebleness of our infancy a hundred 
 years ago when the only great thing to be noted in our 
 condition was the group of great men that moulded the 
 national destiny. At that time the entire population of 
 the United States, settled almost wholly along the Atlan- 
 tic coast, was about the same as that of the present State 
 of Illinois; and of these nearly one-fifth were slaves. 
 The territory now forming the States of Alabama and 
 Mississippi was in possession of the Indians, and was 
 appropriately called the Indian Territory. The vast 
 extent of country north of the Ohio River, extending 
 from the Alleghenies to the Mississippi River, and from 
 the Ohio to the lakes, was a wilderness. Only a few 
 hardy pioneers had immigrated from beyond the moun- 
 tains to Kentucky and Tennessee. Florida belonged to
 
 248 Addresses 
 
 Spain, Louisiana to France, and all of the country west 
 of the Mississippi, reaching to the Pacific, nearly the 
 whole of which was unexplored, belonged to those two 
 countries. With the exception of New York, which had 
 sixty thousand inhabitants, there was not a city in the 
 United States as large as Little Rock is now. Phila- 
 delphia had 41,000, and Boston nearly 25,000. The 
 national capital, recently established at Washington, 
 might then be considered as a sort of Tadmor in the 
 Wilderness, since a city begun but not yet built and a 
 city that has been destroyed possess certain features in 
 common. The total revenues of the government for the 
 year 1800 were less than $13,000,000. Communication 
 between the different parts of the country was slow and 
 difficult. It took the daily stage coach, traveling at what 
 was then considered a dizzy rate of speed, from a week 
 to ten days to traverse the distance from Boston to New 
 York, a longer time than it takes now to go from Maine 
 to California. The country, still suffering from the 
 exhaustion caused by the Revolution, and from the weak- 
 ness of the late Confederation, was depressed, and the 
 future looked dark and uncertain. The Supreme Court 
 had as yet acquired no prestige; and its tremendous 
 influence on the future destiny of the government was as 
 yet unforeseen. The salary of the Chief Justice was 
 fixed at $4,000 a year. Marshall had only a short time 
 previously declined a seat in the same court. Plainly 
 the offer under these circumstances of the place of Chief 
 Justice to a man in the very noonday of life who was 
 the acknowledged leader of the bar in Virginia, was not 
 very tempting. Had he imbibed that commercial spirit, 
 as it is called, that so largely prevails to-day, he cer- 
 tainly would have declined. If he had declined, and a 
 weak man had succeeded to the position, it is probable 
 that the consequences would have been eminently 
 disastrous. Nearly all of the decisions that have been
 
 John Marshall 249 
 
 rendered by the Supreme Court on great constitutional 
 questions have been by a divided court; and several 
 times by a majority of only one. If you would see what 
 abysses we have escaped you have only to read the 
 dissenting opinions from the organization of the court 
 down to the present time. Nothing could have been 
 more fortunate than the appointment of Marshall; and 
 it has been well said that it redeemed all of the faults 
 of the administration of the elder Adams, a man of 
 intense patriotism and of great ability, but sometimes 
 wanting in practical wisdom. When Marshall took his 
 seat on the bench one hundred years ago to-day the gov- 
 ernment was endowed with a new force; the judicial 
 department had a man at the helm with a clear head, a 
 pure heart and a strong arm, in all things qualified to 
 perform the momentous duties assigned to him, destined 
 to maintain the Constitution and uphold the majesty of 
 the law for more than a third of a century. The influ- 
 ence of such a man under such circumstances is some- 
 thing that is wholly beyond human computation. 
 
 When the Constitution had been once adopted, men 
 read into it different meanings according to their pre- 
 dilection or their prejudices. It began by the words: 
 "We, the people of the United States." After it had 
 been engrossed a member suggested that the words, 
 "Done in convention by the unanimous consent of the 
 States present," be added; which was done without 
 objection ; the purpose being to show that it was equally 
 binding on the people and on the States. Though there 
 was nothing inconsistent in these two phrases, yet each 
 became the watchword of two different political parties, 
 one asserting that the whole people were bound by the 
 compact, and the other that the Constitution was only 
 a league between the several States ; a controversy which 
 called into existence immense libraries of books and 
 pamphlets, with speeches innumerable, and which was
 
 250 Addresses 
 
 not definitely settled until the close of our Civil War, 
 But that was not the only question to be passed on. The 
 Constitution is extremely terse and concise; necessarily 
 so, because in the grant of powers to a government it is 
 quite impossible to foresee and to provide for the 
 special circumstances under which they are to be exer- 
 cised. If the Constitution had gone more into details, 
 the difficulties of construction would have been 
 increased, because prolixity and perspicuity are by 
 no means convertible terms. The real meaning of the 
 Constitution as applied to any particular state of facts 
 could only be understood as occasion should arise ; and to 
 the Supreme Court was delegated this duty, the most 
 important that ever devolved on any court of justice. 
 To the old lawyers of the common law, of whom Coke 
 is the most famous example, the only way to construe a 
 written law was to regard it much as a military order is 
 regarded by subordinates ; that is, literally, by the most 
 obvious meaning of the words, and by the aid of a dic- 
 tionary, if need be. It may be said that it is mostly due 
 to Lord Nottingham and to Lord Hardwicke that this lit- 
 eral method, which often resulted in the grossest absurd- 
 ities, has been generally superseded, except in the domain 
 of the criminal law, by a method that looks not only to 
 the words, but to the time, place and circumstances under 
 which they were used, so as to get at the true legislative 
 intent. It was natural that those who had opposed the 
 adoption of the Constitution should favor such a strict 
 construction as would confine the powers of the Federal 
 government to the narrowest range possible. On the 
 other hand there were those who favored such a lati- 
 tudinarian construction as would immeasurably enlarge 
 the Federal power, and would tend to dwarf the States 
 down to the last fraction of insignificance. It was the 
 sincere aim of Marshall to avoid either extreme; and 
 the general verdict is that he succeeded in doing so in a
 
 John Marshall 251 
 
 manner quite impossible to anyone not possessed of like 
 abilities joined to the most impartial judgment. 
 
 No one ever had finer opportunities for understanding 
 the Constitution than Marshall. He had heard its provi- 
 sions and its objects discussed from every possible stand- 
 point by men of extraordinary talents from his youth up, 
 and in that immortal discussion he had himself taken an 
 important part; in the settling of the questions that 
 arose for decision he had the aid of lawyers of pre- 
 eminent ability, at a time when the bar had a luster 
 which perhaps it has never since recovered ; and he gave 
 to them the deliberate and laborious attention of a mind 
 whose vigor and acuteness in the solution of legal ques- 
 tions excited and still commands universal respect and 
 admiration. But clear as his convictions undoubtedly 
 were, no one can read his decisions on grave constitutional 
 disputes without perceiving that he was habitually 
 oppressed by a profound sense of the heavy responsi- 
 bility which he incurred in the discharge of so sacred a 
 duty. In such cases that sentiment seems to pervade his 
 opinions like the deep and solemn undertone of the sea. 
 Many of these questions had an importance far greater 
 than any that had ever been presented to any human 
 tribunal. When Lord Hardwicke in 1750 decided the 
 case of Penn vs. Lord Baltimore, that had been pending 
 in his court for more than seventy years, and which 
 involved the boundary between the provinces of Pennsyl- 
 vania and Maryland, being impressed with the magnitude 
 of the controversy, he spoke of it as one "for the deter- 
 mination of the right and boundaries of two great pro- 
 vincial governments and three counties, of a nature 
 worthy of the judicature of -a Roman senate rather than 
 of a single judge." And yet that controversy was but 
 small and insignificant contrasted with many that came 
 before Marshall, involving the future of our country for 
 all time to come. That he was absolutely infallible his
 
 252 Addresses 
 
 warmest admirer would not claim; but the constantly 
 diminishing number of his critics and the diminishing 
 number of their followers sufficiently attest the fact that 
 his immense fame as a judge is well founded and imper- 
 ishable. No other judge had so many things to do; no 
 other did them so well. 
 
 Marshall from his youth up was a man of studious 
 habits, and of indefatigable industry ; but in addition to 
 these he had what few men ever possessed, a genius for 
 the law as distinct as that of Napoleon for war. In that 
 specialty he was thoroughly at home; and within its 
 limits he is conspicuously pre-eminent. His colleague, 
 Judge Story, was more learned than he ; but Story him- 
 self was always the first to admit the superiority of Mar- 
 shall; a remarkable instance, because very learned men 
 are apt to overvalue their special attainments, and to 
 undervalue the qualifications of those of inferior acquire- 
 ments, though possessed of greater native ability. There 
 was a natural modesty about Marshall that disarmed 
 rivalry ; but it is but just to say that this lofty apprecia- 
 tion of his colleague of itself indicates unusual eleva- 
 tion and nobility of character on the part of Judge 
 Story. Indeed the close friendship that subsisted 
 between these two great judges, which was only dis- 
 solved by death, is one of the most admirable episodes 
 to be found in the history of our country. 
 
 Marshall possessed in an eminent degree the most 
 essential qualities that go to the making of a judge. He 
 was a thoroughly pure man; sincere, upright and con- 
 scientious, with a strong and wholesome sense of what is 
 right and what is wrong. He possessed also a happy 
 and well poised judicial temperament, with that fearless- 
 ness and independence of character that enables one to 
 perform his duty as God gives him grace to see it with- 
 out regard to praise or blame. Living in tumultuous 
 times he was often censured and maligned; but as the
 
 John Marshall 253 
 
 needle of the compass in the middle of the ship still 
 points unerringly toward the polar star, regardless of 
 wind or wave, so no amount of clamor, or censure, or 
 applause could induce him to diverge a hair's breadth 
 from what, with coolest and most dispassionate judgment, 
 he deemed to be the line of duty. No judge was ever 
 endowed with a clearer vision of the most complex prob- 
 lems that can be presented by the endless combinations 
 of human affairs. He possessed a most remarkable 
 faculty of separating the relevant from the greatest mass 
 of distracting and misleading matter, and of going 
 straight to the heart of every controversy. In the clear- 
 ness and lucidity of statement which leaves nothing upon 
 which to hang a doubt he was probably never excelled. 
 In this respect his opinions are models for all time. He 
 did not sow them thick with multitudinous citations ; and 
 when he has recited the facts and has declared the law 
 we feel that he has made everything so clear that a 
 reference to numerous authorities would be superfluous. 
 But it must not be supposed that because he avoided a 
 needless display of learning Marshall did not examine 
 attentively all of the sources of legal knowledge before 
 making up his judgments. No man was more untiring 
 in his investigations, or more unflagging in his researches ; 
 hence it is very dangerous to take it for granted that any 
 opinion of his is not based on the most exhaustive inquiry 
 as to former precedents. That very able and discriminat- 
 ing jurist, Mr. Hare, in his note to the opinion delivered 
 by C. J. Marshall in Field vs. Holland, says rather sar- 
 castically: "Mr. Justice Cowen, in Pattison vs. Hall, 
 had satisfied himself that he had consigned to insignifi- 
 cance this conclusive authority by observing that in this 
 case the books do not appear to have been consulted. It 
 should be remembered, however, that there are some 
 judges who consult more books than they quote, as there 
 are others who quote more books than they understand. ' '
 
 254 Addresses 
 
 One striking quality to be noticed in the opinions of 
 Marshall is the sparing use that he makes of analogies. 
 No one knew better that though analogies are often very 
 striking, they are in general extremely prone to deceive 
 and mislead. With his close reasoning, his masterly and 
 convincing logic, he had no need of such adventitious aid. 
 Fixing his gaze searchingly on the law and the facts of 
 the case in hand, he was able to reach satisfactory con- 
 clusions without invoking similitudes which might be 
 only casual or incidental ; and it is largely for this rea- 
 son that we do not find in his long succession of adjudica- 
 tions those discrepancies and seeming contradictions that 
 sometimes mar the decisions of judges not undistin- 
 guished for learning or for ability. 
 
 It has been said of some artists that by continually 
 retouching and by overelaboration they deprived their 
 works of originality, and divested them of that individual 
 stamp that constituted their chief merit. No such charge 
 could be laid at the door of Marshall. He never 
 attempted to embellish his opinions by fine writing, or 
 by showy declamation, nor to exhaust his subject down 
 to the last word or syllable. It was said by a great master 
 of the art of expression that the style is the man; and 
 the saying is certainly true of Marshall. His character 
 was of Doric simplicity; and his style is more remark- 
 able for its strength and unmistakable clearness of out- 
 line than for any other quality. From the first opinion 
 that he delivered in the prime of his manhood down to 
 the last that he delivered when he was an old man eighty 
 years of age, we perceive the same clear and steady light 
 illuminating everywhere the wide and varied fields of 
 jurisprudence. If the quality of his work has a uniform 
 excellence its scope is immense; and it remains for us 
 and for those who are to come after us, an invaluable 
 inheritance forever. Generations hence, when, after a 
 thousand vicissitudes, the face of the earth shall have
 
 John Marshall 255 
 
 been changed and renewed, and when the social and 
 national life shall have been modified by a thousand influ- 
 ences of which we can have no conception, his name will 
 be as a beacon to guide, to guard and preserve. Had 
 he written no opinions save those explanatory of the 
 principles of constitutional law, they would be remem- 
 bered and studied as long as the science of government 
 is cultivated; but his labors were not confined to these; 
 and there is no domain of the law that he has not 
 enriched with the inexhaustible treasures of his genius. 
 It is no impeachment of the glory and renown of the 
 greatest of the Roman jurists, or of the most illustrious of 
 the judges of England, to say that in magnitude and 
 importance his works far transcend their united achieve- 
 ments. Like them he sounded all of the depths of the 
 law ; but while they expanded and ameliorated the wide 
 circle of existing systems of jurisprudence, a task in 
 which he proved not inferior to any of them, his duties 
 called him beyond into the virgin fields of constitutional 
 law, where mere precedents could not avail, and where 
 all of the resources of wise, prudent and discerning states- 
 manship were indispensable requisites. As a member 
 of the Convention of Virginia, and during his brief 
 career in Congress, Marshall exhibited all of the talents 
 of the statesman, as well as those of the most accom- 
 plished debater. If during his term as Chief Justice he 
 could also have had a seat in the Senate, as Mansfield 
 and Camden had in the House of Lords, his influence in 
 the legislative department would probably have been 
 weightier and more decisive than theirs. But the qual- 
 ities that would have enabled him to achieve other tri- 
 umphs were not left to rust unused; for in the unex- 
 ampled condition in which the new government was 
 placed, the construction of the Constitution demanded 
 of the court over which he presided all of the knowledge 
 and all of the ability which the most perplexing emer-
 
 256 Addresses 
 
 gencies could exact from the rulers of nations. Here 
 it was that he vindicated his claim to be considered not 
 only as a great judge, but as a statesman on a level with 
 the highest and the most accomplished that the world 
 has seen ; with such men as Madison and Hamilton, whose 
 labors he was destined to continue and to perfect. He 
 built on the foundations that they had laid; but with 
 such masterly ability that no seam or fissure in the com- 
 pleted structure betrays any want of proportion or of 
 harmony, or any disparity in the workmanship. In view 
 of his double fame as a jurist and as a statesman, crown- 
 ing the labors of a lifetime, John Marshall occupies a 
 position on the page of history, and in the realm of 
 thought, that is solitary and unique. 
 
 His contemporaries have handed down to us many 
 pleasant anecdotes illustrative of the unaffected simplic- 
 ity and affability of manners of this great judge ; of his 
 gentleness of demeanor, his kindly consideration for the 
 poor, the humble, and the offending; his sincerity, his 
 unsuspecting and guileless nature, his freedom from envy 
 and hatred and jealousy; a thousand virtues that 
 endeared him to all who knew him, and bound his 
 friends to him with hooks of steel. Perhaps it was not 
 quite unfit that at last, when his career was done, he 
 should die within sound of the old liberty bell that had 
 first proclaimed the birth of a nation on the shores of the 
 western world, and in sight of that hall, sacred to the 
 most inspiring memories, where, under the presiding 
 genius of Washington, had been framed that Constitu- 
 tion which he had so long and so ably expounded. In 
 that fatal hour, when the world receded from his view, 
 he could look back without regret over a well spent life ; 
 a life full of labor and high endeavor, bathed in the 
 
 "Eternal sunshine of the spotless mind." 
 Old Ennius, the father of Latin poetry, expressed the
 
 John Marshall 257 
 
 hope that after he had crossed the Stygian River he 
 might still live on the lips of men. His wish has been 
 fulfilled; for although his works have been mostly lost, 
 his name is still remembered. We cannot analyze true 
 greatness or assign the limits of its duration in the 
 minds of men. Nothing is more permanent, and, in many 
 cases seemingly more unsubstantial, than the immortal- 
 ity of fame. It crowns the verse of the gentlest of poets 
 as well as the bloody deeds of the warrior; it confers 
 its benedictions on the orator whose impassioned tones 
 after a thousand years seem still to linger on the printed 
 page; on the artist whose name may outlive the revela- 
 tions of his genius; and in the case of a great musical 
 composer, such as a Beethoven or a Mozart, eternal fame 
 is built on nothing more solid than invisible sound- 
 waves; and yet it is more undestructible than monu- 
 ments of brass. A grateful people have erected a statue 
 to Marshall in a conspicuous spot in the national capital, 
 in obedience to a natural instinct that has induced men 
 from most remote times down to the present to com- 
 memorate in materials seemingly enduring their love 
 and veneration for departed worth ; but there is nothing 
 to guaranty such memorials " 'gainst the tooth of time 
 and rasure of oblivion." 
 
 If we visit the lands where the arts and sciences first 
 rose and flourished, the fallen column, the broken arch, 
 the shattered frieze proclaim with silent eloquence the 
 mutability of all things made by human hands. Not 
 even the divine beauty of the creations of Phidias, which 
 lifted to ecstasy the thoughts of the unlettered Athenian 
 populace, could save them from the hand of the 
 destroyer. But Fame, faithful to her trust, preserves 
 amid ruin and desolation the treasures committed to her 
 keeping. Nearly two thousand years have elapsed since 
 any human eye gazed on the canvas of Apelles; but his 
 name is still enrolled as the greatest of painters. If all
 
 258 Addresses 
 
 of the writings of Marshall could be committed to the 
 flames his name would still linger on ; but with the 
 fecundity of the press, which will preserve and multiply 
 every word that he wrote, his voice will still continue to 
 be heard by all coming generations, and will serve to 
 enlighten and to instruct, pleading with unabated earn- 
 estness for whatever is right, and reasonable, and just, and 
 of good report. His name will be hereafter mentioned 
 along with those of Ulpian and Papinian and all great 
 jurists and statesmen whose labors have contributed to 
 build up that universal jurisprudence which is the 
 strongest ally of civilization, the surest refuge against 
 wrong and oppression, the most powerful defender of 
 injured innocence, and in some cases its avenger.
 
 "CHANGES IN THE LAW AND ITS 
 PRACTICE IN THE HALF CEN- 
 TURY OF MY OBSERVATION" 
 
 Address Delivered Before the St. Louis Law School Alumni 
 
 Association at a Banquet Given in His Honor, 
 
 January 9, 1902
 
 "CHANGES IN THE LAW AND ITS 
 PRACTICE IN THE HALF CEN- 
 TURY OF MY OBSERVATION" 
 
 As I am to address the Alumni of the St. Louis Law 
 School, my mind naturally goes back to an early period 
 of my professional career, the day never to be forgotten 
 though now quite remote the day that I received a 
 diploma from another law school. Such an incident 
 forms a sort of epoch in one's life, a self-dedication to a 
 most exacting pursuit, the general result of which is 
 quite unknown. The diploma was not a chart, not even 
 a passport. Of itself it granted no rights and conceded 
 no privileges. 
 
 And yet its aspect was imposing. With a wise fore- 
 sight it was written in Latin so that it could be read with 
 facility when the English language shall have been for- 
 gotten. When I first read the diploma I thought that 
 it flattered me a good deal, describing me, I think, either 
 as a doctus or doctissimus. If the man that wrote it had 
 in turning over the leaves of the dictionary fallen on the 
 word indoctus or indoctissimus, he would have struck a 
 rich field of productive thought. As I have not seen 
 that diploma for very many years, and have not the least 
 notion as to what became of it, I have every reason to 
 believe that it is somewhere pursuing its devious way to 
 that remote posterity to which it was addressed. The 
 diploma was not of much importance ; but the law school 
 was of immense advantage; hence I have always been 
 an ardent advocate of schools of that kind, believing that 
 the average student will learn in a good law school more 
 
 261
 
 262 Addresses 
 
 in two years than he will learn in five years in any other 
 way. 
 
 I know that it is sometimes said that a student who has 
 just graduated in a law school thinks that he knows all 
 of the law ; but I have never met one of that sort. He 
 has seen too many law books ranged along the shelves 
 to think that his studies are ended. He perceives that 
 the journey is a long one ; and he is usually so distrust- 
 ful of his abilities and learning that he trembles at the 
 sight of the first client with a feeling of infinite pity for 
 his confiding and helpless innocence. 
 
 Men are so constituted that they can not live in soli- 
 tude; nor can they live in society without laws: hence 
 man is essentially a law-making animal. Like all the 
 emanations of the human mind, the law must always be 
 imperfect ; sometimes it will be prostituted to unworthy 
 purposes ; and yet there never was any system of law 
 that was not better than no law. Fortunately it is self- 
 preserving and indestructible. Anarchy is for a day; 
 but the law is for all time. Good laws are among the 
 most imperishable of all of the creations of man; and 
 Napoleon was right when he said that he would go down 
 to posterity with his code in his hand. 
 
 I think that every lawyer toward the close of his 
 career must sometimes feel as if he had always been 
 chasing a rainbow. Hard as he may have toiled, exten- 
 sively and patiently as he may have burned the midnight 
 oil, the serene and infinite law defies his puny efforts 
 to fix its limits, to distinguish its precepts, to define and 
 classify the countless rules and exceptions that go to 
 make up its wondrous fabric. It is the mightiest crea- 
 tion of the human intellect. It has not been made by 
 any one man, or by any millions that can be computed, 
 or in a hundred years, or in a thousand years. Begin- 
 ning as a mere rivulet before the dawn of history it has 
 come down through all the ages, receiving at every step
 
 Changes in the Law and Its Practice 263 
 
 some additional rill or rivulet until it has become a 
 mighty river, and at last spreads out until it presents a 
 shoreless sea. 
 
 Laymen sometimes ask us why the law cannot be 
 simplified. The answer is easily made. The law must 
 hold the mirror up to human life, and must adapt itself 
 to every phase of human existence, to every variety of 
 human conduct. It must take note of every child as 
 soon as it is born; and sometimes before it is born. It 
 must take notice of every change which time and circum- 
 stance produce. If he marries, the law will be there to 
 note the fact, and if he gets a divorce the law is sure to 
 be present. It will follow him like his shadow through 
 every vicissitude until he dies; and after his death it 
 will take notice of his dead body, and will protect the 
 monument that has been erected in order to transmit to 
 posterity a record of the virtues that he ought to have 
 possessed. All of this is difficult enough ; but complexity 
 is multiplied when you have to consider the individual 
 in the infinite number of relations that he may assume 
 towards the state and its local subdivisions, towards 
 individuals and persons natural and artificial. There 
 must be rules for every contract that he makes, and for 
 every piece of property that he acquires, rules of title, 
 management and disposition, rules to keep him from 
 doing a thousand wrongs to which he may be tempted, 
 and to keep others from injuring him; and it may be 
 that in many instances the law will have to inquire into 
 the state of his health of mind and body, and to enter 
 into the most profound scrutiny of the secret movements 
 of mind and heart. The law that does not foresee and 
 provide for these and many thousands of other condi- 
 tions and emergencies is so imperfect that it will often 
 result in the grossest injustice. 
 
 Our laws, woven in the loom of time, are the result 
 of countless experiments, and of the survival of the
 
 264 Addresses 
 
 fittest. Wrecks of repealed statutes and of overruled 
 cases lie thick along the line of its progress; and from 
 them, if it were worth while, we might construct a sys- 
 tem that would be a caricature of the law as it now 
 exists. The selection has been made after practical 
 tests, and with infinite toil and labor ; so that at present 
 the law reflects all of the accumulated civilization and 
 enlightenment of all time. It cannot do otherwise than 
 keep step with human progress. 
 
 It is sometimes said that the law is an expensive 
 luxury ; but take it all in all it is the cheapest commodity 
 in the market. To most persons the idea of the law is 
 chiefly associated with proceedings in the courts; but 
 they in themselves are but as the foam on the surface 
 of the sea. 
 
 There are millions of our race that never suspect the 
 existence of the air that they breathe; and there are 
 millions of men in our country, and more women, that 
 hardly have occasion to know that the law exists. The 
 law that spreads its golden network over all the land, 
 the law that never sleeps, that has more eyes than Argus, 
 more hands than Briareus, that protects them by night 
 and by day, at home and abroad, is to them hardly more 
 than a myth. Considering the daily commercial trans- 
 actions, the countless agreements and sales, great and 
 small, that are made every day, we may be sure that 
 not more than one transaction out of millions ever finds 
 its way into the courts. 
 
 The wealth of our country, consisting of houses, lands, 
 factories, merchandise, ships, railways, money, the cattle 
 on a thousand hills, bills, bonds, notes and every variety 
 of property, is so great as to defy computation. Every 
 piece of property has an owner ; but in a few years every 
 acre of land, all of the houses, railways, ships and every 
 other piece or article of property that does not perish 
 in the using, even down to the last rag and the last
 
 Changes in the Law and Its Practice 265 
 
 penny, will have been transferred to new owners, who 
 will not have paid for it one cent; a circumstance that 
 makes us feel that it would have been more satisfactory 
 to us if the tide had been reversed, and we could have 
 been heirs instead of ancestors. The law makes this 
 tremendous transfer of all existing wealth with but little 
 friction, and with only here and there a random lawsuit. 
 
 The omnipotence of the law is for the most part mani- 
 fested silently, without judges, without writs, without 
 bailiffs, and without lawyers. 
 
 We cannot take in all of the law in one comprehen- 
 sive glance. Life is but a span, an ad interim affair, 
 merely a short paragraph in the endless and illegible 
 book of fate. But that is not the worst of it. The finite 
 cannot comprehend the infinite. No one mind can sum 
 up the experience of all the ages; and that is what the 
 law does. If we knew all of the law, we should forget 
 most of it in less than a week. If we do not know all 
 of the law, we know part of it; the part that we know 
 sheds light on the rest; and we know where to find the 
 rest of it if need be ; and so we get along the best we can. 
 
 Jean Paul Courrier was the most accomplished Greek 
 scholar that France ever produced. He could converse 
 or write in Greek with as much fluency and ease as in 
 his native tongue. One day he said that there were only 
 four or five persons in Prance that understood Greek; 
 and he added that the number that understood French 
 was much less. The number of men that understand 
 English thoroughly must be small ; but most of us man- 
 age to get along with far less knowledge of that kind. 
 
 Of all sciences the law is the most ancient. In our 
 day the centre of time has been shifted. Formerly we 
 were told that the pyramids of Egypt were 4,000 years 
 old ; now archeologists say that they are 6,000 years old. 
 Thus time seems to be growing at both ends. 
 
 Our professional retrospect has been lately extended
 
 266 Addresses 
 
 in a most unexpected way. Prof. Hilpreth, of the Uni- 
 versity of Pennsylvania, in excavating the ruins of 
 Nippur, in Mesopotamia, lately discovered the vault of 
 an ancient firm of attorneys known as Murashu & Sons, 
 who are supposed to have lived about 7,000 years ago. 
 
 We used to consider Abraham as one of the ancients ; 
 but now he appears to be painfully modern. Murashu 
 & Sons were practicing law in Nippur 3,000 years before 
 Abraham was born in Ur of the Chaldees, which, like 
 Damascus, was of more recent date. They were farther 
 removed from Abraham than we are from Romulus and 
 Remus. 
 
 This vault of Murashu & Sons, buried under twenty- 
 seven feet of cosmic dust, was found to contain legal 
 documents inscribed on tiles, which had been deposited 
 there for safe-keeping. One of these that was deciphered 
 was a bill of sale of a ring with an emerald set, con- 
 taining a guaranty that the set would not fall out for 
 twenty years. The document is in the highest style of 
 the art ; and all that it lacks to make it valid is a United 
 States revenue stamp. Doubtless the ring was intended 
 to adorn some high-born lady, and to enable her to mul- 
 tiply or perpetuate her conquests. No better confirma- 
 tion of the ancient saying that the written word remains. 
 The lady and all of her lovely companions are faded and 
 gone, and have long since been swept into the dust bin 
 of oblivion. The city was destroyed ages ago, and yet 
 the vault of these attorneys has guarded these precious 
 documents entrusted to its care until a man from a world 
 unknown has broken into its privacy and revealed its 
 secrets. Murashu & Sons are by thousands of years the 
 oldest members of the profession known to us ; and they 
 make, I think, a good showing. This vault or archive 
 room shows that they were prosperous in their profes- 
 sional pursuits; and its contents prove that they were 
 esteemed and trusted. There is one thing that I suppose
 
 Changes in the Law and Its Practice 267 
 
 we shall never know, and that is whether this particular 
 document was written by the old man, or by one of the 
 boys. The senior member was, we may suppose, a man 
 of strong family affections, since he took his sons into 
 business with him, and taught them the way in which 
 they should go. We should cherish his memory; and I 
 give the first watch of the night to the elder Murashu. 
 As all of our ancestors were perhaps Asiatics in that 
 early day, it may be that some drops of his blood now 
 circulate in the veins of some of our most distinguished 
 jurists, and we have evidence that some of the law of 
 his day has trickled down through generations to our 
 own times. 
 
 No doubt this old lawyer attended banquets, for the 
 ancients excelled us in that function. We have read of 
 the Homeric feasts, and of the feast of Belshazzar when 
 a toast was written on the wall that was not printed in 
 the programme. It is probable that at such times the 
 elder Murashu drank to the health of the king, and 
 prophesied that his throne would endure forever. 
 
 We do something of the same sort now ; but we hardly 
 dare to think of what may happen in the next 7,000 
 years. It may be that after Macaulay's New Zealander 
 has seated himself on a broken arch of London bridge to 
 sketch the ruins of St. Paul's, he may take the first 
 flying machine, and, a few hours later, he may seat him- 
 self on a shattered tower of the Brooklyn bridge and 
 sketch the ruins of Tammany Hall. 
 
 In my time the law has made great progress, though 
 in some branches progress has been slow. It took the 
 Supreme Court of the United States nearly a hundred 
 years to define the jurisdiction of the admiralty courts. 
 But extensive reforms that I need not enumerate have 
 been made suddenly in obedience to a growing public 
 sentiment and an increasing sense of justice as the only 
 solid foundation of jurisprudence.
 
 268 Addresses 
 
 Some branches of the law have been expanded to an 
 amazing extent. When I was admitted to the bar the law 
 as to corporations was in its infancy; and corporations 
 themselves were as modest as the violet that grows by the 
 wayside. At present they are like the genius that the fish- 
 erman in the Arabian Nights released from a casket by 
 the shore of the sea, and which at once increased in size 
 and bulk until its head touched the skies, and its form 
 darkened all the landscape. At one time the question was 
 as to what we should do with the corporations ; but now 
 the question is what are the corporations going to do with 
 us ; and no one seems to be able to answer it. 
 
 The bar has changed. The metallic pen, after a stub- 
 born resistance, drove out the immemorial goose-quill; 
 and now the stenographer and typewriter have super- 
 seded both. Three types of lawyers have wholly dis- 
 appeared. One of these was the lawyer that made it a 
 point to know nothing but the law. He got to be satur- 
 ated with the law like an old meerschaum pipe is with 
 nicotine. You might suppose that his heart was only 
 an odd volume of Coke's Institutes, opening and shut- 
 ting in its pulsations like a bivalve, and that the cor- 
 puscles of his blood were discs punched out of an old 
 copy of the Revised Statutes. With all of his labor and 
 supreme self-dedication, he was not a great success; he 
 was narrow and pedantic, inelastic, and wanting in 
 versatility. 
 
 The second type was the technical lawyer who scrutin- 
 ized as with a microscope every writ, bond for costs and 
 pleading to find a "t" that was not crossed, or an "i" 
 that was not dotted. Liberal statutes of amendment cut 
 the ground from under his feet; he was swallowed up, 
 and the land that knew him knows him no more. 
 
 The next was the forensic orator, a being not extremely 
 rare in those days ; the most interesting character in the 
 profession ; one who could light up with wit and humor
 
 Changes in the Law and Its Practice 269 
 
 the driest subject, and who held the golden keys that 
 unlocked the fountains of laughter and of tears. During 
 the late years we have had at the bar able rhetoricians 
 and splendid debaters; but the old-time forensic orator 
 who made his impassioned and invincible appeal to the 
 heart is as dead as the dodo. 
 
 It is said that the poets have gone the same way. It 
 is certainly true that to-day the living poets play no 
 important part either in the business or the intellectual 
 entertainment of the world ; and the poets that are dead 
 have fallen into a somewhat neglected condition. In my 
 youth people really read the works of the poets; and 
 some pretty tough ones, I must admit, such books as 
 McPherson's Ossian, Pollock's Course of Time, Tupper's 
 Proverbial Philosophy, and other books of that sort. 
 To-day men and women seem to read novels as if their 
 lives depended on it ; and the oracles of poetry are dumb. 
 The modern lover may sigh like a furnace ; but he could 
 not indite a sonnet to his lady's eyebrow for the soul of 
 him. He sticks to prose and eschews poetry, which, as 
 Mr. Silas Wegg remarked "comes more expensive." 
 Fletcher of Saltoun said, ' ' Permit me to make a nation 's 
 ballads, and I do not care who makes its laws. ' ' It is a 
 pity that he does not live now, when he would have all 
 of the field to himself, and no competition. 
 
 Lately I read an article written by some college pro- 
 fessor saying that the decay of oratory was due to the 
 modern habit of reading newspapers. But lawyers are 
 not much given to reading newspapers. And then, how 
 is it about the clergy ? Many of them are distinguished 
 for learning and ability ; but where are the Bossuets, the 
 Stillingfleets, the Wesleys and the Whitefields? The 
 clergy do not spend much of their time in poring over 
 newspapers, unless I am greatly misinformed. They 
 cannot be accused of reading the yellow journals, which 
 are, I should think, the most sterilizing.
 
 270 Addresses 
 
 It seems to me that this most unhappy desertion is 
 due to another cause. During the last half century 
 science has made an immense progress; and more than 
 ever before its rigid methods have been brought within 
 popular comprehension. Methods which exclude severely 
 whatever is speculative or doubtful have affected all of 
 the lines of intellectual inquiry, just as the minds of 
 previous generations were tinged by studies of abstract 
 theology, or metaphysics, or successively in many other 
 ways, but only for a time. 
 
 It is often said that we live in a practical age, but 
 that is only a part of the truth. We live in a scientific 
 and a mechanical age. Science has analyzed, measured, 
 weighed, located, scheduled, catalogued and ticketed 
 every conceivable thing in the heavens, hi the earth and 
 in the waters under the earth with mathematical preci- 
 sion, and has divided the whole universe into squares and 
 sections, marked by stone walls and barbed-wire fences, 
 leaving absolutely no place for roving fancy and imagina- 
 tion. How can the poet or the orator grow eloquent over 
 the serene splendor of the midnight moon when we know 
 that the moon is only the corpse of a dead world, tied by 
 invisible bands to the earth, following us in our travels 
 like a stealthy policeman; that in its wide spaces there 
 is not a bird, or an insect, or a blade of grass; that if 
 mountains should reel and fall they would make no 
 sound, and raise no dust, because there is no air to float 
 either; that in its arid spaces there is not a drop of 
 water, nor even a drop of moonshine whiskey. Evidently, 
 if we are to be accurate, we must count the moon out 
 and a good many other things besides. 
 
 Then how is it with mechanics? We are told that 
 when Aristole went to a barber's shop, and was asked by 
 the barber how he wanted his hair cut, he answered, ' ' In 
 silence." How that great philosopher would have been 
 delighted to see one of our slot machines that attends
 
 Changes in the Law and Its Practice 271 
 
 strictly to business, that "scorns delights, and lives 
 laborious days," that fulfills its functions with uniform 
 politeness, and is silent on principle in all languages, 
 and under every kind of provocation, as when buttons 
 take the place of coins. These ingenious machines typify 
 our age so well that probably they have a brilliant 
 future. At present they are only selling machines ; but 
 it cannot be long, apparently, before we shall have buy- 
 ing machines constructed on the same principle ; so that 
 all of the commerce of the world shall be carried on 
 silently without human interruption. 
 
 The banker of to-day throws his arithmetic into the 
 waste basket, turns his accounts over to a machine, and 
 forces Old Father Time, our most inveterate and our 
 supreme enemy, to lay down his scythe every morning at 
 a prescribed moment, and to open his safe. 
 
 Music was once intimately associated with poetry and 
 oratory ; but now we have many machines that will auto- 
 matically reel it out to us by the yard. It is true that 
 there is something grim, ghastly and sacrilegious in these 
 machines, blind as a bat, deaf as a post, sitting in eternal 
 darkness, spitting out music that they cannot hear, falsely 
 pretending to have a human soul; and that they are 
 hardly as attractive as the beaming Lesbia with her 
 lyre, or even the 
 
 "Abyssinian maid 
 Playing on a dulcimer." 
 
 Still we must recognize them, and give them the right 
 of domicil. 
 
 We sit before a phonograph that records every word 
 that we utter on a tablet that no man can read ; but the 
 same machine, or any other of like construction, will 
 read it for us, reproducing every intonation of the voice 
 with absolute fidelity. One of these tablets may bring 
 back to us the voice of a friend long since dead, as if in
 
 272 Addresses 
 
 a message from the grave ; and so the spoken voice, once 
 deemed the most distinctively personal and ephemeral of 
 all attributes, may survive for centuries after the man 
 himself has perished. We cannot recall the "touch of a 
 vanished hand, ' ' but we can reproduce 
 
 "The sound of a voice that is still." 
 
 By sitting before an X-ray machine we can strip our- 
 selves of ' ' this too solid flesh, ' ' and admire the beauty of 
 our own skeletons; and thus anticipate the dissolving 
 spell of death. 
 
 And now Marconi tells us that he will soon teach the 
 vagrant winds to blow our voices alike through sunshine 
 and storm across vast leagues of intervening sea, regard- 
 less of ships that sail or sink, with no syllable lost or 
 damaged in transit. 
 
 We have long since called down Jove 's dread lightning 
 to forward our messages with flying wings, to toil in 
 our workshops, to carry us on our errands; to light up 
 the domestic hearth; to sit as a silent watcher by the 
 child that sleeps in the cradle hard by. 
 
 Having emancipated the slaves, we are about to free 
 the horse from his long and bitter servitude. Moreover, 
 Santos-Dumont is coming across the seas like another 
 Lafayette, to enlarge the area of our liberties ; to eman- 
 cipate the automobile that emancipates the horse, to teach 
 us to skim over the house-tops and to revel among the 
 clouds. These amazing creations, and ten thousand 
 others hardly less marvelous, not a few as yet unknown, 
 will soon be exhibited in your city, such a collection as 
 has never been seen before; peaceable and fraternal 
 groups of strange devices, things that war not on each 
 other, successors of ante-diluvian monsters that perished 
 ages ago in the slime of an unfinished world are the 
 elves, the fairies and the goblins of our modern mythol- 
 ogy ; but they lend no aid to the fervor of poetry or the
 
 Changes in the Law and Its Practice 273 
 
 splendor of eloquence. They will talk for us, they will 
 sing for us, they will write for us, they will fly for us, 
 they will turn night into day for us, and will outwatch 
 the stars, but they lack that "one touch of nature that 
 makes the whole world kin." In their unsympathetic 
 presence the Fourth of July orator, whose vocation it 
 was to exhibit the proud bird of freedom in all sorts of 
 impossible attitudes, grows sad and despondent, the poet 
 resolves to give away his rhyming dictionary, and they 
 walk off arm in arm, each knowing that his occupation is 
 gone. 
 
 Science has extended over the early history of our 
 world a scrutinizing glance that has dispelled many 
 pleasant illusions. How can we boast of our ancestors 
 when the scientists tell us that our somewhat remote 
 ancestors lived in treetops ; that it is from them that we 
 derive our beautiful love of trees, and groves and for- 
 ests; and that what seems the genius and inspiration 
 of the finest landscape painter is only an inherited 
 approximation to Nature which most of their descend- 
 ants have unfortunately lost? 
 
 We are like a soldier in a long campaign. At first he 
 carries in his knapsack many conveniences, and some 
 articles even for personal adornment; but after many 
 battles and many a weary march he dispenses with 
 everything that is not strictly necessary. 
 
 On the whole it does not seem likely that the forensic 
 orator will ever come bauk ; and it is highly probable that 
 if Cicero should return fifty years hence, and begin 
 again his "Quousque Catalina," the people would rise 
 up and cut his head off the second time. 
 
 I do not mean to say, however, that eloquence is 
 wholly dead. There is still an oasis in the desert where 
 the birds still sing as in the olden time. It generally 
 happens that at a banquet of kindred spirits marked by 
 the sympathy that waits on friendly intercourse when
 
 274 Addresses 
 
 the cares of life are for the moment laid aside, speeches 
 are made that do credit to the glowing traditions of 
 former years; but I have always observed that such 
 speeches never come from invited guests, but that they 
 invariably emanate from those "to the manner born." 
 
 I never come to your city or pass through it without 
 recalling what Charles Dickens said when he was here 
 in 1842. The town then had a population of about 20,- 
 000, and the novelist said that some persons prophesied 
 that it would be a large city some day ; but that he did 
 not think that it could ever rival Cincinnati. The 
 growth of your city has outrun the expectation of the 
 most sanguine; and its future seems now far more 
 splendid and promising than ever before. You are soon 
 to have a World's Fair, intended to celebrate the cession 
 of Louisiana, one of the greatest events in human his- 
 tory; one that doubled the territory of our native land, 
 and made this city, the queen of all that vast domain, a 
 possibility. Moreover you are to have a conference of 
 eminent jurists from all parts of the world, in a spot 
 rendered appropriate by a long line of most distin- 
 guished lawyers and judges that have illuminated the 
 history of the bar, many of whom still survive, and we 
 hope may long survive, to illustrate all of the noblest 
 qualities that go to make up the highest types of our 
 profession. The celebration will be worthy of the event 
 commemorated, and of a progress that obscures all past 
 examples and furnishes an inspiration for the centuries 
 to come. 
 
 The fraternal feeling that prevails at the bar has 
 always been remarked with admiration by intelligent men 
 without its pale. It forms the solace that compensates 
 for a pursuit that involves toil the most severe, perse- 
 verence the most unremitting, and responsibilities the 
 most serious. You of the Alumni of the same fostering 
 mother are bound by an additional tie that, formed in
 
 Changes in the Law and Its Practice 275 
 
 the springtime of life, is commonly found to be one of 
 the most delightful and one of the most enduring; and 
 I feel that it is owing to a superfluity of charity and 
 good will thus engendered that I am indebted for the 
 distinguished honor that you have conferred in inviting 
 me to be a guest at your hospitable board, burdened and 
 adorned with everything that can delight the senses, 
 enhanced and glorified by your good company. I should 
 be less than a man if I was not deeply sensible of your 
 kindness ; I should be more than a man if I could respond 
 to it in adequate and appropriate language. I can only 
 throw myself on your indulgence, and beg that you will 
 graciously give me the benefit of the rule in chancery 
 which considers that as done which ought to be done.
 
 TRIAL BY JURY IN FRANCE 
 
 Address Before the Missouri Bar Association, May 4, /poo
 
 TRIAL BY JURY IN FRANCE 
 
 In responding to the invitation with which you have 
 so highly honored me I have thought it not improper 
 to select for my subject "Trial by Jury in France," 
 which I believe has at least the merit of being by no 
 means hackneyed, since I have not been able to find, 
 either in French or English, a consecutive account of 
 the origin and development of trial by jury in that 
 country ; hence the information that I have obtained on 
 the subject has been derived from a considerable variety 
 of sources. It forms, I think, rather a curious story. 
 
 Horace tells us that they who cross the sea only change 
 their horizon- and not themselves; but this is not the 
 case with institutions; for they often undergo funda- 
 mental changes in crossing an invisible boundary line. 
 It will be seen that trial by jury in France is a very 
 different thing from trial by jury in England and in our 
 own country. 
 
 Trial by jury, as we all know, is of great antiquity. 
 Under different forms it has found a place amonc many 
 races and peoples. It was not unknown to the Normans ; 
 but it took no root in the French soil. As it exists now 
 in France it is an exotic, borrowed consciously and 
 directly from England, where it has been domiciled, has 
 prospered, and has borne fruit for centuries. 
 
 The mutual antipathy that has so long subsisted 
 between the French and the English peoples probably 
 dates from the time of the Teutonic conquest of Eng- 
 land. Perhaps no invasion has ever been attended with 
 more savage brutality. The Saxons proceeded to exter- 
 minate the native population without pity, and without 
 compunction. The handful of Britons who succeeded in 
 
 279
 
 280 Addresses 
 
 making their escape across the channel to join their 
 brother Celts in what is now called Brittany, had a 
 terrible story to tell of the massacre of nearly a whole 
 Christian people by ferocious heathen hordes, who wor- 
 shipped the mythical gods of the North with unholy 
 rites ; a story that thrilled Christendom with horror and 
 detestation. France, which was so near to the scene 
 of this dreadful catastrophe, must have been profoundly 
 shocked and awe-stricken. The sentiment of aversion 
 thus kindled, fanned by incessant wars, increased during 
 the succeeding centuries, until the national animosity 
 became rancorous and implacable to the last degree. To 
 the Frenchman the Englishman became what the 
 Samaritan was to the Jew, what the Eussian is to the 
 Pole; so that he rarely mentioned the name of Albion 
 without the qualifying epithet of "the perfidious." 
 
 Owing to this keen hostility England remained almost 
 a terra incognita to the great body of the French people 
 until the eighteenth century, when it may be said to have 
 been discovered by Voltaire and Montesquieu. Voltaire 
 spent about three years in England, returning home in 
 1729 enamored with English institutions, and profoundly 
 impressed with the advantages attending trial by jury. 
 A few months after his return Montesquieu went to 
 England, where he stayed about a year and a half, 
 engaged in a very discriminating study of the English 
 government. He easily perceived that, as he afterwards 
 said, England was the freest country on the earth, her 
 people the happiest ; that while France had for more than 
 a century been sinking deeper and deeper into poverty 
 and ignorance, her neighbor and rival had increased in 
 something like the same ratio in intelligence and wealth. 
 Thus it was that these two great writers, like the Israel- 
 ites that spied out the land of Canaan, brought back a 
 good report, which was soon disseminated throughout 
 France.
 
 Trial by Jury in France 281 
 
 After the close of the American Revolution the French 
 people were much elated by the thought that they had 
 lent a helping hand in the work of dismembering the 
 British empire, and that they had secured a permanent 
 ally far across the briny seas. They felt that they had 
 broken the prestige of the perfidious Albion; and that 
 they had humbled her pride. Many thought that she 
 could never again claim to be a first class power. The 
 stain of Crecy and Agincourt had been washed away at 
 Yorktown; and under such circumstances France could 
 afford to be generous to a fallen foe. For the first and 
 the only time anglomania seized upon the people, or at 
 least upon the higher classes. English clubs, English 
 horse-races and English jockeys, English dress and man- 
 ners, were eagerly copied with that sudden enthusiasm 
 which marks the Gallic temperament. Montesquieu's 
 Spirit of the Laws had awakened interest in the study 
 of comparative jurisprudence; and had even made it 
 fashionable in the salons of Paris, where ladies talked 
 knowingly of the laws of the ancient Persians and 
 Thracians. 
 
 The first volume of Blackstone's Commentaries on the 
 Laws of England was published in 1765, and the last 
 volume came out four years later. The idea of writing 
 this work was no doubt suggested by Domat's great 
 treatise on the Civil Law, to the plan of which Blackstone 
 adhered at least so far as to endeavor to unfold the mys- 
 teries of jurisprudence in such terms as might bring 
 them within the comprehension of the inquiring and 
 thoughtful layman. When the States-General were 
 called to meet some months after at Versailles in 1789 
 Blackstone's Commentaries were eagerly perused by 
 many who aspired to play a political part in the national 
 affairs of France, as well as by others of their fellow 
 subjects of enlightened intelligence; and English insti-
 
 282 Addresses 
 
 tutions came to be studied and searched for models for 
 practical legislation. 
 
 Soon after the meeting of the States-General it called 
 itself the National Assembly; but it is now generally 
 known by the more distinctive name of the Constituent 
 Assembly. Eeaders of general history are apt to think 
 that this body was made up altogether of remarkable 
 orators after the order of Mirabeau who stood at the 
 head of the list of noisy, turbulent politicians, and of 
 political enthusiasts and fanatics. But that is a serious 
 mistake; for among the varied and heterogeneous ele- 
 ments of the time and place were to be found a consider- 
 able body of learned and accomplished jurists, who at 
 once went to work laboriously to reform the laws, which 
 were in a most chaotic condition. The result does honor 
 to their discrimination, their ability, and their patriot- 
 ism. They reorganized the courts, prepared a criminal 
 code, and introduced various reforms which still survive 
 after many vicissitudes and revolutions. 
 
 Naturally the question of trial by jury came before 
 the Assembly, because it recommends itself to thinking 
 men who know anything of its history, and because it 
 was conceded that the existing system of trying accused 
 persons before judges in secret, where the accused was 
 denied the benefit of counsel, had proved an ignominious 
 failure. The champion of trial by jury was Adrien 
 Duport, a lawyer of Paris, and a deputy of the noblesse, 
 a young man remarkable for learning and for talents. 
 After much discussion trial by jury was adopted by a 
 large majority of votes. Then the question arose : Shall 
 trial by jury extend to civil cases ? 
 
 It was objected that many civil cases were too complex 
 to be submitted to a jury; a difficulty that was obviated 
 in England, where cases of that sort generally found 
 their way into the court of chancery ; an expedient not 
 admissible in France, where the distinction between law
 
 Trial by Jury in France 283 
 
 and equity was unknown. It was decided that trial by 
 jury should be confined to criminal cases. 
 
 The next question was whether verdicts of juries 
 should be required to be unanimous. There was a very 
 obscure deputy there, known but to few; a small lean 
 man, dressed in the costume of a dandy of the period, 
 with his hair carefully dressed and powdered. His 
 features were small and irregular, his forehead retreat- 
 ing, his eyes of a dull, tarnished brown, utterly void of 
 expression, his complexion pallid. "When he talked or 
 spoke he had a habit of grimacing like a cat that has 
 caught a whiff of Scotch snuff. His appearance was spec- 
 tral and enigmatical, formal, precise, angular and 
 pedantic; his voice was shrill, his gestures sudden and 
 ungraceful. An observant stranger would probably have 
 taken him for a village schoolmaster dressed up for a 
 holiday. He had gotten up several times to speak; but 
 after a few words he had been coughed down and 
 silenced, for the Assembly was not able to take him 
 seriously. He had seemingly not the slightest qualifi- 
 cation for playing the part of a demagogue; while he 
 had what would seem to be a positive disqualification 
 for leadership in times of revolution; for he was, as it 
 afterwards appeared, timid and cowardly ; yet in a few 
 years he was to be the idol of the people, was to rule 
 France with a power never possessed by any of her 
 kings, and was to exhibit the lowest depth of degradation 
 to which trial by jury has ever been subjected. His 
 name was Maxmilien Robespierre, a lawyer and a 
 deputy from the sleepy old provincial town of Arras. A 
 sworn disciple of Rousseau, he was now a humanitarian 
 of the most advanced type, deeply and sternly opposed 
 to capital punishment ; and was overflowing with benevo- 
 lent sentiments in general. 
 
 It was now for the first time that the future leader of 
 the Jacobins got a chance to address the Assembly for a
 
 284 Addresses 
 
 few minutes. He said that it was revolting to think that 
 a citizen might be subjected to punishment on a divided 
 vote. Minorities were often right, and majorities wrong. 
 The English system was the true one. He proposed, 
 moreover, that the jury should be authorized to acquit 
 though the evidence established the defendant's guilt; 
 thus vesting the pardoning power in the jury. This 
 was his first bid for an alliance with the criminal classes. 
 
 Much discussion followed, during which Duport made 
 the very shrewd remark that the English law did not 
 necessarily result in unanimous verdicts. Juries were 
 forced to render verdicts by starvation, and by being 
 deprived of water, of fire, and of lights. If, under this 
 pressure, the minority went over to the majority there 
 was a majority verdict ; if the majority went over to the 
 minority, then there was a minority verdict. After very 
 full discussion it was resolved that a majority of the jury 
 should suffice for rendering a verdict of conviction, and 
 that where the jury were equally divided the accused 
 should be acquitted. 
 
 The Assembly also adopted the English grand jury 
 system, the members of which were chosen after a very 
 complex manner; one of the judges of the criminal 
 assize being deputed to act as foreman. During the 
 consulate the grand jury was abolished; and since that 
 time indictments are found by one of the chambers of 
 the court having criminal jurisdiction, on written testi- 
 mony taken before the examining court, or on special 
 commission. 
 
 Petit jurors were to have a small property qualifica- 
 tion. Bankrupts and persons on wages were disqualified. 
 Every three months an officer called the procureur syndic 
 was to select 200 competent jurors, subject to the 
 approval of the departmental directory ; and from these 
 the trial jury was to be drawn by lot. It consisted of
 
 Trial by Jury in France 285 
 
 twelve jurors and three adjuncts. The oath was similar 
 to that used in the English courts. The adjuncts sat 
 apart from the regular panel, but heard all of the evi- 
 dence. The state and the defendant had twenty per- 
 emptory challenges each. Challenges for cause were not 
 allowed. All trials were to be in public, and the accused 
 was to have the benefit of counsel, who were required 
 as a preliminary step to swear that they would employ 
 nothing but the truth as a means of defense. In cases 
 requiring special knowledge of any art or science the 
 court might order a jury of experts. 
 
 Counsel for defense had the right to open and conclude 
 the argument ; and then the presiding judge summed up 
 according to the English practice. Counsel on either 
 side might submit any questions bearing on the case to 
 the jury for answers to be returned with their general 
 verdict; a privilege that was much abused. In a single 
 case more than 6,000 questions were thus submitted. 
 
 The jury consulted in seclusion; but the verdict was 
 made up at chambers in the presence of the presiding 
 judge, the clerk of the court, and an executive officer 
 called the royal commissioner. The foreman of the jury, 
 that is, the first person on the list, entered alone, and 
 found two ballot boxes, one black and one white, to 
 receive the vote on the general question of guilt or inno- 
 cence. A black ball in a black box meant yes, while a 
 white ball in a white box meant no. Similar boxes were 
 provided for answering the separate questions if the 
 defendant was found guilty on a general ballot. Each 
 question was read by the judge, copies of it in writing 
 were laid on the boxes, and the answer was given in 
 the same way as to the general question. 
 
 After casting his votes the foreman remained in the 
 room ; the other jurors came in one by one and cast their 
 votes, and went out. Upon counting the votes a written
 
 286 Addresses 
 
 certificate of the result was prepared and signed by the 
 persons present, the court reassembled, and the foreman 
 in open court announced the verdict. 
 
 In case all of the judges were convinced that the jury 
 had fallen into some fatal error, the three adjunct 
 jurors were added to the panel ; the new jury, now com- 
 posed of fifteen jurors, retired to consider of their ver- 
 dict; and then it required the concurrence of twelve 
 to warrant a conviction. 
 
 On the return of a verdict against the accused the 
 judges consulted as to the penalty in their chambers; 
 but they were required to express their opinions in open 
 court, beginning with the youngest. The sentence was 
 suspended for three days, during which the crown might 
 appeal. In case of reversal the cause was sent back for 
 trial before a different court from that in which the 
 first trial was had. 
 
 By a later law, passed in 1795, it was provided that 
 the jury should be kept in seclusion for twenty-four 
 hours after their retirement, unless in the meantime they 
 agreed on a unanimous verdict. If they failed to agree 
 within that time a majority verdict might be returned; 
 but this law after a few years was repealed. 
 
 The practice of submitting special questions to the 
 jury to be answered by each juror separately did not 
 work well in practice. In search of simplicity and pre- 
 cision, the law-making power had by an excess of pre- 
 caution developed a wonderfully complex system. 
 Jurors who could pass intelligently on the question of 
 the guilt or innocence of the defendant could not always 
 analyze the steps by which their conclusion was reached ; 
 hence their answers were often contradictory. Thus a 
 man was indicted for forgery. The French law, like 
 our own, requires as a necessary element of the crime 
 that the act shall have been committed with the intent 
 to injure or defraud some third person. The evidence
 
 Trial by Jury in France 287 
 
 in the case was plain, and the jury returned a general 
 verdict of guilty. One of the questions was, "Did the 
 defendant commit the act with the intent to injure or 
 
 defraud ?" to which the jury unanimously 
 
 answered no. Of course, the defendant had to be dis- 
 charged. On 1 being asked how the negative answer came 
 to be given, one of the jurors said : ' ' We knew the man 
 was guilty; but we did not think he had committed the 
 act with the intent to injure anyone else. We thought 
 that he was trying to benefit himself." 
 
 In 1807 the law was changed so as to allow the court 
 to limit the number of special questions \o be asked. At 
 present generally none are asked; but sometimes the 
 privilege is still abused. In the same year another law 
 was enacted that when the jury returned a majority 
 verdict, if a majority of the judges thought that it was 
 wrong they could vote with the jurors, and if the 
 majority of the judges and the minority of the jurors 
 exceeded in number the majority of the jurors and the 
 minority of the judges the verdict was reversed. This 
 law long remained in force ; but was afterwards repealed. 
 
 By law of April 28, 1852, it is provided that if a 
 majority of a jury convict they may find that the act 
 was committed with extenuating circumstances ; and this 
 finding has the effect to reduce the punishment one 
 degree ; and then the court may of its own motion reduce 
 it an additional degree. 
 
 We must now go back to the Napoleonic era. In order 
 to understand the working of the system of trial by jury 
 during the Consulate and the Empire it will be necessary 
 to consider the form of government that came in with the 
 Consulate. The Constitution of 1799 was the work of 
 the Abbe Sieys as changed and modified by Napoleon. 
 Sieyes had long regarded himself as endowed with spe- 
 cial talents for concocting constitutions for the govern- 
 ment of nations; and he certainly produced one of the
 
 288 Addresses 
 
 most singular schemes of which history gives any account. 
 Whatever its merits or demerits may have been, all of 
 its provisions, with the single exception of that relating 
 to trial by jury in cases of felony, were rendered utterly 
 nugatory by the changes introduced by Napoleon. The 
 sequel shows in a very strong light that trial by jury is 
 a formidable barrier against the exercise of arbitrary 
 power, though it may not be insurmountable. 
 
 The executive power was wholly vested in the First 
 Consul. The second and third consuls might consult 
 with him ; but they had no vote. They were only added 
 for scenic effect; mere foot-hills to break the austere 
 heights of Chimborazo. The legislative power was vested 
 in what was called the Tribunate or Lower House and 
 the Corps Legislatif or Legislative Body answering to 
 our Senate. The members of both these bodies were 
 appointed by what was called the Conservative Senate. 
 The Tribunate consisted of 100 members, the Legislative 
 Body of 300. One-fifth in number of each was renewed 
 annually by the Senate; but no change was to be made 
 during the next ten years. They held their meetings 
 publicly; but not more than 200 spectators were allowed 
 to be present in either body at one time. Then there 
 was a Council of State, a sort of ministry, or cabinet, 
 as we should call it, only much more numerous. Its 
 members were appointed and removable at the will of 
 the First Consul. The Senate was a very anomalous 
 body which held its sessions in secret, like the Council of 
 Ten in Venice. It had no legislative functions; but, as 
 we have seen, appointed all of the members of the legis- 
 lative bodies. It appointed consuls in case of vacancy, 
 and also the Judges of the Court of Cassation, the 
 highest court in what was called the republic, and the 
 Commissioners of Accounts. All other officers, except 
 justices of the peace, were appointed by the First Con- 
 sul. The Senate, composed of 80 members, perpetuated
 
 Trial by Jury in France 289 
 
 itself by filling all vacancies occurring in its body. There 
 were elaborate provisions for registration of voters ; but 
 they elected no officers except justices of the peace. 
 
 The manner of passing a law was as follows : The bill 
 was prepared by the Council of State, and was then 
 submitted to the Tribunate, where it was discussed. If 
 approved and passed it was sent to the Legislative Body, 
 with three members of the Tribunate, who were also 
 members of the Council of State, as "orators" to advo- 
 cate the passage of the measure. The Legislative Body 
 discussed nothing. It was dumb. The theory of Sieyes 
 was that debate in legislative assemblies heats the pas- 
 sions, and deprives the members of that judicial frame 
 of mind necessary to safe legislation. The members of 
 the legislative body silently voted by secret ballot. 
 
 If the bill was duly passed both by the Tribunate and 
 the Legislative Body it did not still become a law unless 
 promulgated by the First Consul. Supposing it to have 
 passed through all of these stages, the Senate, under cir- 
 cumstances that would probably never happen, might 
 have a duty to perform with regard to it. If called on 
 by the Council of State or the Tribunate it had power 
 to pronounce the law void as in conflict with the Con- 
 stitution. But after the Council of State had prepared 
 the law, and the Tribunate had approved it, and had 
 sent "orators" to the Legislative Body to advocate it, 
 it was not probable that either of them would attack it 
 as being unconstitutional. The first senators were 
 appointed by Sieyes and Roger Ducos. It is needless to 
 say that in making the selection they acted under the 
 direction of Napoleon. 
 
 The consuls were to hold office for ten years ; but Citi- 
 zen Bonaparte, Citizen Cambaceres and Citizen LeBrun 
 were appointed to fill the offices of first, second and third 
 consuls respectively for five years. 
 
 Evidently the whole power was vested in the First
 
 290 Addresses 
 
 Consul. His Council of State, whose members were 
 appointed by him and removable at will, was only his 
 creature. No bill could be presented for legislative 
 action that he did not approve, and he had an absolute 
 veto of every bill that was passed. The Senate was 
 made up of his appointees ; and it created the legislature 
 and kept it alive. The First Consul appointed all officers 
 except justices of the peace and those that were appointed 
 by the Senate. The Senate, in filling vacancies in its own 
 body, could only choose between one candidate presented 
 by the legislative body, another presented by the Tribu- 
 nate, and the third by the First Consul; but if they 
 agreed on the same candidate the Senate had no choice 
 but to elect him. To suppose that the Senate in any 
 case would disregard the secret wishes of the First Con- 
 sul by whom it was created would be to indulge in a 
 freak of the imagination. 
 
 In his youth Napoleon had cherished the most mag- 
 nificent vision that ever dawned on the mind of man in 
 modern times. He purposed to follow in the footsteps 
 of Alexander, to conquer the Orient, and to establish 
 among the ruins of Egypt, Persia, Arabia, Syria, Meso- 
 potamia, and perhaps in Asia Minor and India, such an 
 empire as had not been seen for more than 2,000 years. 
 He believed that whatever the Macedonian phalanx had 
 achieved the French legion could accomplish. Alexan- 
 der, being an absolute monarch, could keep his own 
 secrets ; but in order to get the approval of the Directory 
 to his scheme, Napoleon was forced to say that his expe- 
 dition was intended for the destruction of the English 
 power in India. The Directory were indeed not very 
 hard to persuade. They were glad to see this aspiring 
 young man exile himself to the ends of the earth; and 
 they would not have been sorry afterwards to learn that 
 he had perished on the Nile, or that he had been laid to 
 rest on the banks of the Euphrates.
 
 Trial by Jury in France 291 
 
 England having got wind of this scheme, did not 
 approve it ; but sent out her dogs of war to Egypt and 
 Syria to sink the ships of Napoleon at Aboukir and to 
 stay his march at Acre. His return from Egypt was 
 but a prelude to his retreat from Moscow. From the 
 moment that he saw his oriental dream collapse, he swore 
 eternal enmity to England. It became the ruling passion 
 of his life ; and finally led to his overthrow. As he hated 
 all things English, he hated trial by jury because it was 
 English. He hated it, also, because it provoked public 
 discussion. Though fond of consulting with retired 
 jurists, he hated all practicing lawyers, because in try- 
 ing causes they could not be restrained from indulging 
 in criticisms on the laws, the government, and things in 
 general ; a license which was not in accord with the fun- 
 damental principles of his system. Besides, he knew as 
 a historical fact that lawyers had always been opposed 
 to despotism. The guaranty of trial by jury had been 
 put in the Constitution as a tub thrown to the popular 
 whale; but the institution was extremely odious to the 
 First Consul; and he soon began to look out for some 
 way to get rid of it. 
 
 During the feeble and inefficient government of the 
 Directory, the bonds of the law were loosened, and 
 crime prevailed to an alarming extent. In the year 1800, 
 the country was infested by bands of robbers and foot- 
 burners (chauffeurs), so that in the villages and country 
 districts there was but little security for either life or 
 property. For this crying evil some remedy had to be 
 found; and the slow process of trial by jury hardly 
 seemed adequate to the emergency. During the Revolu- 
 tion two statutes had been passed directed against 
 Chouans and other guerillas acting in hostility to the 
 government, which enacted that they might be tried and 
 condemned by courts martial. These statutes had never 
 had any application to persons not engaged in rebellion ;
 
 292 Addresses 
 
 and the trial by jury of civilians, whether robbers or not, 
 was expressly guaranteed by the Constitution. Never- 
 theless, under pretended authority of these laws, which 
 had undoubtedly been repealed by the Constitution, 
 armed troops were sent out to patrol the country, result- 
 ing in the arrest of many robbers, who met with very 
 summary punishment at the hands of military tribunals 
 improvised as occasion seemed to require. That these 
 proceedings were founded in usurpation there is no 
 room for doubt; but the crimes thus punished had 
 become so numerous and flagrant that this summary pro- 
 ceeding met with general approval; though there were 
 not a few that criticized the act, seeing in it, as they 
 declared, the thin edge of the wedge of despotism. 
 
 Hardly had this housecleaning been completed when 
 Paris and all of France were startled by the news that 
 Arena and Ceracchi had conspired with others to assas- 
 sinate the First Consul. Napoleon at once called the 
 Council of State together. He was transported with 
 one of those fits of fury to which he was subject, and 
 which he sometimes feigned. 
 
 "Blood will be required," he said. "There are in 
 Paris and throughout France four or five hundred indi- 
 viduals covered with crimes, enemies of society at large ; 
 a handful of mad wolves. Twenty or thirty of them 
 must die, and the rest of them must be sent to prison 
 in the colonies. ' ' 
 
 But the Council of State were much embarrassed. 
 The accused certainly were not Ckouans or guerillas. 
 The government had just got into the saddle, and it had 
 many enemies. The Royalist party was strong in mem- 
 bers and in influence. Returning home when permitted 
 to return the emigres found their estates confiscated, 
 and their families reduced to poverty and want. Their 
 chateaux, hallowed by ancestral memories, were burnt; 
 or what was worse, were occupied by parvenus, who
 
 Trial by Jury in France 293 
 
 during the Revolution had grown rich out of the mis- 
 fortunes of their country. With their ancient preju- 
 dices the noblesse could not easily adapt themselves to 
 new conditions. They were embittered, sullen, unrecon- 
 ciled. The Jacobins had declined; but the race was by 
 no means extinct; and revolution was their trade. It 
 was known that some of the officers of the army were 
 more or less disaffected. The upshot was that Napoleon 
 reluctantly consented to have the conspirators tried by 
 jury. They were thus tried, convicted, and executed. 
 
 The First Consul, however, continued to be very much 
 hampered by the obnoxious clause of the Constitution; 
 and at every meeting of the Council of State he recurred 
 to the hateful subject. When it was under discussion 
 on the second day of January, 1801, the wily Talleyrand 
 made a suggestion to Napoleon that had not occurred 
 to anyone else. He asked: "What is the Senate for 
 unless you make use of it ? " 
 
 Never was a suggestion more hospitably received. It 
 was to Napoleon like a brilliant sunbeam breaking sud- 
 denly and unexpectedly through a dark cloud. He knew 
 that the Roman Senate in cases of emergency would 
 sometimes issue a senatus consultum; that at first the 
 senatus consultum was only advisory; but that in the 
 course of time such documents came to have the force 
 of laws that were valid until repealed. 
 
 There was no resemblance between the ancient Roman 
 Senate and that of France except the name. But if, 
 on the application of the First Consul, the Senate should 
 issue any kind of document called a senatus consultum 
 who would question its constitutionality? No one could 
 do so except the Council of State or the Tribunate ; and 
 it was certain that neither of them would take that step. 
 No one could decide on the constitutionality of any pro- 
 ceeding except the Senate ; and it might be relied on not 
 to invalidate one of its own acts. Talleyrand had indeed
 
 294 Addresses 
 
 discovered a northwest passage that obviated all dangers 
 and difficulties. Two days after his suggestion was made 
 the First Consul, under a senatus consultum, sent to 
 prison in the colonies thirty citizens who had not been 
 tried by jury or in any other way. One of these was 
 Sechelles, one of the greatest scoundrels that had ever 
 cheated the gallows of its prey; another was Fournier, 
 who had murdered the prisoners of Orleans at Versailles, 
 and who called himself "the American" because he had 
 spent some years in St. Domingo; and another was 
 Rossignol, who had dabbled in many crimes for which 
 he had never been punished, and was now punished for 
 crimes that he had never committed. The guilt of sev- 
 eral of the prisoners, however, seems to have consisted 
 in expressing a very decided preference for a republican 
 form of government. 
 
 Napoleon was not content to have his power of dis- 
 pensing with juries dribbled out to him to meet special 
 exigencies as occasion might require; he wished to have 
 it understood that the obstruction itself was removed, 
 so that military trials might deter as well as punish. 
 He therefore submitted to the Council of State a propo- 
 sition that the Senate be requested to issue a senatus 
 consultum authorizing the First Consul to suspend trial 
 by jury in any department as he should find it necessary 
 for the public good. The Council of State easily con- 
 sented. But in taking a step that was sure to be severely 
 criticized, it was thought wise to secure the co-operation 
 of the Tribunate; and there an unexpected opposition 
 was manifested. The institution thus assailed was 
 extremely popular in France ; so much so that it required 
 a good deal of courage or a good deal of subserviency 
 to oppose it. 
 
 The friends of the measure said that it was only 
 intended as a temporary expedient "so that Hercules 
 might clean out the Augean stable; and that as soon as
 
 Trial by Jury in France 295 
 
 existing bands of murderers were exterminated, jury 
 trial would be restored." 
 
 Duveyrier expressed the greatest admiration for trial 
 by jury ; but in order to save it from destruction he said 
 that it should not be put on tasks too difficult for its 
 strength. Its real utility consisted in its power to punish 
 ordinary offenses ; but when it came to cases of assassina- 
 tion, arson, and other great crimes, more sudden and 
 sternly repressive measures were required. 
 
 Francois de Nantes, who was evidently speaking for 
 Bonaparte, ridiculed trial by jury under existing cir- 
 cumstances. "Enough of metaphysics," he said. "Can 
 you deny that if you bring before juries the robbers 
 who daily attack public conveyances, and kill soldiers 
 and citizens, their impunity is almost assured either by 
 the vices of the jury system or by the terror inspired by 
 these hordes of wandering brigands? The foot-burners 
 laugh at jurors, who either acquit them or refuse to go 
 to court, preferring to pay a small fine rather than to 
 expose themselves to robbery on the highways." This 
 was all very disingenuous, because the measure was not 
 confined to robbers and murderers. 
 
 Chenier, Ginguene, Isnard and Benjamin Constant 
 opposed the measure with vigor; but it was adopted by 
 a small majority on the seventh of February, 1801. But 
 this authority to suspend trial by jury in individual 
 cases was still unsatisfactory. By a senatus consultum 
 of August 4, 1802, the First Consul was authorized to 
 suspend trial by jury for five years in any department ; 
 a privilege which he afterwards often asserted and 
 abused. 
 
 If Napoleon was hostile to juries he had no respect for 
 their verdicts. By a law of October 12, 1791, it was 
 provided that charges of certain offenses committed on 
 the high seas should be tried by jury. In 1802 a sub- 
 lieutenant was tried at Brest under this law, and was
 
 296 Addresses 
 
 acquitted. By order of the First Consul the jurors were 
 all arrested, sent to Paris, and imprisoned for some time 
 on the ground that "their verdict constituted an act of 
 rebellion against the Constitution." Two of the jurors 
 thus imprisoned had voted for conviction. 
 
 Very much to the discontent of Napoleon, the legis- 
 lative section of the Council of State entrusted with the 
 work of preparing a draft of a criminal code in 1801, 
 inserted provisions regulating trial by jury. He was 
 determined to have these expunged. He easily found 
 allies. Some of the judges declared that trial by jury 
 had proved a failure ; that public trials were only schools 
 for crime; and that the old-fashioned secret trials were 
 attended with much better results. 
 
 In order to fortify himself against opposition, 
 Napoleon invited the judges of the Court of Cassation 
 to call on him in a body. Though he was not yet 
 emperor, he received them in royal style, his grand 
 justiciary (grand juge), Regnier, clad in purple robes, 
 being in attendance. The judges of the court were 
 asked whether in their opinion trial by jury should be 
 continued. The president, speaking for the court, as his 
 custom was, expressed his distrust of the institution 
 in moderate terms, intimating that if it was to be pre- 
 served it should be changed in various particulars. 
 
 The grand justiciary was more emphatic. He wound 
 up by saying that "juries were so profoundly ignorant 
 and stupid that they had no conscience. ' ' The minister 
 of justice then pronounced a florid eulogy on the special 
 military tribunals which had been organized, and which 
 had performed their labors with vigor and dispatch with- 
 out being fettered by jurors. 
 
 The conspiracy of George Cadoudal in 1804, brought 
 about a sudden crisis. In February of that year Paris 
 was astounded to learn that Moreau, the hero of Hohen- 
 linden, and Pichegru had been arrested and thrown into
 
 Trial by Jury in France 297 
 
 prison. Soon afterwards Cadoudal was captured. By 
 a senatus consultum trial by jury was suspended in the 
 department of the Seine. One event followed another 
 with startling rapidity. On the twenty-first of March 
 the Duke d'Enghien was murdered at Versailles by 
 Napoleon through the agency of a sham military tri- 
 bunal. In May the First Consul assumed the imperial 
 crown. 
 
 A single event often produces a thorough and radical 
 change of character; a fact that we sometimes perceive 
 as the result of a great bereavement, or the sudden acqui- 
 sition or loss of fortune. Under such circumstances the 
 mental and moral nature often undergo a change beyond 
 recognition; but that which brings about the most sud- 
 den and thorough transformation is the commission of a 
 great crime. It is that which breaks the bonds of fellow- 
 ship that bind us to our fellow men. It was that which 
 made Cain a wanderer on the face of the earth. We are 
 told that after Alexander in a moment of passion had 
 slain with his own hand Cliton, the friend of his boy- 
 hood, the nephew of his great teacher, Aristotle, who had 
 diligently prepared him for the giant course that he was 
 to run, it was remarked that the spontaneous and over- 
 flowing spirit of kindliness and affection which distin- 
 guished him in his youth suffered an eclipse; and that 
 it was succeeded by a certain hardness of tone, a reserve, 
 a wilfulness, obstinacy and self assertion which pre- 
 viously he had never manifested. 
 
 From the time of the arrest of the Duke d'Enghien, 
 Napoleon became more and more arbitrary and intolerant 
 of opposition, more companionless and solitary. He was 
 fitly described by an Irish orator as "a sceptred hermit, 
 wrapped in the solitude of his own originality." Was 
 this change due to the separating sense of a great crime 
 committed? Under favorable conditions nothing grows 
 so rapidly as the spirit of despotism, which of itself also
 
 298 Addresses 
 
 tends to isolation. Either of these influences might 
 account for the result. When taken together no further 
 explanation is needed. 
 
 It has been said that all great men are actors ; but this 
 is not true. There have been many great men who were 
 not actors, and who could not have made actors of 
 themselves if they had tried ever so much. But it was 
 eminently true of Napoleon. Bourienne, who had known 
 him from boyhood, and had often heard him read and 
 declaim, said that in the art of acting Napoleon could 
 have given lessons to Talma himself. In the preceding 
 years of the consulate he never appeared so charming 
 as when in conference with committees formed of his 
 official advisers. Sitting carelessly on an article of fur- 
 niture, his short legs not touching the floor, engaged 
 mechanically in sharpening a pencil, kindly deferential 
 to all who were present, talking with the artlessness of 
 a school boy, but with the wisdom of a sage, this con- 
 queror who had filled the world with his fame impressed 
 his views on his counselors with a kind of fascination 
 that was almost irresistible. 
 
 Though Moreau and Pichegru were sent before a mili- 
 tary tribunal, yet the trial dragged along at what seemed 
 to Napoleon to be a shamefully slow pace. The case of 
 Moreau in particular excited unfavorable comment. 
 Many thought that the murder of the Duke d'Enghien 
 was only the prologue to extensive proscriptions. The 
 exasperation of Napoleon under these circumstances was 
 intense. 
 
 Four days after the proclamation of the empire, 
 Napoleon called together the legislative section of the 
 Council of State and asked them to finish the prepara- 
 tion of the criminal code, on which nothing had been 
 done for three years. He suggested that a fortnight 
 would be enough for the completion of the task, though
 
 Trial by Jury in France 299 
 
 really nothing of any consequence had been previously 
 accomplished. His demeanor was not what it had for- 
 merly been. 
 
 The emperor of 1804 was not the consul of 1799. He 
 no longer resorted to the talents of persuasion and con- 
 ciliation with which he had been so prodigally endowed 
 by nature. He was still an actor; but he was now 
 resolved to confine himself to the leading parts in great 
 tragedies, which he endeavored to render more impres- 
 sively by the assertion that he was under the spell of 
 some invincible destiny. He made a vacancy around him ; 
 and in his imperial loneliness he already anticipated the 
 seclusion of Longwood and the desolation of St. Helena. 
 
 When the newly crowned emperor entered the cham- 
 ber of the Council of State he was in a frowning mood. 
 He had made up his mind that it was easier to drive 
 men than to persuade or convince them. The blandish- 
 ments with which he had formerly smoothed over or 
 vanquished difficulties were laid aside as so much cast- 
 off clothing. In respect of these he may be said to have 
 abdicated on assuming the sceptre of royalty. He began 
 at once to talk about the trial of the Moreau case, and 
 to abuse lawyers. 
 
 "It is the license of the lawyers," he said, "that hin- 
 ders the judges and retards the prosecution." 
 
 "Has not one of them dared to pronounce publicly a 
 eulogy on the Count d 'Artois ? This is the kind of thing 
 that saps the foundation of governments. What would 
 have been the result if the case had been left to a jury, 
 a mere bauble in the hands of lawyers? Juries nearly 
 always absolve the guilty. If a criminal has money 
 enough to hire a lawyer no jury will ever convict him. 
 England knows that; and if she still retains trial by 
 jury, it is less as a judicial than a political institution; 
 it is only a guaranty against the power of the crown.
 
 300 Addresses 
 
 But does anyone imagine that a tyrant would have any 
 slighter hold on juries than on judges holding office for 
 life?" 
 
 It would seem tnat with the Senate to issue a senatus 
 consultant to suspend trial by jury at any time, and for 
 any period desired, Napoleon would have been satisfied; 
 but he was not usually content with partial victories. 
 Besides, he did not like to be asking the Senate for favors. 
 It looked as if he belonged to that body; whereas, it 
 belonged to him. 
 
 As soon as the emperor had ceased to speak, Portalis, 
 Bigot de Preameneu and Cambaceres severally made 
 elaborate arguments in favor of the abolition of trial by 
 jury as something incompatible with the empire. Evi- 
 dently they had known what was coming, and had pre- 
 pared themselves accordingly. But while they were 
 talking the friends of trial by jury had time to collect 
 their thoughts. Berlier made a bold and powerful 
 speech, concluding by saying that ' ' it was fortunate that 
 the reaction did not go so far as to revive the barbarous 
 ordinances which forbade public trials and the right of 
 defense to accused persons." He was followed by Reg- 
 naud, St. Jean D 'Angely, Def ermon, Berenger and Treil- 
 hard in speeches so vigorous that they made an impres- 
 sion on the emperor himself. 
 
 There was a momentary lull when one who sat very 
 near the newly erected throne arose, and said that he 
 fully approved of everything that had been said by M. 
 Treilhard; that he had always heard it said that the 
 jury was one of the principal benefits that the people 
 had gained by the Revolution; and that it was one of 
 the surest guaranties of liberty. He might have added 
 that of all the trophies of the Revolution, that had cost 
 so many tears and so much blood, this was the only thing 
 left. The speaker was the high constable, Prince Louis 
 Bonaparte.
 
 T 'rial by Jury in France 301 
 
 A vote was taken on the question, ' ' Shall trial by jury 
 be abolished?" and a majority of the Council voted in 
 the negative. As soon as the result was announced 
 Napoleon declared the meeting dissolved, and retired 
 with evident dissatisfaction. But he did not rest here. 
 With his usual tenacity of purpose, he called the Council 
 together again in three or four stormy sessions; but in 
 vain ; the friends of trial by jury stood manfully in the 
 breach, exhibiting a good deal of courage; for the 
 emperor was generally very prompt to punish any 
 adviser who thwarted his will by deprivation of office, 
 if in no other way. At the last meeting in which the 
 subject was discussed the grand justiciary made another 
 appeal in opposition to the jury system, declaring that 
 it had given nothing but bad results. "Let us reform 
 it, then," exclaimed Treilhard. "I am only surprised 
 that it works as well as it does when it is constantly 
 attacked by the grand justiciary." 
 
 Napoleon was so greatly offended by the result that he 
 ceased to attend the meetings of the Council. At that 
 time he was enraged by the light punishment of two 
 years' imprisonment inflicted on Moreau. While the 
 trial was going on he caused word to be conveyed to the 
 military judges that he would expect Moreau to be 
 condemned to death; but that he would pardon him. 
 "But who will pardon us in the eyes of posterity?" 
 exclaimed one of the judges. When the judgment was 
 announced to Napoleon, he said : ' ' They have given him 
 the punishment usually inflicted on a thief that steals 
 a pocket handkerchief." Finding, soon afterwards, at 
 St. Cloud, one of the judges, Lecourbe, who had voted 
 for the acquittal of Moreau, he exclaimed in a fit of 
 anger, "Get out of my sight, prevaricating judge." He 
 suspended the preparation of the criminal code; and 
 work was not resumed on it for nearly four years. It 
 was finally completed; but by its provisions trial by
 
 302 Addresses 
 
 jury was reduced to a mere shadow. By law of April 20, 
 1810, special courts were established, composed of eight 
 judges each, with authority to try persons accused of 
 ordinary offenses without juries whenever the emperor 
 should so direct. 
 
 It may seem curious that in all of these discussions no 
 reference was made to the constitutional guaranty. The 
 explanation is that constitutions did not count for much. 
 From 1791 to 1799 three constitutions had been con- 
 trived, and had been successively overturned just as if 
 they had been paper screens; hence the Constitution of 
 1799 was regarded at most as being mildly persuasive, 
 something like our political platforms. It was supposed 
 to partake of ancestral debility ; and the hectic flush was 
 already on its cheek. 
 
 I must close this account of trial by jury under Napo- 
 leon by a very sad story. 
 
 In 1811, it being reported to him that gross frauds had 
 been committed on the revenue service at Antwerp, he 
 at once ordered the arrest of Werbrouck, the mayor of 
 the city, a very old man, and a very wealthy citizen, 
 who was universally esteemed. For various reasons the 
 trial was put off until July, 1813, when it took place at 
 Brussels. The accused was defended by Berryer, the 
 leader of the French bar, and a man of very high char- 
 acter. In his memoirs he gives an account of the trial 
 at Brussels, the truthfulness of which is not questioned. 
 The defendant came into court with sixty-four of his 
 children and grandchildren. The evidence failed to con- 
 nect him with the peculations that had been committed. 
 At most it only showed that the defendant, partly from 
 the effects of old age, and partly from a temperament 
 that was too indulgent and confiding, had not exercised 
 all of that vigilance and scrutiny that after events 
 showed were needed. The jury was composed largely
 
 Trial by Jury in France 303 
 
 of French officials, and the trial resulted in an acquittal, 
 which was greeted with universal acclamation. Napoleon 
 was then at Dresden. As soon as he heard of the verdict 
 he wrote an angry letter, recently published, to Regnier, 
 who was now called the Duke of Massa, declaring that 
 the verdict was a nullity, directing that the solicitor 
 general should present to the Senate for approval a 
 senatus consultum cancelling the verdict and judgment 
 of acquittal, so that "this matter be sent to our Court of 
 Cassation, which will designate an imperial court in 
 which the case shall be tried before a full chamber with- 
 out the intervention of a jury. ' ' It was not quite certain 
 that this program could be carried out with the celerity 
 which the emperor desired. 
 
 The president of the criminal section of the Court of 
 Cassation, M. Barris, on being interviewed on the sub- 
 ject, declared that under no pretext would he vary from 
 the rules of law applicable in such cases; and that his 
 colleagues were animated by the same resolution. The 
 Senate, however, displayed its usual servility. It dis- 
 pensed with the reference to the Court of Cassation. It 
 annulled the verdict and judgment as "being an attack 
 on the safety of the State, ' ' and sent the case for retrial 
 to the court at Douai without the embarrassment of a 
 jury. In the meantime the venerable defendant had been 
 sent back to prison, where, worn out with humiliation 
 and anxiety, he died on the eleventh day of December, 
 1813, not long before the emperor's abdication. 
 
 It may be that men of the genius of Alexander, of 
 Caesar and Napoleon, with their preternaturally keen 
 insight, their rapid powers of generalization and com- 
 bination, seeing their fellow men hesitating and floun- 
 dering over propositions which to them are self evident, 
 come to look on them as constituting a sort of lower order 
 of being, exiles from the pale of sympathy. It is not
 
 304 Addresses 
 
 probable that on the rare occasions when they visit the 
 earth they will be very enthusiastic champions of trial 
 by ju r y> or of any other kind of restraint. 
 
 After all, when society becomes thoroughly disorgan- 
 ized despotism is nature's remedy, the only antidote 
 against anarchy and universal destruction. The rule of 
 Napoleon was a despotism pure and simple; and on the 
 whole it must be said that it was better than most gov- 
 ernments of its doss. Under the Constitution of 1799, 
 there was no balance of power. The Senate was a fifth 
 wheel to the governmental chariot. As it could pro- 
 nounce no law unconstitutional except on the demand of 
 the very men who had made the law, it was necessarily 
 condemned to perpetual impotence. It was farther 
 weakened by the disinterment by Talleyrand out of the 
 Pompeii of history of the Roman senatus consultum. It 
 became simply an obsequious slave ; and it preserved its 
 despicable qualities to the last. It signed the decree 
 deposing the emperor, addressed fulsome eulogy to Louis 
 XVIII., and reached the lowest level of self contempt 
 by denouncing Napoleon for his conduct in the Wer- 
 brouck case, and for having "usurped and confounded 
 all the functions of government, and destroyed the inde- 
 pendence of the judiciary." 
 
 It is much easier to account for the failures of Napo- 
 leon than it is to account for his success. Many who 
 have made a careful study of his career in all of its 
 phases have been of the opinion that his genius for civil 
 government surpassed his genius for war. Louis XIV. 
 waged great wars, and left France exhausted and pov- 
 erty-stricken. Napoleon waged still greater wars, and 
 left France rich and prosperous. It was said of 
 Augustus that he found Rome built of brick, and left it 
 built of marble. Napoleon embellished France far 
 beyond the dreams of the past. 
 
 Of course there was a terrible reverse to this medal.
 
 Trial by Jury in France 305 
 
 Every year he offered up tens of thousands of the youth 
 of the country on the altar of his personal ambition. 
 He called his soldiers his children; but he practiced 
 infanticide without truce and without measure. Respond- 
 ing to the trumpet call these children saluted the reign- 
 ing Caesar, stained the vast arena of war with their 
 life blood, and continued their march into the shadowy 
 realms of the unknown ; dying without even the empty 
 reward of fame. They were, notwithstanding all endear- 
 ing expressions, to use the sarcastic epithet of Falstaff, 
 only ' ' food for powder. ' ' 
 
 One would have thought that with his continual 
 marches and battles Napoleon could have given but little 
 thought to civil administration; but there was no time 
 when he did not keep himself perfectly acquainted with 
 every detail which it involved. Under the coercive hand 
 of the master all of the departments of the government, 
 down to the smallest pin and cog-wheel, moved with the 
 unerring precision of finished mechanism. When he fell 
 and the ancient reign of dullness and mediocrity 
 resumed its sway, men felt as if some newly discovered 
 but powerful law of nature had ceased to operate, or as 
 if one of the world's hemispheres had been wrenched 
 away and lost in space. 
 
 His government had been the reign of law; but that 
 law had its origin and its application in the will of a 
 single man. Toward the end of his career the imperial 
 despotism was unconcealed and complete. Like Louis 
 XIV., Napoleon could say, "I am the State;" and like 
 Louis, he issued lettres de cachet right and left as seemed 
 to him best, though he did not call them by that name. 
 Here is the form of one of them, if you ever have occa- 
 sion to use anything of the sort: 
 
 "Dresden, August 6, 1813. 
 
 "To General Savary, Duke of Rovigo, General Minister of Police: 
 "As the director of the ecclesiastical seminary at Gand pro-
 
 30G Addresses 
 
 fesses rather bad principles, have him arrested and imprisoned 
 in one of the government prisons so that no one shall know 
 where he is." 
 
 "Napoleon." 
 
 It may be added, on the other hand, that Napoleon 
 conferred on the legal profession, on the courts, and on 
 the country an incalculable benefit that no one but a 
 despot could have conferred. He wiped out all of the 
 customary laws which made a confusion worse con- 
 founded, the like of which has never been known before 
 or since, and replaced them by a code prepared by 
 learned and able jurists ; thus marking the most decided 
 advance in jurisprudence that had been known since the 
 days of Justinian. It still remains the most illustrious 
 and the most enduring of his works. 
 
 Trial by jury in France having assumed a somewhat 
 definite form, has undergone but few changes during the 
 century which is now drawing to a close. It is only 
 resorted to in cases of felony, cases of libel and other 
 offenses of the press, and in cases where there is a con- 
 troversy growing out of the law of eminent domain. 
 The Court of First Instance, commonly called the Court 
 of Assize, is the special habitat of the jury. 
 
 The French jury is the product of a somewhat elabo- 
 rate system of selection. To state the matter briefly, 
 jurors are chosen by boards of local officers of each 
 canton, who make out a list, which is deposited with the 
 clerk of a local court for public inspection. After a delay 
 intended to give time for objections, the list, with all 
 written objections that have been made to it, is sent to 
 another board of higher officials for revision. The num- 
 ber of jurors depends on the population of the territory 
 over which the Court of Assize has jurisdiction. All 
 male citizens over thirty and under sixty years of age are 
 qualified to serve ; but as all who are dependent on man- 
 ual and daily labor for support are excused, their names
 
 Trial by Jury in France 307 
 
 are omitted from the list, which in Paris contains several 
 hundred. These are put into a box, from which forty 
 are drawn for each session of the court. Their names 
 are put into an urn, and are drawn out one by one by 
 the presiding judge. The prosecution and the defense 
 have each twelve challenges. The first twelve unchal- 
 lenged jurors form the panel, and the juror whose name 
 is first drawn acts as foreman. 
 
 The court is something very different from any with 
 which we are familiar. It consists of six or eight, or even 
 more judges ; but as the officers of the parquet or minis- 
 tere publique, that is, official members of the bar, 
 solicitors-general and advocates-general, representing the 
 government, sit on the bench with the judges, distin- 
 guishable only by slight difference in the cut of their 
 robes, a visitor unacquainted with the organization of 
 the courts would naturally suppose that the judges are 
 more numerous than they are. These officers of the 
 parquet not only represent the government in criminal 
 cases, but they may intervene in civil eases wherever 
 they think that public morals are involved, or the pro- 
 tection of persons laboring under disabilities is required. 
 They form the class from which the judges of the courts 
 are usually selected; hence they may be regarded as 
 candidates for judgeships in embryo. They are quite 
 distinct from the order of practicing advocates. When 
 during the trial the judges retire for consultation, these 
 officers go with them, just as the judge advocate does 
 with us in courts martial. 
 
 The principal duties in conducting a trial by jury fall 
 on the presiding judge, called the president, who is not 
 a judge of the Court of Assize, but is a member of the 
 civil chamber of the Court of Appeal deputed to preside 
 in the Court of Assize for the period of one year. The 
 oath of the jury is very similar to that used in England. 
 
 Few things can be more interesting than a French
 
 308 Addresses 
 
 trial by jury in a case which excites public interest or 
 curiosity. It seems to be a travesty on trial by jury 
 as it is known to us. The president is the principal 
 prosecutor; and as for rules of evidence they may be 
 classified along with the snakes in Ireland: there are 
 none. 
 
 After the jury have been sworn, and a brief opening 
 for the prosecution and the defense, the trial begins 
 with the examination of the accused by the president. 
 This is a moment of the deepest interest. The president 
 is admirably qualified to enter on the duel that is about 
 to ensue. Evidence has been taken in writing before 
 the examining court, giving the fullest possible account 
 of the prisoner's whole life as far as it could be gleaned 
 from positive evidence and hearsay or rumor of any 
 kind. Proof has been thus adduced of all improper acts 
 ever charged on the prisoner by gossip or malice, or in 
 any other way. The theory is that whatever tends to 
 show that he is a bad man will render it more probable 
 that he has committed the particular crime with which 
 he is charged. The president has been furnished by 
 the prosecution with a careful abstract of the evidence, 
 and a brief, showing the strong points against the 
 accused. Hence the judge is armed and equipped for 
 the contest. He begins by recapitulating all of the sins, 
 real or imputed, of the prisoner committed during a 
 whole lifetime. A stranger not familiar with the pro- 
 ceeding might suppose that he was listening to a trial 
 before Radamanthus and his fellow judges in the shades 
 below, summing up the offenses and shortcomings of 
 some poor and perplexed spirit recently consigned from 
 the upper world. As a specimen of this kind of exordium 
 I will take the opening of the examination in the Court 
 of Assize at Evreux in the case of Caillard, tried a few 
 months ago. The accused was indicted for having mur-
 
 Trial by Jury in France 309 
 
 dered six persons, and for having stolen two rabbits. 
 The president began thus: 
 
 "In the morning of the twenty-eighth of March, about 
 8 o'clock, a young gardener knocked at the door of the 
 house of M. Leblond, the foreman of a sugar factory at 
 Nassandres. No one answered. His attention was 
 attracted to a broken window pane. Much disturbed in 
 mind the young man entered the house, and stumbled 
 over a heap of corpses. M. Leblond, his wife, his three 
 children, and the mother of his wife, Madam Etienne, 
 an infirm old lady of seventy odd years, lay in a pool 
 of blood. 
 
 "Your antecedents are deplorable. When only eigh- 
 teen years of age you were convicted of theft. Five other 
 convictions for larceny are marked up against you. You 
 are the son of a drunkard who died in the hospital at 
 Liseux. Your mother did not have a very good reputa- 
 tion for morals. It is certain that you had a bad educa- 
 tion. Your paternal grandmother, eighty-four years old, 
 is living in the hospital at Nonancourt. As for you, 
 you began to distinguish yourself in infancy by per- 
 verse boyish tricks. You cut down young trees; you 
 opened taps of barrels of cider ; you threw stones on the 
 railway track; you passed your nights in marauding, 
 your days in stealing from stalls and shop windows ; you 
 were shy and hypocritical ; thought to be capable of any- 
 thing. For years you wandered from one manufac- 
 tory to another, leaving everywhere a bad reputation. In 
 1895 you spent some days at a sugar refinery at Nas- 
 sandres, whither you were to return at a later period 
 under such tragical circumstances. It was at that time, 
 no doubt, that your attention was attracted to the fore- 
 man, Leblond, who lived in a pretty house outside of the 
 village; a man enjoying a good name, and said to be 
 rich." 
 
 One would hardly suppose that the fact that the pris-
 
 310 Addresses 
 
 oner at the bar had cut down trees when a boy would 
 afford very conclusive evidence that he was guilty of the 
 crimes charged in the indictment. George Washington 
 is said to have begun his career in the same manner. 
 
 In the report of the Pranzini case we learn that "M., 
 the President, read a letter from Dr. Laborde, a physi- 
 cian on a line of vessels in Egypt." This letter is too 
 long to be read on the present occasion. The doctor 
 gives a bad account of the prisoner, saying that he is 
 haughty, dissembling, selfish, unprincipled, always posing 
 before women. He says that he has no doubt about the 
 guilt of the defendant; and gives a long account of his 
 habits in swindling credulous individuals of that sex. 
 
 The judge then addresses the prisoner as follows: 
 
 "This letter of Dr. Laborde is a kind of diagnosis, 
 showing you to be a knave, utterly unscrupulous. What 
 do you say to this picture? 
 
 "Pranzini (offended). I am really surprised at this 
 letter, coming from a man who has shown a kindly inter- 
 est in me for twelve years." 
 
 Having started out with the assertion that the prisoner 
 is guilty not only of the crime charged, but of many 
 others as well, the judge then proceeds to interrogate 
 him concerning every evil or suspicious circumstance 
 attending his whole life as based on trustworthy infor- 
 mation, suggested by mere love of scandal and gossip, 
 or invented by malice. When the prisoner has answered 
 a question, the judge will say, "That amounts to a con- 
 fession, " or " It will be hard to make that go down with 
 a jury," or "That is in flat contradiction to what you 
 said a while ago. ' ' 
 
 This would be a hard ordeal for the best man that 
 ever lived; as no one could be ready to disprove on the 
 spur of the moment all false reports that might have 
 been circulated concerning him either through mistake, 
 spite or recklessness, covering his whole life. Moreover,
 
 Trial by Jury in France 311 
 
 the prisoner is usually dazed and bewildered on being 
 brought from solitary confinement in a prison into the 
 august presence of a tribunal possessing the power of 
 life and death. The judge is an expert in the art of 
 examination ; and he uses all of his skill to bring about 
 the conviction of the prisoner on inferences drawn from 
 his own statements made in court. Prisoners, confused 
 and terrified, under such circumstances often succumb 
 wholly, and answer at random, not knowing what they 
 are saying. Sometimes the arena swims round the 
 accused as it did round the dying gladiator ; and, becom- 
 ing incapable of speech, he lapses into what seems to be 
 mere dogged silence. It is in vain that the judge urges 
 him to speak; humiliation, fear, shame, indignation, a 
 profound sense of abandonment and helplessness have 
 reduced him to a mere mass of inert matter ; and as such 
 he is handed over to the tender mercy of the jury. It 
 occasionally happens, however, that the prisoner is more 
 than a match for his tormentor. This is usually the 
 expert and hardened criminal who has been over the 
 road before, and has learned something by experience. 
 
 The substance of this examination gets into the news- 
 papers ; and if the defendant is acquitted he goes out of 
 the court room with his character blackened by many 
 charges and inuendos having no connection with the 
 crime for which he has been indicted. No wonder that 
 a great French advocate said that if he were accused 
 of stealing the towers of Notre Dame he would begin by 
 running away. 
 
 After the judge has finished his examination the wit- 
 nesses are called. With us the witnesses for the prosecu- 
 tion are called first, and after that the witnesses for the 
 defense. In France, the witnesses are mingled, and are 
 called from a list indiscriminately, so that the jurors 
 cannot certainly know, though they may surmise, at 
 whose instance any particular witness has been intro-
 
 312 Addresses 
 
 duced. Under a section of the criminal code the witness 
 is allowed to make his statement in full, whatever it 
 may be, without interruption from anyone. Perhaps his 
 whole testimony may relate only to some report or rumor, 
 what some one told him of the prisoner, or told him that 
 some one else had said about him. Sometimes the wit- 
 ness, without knowing a single fact connected with the 
 case, merely gives his opinion of the guilt or innocence 
 of the defendant. This seems to be a survival of the 
 old system of trial by compurgators in common use in 
 the Middle Ages. When the witness has made his state- 
 ment he may, if he prefers, decline to answer any ques- 
 tions put to him either by court or counsel. If, how- 
 ever, he raises no such objection the cross-examination 
 permitted by the court is extremely scant and meagre. 
 
 If one witness contradicts what another has said a step 
 is taken that never fails to awaken the keenest interest. 
 The previous witness and the last witness are put on the 
 stand together, and there they engage in a wordy duel 
 on the subject of the conflicts in their testimony. This 
 is called the confrontation of witnesses. 
 
 If, while the trial is in progress, the judge receives 
 a letter or a telegram relating to the case he may read 
 it to the jury if he likes; and counsel may do the same 
 as to letters or telegrams received by them. 
 
 As the president seems to manage the trial without 
 consultation with his fellow judges, one might wonder 
 what function they perform. But counsel for either side 
 may at any time present to the court what is called a 
 conclusion, which is nothing more than a motion in writ- 
 ing stating the grounds on which it rests in a preliminary 
 way under various "whereases," such as we see in the 
 preambles of old English statutes. On receipt of this 
 the whole court, including the prosecuting officers, retire 
 to consider the conclusion. When they return the presi- 
 dent announces the decision at which thev have arrived.
 
 Trial by Jury in France 313 
 
 Under this system jury trials are often drawn out to 
 great length. Legions of witnesses are introduced to 
 testify to rumors, or to make speeches for one side or the 
 other. The daily press often take an active part in the 
 proceeding. Different newspapers take different sides, 
 some insisting on the innocence of the accused, others 
 asserting his guilt; each arguing the case with zeal, and 
 often without scruple. Certain witnesses are lauded to 
 the skies, others are lampooned and ridiculed. Counsel 
 often come in for a liberal share of detraction and abuse ; 
 and the judges are not always spared. 
 
 But a unique feature about such trials is that the audi- 
 ence take a lively part in every step by applauding and 
 hissing, much as they would at a theater. If both sides 
 are represented in the audience they vie with each other 
 in their efforts, and the excitement becomes intense. 
 When the noise becomes intolerable the court threatens 
 to clear the room ; but as such a step might result in a 
 free fight, the judges generally compromise by suspend- 
 ing the session; and then they retire to their chambers 
 until the tumult subsides; upon which the session is 
 resumed. With regard to this intervention of the pub- 
 lic in the trial, M. Jean Cruppi, at present an advocate 
 of the Court of Cassation, and a member of the Chamber 
 of Deputies for la Haute Garonne, says: 
 
 "All the actors of the judicial drama labor to influ- 
 ence passions which none of them have sufficient author- 
 ity to suppress. These manifest themselves with violence, 
 and sometimes with scandal. Those who are familiar 
 with jurors, and have heard them talk, know how much 
 this spectacle excites their astonishment and their cen- 
 sure; nevertheless they are influenced by it; and the 
 murmur of approval or displeasure that accompanies the 
 testimony of each witness necessarily makes an impres- 
 sion on their minds. When the crowd interferes and 
 dictates a verdict, the jury are indignant and obey."
 
 314 Addresses 
 
 At the close of the evidence the attorney-general 
 addresses the jury, and is followed by counsel for the 
 defense. The attorney-general may then rejoin briefly 
 for the purpose of correcting mistakes; and then the 
 counsel for defense closes the argument in the same man- 
 ner. During the argument, counsel on either side may 
 read and comment on articles in newspapers, private 
 letters and telegrams, anything, whether introduced in 
 evidence or not. Formerly the judge summed up the 
 evidence after the English fashion; but that privilege 
 was taken away in 1881 ; hence the jury are at present 
 sent to their room without instructions of any kind. On 
 arriving there, they find on the wall a large placard on 
 which are printed these words, being a copy of Article 
 342 of the Code of Criminal Procedure : 
 
 "The law does not require that jurors shall render any 
 account of the methods by which they reach a conclu- 
 sion; prescribes no rules upon which must depend the 
 amount or sufficiency of the evidence; it requires that 
 they shall examine themselves thoroughly and seriously, 
 seeking in the sincerity of their consciences what impres- 
 sion the evidence, both for the prosecution and for the 
 defense, has made on their minds. The law does not 
 say to them, 'You shall take for true what is proved by 
 a certain number of witnesses, ' nor ' You shall not regard 
 as sufficiently proved anything not based on written docu- 
 ments, or on the testimony of so many indications. ' The 
 law only asks of them this single question: 'Have you 
 a sincere personal conviction?' It must be borne in 
 mind that the deliberation of the jury must relate solely 
 to the indictment ; jurors must fix their attention on the 
 facts charged in it, and which relate to them; and they 
 will fail in their highest duty if they reflect on the rea- 
 sons for the criminal laws, or the effect that their finding 
 will have on the accused. Their mission has for its 
 object neither the prosecution or punishment of crime;
 
 Trial by Jury in France 315 
 
 they are called on only to decide whether the accused 
 is guilty of the crime with which he is charged." 
 
 If in seclusion the jury need any more light, they send 
 for the president of the court, who goes into their room 
 for consultation. What happens there is supposed not 
 to transpire. 
 
 Seven jurors suffice to convict. If they are evenly 
 divided the defendant stands acquitted. A hung jury 
 is impossible. It is, of course, equally impossible to say 
 on what ground, under the French practice, the verdict 
 is rendered. Is it on the opinions of witnesses concern- 
 ing the guilt or innocence of the accused? Or on the 
 slashing articles in the newspapers which the jurors 
 have diligently read? Or on a multitude of idle and 
 more or less conflicting rumors? Or on the prevailing 
 sentiment of the audience as manifested in the court 
 room? Or on the testimony of witnesses knowing the 
 facts of which they speak? No one can tell. The ver- 
 dict is simply a plebiscitum. The fact that the pre- 
 siding judge prosecutes does not seem to swell the num- 
 ber of convictions. In Paris, the acquittals amount to 
 about 31 per cent; in London, to about 13 per cent of 
 those who are indicted. 
 
 Verdicts in France are practically final unless for some 
 incurable defect of form or jurisdiction, in which case 
 an appeal is allowed. The judges of the Assize cannot 
 grant new trials; but the Court of Cassation can set 
 aside a judgment and order a new trial when satisfied 
 that the judgment has been obtained on false or forged 
 testimony. In point of fact, that court rarely interferes. 
 
 As to trial of libel cases against newspapers, the law 
 clearly favors the defendants. It is well known that 
 French newspapers indulge in a good deal of license. 
 Each newspaper is required by law to have the name of 
 its manager printed on it in a conspicuous place, and he 
 is made answerable for anything appearing in his sheet ;
 
 316 Addresses 
 
 though the writer of the articles complained of may also 
 be made a defendant if he can be found ; but in case of 
 a newspaper having a large corps of editors it is gen- 
 erally impossible to find him. 
 
 Supposing a suit to be brought, the newspaper editor 
 gets the names of all of the jurors in the district, sends 
 them copies of his paper gratis until the close of the trial, 
 arguing his case in nearly every issue for their special 
 benefit. When the manager comes into court, the jury 
 are surprised to find a mild, rustic looking young man, 
 who evidently would not hurt a fly. If a judgment is 
 rendered against him, which rarely happens, it is dis- 
 covered that his estate consists of his clothes and a lead 
 pencil. If he is sent to prison, his friends provide him 
 with delicacies and stay him with flagons until his time 
 is out. He is a manager that does not manage ; and being 
 a hired scapegoat, he finds his berth rather an easy one. 
 He regards himself as a martyr to the cause of truth ; and 
 his friends encourage that hallucination. 
 
 French jurists are not unaware of the defects of their 
 jury system ; but they cannot adopt that of England on 
 account of the English law of evidence, which they know 
 nothing about, and which has indeed grown into formid- 
 able proportions. Some of them advocate a system which 
 has been adopted in parts of Germany and Switzerland, 
 called in German, . Schoffergericht and in French, 
 I'echevinage, but for which we have no name in English, 
 so far as I know ; a kind of blend between trial by judges 
 and trial by jury. The court is composed of a presiding 
 judge learned in the law and either four or six lay 
 judges. The presiding judge generally holds office for 
 life; but the lay judges only hold for a month or two. 
 A majority may convict. The plan has at least the 
 merit of simplicity, and seems to have given general 
 satisfaction. 
 
 But the courts and juries in France are well enough
 
 Trial by Jury in France 317 
 
 constituted. It is, however, obvious that in the evolu- 
 tion of trial by jury in that country there is much that 
 is undeveloped. As long as criminal cases were tried 
 before judges accustomed to weighing evidence, the 
 admission of hearsay evidence, secondary evidence and 
 opinions of witnesses was comparatively harmless; but 
 where the same latitude is allowed in jury trials, it nec- 
 essarily produces confusion and uncertainty. The course 
 of the presiding judge in prosecuting the accused is evi- 
 dently a survival of the practice that antedated trial 
 by jury. 
 
 All of the constitutions of France down to the one 
 now in force have contained guaranties of trial by jury. 
 The present Constitution does not ; and there is no need 
 that it should do so; for trial by jury has obtained a 
 secure hold on the affections of the French people, 
 largely, I think, for a reason that does not operate either 
 in England or America. The Latin races are passion- 
 ately fond of dramatic representations. "Panem et 
 circenses" was the cry of the Roman populace. 
 
 The French people like a jury trial for its dramatic 
 interest, if for nothing else. They might say of it as 
 Charles II. said of the proceedings in Parliament: "It 
 is as good as a play."
 
 TO A GRADUATING LAW SCHOOL 
 CLASS 
 
 Address Delivered to Graduating Class of the Law Department 
 of the University of Arkansas, at Commencement, 
 Little Rock, Ark., June i, 1894
 
 TO A GRADUATING LAW SCHOOL 
 CLASS 
 
 I regret to have to say that I have discovered no way 
 of learning the law in six easy lessons; no method that 
 will relieve you of the necessity of close application and 
 serious study, that ought to continue until you should 
 sever your connection with the legal profession, or until 
 you die. I should rejoice if I could tell you that you 
 may convince courts, control juries, satisfy your clients, 
 and win distinction in the sphere of action to which 
 you have devoted yourselves, drawing your resources only 
 from cursory and casual reading ; but the truth compels 
 me to say that no such possibilities exist, and that as to 
 this subject, no true gospel has been found, save that 
 of hard labor. 
 
 I find these curious passages in the ancient Talmud of 
 the Jews, which are not altogether inappropriate to 
 what I have to say tonight: 
 
 Rabbi Chonan, of Zepora, said, ' ' The study of the law 
 may be compared to a huge heap of dust that is to be 
 cleared away. The foolish man says, 'It is impossible 
 that I should be able to remove this immense heap; I 
 will not attempt it;' but the wise man says, 'I will 
 remove a little today, some tomorrow, and more the day 
 after, and thus, in time, I shall have removed it all. ' ' It 
 is the same with studying law. 
 
 In the book of Proverbs we are told that ' ' Wisdom is 
 too high for a fool." The Rabbi Levi illustrates this 
 text by a parable: "A man once hired two servants 
 to fill a basket with water. One of them said, 'Why 
 should I continue this useless labor? I put the water 
 in on one side, and it immediately leaks out on the other ; 
 
 321
 
 322 Addresses 
 
 what profit is it?' The other workman, who was wise, 
 replied, 'We have the profit of the reward which we 
 receive for our labor.' It is the same in studying law. 
 One man says, 'What does it profit me to study the law 
 when I must forever continue it, or else forget what I 
 have learned?' But the other man replies, 'We shall be 
 rewarded for the will that we display, even though we do 
 forget.' " 
 
 Kabbi Jochanan illustrates the same text with an apple 
 depending from the ceiling. "The foolish man says, 'I 
 cannot reach the fruit, it is too high ' ; but the wise man 
 says, 'It may be readily obtained by placing one step 
 upon another until thy arm is brought within reach of 
 it.' The foolish man says, 'Only a wise man can study 
 the entire law'; but the wise man replies, 'It is not 
 incumbent on thee to acquire the whole. ' ' 
 
 When I first read these ancient passages, I wondered 
 what these venerable Kabbis would think of the study 
 of the law if they could rise from their long sleep of 
 centuries and inspect one of our great law libraries. 
 
 The immense body of the law that he mentioned that 
 was so difficult to learn in one short liftime consisted of 
 the five books of Moses, a large part of which is merely 
 historical, and such comments as had been made upon 
 them by men distinguished for learning. But we have 
 thousands of law books where these Kabbis had but one ; 
 and if all of these books should be destroyed by the 
 torch of some modern Omar, still no one could hope to 
 read any more than a small part of the law books that 
 come forth daily from the teeming press, embracing 
 annually something like 20,000 adjudicated cases, to say 
 nothing of many text books, monographs, and other legal 
 writing of various kinds. Tanthus, the master of Aesop, 
 said, "I will undertake to drink up the sea, if you will 
 give me time ; but I will not promise to drink up all the 
 rivers that run into it."
 
 To a Graduating Law School Class 323 
 
 Had our mental faculties increased as books have mul- 
 tiplied, the situation would be more tolerable. But such 
 is not the case. In respect of the things that were culti- 
 vated by the ancients, such as history, poetry, oratory, 
 architecture and sculpture, they have left us much that 
 we can hardly hope to rival, much less to surpass. The 
 simple truth is, that though we have vastly extended the 
 bounds of human knowledge, the human mind has made 
 no corresponding improvement, and has perhaps lost 
 something of its primitive vigor. 
 
 But if the ancients complained that art was long and 
 life was short, we may well believe that they were not 
 so profoundly impressed with a sense of utter helpless- 
 ness in view of accessible knowledge as we are today, 
 when almost any single department of learning would 
 more than exhaust the' labors of the longest life. The 
 truth is, that our knowledge has far outrun our capacity 
 for dealing with it. But if the law has expanded until 
 no one can ever know more than a very small part of it, 
 the same thing is true of most other sciences. At pres- 
 ent, no one would pretend to know all about the science 
 of mathematics, which consists of many separate depart- 
 ments more or less intimately related. The science of 
 geology is made up of a number of allied sciences, none 
 of which can be learned in less than a lifetime ; and some 
 of them have to be farther parcelled out in order to 
 bring them within the grasp of individual effort. The 
 same thing is true of medicine, chemistry and all other 
 great sciences of modern times. But of all the branches 
 of learning, none is more extensive or more complex than 
 that of the law. Having its origin in the most remote 
 times, it has gradually adapted itself in an imperfect 
 manner, as all things human are imperfect, to all the 
 wonderful complications of modern life. If, in the course 
 of its development, it embodies the constant aspiration 
 of men for an ideal system of justice, it nevertheless
 
 324 Addresses 
 
 bears within itself the marks of fortuitous social cus- 
 toms and conflicts and revolutions long past, and that 
 otherwise have left little or no trace, but which, for the 
 reasonable and proper understanding and interpretation 
 of the law, must be faithfully remembered. 
 
 The vast extent and intricacy of the law ought not, 
 however, to cool your ardor, or to paralyze your ambi- 
 tion. It may be that after forty or fifty years of the 
 diligent study of the science to which you have devoted 
 yourselves, you may have a more profound and abiding 
 sense of ignorance than that by which you are oppressed 
 tonight. In the writings of the Buddhists' religion, we 
 are told that the last enemy we have to conquer is 
 ignorance. Yes, that is the last foe, the one that meets 
 us at our entrance upon life, that attends us at every 
 step, in whose giant shadow we march to the grave, and 
 against which we fight, if we fight at all, unprevailing. 
 But such is one of the ineradicable evils of almost any 
 intellectual career upon which you may enter; and it is 
 worse than useless to complain of those limitations that 
 are inseparable from life itself. 
 
 If you cannot reach perfection, you may, at least, over- 
 come many difficulties ; you can make yourself useful in 
 your day and generation, and may, perchance, achieve 
 distinction. In order to attain to any tolerable degree 
 of success, it is required that you shall devote yourselves 
 to a life of unrelenting study and labor; but all the 
 rewards of an honorable ambition are before you. You 
 will be brought to the highest test of your qualifications 
 by men in your own calling, who are emulous of suc- 
 cess and who may be as well or better equipped for the 
 struggle than yourselves, and by the judges of courts, 
 who will review at leisure the acts that you were com- 
 pelled to perform on the spur of the moment. But it will 
 not do to rely on the inspiration of the moment. It is 
 the habit of doing that, that has led to the discomfiture
 
 To a Graduating Law School Class 325 
 
 and the failure of many lawyers who were distinguished 
 for brilliancy. It is true that the law is not, and can 
 never be made, an exact science ; but, nevertheless, it has 
 many fixed principles that are as inexorable as the law 
 of gravitation itself; and if you do not know these, 
 your peril in every emergency must be extreme; for 
 though there are many ways of being wrong, there is 
 only one way of being right, and the chances of accu- 
 racy in a random guess must be exceedingly remote. 
 
 Nor will it do to make a cover for our ignorance by 
 saying that the law is so extensive that the most inde- 
 fatigable students, after years of study, admit that any- 
 thing like a tolerable acquaintance with its infinite rami- 
 fications is quite out of the question ; for the same thing 
 is true, as I have said, of all the branches of learning 
 in which intelligent men contend for supremacy. Con- 
 sider how little we know of our native language, which 
 we began to lisp in our earliest infancy. It is said to 
 contain more than 150,000 words, to say nothing of a 
 vast multitude of words that are sometimes used, though 
 they are not fully naturalized in our tongue; and yet 
 Shakespeare, who used more English words than any 
 other writer, used no more than 15,000, while ordinary 
 persons use only about 3,000 in the course of a life- 
 time. There is no part of the law a knowledge of which 
 will not be valuable to you, but there is a large part of 
 it for which you will never have any practical use. If 
 you do not know all the law, you will not have to con- 
 tend with anyone who knows it all by heart; for such 
 a phenomenon does not exist in any of the five great 
 continents or the islands of the world. The judge on 
 the bench is presumed to know the law; he may look 
 the embodiment of wisdom ; and his learning may, indeed, 
 greatly exceed your own; and yet, if you have duly 
 consulted your books, you may know much more about 
 the law of vour case than he does.
 
 326 Addresses 
 
 One of the faculties that is of supreme importance 
 alike to the practicing lawyer and judge is that of intel- 
 ligent discrimination, which can only be acquired in its 
 highest degree by long and patient study. The law, it 
 is truly said, consists of a series of rules and exceptions ; 
 and, while exceptions that have no rational foundation 
 are to be frowned upon and rejected, nevertheless, great 
 care is to be exercised in order to prevent the immola- 
 tion of justice at the dictation of rules that are only 
 intended for general use, and not for universal applica- 
 tion. A keen sense of justice, a disciplined discrimina- 
 tion between what is right and what is wrong, a prudent 
 regard for public utility, will enable you to confine gen- 
 eral rules to their proper sphere of usefulness, without 
 corrupting the logic or destroying the symmetry of juris- 
 prudence. Man is not made for the law, but the law is 
 made for man; and when it is so adjusted to human 
 affairs as best to subserve the purposes of right, reason 
 and justice, its highest utility as an instrument for the 
 promotion of peace and for the advancement of civiliza- 
 tion is best attained. On the other hand, when the law 
 is found to consist in arbitrary and technical rules that 
 are applied without a wise discretion, when it degen- 
 erates into empty forms and abounds in barren quibbles, 
 it must soon fall into merited contempt. It is well 
 enough to revere what is ancient ; but all things change, 
 and things that are no longer suited to present needs 
 should be abandoned. Inconsiderable innovations involve 
 many dangers that cannot be foreseen; yet, that can 
 hardly be called an innovation that brings the known 
 and fixed principles of the law more nearly into har- 
 mony with the daily needs of a social life that is always 
 changing whether we wake or sleep. One of the most 
 common of the mistakes of a young lawyer, and one 
 into which older lawyers often fall, is in classifying cases 
 that are under consideration, by their most striking fea-
 
 To a Graduating Law School Class 327 
 
 tures, by some general rule which further investigation 
 would serve to prove wholly inapplicable ; for crude and 
 hasty generalization offer a perpetual snare to the indo- 
 lent and unwary. Perhaps I can best illustrate the profit 
 of close discrimination by reference to an incident in the 
 life of John Scott, afterwards Lord Eldon, in connection 
 with the case of Akroyd vs. Smithson, which is now 
 considered as a leading case on the subject of the law 
 of real estate in England. 
 
 Scott, soon after his admission to the bar, being then 
 a very young man, was retained in the cause by a solic- 
 itor for one of the defendants, merely for the purpose 
 of entering an appearance and assenting to a decree as 
 prayed by the plaintiffs. Having examined the case 
 very thoroughly, he concluded that it did not fall within 
 the rule commonly applied to cases that were in many 
 respects similar, and suggested that a defense should 
 be made. His client, having communicated this recom- 
 mendation to an old lawyer of established reputation, 
 who had the control of the defense, the latter said, ' ' Do 
 not send good money after bad; let Mr. Scott have a 
 guinea to give consent ; and if he will argue, why let him 
 do so; but give him no more." Young Scott, therefore, 
 did argue the case, upon a well founded distinction that 
 had never been suggested or passed on by the courts, 
 and gained it before Lord Chancellor Thurlow, thereby 
 acquiring an established reputation at the bar, and pav- 
 ing the way to that success which eventually made him 
 Chief Justice and twice Lord Chancellor of England, 
 and a peer of the realm. You will find the case of 
 'Akroyd vs. Smithson, reported in Smith's Leading Cases, 
 and by reading it you will discover how it was differ- 
 entiated from previous decisions. 
 
 How was this victory achieved ? Certainly not wholly 
 by native intellect ; for Lord Eldon afterwards told that 
 in those days of his early struggles he read so late at
 
 328 Addresses 
 
 night that he often had to tie a wet towel around his 
 head in order to keep from going to sleep; and if he 
 had not industriously cultivated his discriminating 
 faculties, he never could have discovered the difference 
 that existed between cases that at first sight were seem- 
 ingly alike. To the average traveler, Nature may pre- 
 sent a succession of unvarying and monotonous land- 
 scapes; but to the cultivated eye of the artist, each will 
 be instinct with individual qualities, and will be endowed 
 with beauties peculiarly its own. The monotonous click 
 of the telegraph instrument conveys to you no informa- 
 tion, but for the skillful operator, it is gifted with the 
 powers of intelligent speech. So it is in the law. Dis- 
 tinctions that really exist, and that in the interest of 
 justice ought not to be overlooked, are only visible to 
 the eye of the well trained lawyer. This faculty of see- 
 ing all the details of every problem in their true light, 
 so as to define accurately the question to be solved, can 
 only be created and developed by much reading and 
 study. The word " contemplation " is said to be derived 
 from the Latin word "templum," "temple," because in 
 ancient times wise and learned men who had to perform 
 severe intellectual tasks, or to ponder questions of great 
 difficulty often repaired to the temples, in whose quiet 
 seclusion, far from the noise of the maddening crowd, 
 they could devote the interval to profound and continued 
 thought; and hence the very word is suggestive of that 
 mental abstraction and labor which are indispensable to 
 the comprehension of any subject so exacting as that of 
 the law. In one of his plays, Plautus likens a young 
 man to a ship that has just left the docks. The sails 
 are new, the woodwork is freshly painted, it has an 
 appearance of great strength and solidity, so that it 
 seems to put to shame older vessels that have buffeted 
 many a storm. But in point of fact, its timbers are 
 green, and its different parts have not yet adjusted
 
 To a Graduating Law School Class 329 
 
 themselves to each other so as to develop the highest 
 degree of endurance and efficiency. It has not yet been 
 tempered by long contact with tempest and wave, it 
 has not yet been thoroughly saturated with the salt air 
 of the sea, it has not acquired that elasticity and dexter- 
 ity which enable older ships to outweather the most 
 terrible storms; and thus it may chance that the new 
 and untried vessel may go to pieces and founder in the 
 quiet harbor, or may disappear at the first breath of the 
 tornado. 
 
 It may, no doubt, be regarded as one of the misfor- 
 tunes of life that we are called upon to make the most 
 momentous decisions at that period of our career when 
 passion is strongest, and when our judgments are most 
 immature. So great is the facility of youth for making 
 mistakes that it is said of life that youth is a blunder, 
 manhood a struggle and old age a regret. The struggle 
 of manhood to repair the thoughtless errors of youth are 
 often harrowing and intense ; and the evening of life is 
 clouded with vain regrets for abject failures or for vic- 
 tories that are far from complete. Had the first steps 
 been ordered aright, the struggle would have been need- 
 less, and the regrets would have been replaced by a 
 comforting sense of duties performed and a triumph 
 achieved. A few very great and wise men have escaped 
 errors, and have avoided the toil and humiliation that 
 inevitably follow in their train ; and they are held up as 
 bright examples to be imitated by .those who are capable 
 of learning from the experience of men who have suc- 
 cessfully overcome, by a timely exercise of wisdom, the 
 many difficulties that never fail to accumulate in the 
 pathway of life. Every victory that comes late is only 
 partial victory, and hardly deserves the name ; but every 
 victory in early life brings with it a new sense of strength 
 and confidence that lightens the burdens and lessens the 
 dangers of all future contests.
 
 330 Addresses 
 
 The first few years of your professional career will 
 probably be decisive of all the rest. In our calling it is 
 not the readiest or even the most eloquent young man 
 that gives the highest promise of success ; but that place 
 is reserved for the youth that gives his days and nights 
 to diligent labor, who nourishes his lonely heart with 
 study. Whoever would accomplish great and worthy 
 things must arm himself with patience and self denial, 
 must choose his path with discretion, and must, avoiding 
 all temptations, resolutely pursue it to the end. My 
 Lord Coke says that law is a deep well from which every 
 man draweth according to his strength. What you need 
 is an intimate knowledge of the great principles of 
 jurisprudence, a knowledge of the jurisdiction of the 
 courts, of the methods of procedure, of the laws of evi- 
 dence, and of every detail that you may, with the aid of 
 a trained intellect, and the help of a memory subjected 
 to patient discipline, be able to acquire. There is no 
 royal road to learning, and youth is the time to lay up 
 that knowledge upon which the future will make repeated 
 and unexpected demands, and without which you had as 
 well trust yourself to vexed and stormy seas without 
 chart and without compass or rudder. The habit of 
 serious, earnest and manly study, early begun, and 
 prosecuted with undeviating fidelity, affords a guaranty 
 of success with which nothing else can compare. In 
 preparing for the professional conflicts and duties upon 
 which you must soon enter, no time is to be lost ; for if 
 once lost it can never be recovered. The vast volumes of 
 the law are open before you; their abounding contents 
 cannot be mastered in a day or year; but by diligent 
 attention, day by day, you may hope in time, to attain 
 to such a knowledge of the law as will enable you to 
 take a high rank in your profession. 
 
 There has always been a controversy among lawyers
 
 To a Graduating Law School Class 331 
 
 as to the amount of reading outside of his professional 
 duties, that the practicing lawyer may safely permit 
 himself to indulge in. This is a subject upon which it 
 is perhaps impossible to lay down any rule for universal 
 application. Some will say that as the most of a lawyer's 
 time is necessarily taken up with labor in his office and 
 in the courts, he can have but little or no time for gen- 
 eral reading; that the law is a jealous mistress and will 
 not tolerate a divided worship. On the other hand, it is 
 said that the lawyer who does not court the refining 
 influences of polite literature, must always appear rude 
 and uncouth ; that as all work and no play makes Jack 
 a dull boy a proper measure of attention to the great 
 models of literary style has the effect, not only to cul- 
 tivate the critical faculties, and to improve the taste, 
 but that by affording a variety of pleasing subjects to 
 the mind it gives to it a healthier tone, and will better 
 enable it to deal with the more intricate and abstruse 
 problems of the law; that in the varied emergencies of 
 practice, the lawyer needs to know not only the law, but 
 the details of the wonderful science of the human heart, 
 which is nowhere so well or so impressively taught as in 
 the works of the great poets, dramatists, essayists, novel- 
 ists and historians. 
 
 On this subject it would seem that the rule should 
 vary according to individual temperament. The man 
 who naturally possesses literary tastes, will have to 
 repress the temptation to stray too often, and to linger 
 too long outside the legal fold ; while he whose tastes in 
 that respect are less seductive, may develop a greater 
 mental symmetry by filling in odd intervals of time with 
 literary studies that others differently constituted would 
 deem nothing more than agreeable distractions from the 
 severe strain of long continued legal studies. More- 
 over, it may be remembered that there are but few
 
 332 Addresses 
 
 rules that are adapted for universal use, and that there 
 have been many great and successful lawyers that virtu- 
 ally limited their reading to the law alone. 
 
 Economy of time is, of course, for every student, a 
 matter of the first importance. The hours that are often 
 spent in dawdling over the sensational articles, the 
 trivialities and puerilities of newspapers, the platitudes 
 of fashionable magazines, the shallow sentiment of the 
 popular novel, are, for the most part, thrown away. It 
 was good advice of Mr. Emerson, never to read a lit- 
 erary book that has not been published for at least a 
 year; for by that time the most of the books that come 
 out have gone down the back stairway of time, and have 
 been happily forgotten, so that you need not read them 
 at all. 
 
 But there are many works in our language, and in 
 other languages easily enough accessible, and in all 
 departments of literature, that have attained to the 
 highest rank, which are universally conceded to be the 
 productions of the greatest minds that have ever visited 
 our planet; works that may always be consulted with 
 pleasure, and with profit, by men of every calling and 
 pursuit in life. 
 
 There is one kind of literary reading equally enter- 
 taining and instructive that is so nearly within the pale 
 of law as to be regarded as obligatory upon every lawyer 
 who wishes to be considered as fairly well equipped for 
 the practice of his profession; I mean the history of 
 England, which shows the origin and development of 
 our system of laws, and the history of our own land 
 that shows how those laws have been modified and 
 changed by the rise and progress of institutions peculiar 
 to our country ; and by modern changes in opinions and 
 social life, which, in many cases have supplied new 
 standards of utility. 
 
 No less instructive is legal biography, the lives of the
 
 To a Graduating Law School Class 333 
 
 great judges and lawyers who, rising in many instances 
 from poverty, obscurity and the lowest ranks of life, have 
 overcome difficulties that seemed insurmountable and 
 have compelled the homage and admiration of the world. 
 To the young lawyer, such reading is not only instruc- 
 tive, but it is full of encouragement for, 
 
 "The lives of great men all remind us, 
 
 We can make our lives sublime, 
 And departing leave behind us, 
 Footprints on the sands of time." 
 
 Particularly would I recommend to you the reading 
 of Lord Campbell's Lives of the Lord Chancellors and 
 Lives of the Chief Justices of England, books written 
 by an eminent jurist that present to the reader interest- 
 ing and instructive pictures of many men who were 
 highly distinguished in their day and generation, and 
 which display in a dramatic manner the rise and growth 
 of many institutions under which we continue to live. 
 
 Buff on said, "patience is genius," a saying which he 
 illustrated by the labors of a lifetime, and he came as 
 near as anyone ever did to proving the paradox. He not 
 only enlarged the domain of science in many ways, the 
 result of attentive observation and diligent labor, but 
 he left behind him many voluminous writings, of which 
 it may be said that they do not contain a sentence that 
 is not a model of grace and elegance, showing the most 
 exquisite taste in the use of language. 
 
 The labor with which the purification of his style was 
 attained is well known. He always wrote on very wide 
 paper, which was ruled into five broad columns. In the 
 first, he wrote out what he had to say on the subject 
 that he had in hand; in the second, third, fourth and 
 fifth columns he wrote the same matter over again with 
 successive improvements ; and it was never, until he had 
 written it five times, that he succeeded in putting it into
 
 334 Addresses 
 
 the shape in which he was willing to submit it to public 
 inspection. One of his books he wrote and re-wrote 
 eleven times before publication. 
 
 One of the friends of Daniel Webster, who was familiar 
 with his methods, said that he had often thought that 
 if other men had given the same intense labor to their 
 speeches that he did, they might have been equally dis- 
 tinguished for oratory. You all know by what con- 
 tinuous effort it was that the stammering Demosthenes 
 succeeded in making himself the greatest orator of all 
 time. Sir Isaac Newton, who discovered the laws that 
 control the stars in their orbits, and weighed in invisible 
 scales the sun, the moon and the planets, dissolved light 
 into its original elements, who advanced the science of 
 mathematics into remote regions previously unknown, 
 said that the only advantage he possessed over other men 
 was that he was able to concentrate his mind on any one 
 subject unremittingly for twenty-four hours. 
 
 It is no doubt true that it is not every man of good 
 natural abilities who can attain to the highest rewards 
 of exertion; but even what is called native-born genius, 
 extraordinary aptitude for any particular career of life, 
 is so dependent on labor that it is generally difficult to 
 say how far each has contributed to the ultimate result. 
 
 Lord Byron is a man who is supposed by many to have 
 written spontaneously in the fervor of poetic inspira- 
 tion ; but yet when you look at the extent and variety of 
 the writings that he left behind him at the end of a short 
 life of thirty-seven years, he was an exceedingly busy 
 and diligent man, writing for fame which was dearer to 
 him than life. 
 
 These, and many other examples that might be men- 
 tioned, suffice to show that what was said by Shake- 
 speare, who himself must have been a man of wonderful 
 diligence, contains a profound truth which most men 
 may lay to heart :
 
 To a Graduating Law School Class 335 
 
 "The fault, dear Brutus, is not in our stars, 
 But in ourselves, that we are underlings." 
 
 I would not, however, have you believe that I wish to 
 convey the idea that any one can, by mere force of 
 industry, make himself a great man. Great men are 
 phenominal freaks of nature that but rarely appear. 
 The largest biographical dictionary extant hardly con- 
 tains more than 20,000 names, names of men scarcely 
 equal to the population of our little city. And many 
 of these are only mentioned because they were kings or 
 emperors, or occupied some other representative char- 
 acter; or, what is worse, because they were warriors 
 who cursed the world with their cruelty, or charlatans 
 possessing not the slightest tincture of true greatness; 
 reprobates, whose evil deeds have kept their names alive 
 as a reproach and a warning to mankind. 
 
 It is of ill omen for any one to begin life with false 
 and exaggerated notions of his own ability, for these 
 can only end in disappointment. Men, who like Wash- 
 ington, have accomplished great results, have not been 
 vain men. Vain men are generally men who have not 
 measured their minds accurately with those of the great 
 men who have shed their light on the past. Nothing so 
 humbles incipient pride as an intimate communion with 
 the thoughts of men whose surprising endowments have 
 lifted them above the level of their fellow men. The 
 men whom I have mentioned were gifted with rare and 
 remarkable talents, which, however, would have rusted 
 in obscurity if not seconded with energy. If we are less 
 fortunate, and can claim no more than the ordinary 
 talents that are distributed among men, surely there 
 exists a greater reason why we should cultivate them 
 with increased diligence. 
 
 You cannot take up the works of any of the great 
 masters of jurisprudence without perceiving the marks 
 of unwearied toil, stern self denial and the most soul
 
 336 Addresses 
 
 subduing application which have removed difficulties, 
 have broken down barriers, and have conferred upon 
 them a distinction and a fame quite beyond the dreams 
 of indolence. Very often in the world of the mind their 
 achievements, when duly weighed, appear hardly less 
 astonishing than the fabled labors of Hercules. 
 
 It may be that you can never hope to rival these great 
 lights of jurisprudence that shine perpetually like the 
 stars in the firmament of heaven ; but you can, at least, 
 up to the measure of your ability imitate their proud 
 example; and without such emulation, you are doomed 
 to a bitter and hopeless disappointment, which may well 
 end in despair. 
 
 Mr. Justice Story says : 
 
 "The law is a science of such vast extent and 
 intricacy, of such severe logic and nice dependencies, 
 that it has always tasked the highest minds to reach even 
 its ordinary boundaries. But eminence can never be 
 attained without the most laborious study united with 
 talents of a superior order. There is no royal road to 
 guide us through its labyrinths. These are to be pene- 
 trated by skill, and mastered by a frequent survey of 
 land marks. It has almost passed into a proverb that 
 the lucubrations of twenty years will do little more than 
 conduct us to the vestibule of the temple ; and an equal 
 period may well be devoted to exploring the recesses. ' ' 
 
 To mitigate this bleak prospect, however, let it be 
 added that all of these years of study are not neces- 
 sarily devoid of pleasure; for though the study of the 
 law may require the closest and most undivided atten- 
 tion, it possesses an interest not inferior to that of any 
 other great science; that interest increases with the 
 increase of knowledge of its spirit, its reasons, its objects, 
 its operations, its wonderful scope and diversity, and 
 the infinity of its applications ; and there is no pleasure 
 so lasting as that which attends the pursuit of knowledge.
 
 To a Graduating Law School Class 337 
 
 Nor should we be discouraged by the vast and formidable 
 array of books which adorn or encumber the spacious 
 temple of the law, for, as the old Rabbi said, it is not 
 incumbent on us to know the whole of the law, and in 
 these myriads of volumes under which our shelves are 
 groaning ar'e many repetitions, while many of them are 
 only for occasional use. Very many questions are set at 
 rest by the statutes and reports of your own state, a 
 familiar acquaintance with which is of indispensable 
 importance to you. So that it is only occasionally that 
 you will be called to explore the vast domain of con- 
 flicting authorities on doubtful questions. But such 
 times for extensive and thorough enquiry will sometimes 
 come, and then, if you are not well versed in the fun- 
 damental principles of the law, your ineffectual quest 
 may only lead to humiliation and defeat ; for, being but 
 indifferently prepared for the search, you may chance 
 to look in vain for that which others could discover 
 without delay or difficulty. 
 
 The course of legal studies in the German Universities 
 is usually thorough, embracing as it does from four to 
 six years, during which the student must attend from 
 ten to fifteen lectures a week upon all branches of the 
 civil, canon, ecclesiastical, customary, public, statutory, 
 institutional and international law, and political econ- 
 omy, of each of which lectures he must take copious 
 notes, during which time he also receives supplementary 
 instruction from private teachers. 
 
 At the end of his term of study, he is placed in a 
 public hall upon a raised platform, where he makes an 
 address in support of some legal proposition that he 
 assumes, which is antagonized in short speeches by three 
 fellow students who sit on a bench in front of the plat- 
 form, to which he makes a brief reply, which they admit 
 to be conclusive. Thereupon the president of the 
 faculty approaches, and presents to him the orna-
 
 338 Addresses 
 
 mental silk cap or biretta, such caps being always worn 
 by lawyers when in court in Continental Europe, after 
 which he addresses the graduate as follows : 
 
 ' ' Receive this cap, which is the emblem of liberty ; and 
 now, having once received it, you are free, enfranchised 
 from the yoke of authority. Hereafter you will con- 
 sider nothing as true which you have not drawn from the 
 very fountain of truth. Hereafter, you will not pin your 
 faith to the utterances of any master. Hereafter you 
 will oppose a hostile front to the enemies of religion, 
 of science, to the enemies of humanity, to the enemies of 
 that liberty into which you are now admitted. Here is a 
 book which I now open, and then close, as a sign that you 
 shall consult your books in order to learn what men 
 have thought before you, and that you shall then close 
 them in order that you may think for yourself. And 
 now, receive this clasp of my hand, by which our 
 ancestors meant to denote that concord and harmony 
 should exist among learned men ; not a harmony of opin- 
 ions, which naturally differ, but a unity of hearts for 
 the combat against error, and the defense of the truth. ' ' 
 
 Yes, the book must be opened, and must not be hastily 
 closed ; for the teachings of the great masters of the law 
 furnish the best key for opening of its great treasure 
 house of knowledge ; but it must be closed at the fitting 
 time, for no man can be a successful lawyer in the best 
 sense of the term who does not do a great deal of think- 
 ing of his own, without which the reason of the law, 
 which is its underlying and vivifying principle, its 
 very life blood, can never be apprehended, and without 
 which its proper application must remain unknown. 
 Beading and meditation must go hand in hand ; and then 
 they will fortify and strengthen each other for the 
 fullest development of individual capacity. 
 
 There is one thing that is of far greater importance 
 than anything that I have yet mentioned, but upon
 
 To a Graduating Law School Class 339 
 
 which I can only add a word; for therein the patient 
 must heal himself as well as he can. I need not say that 
 the moral conduct of life, in whatsoever light it may be 
 considered, involves the gravest and most solemn of all 
 questions. 
 
 The moral duties of lawyers are not different from 
 those that bear upon other men. Fidelity to your clients, 
 courtesy, fairness and friendship towards the members 
 of the bar with whom you are called to associate in the 
 daily labors of life, respects for the courts, sympathy 
 with the oppressed and the suffering, and honorable 
 and upright life, charity toward all men, virtues which 
 conduce so much to human happiness are even more 
 indispensable to success in the legal profession than 
 great abilities or vast and varied learning. Deviation 
 from duty in the lawyer is apt to meet with sudden and 
 condign punishment. Once let it be known that he is 
 dishonest or tricky, and he is at once consigned to the 
 lowest ranks of the profession, from which he can never 
 hope to emerge. No one can live up to his ideal of 
 what is right and proper; but unless one has a sincere 
 and unfeigned love of truth and justice his progress at 
 the bar will be attended with difficulty, and be exposed 
 to disaster. 
 
 The law wisely relies for its sanction rather on punish- 
 ment than on rewards. So if to the young man, hope 
 offers no sufficient spur to duty, he may well reflect that 
 there is something in a failure in life that is pregnant 
 with pain and humiliation. From this prolific source 
 proceed perhaps one-half of all the miseries of life. It 
 brings with it disappointment, poverty, sickness, imper- 
 fect development, self abasement, shame and ten thou- 
 sand other griefs that make life wretched, to avoid which 
 should be the untiring effort of every intelligent being. 
 If the direful penalties could only be known and appre- 
 ciated beforehand, there is no reason to suppose that
 
 340 Addresses 
 
 any sane man would treat them with indifference. Some 
 men have asserted that human happiness was an empty 
 delusion, but no one has ever alleged that human pain 
 was but an idle dream. Whatever else may be unsub- 
 stantial, this at least is real; and it was out of the real 
 sufferings of men that Dante constructed the hell that 
 his pen described : 
 
 "It is not truth the poet sings, 
 That sorrow's crown of sorrow 
 Is remembering happier things." 
 
 The real crown of sorrow is the remembering that if 
 it had not been for our own fault, the sorrow need never 
 to have been. It is then that affliction is attended with 
 remorse, which adds a still keener sting. Self inflicted 
 wounds rankle deepest and are the most incurable of all. 
 Another poet has expressed the thought better than I 
 can do : 
 
 "So the struck eagle stretched upon the plain 
 No more through rolling clouds to soar again, 
 Viewed his own feather on the fatal dart, 
 And winged the shaft that quivered in his heart; 
 Keen were his pangs, but keener far to feel, 
 He nursed the pinion that impelled the steel; 
 While the same plumage that had warmed his nest 
 Drank the last life drop of his bleeding breast." 
 
 In the giving of advice, there is often something 
 seemingly invidious, as if one assumed an air of greatly 
 superior knowledge and wisdom concerning propositions 
 that are almost self-evident. Yet such propositions need 
 sometimes to be restated; and the ungracious assump- 
 tion of fancied superiority is often far more apparent 
 than real. 
 
 Yet it might not be quite improper for you to suggest 
 that counsel is easy, but that practice is better; and to 
 ask how we have kept the precepts that we enjoin.
 
 To a Graduating Law School Class 341 
 
 If I could answer for the members of the bar whose 
 long day's work is rapidly drawing to a close, I think 
 that they would say, with a voice nearly approaching to 
 unanimity : 
 
 "The ideal that is worth striving for soars far above 
 the real, and we fall under the heavy penalties of our 
 own condemnation. We have seen the right and have 
 approved it too; and yet we have followed the wrong. 
 We look back with pain and regret over opportunities 
 that have been neglected, time that has been wasted, 
 duties unperformed; and if in the long retrospect we 
 find any peace of mind, it is the peace that survives when 
 the battle has been lost, the peace that brooded over 
 Gethsemane, and not that which spreads its shining 
 wings over paradise. But the pilot whose keel has often 
 grazed the treacherous rocks, and who has been most 
 frequently shipwrecked on hidden reefs, can better coun- 
 sel you of the perils of the deep than the mariner who 
 has only seen his sails reflected in cloudless seas, or who 
 has successfully avoided every danger; and it would be 
 a great and abiding consolation to us, if we could know 
 that our manifold mistakes and blunders, perpetrated 
 when the heat and burden of the day were heavy upon 
 us, might breed in you that wisdom which we, ourselves, 
 failed to grasp."
 
 TO A GRADUATING CLASS 
 
 Address Delivered at the University of Arkansas, 
 Fayetteville, Ark.
 
 TO A GRADUATING CLASS 
 
 Although I have lived in Arkansas for over 30 years, 
 and have been in most parts of it, yet I have never before 
 my present visit been in this fruitful and beautiful por- 
 tion of it known as the North West. This has been 
 more my misfortune than my fault. Twice before these 
 societies have kindly invited me to be present at their 
 re-unions. Once I was kept at home by sickness, and 
 the other time by circumstances over which I had no 
 control. 
 
 I have been here now for myself and have seen the 
 varied hills and valleys, the attractive landscapes, the 
 pleasant homes, the kind and hospitable people, and this 
 institution of learning, which has before it so much of 
 usefulness, and I am filled with gladness to think that 
 this all belongs to our common State in which we have 
 lived, and in which most of us will die and be buried. 
 And now that I am here I should be sorry if any of you 
 have concluded that I have come to deliver what is 
 called an "oration," or to be heard for much speaking. 
 I suppose that I could hire a hall at home and deliver 
 an ' ' oration ' ' without the trouble of coming so far. 
 
 When I came to think about what would most prob- 
 ably be of most interest to you, young ladies and gentle- 
 men, I had to go back in my own mind to that time in 
 my life which corresponds with the period in life in 
 which you are now living. I will not say my "student 
 days," because our student days have only fairly begun 
 when we are done with school, and they never end until 
 life itself is ended. 
 
 I can bring those days back to my mind with a good 
 deal of clearness, and can remember that, with all the 
 
 345
 
 346 Addresses 
 
 elasticity that belongs to youth, I spent in them a good 
 many sad and despondent hours. My father and mother, 
 upon whom I might have relied for assistance and advice, 
 had died long before. I had neither wealth nor influ- 
 ential friends, nor any of those aids that smooth one's 
 way towards success in life. I was fully aware that I 
 was but very imperfectly educated, and that I had none 
 of those shining talents that will command the world's 
 attention. I was by no means destitute of friends; but 
 every man and woman and child needs a home, a place 
 of refuge, something to fall back on for new strength in 
 case of misfortune or temporary defeat, some central 
 hearth from which, whether far off or near by, he may 
 draw a certain amount of light and warmth. This I had 
 not. I felt that I had to go out in the world and fight 
 life 's battle single handed, and that the odds were against 
 me on every side. Every available space seemed to be 
 already occupied, every seat taken. 
 
 So, when I looked at the future, it often seemed to me 
 to be as dreary as a rainy sea covered with gloomy clouds. 
 I felt a sense of loneliness and insufficiency; as if I had 
 a work to do and no one to show me how to do it, no 
 tools to do it with, and neither skill nor training; and 
 yet, somehow or other the work had to be done, for over 
 me stood Fate, that stern task-master that hears no idle 
 excuses. 
 
 Perhaps I was to blame for having such feelings. My 
 case was not nearly so hard as that of many young men, 
 who, by their own unaided efforts, have attained to a 
 degree of success which I can never hope to reach; but 
 I did have those feelings; and at times I suffered from 
 them keenly. 
 
 Nor do I think that I could have been singular in that 
 respect. It seems to me probable that some of you young 
 men may have had or may hereafter have feelings not 
 unlike those of which I have spoken.
 
 To a Graduating Class 347 
 
 Reflecting on those things before I came here, it seemed 
 to me that I should better repay your kindness by 
 speaking to you to-night, in the simplest and plainest 
 language that I can use, on the subject that so much 
 engaged my thoughts at your time of life. I do not know 
 that anything that I have to say can interest you; but 
 it seems to me that the subject is one of as much interest 
 to you as any other that I could select. I confess that 
 I should be glad if you should be pleased with what I 
 have to say; particularly if any of you should be able 
 to find in anything that I shall say any grain of comfort 
 or encouragement. 
 
 It is not a matter of indifference to me as to how you 
 get through the world; young people often think that 
 older people have no sympathy with them; but such is 
 far from being the case. On the contrary our interest 
 increases with increasing years. You know that we 
 naturally become more attached to things when we know 
 that we shall soon part from them. A friend never 
 seems so dear to us as when we become aware of the fact 
 that after a little while we shall look upon his face no 
 more. A wise man does not have to be very old before 
 he begins to perceive that his horizon is growing nar- 
 rower and that the shades of evening are beginning to 
 steal across the landscape. He begins to prize each 
 re-union of friends, every kindly memory of the past, 
 more and more as the days go by. In youth life some- 
 times seemed to him to be a comedy, a jest, a dream; 
 some odd medley which might have been brought about 
 by chance and which has but little meaning; but as he 
 gets older he seems to discover that it has a meaning in 
 every part, though that meaning is so deeply hidden that 
 the heart of man cannot wholly search it out. What is 
 it that has kept these hearts of ours, mere things of flesh, 
 beating on and on, even during the night when we slept
 
 348 Addresses 
 
 without ever forgetting themselves or stopping for a sin- 
 gle moment? 
 
 Though man is in a large measure the architect of his 
 own fortune, yet he sees that many of the most moment- 
 ous and important things in his life have depended on 
 events so inconceivably trivial, that at the time that 
 they took place they were not thought worthy of the 
 slightest notice. Through the merest indifference he 
 goes down one street instead of another and by reason 
 of that and that alone he meets a future friend or wife 
 whose influence over him is to be always afterwards pre- 
 dominent in many respects for good or for evil. A single 
 friendly or unfriendly word, a single averted or a single 
 kindly glance, and the current of a man's destiny is 
 changed forever. For himself he knows that the chances 
 for any sudden change of such immense importance, 
 save by sickness or death, are greatly diminished. In 
 looking backward he sees that unconsciously, he knows 
 not how, he has been in direct communication with that 
 unseen world upon whose brink we walk from the cradle 
 to the grave. Of many things that have happened in 
 his life, he is bound to say that they are not of man's 
 doing. Though men may have had much to do with 
 the actual results, yet it is obvious that those results 
 were not foreseen by them, or counted upon by them in 
 any way. 
 
 Many things come to have a meaning to one in advanc- 
 ing years which they can never have to one who is much 
 younger. I doubt whether there is any young man now 
 living who can have anything like a realizing sense of 
 the full import of the expression "a failure in life." 
 The reason is not that they are wanting in sense or 
 capacity; for I think that in proportion there are as 
 many old fools as there are young ones; but they feel 
 themselves to be full of strength and energy and hope, 
 and they think that if they get into trouble they can
 
 To a Graduating Class 349 
 
 either get out of it again, or that they can shake it off. 
 They cannot realize that when the trouble comes as a 
 strong man, it may come at a time when their stock of 
 vivacity, strength, energy and hope has been much 
 impaired. It is as impossible for them to have a realizing 
 sense of that fact as it is for a man with good eye-sight 
 to realize himself as a blind man. It is not his fault 
 that he cannot do so; the effort simply transcends his 
 faculties. 
 
 My pursuit in life has brought me in contact with 
 many men who have failed in life more or less; and yet 
 I have not seen the worst by far; because I have seen 
 but little of the criminal classes; but I have seen full 
 enough to enable me to say that if young men could only 
 have a fair conception of what is implied in a failure in 
 life, such a thing as a failure in life would be almost 
 unknown ; if they could only know the long heart ache, 
 the sense of pain and humiliation, the sleepless nights 
 that stamp themselves on the face and that whiten the 
 hair. In such cases it is not generally true that the man 
 suffers so much for himself. If he stands by himself 
 alone the case is not so hard, though it may be hopeless ; 
 but very few men stand alone; and when a man goes 
 down in the world he very commonly carries some one or 
 more down with him ; his wife who had willingly trusted 
 her life to his hands, his innocent children, who look up 
 to him for protection and support ; and not infrequently 
 he brings loss and sorrow to friends who had confided 
 in his honor. 
 
 Very generally, too, any serious failure in life brings 
 with it some taint of moral degradation. Very often 
 the fine sense of honor is blunted, and men will do things 
 that under happier surroundings they would have 
 scorned to do. Instead of looking on life as a field for 
 high endeavor and noble ends, they come to see only 
 the petty things in it, and the dark side of it.
 
 350 Addresses 
 
 If Shakespeare is called the poet of nature it is not 
 only because he is always in accord with Nature, but 
 because many of his beauties are hidden like many of 
 the beauties of Nature, requiring attention before they 
 can be seen. His genius not only goes directly to the 
 mark, but it is always kept in strict subjection to all 
 surrounding conditions. 
 
 So my young friends will remember that it is Macbeth 
 who, speaking contemptuously of everything in life, 
 says: 
 
 " * * * all our yesterdays have lighted fools 
 
 The way to dusty death. Out, out, brief candle! 
 
 Life's but a walking shadow; a poor player, 
 
 That struts and frets his hour upon the stage, 
 
 And then is heard no more; it is a tale 
 
 Told by an idiot, full of sound and fury, 
 
 Signifying nothing." 
 
 This language would not have been suitable to any 
 other character in Shakespeare. It was the language of 
 despair ; but it would not have suited for the despair of 
 Othello, or that of Romeo, or that of King Lear, a despair 
 equally deep and hopeless; but utterly different. Nor 
 would it have been suited to Macbeth himself in his 
 better days when he said: 
 
 "I dare do all that may become a man; 
 Who dares do more is none." 
 
 But now it was finely suited to a man, who, having 
 failed in life in every way, had been eaten into by that 
 dry rot, which makes him carp at everything, and poisons 
 his mind against all that is good; to a man who said of 
 himself : 
 
 "My way of life 
 
 Is fallen into the sere, the yellow leaf; 
 And that which should accompany old age, 
 As honor, love, obedience, troops of friends,
 
 To a Graduating Class 351 
 
 I must not look to have; but in their stead 
 Curses, not loud, but deep, mouth-honor, breath 
 Which the poor heart would fain deny and dare not." 
 
 I know that many a modest and deserving young man 
 is ready to despair, saying to himself: "Being equally 
 without wealth or birth, or influential friends or health, 
 or shining abilities, I see a great shadow that lies on my 
 path, and I do not know how it will ever be lifted and 
 my soul is dark within me. ' ' 
 
 I freely admit that the outlook is not bright, and yet 
 if that same young man has or will acquire the power 
 of self-control, patience and industry, I would willingly 
 pit him against all the pampered scions of wealth and 
 fortune. If you will look over the lives of the great 
 inventors and benefactors, men who have done the most 
 good for our race, you will find that most of them have 
 risen from a far greater degree of obscurity than that 
 which surrounds any of you. Poverty is the mother of 
 thrift; and it is only under the influence of adversity 
 that the human mind bears its best fruit. 
 
 It is said that young people go to school in order to 
 "equip" themselves for the duties of life. The phrase 
 may do well enough; but as the act of equipping refers 
 to the putting on of something external, it is not quite 
 accurate; for the learning that you put on outside will 
 do you more harm than good. The learning that will be 
 a real source of strength to you is that which you thor- 
 oughly assimilate and make a part of yourself; some- 
 thing that does not show itself in big words or in pedantic 
 snatches from living or dead languages; nothing that 
 smacks of sham and pretence, but something that shall 
 clear your moral vision until you can see the natural 
 beauty of simplicity of manners, simplicity of speech 
 and simplicity of life. 
 
 It is clear that the conduct of life is a separate science 
 by itself, the most important of all sciences, the sum
 
 352 Addresses 
 
 of all sciences. Unless you can get this, all your learn- 
 ing will be of no avail. It is a science that you will 
 need in its actual application every day and every hour 
 of your life, when you are not asleep. It embraces not 
 only all other sciences, but it also includes the whole 
 circle of human virtues ; and it is precisely in accordance 
 with your proficiency in it that you will take your rank 
 as a man. 
 
 Every kind of applied science requires training and 
 discipline. The knowledge that you will get here in the 
 school, important as that may be, and it is a matter 
 of extreme importance is of far less value than the 
 mental training which comes with it. The man who is 
 turned out in the best plight to meet all the rubs of life 
 is the man of the highest discipline. 
 
 I remember not many months ago that I saw far out 
 at sea a naval training ship, on the deck of which there 
 were a hundred or so of young men going through their 
 morning evolutions. It seemed to be rather a dull and 
 tedious routine. There was no land in sight, no sign of 
 tree or flower, or human habitation, nothing but the 
 dreary waste of waters, and sometimes a passing sail. 
 It seemed to me to be a sad fate. I felt such an interest 
 in them that I got a spy glass so as to bring them nearer ; 
 and then they looked so strong, so bright and so manly, 
 that I felt that any one might envy them. They were 
 there, out on the lonely sea, preparing themselves for 
 future labors, breathing the salubrious atmosphere of 
 duty; and I concluded that they compared most favor- 
 ably with the fashionable youths that I had often seen 
 at our watering places, dawdling about with high 
 heeled boots, microscopical moustaches, twirling little 
 walking canes, with their hands as soft as cotton and 
 their heads a great deal softer. 
 
 Of course there are degrees in success ; but there is no
 
 To a Graduating Class 353 
 
 doubt but that almost every man may reach a reasonable 
 degree of success. There is to-day in France a man still 
 comparatively young by the name of Xavier Thiriat, 
 whose record is worthy of being mentioned. When he 
 was a small boy he rescued a little girl from drowning 
 one very cold day, by jumping into the water and help- 
 ing her to reach the shore. The result of his experience 
 was that he became paralyzed so that he has never been 
 able to walk since. Under these strangely sad and for- 
 lorn circumstances the boy educated himself, and Xavier 
 Thiriat has published several books in the last few years 
 which have given him a recognized standing in both 
 literature and science. Such an instance as this puts to 
 shame our better opportunities. 
 
 Very few men are possessed of genius. There are very 
 few born poets or orators, or actors or musicians; but 
 every man claims to have a quality which really almost 
 every man does actually possess, a very valuable quality, 
 which may be wonderfully improved by cultivation. I 
 mean that quality which in English we call by the homely 
 but expressive name of ' ' common sense. ' ' That was the 
 quality that went to the making of Benjamin Franklin 
 and George Washington. Franklin started out poor 
 and uneducated and friendless ; he lived to be spoken of 
 with honor the whole world over, and, as he said, to dine 
 with princes. He died with the proud fame of a patriot, 
 a statesman, a man of learning, of science and a bene- 
 factor of his race. Washington, looking to actual results, 
 was clearly the greatest man that ever lived. A poor, 
 half educated country boy in an obscure English colony, 
 he succeeded, with wretched resources, in humbling the 
 proudest military power on the face of the globe ; and in 
 cementing and establishing in the new world, a nation- 
 ality compared with which Rome in her best estate was 
 but a trivial creation. If you will study the lives of those
 
 354 Addresses 
 
 great men, you will find that their success was due to 
 the fact that early in life they learned the habits of self 
 discipline and self control. Those are the things that 
 work miracles. If you go into a circus you will see an 
 acrobat do things that you could no more do than you 
 could fly. As hard as it seems to you to do them, there 
 was a time that it seemed just as hard to him. It is only 
 by daily training and confining his efforts to one thing 
 that he has at last succeeded in entertaining and aston- 
 ishing his audience ; and it is just that kind of assiduity 
 of purpose that will be required of you in any calling 
 which you may adopt. 
 
 If a young man in the formation of his character 
 learns the gift of self mastery and cultivates habits of 
 honesty, good nature, temperance, industry and patient 
 energy, he has already conquered the world. Without 
 these he may fail beyond his darkest reckoning. I doubt 
 whether homilies and copy-book platitudes about external 
 acts do generally as much good as the authors of them 
 expect. You cannot make a man virtuous and lovable 
 by paying attention to externals. That has been tried 
 and has failed. Philip Stanhope wrote certain letters 
 which are known as Chesterfield's "Letters to his Son." 
 They have been published and have had a very extensive 
 sale. Doubtless most of you have seen them or read 
 them. In them the author dwelt admirably on externals 
 of conduct. He appealed to no matters of principle, to 
 no generous sentiment of the heart. He did not ask 
 that his son should be a good man or a kind man in fact, 
 but only that he should have the outward seeming of 
 gentleness and goodness. He was a gentleman in appear- 
 ance. He might as well have tried to make a gentleman 
 out of canvas and sawdust. The result was unsatis- 
 factory in the last degree. That result was summed up 
 by a poet of the day in the following lines :
 
 To a Graduating Class 355 
 
 "Vile Stanhope demons blush to tell 
 
 In twice two hundred places 
 Has shown his son the road to hell, 
 Escorted by the Graces. 
 
 "But little did the ungenerous lad 
 
 Concern himself about them; 
 For base degenerate, meanly bad, 
 He sneaked to hell without them." 
 
 Perhaps Shakespeare understood, better than any one 
 else that there could be no successful life if it is lived 
 in externals chiefly ; for he summed up his advice to 
 the young by saying : 
 
 "Above all, to thine own self be true; 
 And it must follow as the night the day, 
 Thou canst not then be false to any man." 
 
 Again he said : 
 
 "I charge thee fling away ambition. 
 By that sin fell the angels." 
 
 "Love thyself last; cherish those hearts that hate thee; 
 Corruption wins not more than honesty. 
 Still in thy right hand carry gentle peace 
 To silence envious tongues; be just and fear not. 
 Let all the ends thou aimst at be thy country's, 
 Thy God's and truth's." 
 
 How impressive these words ought to be when we 
 reflect that they proceeded from a man who had a more 
 comprehensive and intimate knowledge of human life 
 than all the men now living put together ! To the young 
 man who would heed them, they would be as a beacon 
 on a rock, to guide his wandering bark across all the 
 shifting seas of life. 
 
 Perhaps you would ask me what I mean by a success- 
 ful life. The question is a pertinent one. I am told that
 
 356 Addresses 
 
 on such occasions as these, persons who address students 
 sometimes tell them that if they will exercise all of the 
 cardinal virtues, combined with studious habits, and 
 great energy, they may get to be presidents, or governors 
 of States. I do not. I do not know that holding out 
 such hopes can have any considerable effect on any 
 young man. I should think that it would be better for 
 him to cherish hopes a little more secure, and I will add, 
 a little higher; for a man may well be a President of 
 the United States, and yet his life may be an utter 
 failure in the proper sense of the term. As there is no 
 purely external standard of duty, so there is no purely 
 external standard of success. A man may be a very 
 great man, he may be wonderfully successful in some 
 one thing; he may fill an important chapter in history, 
 and he may fill the world with his fame ; and yet on the 
 whole his life may be an ignominious failure. Alexander 
 the Great conquered many countries ; and it is said that 
 he wept for new worlds to conquer, but could not conquer 
 himself. Napoleon destroyed many thousands of men 
 to satisfy a greedy ambition, seemingly without one 
 sample of conscience or one pang of regret; and then 
 died in confinement and exile. Notwithstanding the 
 astonishing character of these performances, the lives 
 of these men were nothing more than sublime failures, 
 mere travesties on what a man's life should be. 
 
 On the other hand, mere adversity and ill fortune, how- 
 ever great, provided they do not proceed from our own 
 faults, will not constitute an unsuccessful life. Socrates 
 died by the hand of the common executioner, and it is 
 said that St. Paul died in the same way ; but no one can 
 say that they lived unsuccessful lives ; for their influence 
 on the world for good still lives, and will live as long as 
 the world shall endure. Latimer and Ridley, and John 
 Huss and Jerome of Prague, and all the noble army of 
 martyrs have not lived unsuccessful lives, though they
 
 To a Graduating Class 357 
 
 died at the stake; for by their deaths they bore witness 
 for all time to great moral truths. There are also many 
 men and more women, who are poor, ignorant and 
 obscure, who accomplish but little in the world that any- 
 one can see, who are forgotten very soon after they die, 
 and who yet have not lived unsuccessful lives; because 
 they have gained the victory over themselves, which is 
 the highest victory that any human being can achieve, 
 because they have lived gentle and honorable and stain- 
 less lives, and have done what they could to make the 
 world better and happier. 
 
 I do not mean to say that these last had achieved a 
 complete success in life, for poverty, to a certain extent 
 implies defeat. It will not do for anyone to enter upon 
 life with a contempt for the value of money. Every 
 dollar that a man earns by honest labor is a trophy of 
 which he has a right to be proud. There are but few 
 things that hinder one more in his career of usefulness 
 than to be in debt or to labor under any serious finan- 
 cial embarrassment. It deadens his finer sensibilities, it 
 destroys his peace of mind, and not unfrequently it 
 undermines his principles. The advice given by the poet 
 Burns to a young friend was perfectly sound, sensible 
 and just when he said: 
 
 "To catch Dame Fortune's golden smile 
 Assiduous wait upon her, 
 And gather gear by every wile 
 That's justified by honor; 
 Not for to hide it in a hedge, 
 Nor for a train attendant; 
 But for the glorious privilege 
 Of being independent." 
 
 Wealth, social standing and learning are all very 
 important elements in a successful life ; but they are not 
 indispensable elements. The real and indispensable ele- 
 ment, without which there can be no success in life, is
 
 358 Addresses 
 
 the result of that conflict that takes place in every man's 
 bosom between motives that are good and those that are 
 bad, between objects that are high and those that are 
 low. This is the true battle of life. Often you can tell 
 at a glance when you first meet a man how the battle has 
 gone. The haggard look of dissipation, or the furtive 
 look of evil import, tell that the battle has been lost 
 irretrievably. Sometimes you may behold a face that 
 tells you that the contest has been definitively won ; but 
 with most men the battle goes on with varying fortunes 
 as long as life lasts. 
 
 But the brunt of the battle is fought either in boy- 
 hood or when a man is very young. The great prob- 
 ability is that with each one of you it will be fought and 
 will be practically won or lost in a very few years. 
 
 The great misfortune is that it is very often fought 
 and ended when the youth is not aware that there is any 
 such battle going on. He has vague aspirations for suc- 
 cess and for usefulness in life, and he thinks that 
 later on he is really going to do something. In the 
 meantime, without thinking much about it, he is forming 
 first one idle or vicious habit and then another. He 
 does not look on these habits as being anything more 
 than a mere matter of temporary youthful indulgence, 
 which he will quit whenever he thinks proper to do so. 
 If he sometimes reproaches himself with these things, he 
 says to himself that he is going to settle down after a 
 while. He thinks that he is popular, and that no one 
 notices his little faults. And herein he is mistaken. The 
 world is always on the lookout for actual merit ; and if a 
 young man has pluck, energy and self control, based on 
 principle, it will soon be found out; and people will 
 repose confidence in him and that confidence is capital 
 in life. Men will be anxious to form business alliances 
 with him. Young ladies will be attracted by those quali- 
 ties that command esteem ; and he will most likely marry
 
 To a Graduating Class 359 
 
 a good and sensible girl, which will be the most sensible 
 thing he ever did, and, in doing so, he will draw the 
 highest prize in the lottery of life. 
 
 On the other hand, if a young man has, from simple 
 heedlessness or otherwise, fallen into habits of vice or 
 indolence, he is discounted just in the same proportion. 
 If he thinks that his faults are not noticed, he is like 
 the ostrich which hides its head in the sand and thinks 
 that nobody can see him. If the world has a keen eye 
 for merit, it has a still keener eye for demerit. As hard 
 as it is to break off a bad habit, it is a great deal harder 
 to conceal it. After a while the young man, who prob- 
 ably really possesses talents and some fine traits of char- 
 acter, concludes to reform. Perhaps he thinks that he 
 will marry and do better. He makes himself believe that 
 he is going to do so, and he makes some fair, trusting 
 young girl believe the same thing. When he tries to 
 reform he finds that the tide is against him. People have 
 lost faith in him, and he has lost faith in himself. It 
 is not only that he has formed bad habits; but those 
 habits have sapped away all of his moral strength, and 
 all his powers of self control. He is like Gulliver, bound 
 down to the ground by the threads of the Lilliputians. 
 He has promised his wife to love and protect her. With 
 a degree of meanness that would have been incredible 
 to him in his better days, he ends by breaking her heart. 
 His children grow up in poverty, ignorance and vice; 
 and probably when at last he comes to die and be buried, 
 and a preacher preaches his funeral, he cannot think of 
 anything better to say of him than that generally he 
 was one of the first men at a fire. 
 
 There are a good many men that start out with the 
 idea that a good way to get along is to humbug the 
 world; and they say that the world likes to be hum- 
 bugged, and they refer to Barnum and other characters. 
 One would think that the effrontery of a man who would
 
 360 Addresses 
 
 publish a book filled with details as to how he had lied, 
 and deceived, and swindled the public systematically 
 through a long series of years, would not excite much 
 admiration. Occasionally a man of the shrewdness of 
 Barnum obtains at the same time wealth and the con- 
 tempt of all sensible men by devious tricks ; but the most 
 of those who start out on the same path are landed 
 before long in prison ; and for one Barnum that succeeds 
 you will find five hundred that have not succeeded and 
 are in the penitentiary. It is in that as it is in other 
 things, you never hear of those who fail. They do not 
 write books. On the other hand, you will find in New 
 York a thousand men who have attained a fortune by 
 honest industry where you will find one Barnum that has 
 succeeded. 
 
 There is a man in London by the name of Whitely 
 who is called the "Universal Provider," because he pro- 
 fesses to furnish anything in the world that a man wants 
 from an English manorial estate or a ship of the line 
 down to a needle. He has one of the largest mercantile 
 houses in the whole world. With the exception of a sim- 
 ilar institution in Paris, I have never seen anything to 
 compare with his establishment, which covers a great 
 many acres. I saw it stated the other day that in the 
 interior of it he has in his employ over 5,000 persons, 
 enough to make a considerable town, besides a great 
 many carriers and others employed outside. In 1863 
 he started for London from his native village in Eng- 
 land with about $7.50 of our money. An uncle of his 
 offered him a check for twenty-five pounds, but he 
 declined it, saying that he was young, and intended to 
 make his own way in the world. He began as a com- 
 mercial traveller, and eventually set up a small shop for 
 the sale of articles of ladies' wear, with a net capital of 
 $3,500, in London, the wealthiest city in the world. He 
 formed a resolution that he would sell only good goods
 
 To a Graduating Class 361 
 
 and at as low a price as they could be sold, and that all 
 of his business should be conducted on principles of the 
 strictest integrity. It was soon found that his customers 
 could rely on anything that was told them in his house, 
 and that they could send an order to him for any article 
 without fear of being deceived. Today his estate is 
 estimated by millions of pounds, every one of which has 
 been honestly gained. 
 
 This is certainly a very extraordinary case; but it 
 illustrates a very important principle, and that is that 
 the man who has the highest skill in his calling and the 
 highest integrity, in any community in which he may be 
 placed, is in no danger of making a failure in life. 
 "Corruption wins not more than honesty." 
 
 I have dwelt somewhat at length on the necessity of 
 self control. Without that a man is like a ship without 
 a rudder. There is another quality that needs to be 
 cultivated with extreme care, and that is self reliance. 
 There is one part of Shakespeare's advice to a young 
 man that is extremely valuable. He says: 
 
 "Take each man's censure, but reserve thy judgment." 
 
 In Shakespeare's day the word ''censure," true to 
 its derivation, meant opinion; so the meaning is: 
 "Take each man's advice, but think for yourself." 
 Decision of character is an extremely valuable quality. 
 A man's friends are to him better than riches; their 
 advice is often of priceless value ; but as they can rarely 
 see all that he sees, it is still necessary that a man should 
 be able to form his own judgments, and that he should 
 possess the firmness and the fortitude to act upon them. 
 
 I have tried to convey to you the idea that the struggle 
 which we must have in this life is rather with ourselves 
 than with the outside world. A young man is apt to 
 think that he must go to work to get friends and to 
 make money; but if he will only do the work that is
 
 362 Addresses 
 
 before him diligently, and will stick to it faithfully, and 
 will live honestly, kindly and charitably with his fellow 
 men, avoiding all cant and hypocrisy, making himself 
 sure that his good qualities, such as they are, are genu- 
 ine, not pinchbeck, not put on for show, friends and 
 money will both come in due time. The only money 
 that will ever do you any good is that which comes 
 honestly; the only friends that will ever be of any use 
 to you are those that come to you naturally. 
 
 I have dwelt so much on the necessity of self control, 
 that I am afraid that some of you may go off thinking 
 that I mean to recommend a systematic course of self 
 examination. Nothing is farther from my thoughts. 
 I have heard men advise young people to think over every 
 night everything that they had done, or said, or thought, 
 during the day, and to reflect on them all in order to see 
 how far they had done right and how far wrong. Such 
 a system of double entry moral bookkeeping might do 
 for a monk in a cloister; but for a man who has to do 
 with actual life, it would lead him, if he were a man of 
 sense, either to a lunatic asylum or to death by suicide. 
 
 I have known young men who were always whining 
 because they were not good enough; but I have never 
 known one tha,t was worth a row of beans. That condi- 
 tion of mind is a morbid and an unhealthy one. If St. 
 Paul, or Martin Luther, or John Wesley had always 
 been whining in that way, they would never have done 
 any good. They would have been compound and varie- 
 gated failures. That kind of self anatomy is fatal in its 
 efforts. When a man has made up his mind as to what 
 are good principles and is resolved to stand by them, the 
 less he thinks of himself after that the better. Nor 
 should he, because he makes a blunder or commits a fault, 
 be unutterably cast down. No man ever lived without 
 faults. They are natural and inevitable, and they are a 
 part of our training. Longfellow said :
 
 To a Graduating Class. 363 
 
 "Saint Augustine! well hast thou said, 
 That of our vices we can frame 
 A ladder, if we will but tread 
 Beneath our feet each deed of shame." 
 
 And after him Tennyson said: 
 
 "I hold it truth with him that sings 
 To one clear harp in divers tones, 
 That man may rise on stepping stones 
 Of their dead selves to higher things." 
 
 The truth is that the greater part of any useful life 
 must consist of action. One should not be too long in 
 making up his mind, and when he has made it up he 
 should to a large extent quit thinking. 
 
 And as for the young ladies that form such an impor- 
 tant part of your societies, I can say that as their sex 
 perform their duties in life so much better and with 
 so much more grace than my own, it would be something 
 like presumption if I should undertake to instruct them 
 as to their duties in a science which they understand so 
 much better than myself. If the young men of the 
 country can only be got to see their duty and to do it, 
 I shall have no fear of the young women. I have hardly 
 ever seen a bad or a mean woman but that she had been 
 made so by some bad or mean man. Men make the laws 
 for the world, but women supply the morals, without 
 which laws would be but a waste of words. 
 
 There are many signs of promise in the present age, 
 but one of the most hopeful is the deeper interest that 
 is taken in the cause of female education. This is 
 something that will produce its fruits hereafter. When 
 I think of the great and good men whose names appear 
 like bright stars shining through the gloom of the past, 
 they seem to me to be still greater when I reflect that 
 they were often trained by ignorant mothers. Lord 
 Brougham said that we learn more in the first two years
 
 364 Addresses 
 
 of our lives than in all the other years put together; 
 and those two years and several years afterwards, are 
 spent mostly with the female members of the household. 
 Other things may pass into oblivion, but the lessons then 
 learned are never forgotten. In the darkest as well as 
 in the brightest hour of humanity, woman has ever 
 stood watch over religion and morality, with the devo- 
 tion with which the vestal virgin guarded the sacred fire. 
 If you would find the hour and the spot in human his- 
 tory in which the mind has been most darkened, virtue 
 most neglected and man most depraved, you will at the 
 same moment discover the time and the place in which 
 the influence of woman has been most disregarded and 
 condemned. It is something beautiful to think about, 
 that the march of progress, with all of its din and noise 
 and dust, its building of bridges, its rearing of cities, 
 its construction of railways, its hurry and its clamor, 
 is silently and reverently entering the domestic circle 
 to add new charms and new graces and new and more 
 powerful influences to womanhood. It is less than sixty 
 days ago that the laws of the University of Oxford, in 
 England, that ancient home of prejudice and exclusive- 
 ness, were so altered as to admit women to public exami- 
 nations. A work that has gone so far can never go back- 
 ward, and the time is soon coming when no uneducated 
 woman can be found in all the length and breadth of the 
 land. 
 
 During the lifetime of my generation wonderful things 
 have been accomplished. The human mind has made 
 greater advances in every direction than in centuries 
 before, and the world has been changed and renovated. 
 Very soon we are going to turn it all over to you young 
 ladies and gentlemen, with everything that is in it. May 
 you do better than we have done, and may you be wiser 
 and happier than we have been.
 
 STRIKES AND TRUSTS 
 
 A Paper Read at the Sixteenth Annual Meeting of the American 
 Bar Association August 13, 1893
 
 STRIKES AND TRUSTS 
 
 The year 1776 was marked by two of the most impor- 
 tant events that have occurred in history, the publication 
 of Adam Smith's "Wealth of Nations" and the Ameri- 
 can Declaration of Independence, both of which opened 
 up new fields of thought, and either of which was suffi- 
 cient to form an epoch. One writer has said of the book 
 referred to that it is by far the most valuable book ever 
 written by man, while another writer, Mr. Buckle, says: 
 
 "Well may it be said of Adam Smith, and said, too, 
 without fear of contradiction, that this solitary Scotch- 
 man has, by the publication of one single work, con- 
 tributed more towards the happiness of man than has 
 been effected by the united abilities of all the statesmen 
 and legislators of whom history has preserved an 
 authentic account." 
 
 Other men, and among them his contemporaries, Rous- 
 seau and Helvetius, had written of social problems from 
 a theoretical or academical standpoint; but, building 
 their systems on false and delusive foundations, their 
 conclusions were so erroneous and inadequate that their 
 writings did more harm than good. Smith was the first 
 to apply to such questions the processes of scientific 
 thought ; and his is one of the few scientific books which, 
 like the "Novum Organum" of Bacon and the "Prin- 
 cipia" of Newton, can never be wholly superseded. Later 
 investigation has indeed proved that his work contains 
 errors; but it contains fewer errors than any first book 
 on any great subject ever written, and he himself laid 
 down the methods by which those errors might be 
 detected. 
 
 367
 
 370 Addresses 
 
 built. But at a time when nearly all labor was done 
 by slaves who had no participation in such combinations, 
 strikes and lockouts could hardly have been very common. 
 
 The first historical account that we have of a strike is 
 recorded in the pages of Livy. It occurred three hun- 
 dred and ten years before Christ, and broke out among 
 the flute-players who were employed to play at the public 
 sacrifices because they were not allowed to hold their 
 repasts in the temple of Jupiter. It was compromised 
 by a concession to the strikers. 1 This strike was not 
 regarded as a novelty, since the historian says that he 
 only mentions it by reason of its connection with religion. 
 
 In 1883, a fragment of a Greek inscription was dis- 
 covered relating to an ancient strike, being a proclama- 
 tion made by a Roman governor of Magnesia during 
 the time of the Empire of the East, on the occasion of a 
 strike on the part of the bakers. It forbids them to 
 
 1 "Another transaction of this year I should pass over as trifling 
 did it not seem to bear some relation to religion. The flute play- 
 ers taking offence because they had been prohibited by the last 
 censors from holding their repasts in the temple of Jupiter, which 
 had been customary from very early times, went off in a body 
 to Tibur; so that there was not one left in the city to play at 
 the sacrifices. The religious tendency of this affair gave uneasi- 
 ness to the Senate; and they sent envoys to Tibur to endeavor 
 that these men might be sent back to Rome. The Tiburtines 
 readily promised compliance, and, first calling them into the 
 Senate House, warmly recommended them to return to Rome; 
 and then, when they could not be prevailed on, practised on them 
 an artifice not ill adapted to that description of people; on a fes- 
 tival day they invited them separately to their several houses, 
 apparently with the intention of heightening the pleasure of their 
 feasts with music, and there plied them with wine, of which such 
 people are always fond, until they laid them asleep. In this state 
 of insensibility they threw them into wagons, and carried them 
 away to Rome; nor did they know anything of the matter until 
 (the wagons having been left in the forum), the light surprised 
 them, still heavily sick from the debauch. The people then 
 crowded about them, and, on their consenting at length to stay, 
 privilege was granted them to ramble about the city in full dress 
 with music; and the license is now practiced every year during 
 three days. And that license which we still see practiced with the 
 right of being fed in the temple, was restored to those who played 
 at the sacrifices." Livy, Lib. IX, c. 30.
 
 Strikes and Trusts 371 
 
 organize into fraternities, and commands them to obey 
 the magistrates by furnishing labor for the making of 
 bread, so that there should be no lack of it. 2 
 
 In the reign of Zeno, who ascended the imperial throne 
 in the year of Christ 474, workmen engaged in building 
 would, after having begun their work, strike for higher 
 wages. In such cases the employer could not engage 
 others in their place, because they all belonged to an 
 association that forbade all members to continue or finish 
 a work begun by other members. Under these circum- 
 stances, the employer could only accede to the demands 
 of the strikers or abandon his undertaking. This evil 
 occasioned an imperial ordinance that denounced a pun- 
 ishment for the strikers, and for those who refused to 
 continue or finish their work. 3 This ordinance reveals 
 
 2 The following is a translation of this fragment: 
 
 " * * * and the blindness of the seditions of the bakers in 
 the market place, seditions for which those who have been sent to 
 us deserve to be punished. But since the interest of the city is to 
 be regarded rather than their chastisement, we have decided to 
 reform them by an ordinance. Wherefore we proclaim this ordi- 
 nance: The bakers shall not unite themselves in fraternities. 
 Instead of adopting audacious methods of their own choosing, they 
 shall yield implicit obedience to the magistrates who have been 
 placed over them for the public good, and shall supply the city all 
 necessary labor for the making of bread, so that there shall be no 
 lack of it. Henceforth if any one of them shall be convicted of 
 belonging to any such brotherhood, contrary to this prohibition, 
 or of having fomented any trouble or sedition, he will be sent to 
 us, and will be punished according to the nature of his offence. 
 And if any one dare, in order to injure the city, to conceal him- 
 self (here follows a chasm), he will be arrested and subjected to 
 a like punishment." 
 
 Bulletin de correspondence hellenique, 1883, 505. 
 
 3 The ordinance, after prescribing a punishment for strikers, 
 proceeds as follows: 
 
 "No one shall hinder another from continuing a work that 
 has been begun by another, as we are advised certain artisans and 
 contractors have dared to do, not being willing themselves to finish 
 what they have commenced, nor to let others finish it, and so 
 have caused serious loss to those who had employed them. And 
 if any one refuse to finish a work for the sole reason that it has 
 been commenced by another, he shall suffer the same punishment 
 prescribed for him who suspends a work which he has contracted 
 to do." Const. 12, Code, Lib. VHI, tit. X.
 
 372 Addresses 
 
 the existence of labor organizations that had long been 
 known, having succeeded to the clans of ruder times, and 
 which were succeeded in their turn by the working 
 guilds of the Middle Ages, conspicuous among which were 
 the guilds of masons and builders that erected the 
 churches and cathedrals that at present adorn all the 
 cities of Europe, and which by the unity of their archi- 
 tecture betray the unity of their origin. 
 
 It would be a mistake to suppose that these guilds 
 were at all similar to our modern trades unions. In 
 those days the master occupied no higher rank in the 
 social scale than the workmen that he employed. They 
 were all plebeians alike, the master took a part in the 
 common labor; guilds, established in the interest of the 
 craft, included both, both classes being indifferently 
 represented at the same council board. Their hostility 
 was not directed against each other, but against the 
 patricians, or the aristocratical element of society, that 
 imposed on them restraints that were alike hateful to 
 both master and servant. As most of the work was then 
 done by the piece in the homes of the workmen, the 
 relation between them and the master was much less 
 exacting than that which subsists between the same 
 classes in modern times. With the recent inventions for 
 the transmission of power by electricity, it is possible 
 that in the future the former system may be restored. 
 If so, many of the existing difficulties of our present 
 labor system will disappear. 
 
 With the increase of capital and the invention of 
 labor-saving machinery, large numbers of workmen col- 
 lected together in factories under the eye of the master, 
 working not by the piece, but by the day. Under such 
 methods the grievances of the several workmen went to 
 make up a common grievance. Then came the modern 
 aristocracy of wealth, which took the place of the former 
 aristocracy of the patricians or land owners, after which
 
 Strikes and Trusts 373 
 
 the standard of living of the master rose far above that 
 of his laborers, and his communication with them was 
 usually made through agents and superintendents, by 
 means of which was introduced between master and 
 servant a new and very disturbing element, class preju- 
 dice and animosity. 
 
 Under this phase of evolution it was inevitable that a 
 new differentiation should assert itself. From that time 
 the workmen began to organize themselves separately 
 for purposes of defense against their masters, and the 
 modern labor problems developed themselves. The bond 
 of peace was broken, employers and employes came to 
 occupy separate and hostile camps, and hostile camps 
 bred distrust and suspicion. Present conditions show 
 the unfortunate results. Thus, if the manager or super- 
 intendent possesses virtues, he will himself get credit 
 for them ; if they have vices or faults, these are ascribed 
 to the common employer on the principle of adoption. 
 
 If the employer is a corporation, as commonly hap- 
 pens, the evils of the situation are greatly enhanced ; for, 
 if it be true that men acting in a corporate capacity will 
 consent to do many things which their consciences would 
 not permit them to do as individuals, 1 it is none the less 
 true that when they act in a corporate capacity they are 
 subject to imputations that they would be exempt from 
 as individuals. The employe is apt to regard the corpo- 
 ration solely as a gigantic and selfish monopolist; not a 
 thing of flesh and blood, but a cold calculating mechan- 
 ism, a sort of modern Frankenstein, an alien in race, 
 destitute of superhuman origin, capable of no language 
 save the jargon of profit and greed, a grotesque abstrac- 
 tion, created and operated for the sole purpose of mak- 
 ing money. To love or sympathize with such an incor- 
 poreal and unresponsive entity is impossible; and it 
 
 See an interesting essay by William Hazlitt on this subject.
 
 374 Addresses 
 
 seems to be excluded from the divine injunction that we 
 shall love our neighbors as ourselves, since no one ever 
 regarded such an invisible and intangible thing as his 
 neighbor. If all men must have something to love, the 
 eternal law of contrast requires that they must have 
 something to hate ; and as hatred is naturally attracted 
 to those things that are incapable of exciting affection, 
 it happens that, in a competitive examination of objects 
 worthy of animosity, corporations are apt to attain to 
 prominence and distinction. That they are often made 
 scapegoats for the sins of others is undoubtedly true; 
 but it is also true that the hostility which they excite in 
 the minds of those who are subjected to their power, and 
 who cope with life under its harder and more difficult 
 aspects, is often justified by the events that ensue; and 
 as they are immortal, death does not extend to them the 
 mantle of oblivion for past offenses, while their immor- 
 tality excludes them from the charity which among nat- 
 ural persons proceeds from the sadness of a common 
 destiny which puts an end to all quarrels, an event whose 
 anticipation goes far to deaden the resentments and to 
 temper the ordinary asperities of life. If the corporators 
 are thought of, they are confounded with the corporation 
 itself, and are, in any event, conclusively presumed to 
 be rich. 
 
 The socialistic ideas that have during the past century 
 been so industriously circulated have also added their 
 quota to the general causes of dissension. Thus it has 
 happened that strikes and lockouts have occurred, and 
 still occur, with needless frequency. 
 
 Strikes are more destructive than formerly, not only 
 because of the great expansion of the agencies of pro- 
 duction and the grouping of vast numbers of laborers 
 together, but because, owing to the minute subdivision 
 of labor that exists in modern times, there is a more 
 complex interdependence between different classes of
 
 Strikes and Trusts 375 
 
 laborers. Thus the strike among the cotton spinners of 
 Preston, England, in 1839, including only 660 operatives, 
 had the effect to throw out of employment 7,840 weavers 
 and others who had nothing to do with the subject matter 
 of the quarrel. 
 
 At present, vast numbers of men work together in the 
 same calling in close proximity with each other, having a 
 community of wants, hopes and fears, all being deeply 
 interested in questions that affect all alike; and these 
 great aggregations go on increasing from year to year. 
 In 1870, the Krupp manufactory in Germany employed 
 1,764 operatives. In 1880, the number had increased to 
 7,084, and in 1885 the number had further increased to 
 20,000. Counting the wives and children of these 
 operatives, we find at that time a population of 63,381 
 persons dependent on the wages received from the same 
 employers, of whom 20,000 lived in houses belonging to 
 the plant of the manufactory. Since that time the num- 
 ber of employes has doubtless been still farther aug- 
 mented. It is needless to speak of the vast multitudes 
 of men engaged in the service of our railways, which 
 form a standing army of imposing magnitude. The 
 complexity of any business dependent on the constant 
 co-operation of so many men can only be properly known 
 and appreciated by those whose daily lives require 
 familiarity with all of its details. As these extensive 
 communities must necessarily embrace individuals that 
 are disposed to be idle, querulous, distrustful, envious, 
 carping and resentful, the difficulty of keeping the peace 
 in such enormous households must be plain. 
 
 Friction produces discontent, discontent produces con- 
 troversy, and controversy leads to strikes. The disas- 
 trous effects of strikes can hardly be computed ; and their 
 most heavy burdens fall upon the laboring classes. In 
 the recent strike in the cotton trade in Lancashire, at 
 the end of the first twelve weeks the operatives had lost
 
 376 Addresses 
 
 in wages alone $4,500,000. Four strikes that occurred 
 in England between 1870 and 1880 involved a loss in 
 wages of more than $25,000,000. Of 22,000 strikes 
 investigated by the National Bureau of Labor, it was esti- 
 mated that the employes suffered a loss of about 
 $51,800,000, while the employers only lost about 
 $30,700,000. In some cases where strikes have been 
 attended with riots the losses to the employers have been 
 immense. Thus the Pittsburg strikes of 1877 resulted in 
 a loss of $3,000,000 of railway property. But it cannot 
 be said that the strikers made anything, though they 
 lost heavily in wages. Of 351 strikes that occurred in 
 England from 1870 to 1880, 189 were lost by the strikers, 
 71 were gained, and 91 were compromised. During this 
 time there were 2,001 other strikes of which the results 
 are unknown. The victories on the part of the strikers 
 were no doubt often rather nominal than real. In one 
 case the success attained was an increase of wages; but 
 it would take twenty years of such increase to make up 
 the loss sustained by the strikers in obtaining it. In 
 the last half century, wages of workmen have increased 
 from 50 to 100 per cent. But the wages of domestic 
 servants and agricultural laborers have increased in the 
 same ratio; and they have never resorted to strikes. It 
 does not follow, however, that they have not been bene- 
 fited by strikes in other callings; for when the wages of 
 skilled workmen go up men that would otherwise go into 
 or remain in domestic and agricultural service go to the 
 cities, and join the classes of skilled workmen. The 
 effect is to lessen the supply of laborers in the callings 
 that are abandoned, and thus to increase the price of 
 service. There is another loss to workmen that they 
 do not regard on account of its remoteness, but which 
 must add enormously to their aggregate. By reason of 
 the frequent occurrence of strikes, men with capital 
 refuse to go into industrial pursuits, and hence the
 
 Strikes and Trusts 377 
 
 demand for labor in those pursuits is more limited than 
 it would otherwise be, and wages are correspondingly 
 reduced. But in one respect strikes have brought about 
 results that are beneficial to those who engage in them. 
 As strikes have occasioned great losses to employers, they 
 are dreaded by capital, which makes many concessions 
 upon a mere demand that otherwise would never be 
 granted. Strikes have deeply inculcated the lesson that 
 laboring men have rights as well as employers, rights 
 which they are able and willing to defend; and so they 
 are now treated with much more consideration and 
 respect than formerly. But it still remains true that 
 these important results could have been attained with 
 fewer strikes and without such appalling losses. 
 
 Strikes may grow out of any kind of dispute between 
 employers and employes, and have proceeded from many 
 controversies having apparently nothing to do with 
 wages. But as the majority of them do relate to wages, 
 and these are typical of all others, I shall confine my 
 attention to them alone. Indeed, it would be easy to 
 show that most of them involve questions of wages even 
 when at first sight they seem not to do so. Suppose, for 
 instance, that the workmen strike because the master 
 receives more apprentices than they think that he ought 
 to receive ; they do so because by this increase of appren- 
 tices the number of skilled laborers will be increased, 
 with the effect of lowering the standard of wages. In 
 case of laborers striking for shorter hours of labor, they 
 demand the same pay for ten hours of work that they 
 had received for the labor of twelve hours. This conse- 
 quently is a demand for higher wages. Or take the 
 extreme case of a strike because machinery is deemed 
 unsafe. Usually even this could be smoothed over if 
 the employer would pay extra wages in proportion to the 
 extra hazard incurred. 
 
 The conflicts that arise between the manufacturer and
 
 378 Addresses 
 
 his landlord as to the amount of rent to be paid, and 
 between him and the capitalist as to the rate of interest 
 on money borrowed to float his enterprise, involve onlj 
 pecuniary questions that at the worst can only result 
 in individual cases of bankruptcy or insolvency ; but that 
 which arises between all the representatives of capital 
 and labor involves questions of the utmost difficulty and 
 importance. Political economists often regard labor as a 
 mere commodity which should be bought and sold as 
 other commodities are, believing that the law of supply 
 and demand will of itself regulate the prices to be paid. 
 It is true that labor is a commodity; but it is a com- 
 modity of a peculiar kind. The laborer, by his contract 
 of hiring, not only transfers his labor, but he surrenders 
 a part of his personal liberty. As compared with most 
 sellers of commodities, he is under many disadvantages. 
 He is single, while capital, which is the result of the 
 toil of many laborers, may be said in its force to be 
 collective. Usually the laborer's case will brook no delay 
 he must have work or he and his family must starve. 
 Capital, however, can wait until approaching famine 
 compels a surrender. The sale of the laborer is a forced 
 sale ; and at forced sales commodities usually bring only 
 ruinous prices. Hence it is that in England and in this 
 country many laws have been passed during the present 
 century to protect laborers against the oppression of 
 employers, and it is partly to remedy this inequality that 
 trades unions are formed, the chief object being to with- 
 hold labor from the market in times of urgent pressure 
 until remunerative prices are offered. 
 
 As these unions are rarely heard of by the public save 
 in times of strikes, many people suppose that their prin- 
 cipal function is the promotion of strife; but in point 
 of fact their objects are mainly peaceful, and in respect 
 of benevolence and utility they are entitled to high rank. 
 It has been said that if they did not exist they would
 
 Strikes and Trusts 379 
 
 have to be invented. Seven of these unions in England 
 from 1875 to 1884 collected and dispensed more than 
 $14,000,000. At the end of the year 1875 the United 
 Society of English Engineers alone possessed a reserve 
 fund of more than a million of dollars. 
 
 These unions have regularly constituted authorities for 
 their government. As to employers, they do not deal 
 with them in respect of wages unless the question has 
 become a general one; but they receive no member who 
 is not capable of earning the rate of wages prevailing in 
 his district. If, on account of incapacity, a laborer can- 
 not earn this general rate, he is excluded from the union. 
 If a member is turned out of employment on account 
 of drunkenness, or other improper conduct, he is also 
 excluded. If he is discharged by his employer without 
 good reason, he receives a donation from the union until 
 he can secure employment. If he is sick or disabled he 
 receives a like donation, and in case of the death of him- 
 self or his wife, usually the burial expenses are paid by 
 the union. If superannuated, he receives an allowance 
 in the shape of a pension. If many workmen are out of 
 employment, such as may wish to emigrate are assisted 
 in doing so. The proper officers keep advised as to the 
 wants of employers so as to aid members to find employ- 
 ment when needed. Use is made of the organization to 
 secure concert of action in case of a strike. 
 
 The objects above mentioned are all praiseworthy as 
 tending to elevate the moral and intellectual standard 
 of living of the workmen. Other regulations are more 
 open to criticism, such as the exclusion of non-union men 
 from employment, the exclusion of women and children, 
 the limitation of the amount of work to be done by each 
 workman by the hour or day, the prohibition of work 
 by the piece, the limitation of the number of appren- 
 tices by the ratio of workmen engaged in each factory, 
 and at times the inhibition of improved machinery.
 
 380 Addresses 
 
 In all trades these unions exercise a dominating influ- 
 ence in questions affecting the interests of the workmen 
 growing out of contracts with employers; and in case 
 of strikes very commonly the non-union men place them- 
 selves under their leadership. The non-union men are 
 made up of workmen of unusual skill who will not 
 accept the maximum of wages prescribed by the unions, 
 inferior workmen not capable of earning the prescribed 
 wages, the idle and the vicious who will not pay the dues 
 required, and others who from temperament object to 
 associations of that kind. 
 
 Trades unions are not all alike. They differ as indi- 
 viduals do. But these are the main objects for which 
 they are created. By enabling large bodies of men to 
 act as a unit, they overcome in a measure the inequality 
 that otherwise would exist between them and their 
 employers. Their funds are derived from weekly con- 
 tributions, special assessments, occasional fines, and 
 profits accruing from their investments. If their reserve 
 fund increases they enlarge the sphere of their useful- 
 ness among their members in many ways. But as peace 
 is the time to prepare for war, they strive always to keep 
 on hand money enough to meet the emergency of a strike. 
 In a few of the unions a special fund is collected and 
 set apart for this latter purpose, never to be used for 
 any other. This leads to a spirit of defiance and jingo- 
 ism; for, since the money can only be used for a strike, 
 strikes must be resorted to in order to dispose of it. But 
 most unions have no such separate fund. They know 
 the bitter evils and privation attending a strike as well 
 as others, and they are averse to measures that so thor- 
 oughly impair the usefulness of their ordinary opera- 
 tions ; though from passion and recklessness strikes often 
 occur without any reasonable grounds. The general 
 result is that the unions lessen the number of strikes, 
 but make them last longer when they do occur. For-
 
 Strikes and Trusts 381 
 
 merly strikes were temporary raids or skirmishes. At 
 present they are military campaigns, conducted with 
 skill and judgment. Their greatest chance of success is 
 on a rising market. "With a falling market they almost 
 invariably fail. 
 
 A strong effort is always being made to interest these 
 unions in the schemes of agrarians and anarchists. 
 Whenever allowed, their reading rooms are deluged with 
 books and tracts that dwell on the frightful inequality 
 of human conditions, containing evil prophecies of the 
 future condition of laboring men, and stating dishearten- 
 ing propositions in political economy that are plausible 
 though false. 1 
 
 The most conspicuous representative of these socialistic 
 ideas of late years was the ' ' International Association of 
 
 1 The writers generally dwell with much persistance upon 
 what i8 known as "the Iron Rule of Wages," or the "Wages Fund" 
 theory, first brought forward by Lasalle, and which had its origin 
 in the delusions of Malthus on Population. This theory in short 
 is that the fund set apart by capital for wages is definitely fixed, 
 and that as laborers increase with the increase of population, it 
 must be divided among a greater number, so that wages must 
 constantly become lower, and the situation of the working classes 
 must continually become worse. This would be true if the labor- 
 ing classes alone increased; but when other classes increase in pro- 
 portion with them, it is false. The notion has often been ex- 
 ploded, and is demonstrably untrue, since the condition of the 
 laboring classes has greatly improved in the last fifty years, 
 though there has been no diminution in the increase of popula- 
 tion. Just here I wish to acknowledge the debt that I owe to M. 
 Crouzel, who treats of this subject in his "Etude Historique, 
 Economique et Juridique sur les Coalitions et les Greves dans 1' 
 Industrie," (Paris, 1877). He is, however, in error in supposing 
 that the celebrated political economist Brentano has given his 
 adhesion to the "Iron Rule." On the contrary, he has refuted it 
 \vith his usual ability. See "Das Arbeitsverhaltniss gemass dem 
 Heutigen Recht." Brentano's work is made accessible to Eng- 
 lish readers by a translation by Mr. Porter Sherman under the 
 title "The Relation of Labor to the Law of Today;" New York, 
 1891. Thornton has effectually disposed of the "Iron Rule" by 
 showing that wages are only provisionally paid by employers, be- 
 ing paid in the end by consumers. Nevertheless, the "Iron Rule" 
 is still stated as being correct by various authors on political 
 economy, whose books are extensively used in our schools and 
 colleges.
 
 382 Addresses 
 
 Workingmen, " which had its origin in a reunion of 
 German communists held in London in 1847, headed by 
 Karl Marx and Friedrich Engels, though not actually 
 organized until a few years later. At first it had a dif- 
 ferent object, which was to prevent the transportation 
 of laborers from one country to another for the purpose 
 of supplying the place of other laborers who were on a 
 strike ; a result which is accomplished by our act of Con- 
 gress that forbids the importation of laborers under 
 previous contracts for labor. But the "International" 
 soon became a propaganda for the dissemination of com- 
 munistic and anarchical doctrines. By it strikes of all 
 kinds were welcomed as agencies tending to the com- 
 plete overthrow of the existing social system. Owner- 
 ship of property was denounced as a crime, any com- 
 promise with capital as an infamous surrender of prin- 
 ciple. The "International" is supposed to have taken 
 an active part in the communistic revolt hi Paris in 
 1871 ; and the overthrow of the commune had a disas- 
 trous effect on its fortunes. It has, indeed, ceased to 
 exist, and has been succeeded by analogous associations, 
 such as the "Democratic Socialist," started by the Rus- 
 sian nihilist Bakounine, and two others known as the 
 "Autonomists" and the "Marxists." Though these 
 societies are active, and are supposed to co-operate, yet 
 the distinctive spirit of the ' ' International ' ' has received 
 a check. The downfall of the commune, the executions 
 at Statory, the prompt conviction and punishment of 
 the anarchists at Chicago, are lessons that have borne 
 their fruit. 
 
 In the year 1882 the French socialists endeavored to 
 revive the "International." At the first meeting, M. 
 Tortellier, a Frenchman, proclaimed the old doctrine of 
 dynamite and the torch; but Pamius, a Spaniard, 
 expressed himself thus : 
 
 "I represent 20,000 workmen. In all parts of Cata-
 
 Strikes and Trusts 383 
 
 Ionia they are tracked and imprisoned. Nevertheless I 
 do not favor the system of M. Tortellier. Knowledge is 
 what we need in our struggle with capital. The working 
 classes should be more conscientious, more united, but 
 should keep within the bounds of the law." 
 Mr. Burnett, an Englishman, said: 
 
 "Every doctor praises his own nostrum; but the 
 patient believes in the medicine that has cured him. So 
 in England, we believe in the methods by which we have 
 succeeded. We have been able to manage our own 
 affairs. Thus we have acquired a considerable part of 
 the general wealth of the country, and we have succeeded 
 in having important laws enacted by Parliament. But 
 even if we were less fortunate, nothing could be more 
 detestable in our eyes than the proposition of Citizen 
 Tortellier, that we should go to cutting the throats of our 
 employers. ' ' 
 
 Socialism is, however, not dead. It still plays an 
 important part in the politics of Germany and France, 
 and funds are sent to those countries from other parts 
 of Europe and from America with which to influence 
 elections. Socialistic ideas also give rise at times to 
 strikes in this country, as in the case of the strike of 
 the employes of the Missouri Pacific Railway System in 
 1886, originating in the discharge of and refusal to rein- 
 state a superintendent. It is clear that such an officer 
 may render himself unpopular with the men under him 
 merely by the fidelity with which he discharges his duty 
 to his employer, and vice versa, and that capitalists 
 would not invest money in enterprises that were to be 
 controlled by their employes. Such strikes, if they could 
 succeed, would soon destroy the whole industrial sys- 
 tem. They cannot succeed, because in such cases capital 
 is fighting for its very existence, and destruction is 
 better than defeat.
 
 384 Addresses 
 
 Though the working classes may and should exercise 
 a large influence on legislation, yet they cannot, even 
 when most united and most oppressed, control it by 
 resort to violence or threats, as was conclusively proved 
 by the fiasco of Chartism in England. Nor can they, by 
 uniting with other classes, by like means destroy the 
 union of authority, individualism and socialism upon 
 which modern civilization essentially depends. The out- 
 burst of the French Revolution, based on theories of ideal 
 equality, had no other effect than to transfer the power 
 of the crown to an irresponsible lot of damagogues, and 
 in the end Napoleon may be said to have succeeded to 
 the throne of Louis XVI. with a vast increase of power. 
 Intelligent workmen know these things, and the great 
 body of their class are deterred from joining in the wild 
 and headlong schemes of socialists and anarchists by 
 moral principle, which is as well developed in them as 
 in other classes of the community. Apparently, however, 
 these schemes and those who advocate them will, for a 
 long time, require looking after by those who prefer a 
 reign of law and order to scenes of violence. The Labor 
 Exchange, in Paris, which was closed a short time ago, 
 established under government protection to serve as a 
 place of reunion for about three hundred trades unions, 
 embracing about four hundred thousand members, and 
 as a general intelligence office, soon became a focus for 
 the diffusion of the dogmas of anarchy, a rallying point 
 for the idle, the vicious and the refractory. 
 
 The question of apprenticeship requires a little more 
 attention. The trades unions do not always seek to 
 reduce the number of apprentices by fixing a ratio with 
 the existing number of skilled workmen. Sometimes 
 they make the terms of apprenticeship so onerous as to 
 prevent most youths from trying to learn the art. Thus, 
 in the silk industry in Lyons, though a young man may 
 learn the mystery of silk weaving in six months, yet he
 
 Strikes and Trusts 385 
 
 must serve an apprenticeship of four years. This is a 
 benefit to the master, as it gives him the expert labor of 
 the apprentice for three years and a half for nothing. 
 On the other hand, it injures him by lessening the num- 
 ber of apprentices, thereby lessening the supply of skilled 
 laborers, and so makes wages high. The advantage on 
 the whole is with the workmen. A statute of Elizabeth 
 fixed the period of apprenticeship in all trades at seven 
 years. It was repealed in 1841. At the time of the agita- 
 tion for its repeal, it was found that the repeal was 
 favored by masters and was opposed by employes. 
 
 In order to meet the preparations for strikes made by 
 workmen, employers form counter organizations, of 
 which the "Western Iron and Steel Manufacturers' 
 Offensive and Defensive Alliance," in this country, may 
 be regarded as a type. The policy of strikers is to attack 
 the enemy in detail ; that is, to strike against one factory 
 or mill at a time. If the first strike succeeds, then they 
 attack the others successively until all succumb. By this 
 means all the laborers interested can assist in the sup- 
 port of each strike, while most of them are drawing 
 wages from the common enemy. To prevent the success 
 of this policy, the coalitions of employers insure each 
 other against strikes in sums proportioned to the amount 
 of capital invested in each mill, the number of hands 
 employed and the duration of the strike. This enables 
 the immediate victim of the strike in each case to hold 
 out longer, with a better prospect of success. In the 
 meanwhile, if times are good, the other mill owners are 
 running their mills at a profit. If this course seems not 
 to be advisable whenever a strike is declared against one 
 employer, all the rest of them declare a lockout, thus 
 throwing all of the workmen out of employment at the 
 same time, and adding to their distress. In these ways 
 each party tries to cripple the enemy as much as possible. 
 
 It has been contended that as strikes are attended by
 
 386 Addresses 
 
 such ruinous consequences, they should be forbidden by 
 law, as they were by the English common law, and as 
 they are today in Kussia. But in a free country, where 
 hiring between citizens sui juris can only rest on con- 
 tract, the law cannot force one man to work for another, 
 nor can there be any reason for giving any other than 
 a civil remedy for the violation of labor contracts that 
 would not equally apply to all other contracts; and if 
 one laborer may quit his employer, you cannot prevent 
 two or more from quitting at the same time. Persons 
 engaged in the same calling usually consult about mat- 
 ters in which they have a common interest. Consultation 
 would be of no utility if it could not lead to concert of 
 action. 1 In France associations of workmen were long 
 forbidden by law. The consequence was that secret 
 societies were formed, which proved to be far more dan- 
 gerous than open ones. In both France and England, 
 after many legislative experiments, liberty of associa- 
 tion is now conceded to workmen. Neither are strikes 
 forbidden; but certain invasions of rights of property 
 and of personal liberty, by threats and overt acts com- 
 monly attending strikes, are specially prohibited under 
 penal sanctions. Like principles prevail in America and 
 in all parts of Europe, save Russia. Thus modern juris- 
 prudence, after much vacillation, coincides with the law 
 of the Twelve Tables, which conceded the power of asso- 
 ciation to all citizens, subject to liability to punishment 
 for any infringement of the public peace. 
 
 There are tendencies that prevent wages from becom- 
 ing either exceptionally high or exceptionally low. As a 
 general rule, the employe desires that they shall be high, 
 the employer that they shall be low. But the employer 
 
 *It is not to be denied, however, that this question is still 
 open to discussion. M. Paul Leroy-Beaulieu, whose competency 
 in respect of subjects of this kind will not be doubted, has re- 
 cently published an article in which he contends that strikes 
 should be prohibited by law L' Economiste Francais, No. 25.
 
 Strikes and Trusts 387 
 
 knows that if his workmen are to do the most work 
 and the best work, they must be well nourished, kept in 
 good health, and be fairly well contented with their pay. 
 On the other hand, the laborer knows that if he demands 
 excessive wages he may render the business of his 
 employer unprofitable, and put an end to it, thereby 
 throwing himself and his co-laborers out of employment, 
 thus increasing the supply of labor, and at the same 
 time lessening the demand, with a necessary farther 
 decline in wages. There is an ideal medium point in 
 every case at which wages should be fixed for the mutual 
 advantage of both parties; but as there is no visible 
 standard by which it can be ascertained, and both par- 
 ties are liable to be blinded by ignorance, and misled by 
 passion and prejudice, different views will prevail, and 
 strikes and lockouts will ensue, the results of which are 
 sometimes beneficial not only to the victorious party, but 
 to the defeated as well, the defeated party having uncon- 
 sciously contended for something harmful to their own 
 interests. On the other hand, it often happens that 
 strikers by unreasonable exactions kill the goose that 
 lays the golden egg. It will thus be seen that the con- 
 test as to wages relates to a narrow margin. But small 
 as the sum may be when considered with regard to each 
 workman, the aggregate sum in dispute may be highly 
 important. 
 
 Two plans have been presented for the total preven- 
 tion of strikes, both alike in respect of the fact that they 
 contemplate the blending of all the interests of produc- 
 tion in the same persons. The first is the plan of co-oper- 
 ation, which is alluring in theory, but disappointing in 
 practice. When the employer and employes are working 
 under a fixed tariff of wages, they have placed a valua- 
 tion on the portion of the prospective profits that shall 
 go to labor ; and, since it is to be paid at all events, the 
 employer becomes an insurer that this portion shall be
 
 388 Addresses 
 
 unconditionally paid ; while under the system of co-oper- 
 ative labor the laborers furnish the capital, dispense with 
 insurance, and take their own risk; and the risk has 
 always proved to be great. 
 
 If the laborers can secure the necessary capital they 
 are generally burdened with heavy interest. Workmen 
 accustomed to rely upon fixed salaries are commonly too 
 timid or too prudent to embark in enterprises that expose 
 them to all the dangers of mismanagement, to all the 
 risks of a fluctuating market; and they wisely distrust 
 the fortunes of an undertaking that is to be turned over 
 to the control of many persons, who may entertain 
 widely conflicting views on every subject that may come 
 up. Although these associations admit new members, 
 yet experience shows that there is a strong tendency to 
 a reduction of numbers. When hard times come on, and 
 losses are sustained, many shareholders, becoming dis- 
 couraged, withdraw and go again to work for wages. 
 On the other hand, if the affair proves a success, as in 
 the case of the "Rochdale Pioneers" of England, saga- 
 cious and farseeing members buy up the shares of their 
 fellows, or they are bought up by outside persons seeking 
 investments; and in either event the association soon 
 loses its distinctive character by becoming an ordinary 
 stock company or corporation. Thus there can be no 
 hope for an institution that must be destroyed either by 
 adversity or prosperity, since it is impossible for it to 
 avoid both. 
 
 Another proposed remedy is that of the socialist. We 
 are all more or less familiar with the benevolent dilettanti 
 who delight to draw attractive pictures of a community 
 in which there shall be neither rich nor poor, great nor 
 small, in which all the members, being placed on a per- 
 fect level, shall work harmoniously according to their 
 several abilities for the public good, forming one happy 
 family from which dissension shall be forever banished.
 
 Strikes and Trusts 389 
 
 Appropriately enough, these seductive plans are usually 
 clad in the garb of fiction, which allows the writer a 
 complete control over the materials with which he works, 
 and enables him to ignore all the facts which lie at the 
 foundation of his theories. According to his contention, 
 good government first of all requires the total suppres- 
 sion of all inequalities of condition. As all men cannot 
 be brought up to the highest standard of wisdom and 
 ability, those who excel in these respects must be con- 
 strained to some level which may be approximately 
 reached by the multitude. Titian must be cut down to 
 the level of a sign painter, and the style of Milton must 
 be made to conform to that of the nearest local editor. 
 
 Under such conditions there could be but small aspira- 
 tion towards individual excellence; and as civilization 
 could not advance, and nothing hi the universe can 
 remain still, it would follow that its standard must con- 
 tinually decline until society would dissolve into its prim- 
 itive elements, and mankind would relapse into bar- 
 barism. In an ideal state of the social organism, we are 
 told, there would be neither buying nor selling, but every 
 one would work in the workshops of the government, 
 bringing every day his contribution to the general fund 
 of useful things, where it would be appraised by a gov- 
 ernment board which would fix the true value on every- 
 thing from a poem by Homer, a statue by Phidias, or a 
 symphony by Beethoven to a child's plaything or a 
 basket of onions. It is assumed, of course, that there 
 would never be any dispute as to the wisdom or justice 
 of these appraisements ; but it is difficult to see on what 
 principle they could be made. We know nothing about 
 commercial values save experimentally from the open 
 market, where values are fixed by the desires and capa- 
 bilities of all men having access to it. Boards that at 
 present appraise the value of property do so by reference 
 to recent sales or offers in the market. In the absence
 
 390 Addresses 
 
 of markets to refer to, the assessments could only be 
 whimsical and arbitrary; and they would always be 
 wrong. Today no human being can tell what a thing will 
 be worth tomorrow; but under this regime we are to 
 be furnished with boards that will continually evolve out 
 of their own consciousness some unfailing standard of 
 values; and though we know that all attempts hereto* 
 fore made to regulate values by law have resulted in 
 signal failures, we are here asked to believe that all 
 men would acquiesce uncomplainingly in decisions made 
 by boards probably inferior to that composed of the 
 barber and the curate in Don Quixote, and who could 
 never give any reason for any conclusion which they 
 reached. 
 
 No one complains so much of officials as the socialist; 
 and yet he proposes a plan that would cover the land 
 with officials like the locusts of Egypt. Such an official- 
 ism would establish a slavery more terrible and exas- 
 perating than any that has ever been known, which 
 would have no other merit than that it could not last for 
 more than a single day. As there would be no large 
 rewards without infringement on the sacred principle 
 of equality, the mainspring of enterprise would be 
 broken. Bad as the world is, there is still room for 
 congratulation that the schemes of the socialist, involving 
 a life without ambition and without hope, a mere exist- 
 ence of dreary monotony, only enlivened by the vexation 
 caused by petty officials, is something beyond the range 
 of possibility; a conclusion that rests upon experiment 
 as well as induction, for socialism has been often tried 
 in small and homogeneous communities made up of men 
 strong in the faith, and has as often failed ignomini- 
 ously. Even the institution of the firm and resolute 
 Puritans in New England failed because of the restraints 
 that were imposed by it on personal liberty; and yet
 
 Strikes and Trusts 391 
 
 the restraints of Puritanism were only one to a thou- 
 sand of those that are involved in the socialistic project. 
 At present the agrarian socialist is merely a purveyor 
 for the camp of the anarchist. 
 
 Very closely akin to this plan is that of having the 
 government buy up all the railroads and telegraphs, with 
 any other property the present management of which is 
 complained of. I cannot dwell upon this proposition 
 that has been discussed in every possible phase, and 
 which has found but few intelligent supporters outside 
 of doctrinaires that are always ready to take the risk of 
 the most colossal experiments. The problem with us 
 is not like the railway problem that exists in small coun- 
 tries like Prussia. To consider the railway question 
 alone, we have about one-half in length of all the rail- 
 ways in the world, which are operated by about 1,200,000 
 men. If the proposed system were adopted, the govern- 
 ment would abdicate its function as a disinterested 
 arbiter between all forms of enterprise, would itself enter 
 the field of competitive industry with such powers as no 
 monopoly has ever possessed. This power would be 
 placed in the hands of American politicians, with results 
 that no one can safely speculate upon ; though it is plain 
 enough that a government that is republican and par- 
 liamentary, and by no means administrative, could never 
 bear the strain that would thus be put upon it. 
 
 There is another plan which, though only a palliative, 
 has heretofore been attended with nothing but good 
 results, and which, no doubt, will be hereafter extended ; 
 I mean that of profit-sharing with employes, a plan that 
 has been successfully adopted, with some variations in 
 detail, by the Illinois Central and the Pennsylvania Rail- 
 way Companies. 
 
 The establishment of courts of arbitration has been 
 attended with most gratifying results, particularly in
 
 392 Addresses 
 
 England. For these we are chiefly indebted to Mundella, 
 an English manufacturer, and to Robert Kettle, an Eng- 
 lish county judge. 
 
 Their plans differ in some respects that I have not time 
 to dwell upon. Dr. Brentano, who had given to this 
 subject his most profound attention, says that wherever 
 a court of arbitration has been created in any industry 
 "there has been, since that time, neither a strike nor 
 a lockout." By the act of Parliament of August 6, 1872, 
 passed at the instigation of Mr. Kettle, a legal sanction 
 has been given to these tribunals. They are constantly 
 being extended from place to place, from industry to 
 industry. They are composed of equal numbers of judges 
 chosen by employers and workmen, with an umpire 
 agreed upon by both parties. When a dispute has actu- 
 ally arisen it is often found to be difficult to unite on 
 the choice of an umpire; but that difficulty is lessened 
 when the umpire is chosen for the period of a year or 
 longer. The courts hold a session every three months, 
 hear testimony, and settle all disputes that arise between 
 the employer and his employes. As nations are now 
 learning that international disputes may be settled more 
 cheaply and more satisfactorily by arbitration than by 
 war, it may be that the parties to the conflict between 
 capital and labor may learn to profit by their wholesome 
 example. 
 
 The chief advantage of courts of arbitration consists 
 in the fact that they furnish an inexpensive method of 
 settling disputes before they become envenomed by a 
 war of words. After a strike has once begun, amicable 
 settlement becomes difficult, if not impossible. 
 
 Not infrequently, in the increasing excitement of the 
 passions, the original grounds of controversy are lost 
 sight of and are succeeded by personal hostility and 
 malice. For the development of these the occasion is 
 opportune. Workingmen whose families are pinched by
 
 Strikes and Trusts 393 
 
 poverty and tortured by want have beheld with envious 
 eyes their employer revelling in riches and luxury. They 
 assert that while he has been getting richer, they have 
 been getting poorer. Yet they have worked like slaves, 
 and individually he has neither toiled nor spun. That 
 with these conditions any provocation, real or fancied, 
 should breed bitter feelings is but natural; and these, 
 as the contest deepens, become more intense until they 
 reach the point of implacability, and the revolted work- 
 ingmen are ready to say with George, afterwards Duke 
 of Clarence, in "King Henry VI.": 
 
 "But when we saw our sunshine make thy spring, 
 And that thy summer bred us no increase, 
 We set the axe to thy usurping root; 
 And though the edge has sometimes hit ourselves, 
 Yet, know thou, since we have begun to strike, 
 We'll never leave till we have hewn thee down." 
 
 Thus the controversy, begun with the intention to 
 extort an increase of wages, or a shortening of the hours 
 of labor, results in riots, destruction of property and 
 bloodshed. 
 
 The old laws were simply punitory, and therefore 
 inefficient. In Magdeburg, in 1301, ten representative 
 strikers were burned alive in the market place. At 
 Cologne, on the twenty-first day of November, 1371, 
 thirty-two striking weavers were executed ; the next day 
 many others were murdered; finally, eighteen hundred 
 with their wives and children, were banished, and their 
 guild hall was demolished. After the great strike of 
 weavers at Nottingham, in the early part of this century, 
 many were condemned to death and to transportation. 
 The efficacy of punishment depends more on its certainty 
 than on its severity. When multitudes of men combine 
 to violate the law it is impossible to punish them all, 
 and when punishment is meted out to a few only, the
 
 394 Addresses 
 
 greater number of persons equally guilty who go unpun- 
 ished are rather exasperated than subdued, and by the 
 arbitrary selection of victims the moral example con- 
 templated by the law is lost. But until recently noth- 
 ing like preventive process seems to have ever been 
 thought of. 
 
 Without any disparagement of the courts of England 
 and America, which have built up the most admirable 
 system of jurisprudence ever fashioned by man, it may 
 be suggested that at times they may have looked at the 
 law too much through the pinhole of precedent, may have 
 been sometimes too conservative, and may have failed 
 to keep pace with the advancing strides of civilization. 
 This reflection occurred to me with unusual force in 
 reading the very able and instructive opinions delivered 
 by Mr. Circuit Justice Taft and Mr. District Justice 
 Ricks very recently in the case of Toledo E. Co. vs. Penn- 
 sylvania Co., 54 Fed. Kep., 730. This was a case of a 
 boycott of a particular railway by the engineers of other 
 railways because the railway thus proceeded against had 
 employed engineers who were not members of the Broth- 
 erhood of Locomotive Engineers. The boycott was car- 
 ried out by an order issued by the chief executive officer 
 of the Brotherhood requiring all employes of several 
 other railways to refuse to handle any cars or freight 
 that had been hauled over the offending railway. 
 
 Application was made for a mandatory injunction to 
 compel the chief executive to rescind this order, and also 
 to compel the railways not included in the boycott, and 
 their employes, to receive and handle the cars and freight 
 coming from the boycotted railway. It was objected 
 that a mandatory injunction could not issue until final 
 decree. That, of course, would make the remedy use- 
 less. The objection was overruled. Certain employes, 
 having evaded compliance with the injunction, were 
 arrested for contempt. It was objected that they had
 
 Strikes and Trusts 395 
 
 not been made parties to the suit ; but the court held that 
 as they were employes of the defendants, and were aware 
 of the injunction, they could be proceeded against with- 
 out making them parties. It was further objected that 
 there was no precedent for these proceedings. But the 
 court said: 
 
 "It is said the orders issued in this case are without 
 precedent. Every just order or rule known to equity 
 courts was born of some emergency, to meet some new 
 conditions, and was, therefore, in its time, without a 
 precedent. If based on sound principles, and beneficent 
 results follow their enforcement, affording necessary 
 relief to the one party without imposing illegal burdens 
 on the other, new remedies and unprecedented orders 
 are not unwelcome aids to the chancellor to meet the 
 constantly varying demands for equitable relief. Mr. 
 Justice Brewer, sitting in the Circuit Court for 
 Nebraska, said: 
 
 ' ' ' I believe most thoroughly that the powers of a court 
 of equity are as vast, and its processes and procedure 
 as elastic, as all the changing emergencies of increasingly 
 complex business relations and the protection of rights 
 can demand.' 
 
 "Mr. Justice Blatchford, speaking for the Supreme 
 Court in Joy vs. St. Louis, 138 U. S., 1 ; 11 Sup. Ct. Kep., 
 243, said : 
 
 < * * * j - g Qne Q ^ mos t useful functions of a 
 
 court of equity that its methods of procedure are capable 
 of being made such as to accommodate themselves to the 
 development of the interests of the public in the prog- 
 ress of trade and traffic by new methods of intercourse 
 and transportation. ' 
 
 "The spirit of these decisions has controlled this court 
 in its action in this case." 
 As to the merits of the case, the court said : 
 "But this court recognizes to its fullest extent the
 
 396 Addresses 
 
 large measure of personal liberty permitted to employes, 
 and, while it feels they have violated their contract of 
 service, it disclaims any power to compel them to con- 
 tinue that service against their will, under the facts of 
 this case. The insuperable difficulties attending an 
 attempt to enforce the performance of continuous per- 
 sonal service have heretofore deterred courts of equity 
 from undertaking to grant relief in such cases. But in 
 the varying circumstances under which the employer's 
 rights to such relief are presented it often happens that 
 adequate protection is only possible by restraining the 
 employes from refraining to do acts which they have 
 combined and conspired to do, and the inhibiting of 
 which secures the relief to which the employer is clearly 
 entitled. By such modes of procedure courts of equity 
 are often able to afford protection where they could not 
 
 do it by attempting to enforce specific performance. 
 
 ********* 
 
 "If the employe quits in good faith, unconditionally 
 and absolutely, under such circumstances as are now 
 under consideration, he is exercising a personal right 
 which cannot be denied him. But so long as he con- 
 tinues in the service, so long as he undertakes to per- 
 form the duties of engineer or fireman or conductor, so 
 long the power of the court to compel him to discharge 
 all the duties of his position is unquestionable, and will 
 be exercised. As hereinbefore intimated, the duties of 
 an employe of a public corporation are such that he can- 
 not always choose his own time for quitting that service ; 
 and so long as he undertakes to perform and continues 
 his employment the mandatory orders of the court to 
 compel all lawful service can reach him and be enforced. 
 The circumstances when this freedom to quit the service 
 continues and when it terminates it is not now neces- 
 sary to determine ; but there certainly are times and con- 
 ditions when such right must be denied.
 
 Strikes and Trusts 397 
 
 ' ' The rule that equity will not enjoin a crime has here 
 no application. The authorities where the rule is thus 
 stated are cases where the injury about to be caused was 
 to the public alone, and where the only proper remedy, 
 therefore, was by criminal proceedings. When an irrep- 
 arable and continuing unlawful injury is threatened 
 to private property and business rights, equity will gen- 
 erally enjoin on behalf of the person whose rights are 
 to be invaded, even though an indictment on behalf of 
 the public will also lie." 
 
 Another highly important case is that of the United 
 States vs. Workingmen's Amalgamated Council of New 
 Orleans, 54 Fed. Rep., 994, in which, upon an applica- 
 tion for injunction, Judge Billings held that a combina- 
 tion of men belonging to a trades union with a view to 
 prevent by violence and intimidation the employment of 
 non-union men in the transportation of goods between 
 the states and between the states and foreign nations 
 was a violation of the Interstate Commerce Law. 
 
 I trust that I may be pardoned for expressing the 
 opinion, confessedly of no great value, that these are 
 among the most important decisions that have been ren- 
 dered for many years. It opens a new perspective of 
 practical utility to be attained through the preventive 
 process of courts of equity. 
 
 The usefulness of trades unions of laborers in cases 
 of arbitration is obvious ; for without some such organi- 
 zation arbitration would be impossible. Their utility 
 was shown in the first case just mentioned in the same 
 way; for an injunction against the chief officer of the 
 Brotherhood operated through him at once upon all of 
 its members, as they held themselves subject to his orders. 
 
 But let it not be supposed that such unions are alto- 
 gether beneficial. Far from it. Their rules limiting the 
 number of apprentices cannot be justified. Every man 
 ought to be allowed freely to choose his calling in life.
 
 398 Addresses 
 
 The right to labor is the first of all rights, and it ought 
 not to be limited by artificial restraints. Besides, the 
 result is to exclude from various callings men who are 
 the most qualified to excel in them. Moreover, the 
 efforts of the union men to exclude non-union men from 
 employment leads to the grossest injustice and oppres- 
 sion. What the unions seek to attain is a monopoly of 
 labor. 
 
 Most of our state constitutions contain the declaration 
 that "perpetuities and monopolies are contrary to the 
 genius of a republic, and shall not be allowed." This 
 is but the expression of the ascertained fact that compe- 
 tition is the life of trade. If you remove or suppress 
 that competition by any artificial means, monopoly at 
 once ensues. Many years ago, before the extension of 
 transportation by railways, the several merchants of a 
 village, when weary of competition, would agree to mark 
 up all their goods on a certain day a certain per cent, 
 thus creating a monopoly. 
 
 So it was common a few years ago for competing rail- 
 roads to pool their earnings. After that they could 
 charge what they pleased without detriment to either, 
 and neither had any particular inducement to furnish 
 good service. At present, the monopoly of the village 
 merchants can no longer be imposed; for goods are now 
 advertised with prices annexed by large dealers in all 
 our cities, and are sent on demand to all parts of the 
 country by mail and by express; and the pooling of 
 earnings by railway companies is forbidden by the Inter- 
 state Commerce Act. 
 
 The plan adopted by merchants in small villages could 
 rarely or never be successfully carried out in large places, 
 for if a concurrence of all the merchants in the agree- 
 ment could first be obtained, some would be found that 
 would violate it, in which case it would be necessarily 
 abandoned by common consent.
 
 Strikes and Trusts 399 
 
 I have spoken only of the unions of skilled workmen. 
 As for the unskilled, though, like the farmers, they 
 sometimes attempt to form and keep up such unions, yet 
 all such efforts are fruitless, because they are too numer- 
 ous and too scattered, and because their necessities often 
 prevent them from withholding their products from the 
 market until the advent of better times. Like lawyers, 
 doctors and professional classes generally, they are 
 debarred from increasing their wages by combination. 
 
 The local and somewhat primitive monopolies men- 
 tioned have been succeeded by others far more por- 
 tentous. In 1869, the Standard Oil Trust, the first of 
 the kind, was organized. It was a combination among 
 the refiners of crude petroleum in Pennsylvania and 
 Ohio. This scheme was attended with such astonishing 
 pecuniary success that it was in the course of a few years 
 applied to almost every kind of industry. The proprie- 
 tors of various mills said to each other : ' ' We are now 
 spending large sums of money in the race for business, 
 in advertising, in sending out drummers, and so on. If 
 we will only pool our property, and put it under one 
 control, we shall save all this expense; we can also dis- 
 miss many agents and employes, as one superintendent 
 or cashier will do all the work that is now done by 
 twenty ; and we can charge what we please for our prod- 
 ucts, for we shall then have no competition. In short, 
 let us quit trying to cut each other's throats, and let us 
 begin to fight the public." This reasoning resulted in a 
 trust, and with the results of trusts we are familiar. 
 
 As soon as the trust is formed the price of the goods 
 is marked up, and as every increase in price means a 
 decrease in consumption, the production of goods is not 
 so great as it was. Therefore certain mills are closed, 
 or are run on shorter time, and workmen are told that 
 their services are no longer needed. The profits derived 
 from this proceeding are phenomenal. Thus on the
 
 400 Addresses 
 
 establishment of the Standard Oil Trust, though the rail- 
 ways were carrying the products of this monopoly nom- 
 inally at the same rates imposed on other refiners, they 
 paid the Standard Oil Trust $10,000,000 in eighteen 
 months in rebates that were agreed on. The result was 
 that ' ' its competitors were ruined, and idle factories, old 
 pipe lines no longer used, and business wrecks through- 
 out the country give evidence of enormous economic 
 waste." 1 The most marvelous thing was that by its 
 agreement with the railways the trust not only secured 
 and received a rebate on its own shipments, but also on 
 all shipments of oil made by other producers. A few 
 years ago the Cotton Seed Oil Trust by a single stroke 
 of the pen reduced the price of cotton seed from $7 to 
 $4 a ton, thus realizing two million dollars per annum 
 on that item alone; the loss being sustained by the 
 planters who raised the seed. 2 
 
 It would be of but little use to put down competition 
 unless it could be kept down. To accomplish this result, 
 the trusts resort to measures analogous to those used by 
 laborers to keep down the number of apprentices. If a 
 number of men, say in the south or west, conclude to 
 begin the manufacture of some article of necessary con- 
 sumption, it will not be long before they receive a letter 
 reading somewhat as follows: 
 
 "We notice with regret that you purpose to start a 
 factory in your place for the purpose of making the 
 commodities which we are now producing in a manner 
 acceptable to dealers. You are no doubt aware of the 
 fact that for many years we have supplied your market 
 with articles of that kind. This we have done at the 
 lowest possible cost of production. Our duty to our cus- 
 
 1 Richard T. Ely, Harper's Magazine, August, 1886. Handley 
 vs. Cleveland R. R. Co., 31 Fed. Rep., 689. Cook on "The Corpora- 
 tion Problem," 37. 
 
 * "Monopolies and the People," by Charles Whiting Baker, 79.
 
 Strikes and Trusts 401 
 
 tomers as well as to ourselves forbids that we shall sit 
 idly by and let our trade be taken out of our hands. We 
 therefore think it proper to advise you that if you per- 
 sist in your purpose we shall sell the articles that we 
 manufacture in your town and country for much less 
 than you can make them for. Hoping that you will 
 receive this communication in the same friendly spirit 
 by which it is dictated, we remain, etc." 
 
 This letter is signed by some well known manufactur- 
 ing firm, and means what it says. On inquiry the pro- 
 moters find that while they can start their factory with 
 a capital of $100,000, it will take a million more to fight 
 the battle with monopoly ; therefore they usually desist. 
 Occasionally a very rich man like Glaus Spreckles may 
 start an opposition sugar refinery ; but in that case there 
 is no guaranty that if he comes out safely from the con- 
 flict with an established trust, it will not very soon dis- 
 appear in the capacious bosom of that trust, with a par- 
 ticipation in the extra twenty-five per cent that the trust 
 levies on the consumer. 
 
 It has sometimes been said that the effect of the trusts 
 is to bring down prices, owing to the greater cheapness 
 with which goods can be manufactured on a large scale, 
 and that the proof of this lies in the fact that refined oil 
 is now sold for less than it was before the Standard Oil 
 Trust was formed. In this statement there is no truth 
 whatever. It would be strange if these trusts should 
 forego the very objects for which they were created. The 
 truth is that the price of oil has gone down because the 
 Standard Oil Trust was never able to corner the entire 
 production, and has therefore always been subject to the 
 law of competition; and because of the extraordinary 
 development of the oil industry in Russia, which has 
 reduced prices the world over. 
 
 But the evil does not stop here. Lord Coke pointed 
 out an evil effect arising out of monopolies from the fact
 
 402 Addresses 
 
 that the public are defrauded by having goods of an 
 inferior quality imposed on them. 1 Those who have the 
 absolute power to fix whatever price they please on the 
 commodities that they sell may freely indulge that privi- 
 lege without reference to quality. The result of our 
 monopolies has been that goods of greatly inferior qual- 
 ity have usurped the market of the country, and have 
 placed a stigma on our products abroad, turning out in 
 some cases, as in the lucifer matches, which have been 
 put on the market for years by the Match Trust, articles 
 so deplorably bad that nothing like them can be found 
 elsewhere in the whole world. 
 
 Mr. Cooley, whose opinion has always been listened 
 to by the profession with respect, says: 
 
 "A few things may be said of trusts without danger of 
 mistake. They are things to be feared. They antag- 
 onize a leading and most valuable principle of industrial 
 life in their attempt not to curb competition merely, but 
 to put an end to it. The course of the leading trust of 
 the country has been such as to emphasize the fear of 
 them. * * * When we witness the utterly heartless 
 manner in which trusts sometimes have closed manu- 
 factories and turned men willing to be industrious into 
 the streets, in order that they may increase profits already 
 reasonably large, we cannot help asking ourselves whether 
 the trust as we see it is not a public enemy, whether it 
 is not teaching the laborer dangerous lessons, whether 
 it is not helping to breed anarchy." 2 
 
 While the trusts are thus making inferior articles of 
 consumption, and selling them at extortionate rates, they 
 frequently declare that there is an "over-production," 
 shut down their mills, turn their workmen out of employ- 
 ment, and wait until the needs of the public require the 
 
 1 The Monopolies, 6 Coke, 159. 
 
 * Cited in Cook on "The Corporation Problem," 234. Mr. 
 Cook's language is even more severe and emphatic. Id. 222.
 
 Strikes and Trusts 403 
 
 payment of the coveted prices; the phrase "over-produc- 
 tion" having with them a technical meaning, which, 
 being interpreted, signifies that the trusts are not mak- 
 ing as much money as they want to make. 
 
 To meet these evils, the "Anti-Trust Act" of Congress 
 was passed and approved on the second day of July, 
 1890. It smites with illegality all the combinations made 
 in restraint of trade, all monopolies, and all contracts 
 leading up to them, and imposes heavy penalties on the 
 individuals that become parties thereto. It provides that 
 suits may be brought in the Federal Courts to restrain 
 violations of the act, for forfeiture of property used 
 under any contract, or by any combination, or pursuant 
 to any conspiracy mentioned in the act, and for private 
 remedies for persons injured by the forbidden acts per- 
 petrated by the classes against whom it is directed. 
 
 The act has been criticised because it contains no defi- 
 nitions ; but the common law terms used in it seem to be 
 sufficient. The language is searching, and the provisions 
 are drastic. If properly supplemented by state legisla- 
 tion and enforced by the courts in the spirit in which 
 it was enacted, the various combinations against which 
 it is levelled may in all probability as well make up 
 their minds to retire with their ill-gotten gains, to seek 
 less devious methods. 1 No doubt those who have once 
 tasted the sweets of monopoly will not willingly repair 
 
 1 When the act was passed the following trusts were known 
 to exist: 1. The Steel Rail Trust. 2. The Nail Trust. 3. The 
 Iron Nut and Washer Trust. 4. The Barbed Wire Trust. 5. The 
 Copper Trust. 6. The Lead Trust. 7. The Slate Pencil Trust. 8. 
 The Nickel Trust. 9. The Zinc Trust. 10. The Sugar Trust. 11. 
 The Oilcloth Trust. 12. The Jute Bag Trust. 13. The Cordage 
 Trust. 14. The Paper Envelope Trust. 15. The Gutta Percha 
 Trust. 16. The Castor Oil Trust. 17. The Linseed Oil Trust. 
 18. The Cottonseed Oil Trust. 19. The Borax Trust. 20. The Ul- 
 tramarine Trust. 21. The Whiskey Trust. 22. The Standard Oil 
 Trust. 23. The Match Trust. 24. The Dressed Beef Trust. 25. 
 The Starch Trust. 26. The Distillers' and Cattle Feeders' Trust. 
 27. The Straw Board Trust. 28. The School Book Trust. 29. 
 The Gas Trust. 30. The Cigarette Trust.
 
 404 Addresses 
 
 to less profitable pursuits. We know something of that 
 secrecy, worthy of the Council of Ten in Venice, with 
 which the business of our great corporations is con- 
 ducted; but in this instance if secret measures are 
 adopted, they will be attended with unusual perils, and 
 the courts will possess very ample powers of investigation 
 in proceedings both civil and criminal. 1 
 
 It too often happens in our country that important 
 social and economic questions fall into the domain of 
 party politics, after which reason and common sense are 
 often banished, and their place is usurped by idle decla- 
 mation. Fortunately, in the present instance, there is a 
 feeling common to men of all political parties that the 
 evils that I have mentioned ought to be suppressed ; and 
 in view of the past history of our institutions we are 
 fully justified in predicting satisfactory results to be 
 attained at no distant day. 
 
 J In Stanton vs. Allen, 5 Denio, 434, suit was brought on a 
 note given on account of an agreement to regulate freight be- 
 tween the owners of boats on the Erie and Oswego Canals "by a 
 uniform scale to be fixed by a committee chosen by defendants, 
 and to divide the profits on their business according to the number 
 of boats employed by each." The court held that "the tendency 
 of such an agreement is to increase prices, to prevent wholesome 
 competition, and to diminish public resources," and that it was 
 "therefore against public policy, and void by the principles of 
 the common law." To like effect see People vs. Fisher, 14 Wend. 
 9; Comm. vs. Carlyle, Brightly 36; Hooker vs. Vandewater, 4 
 Denio, 349; Craft vs. McConoughy, 79 111., 346; Arnot vs. Pit- 
 son, &c., Coal Co., 68 N. Y., 558; Morris Run Coal Co. vs. Barclay 
 Coal Co., 68 Pa. St., 173; India Bagging Asso. vs. Kock, 14 La. 
 Ann., 168; Texas Ry. Co. vs. Southern Pac. Ry. Co., 41 id. 970; 
 Anderson vs. Jett, (Ky.) 12 S. W. R., 670; Santa Clara Mill Co. 
 vs. Hayes, 76 Cal., 387; Central Salt Co. vs. Guthrie, 35 Ohio 
 St., 666; De Witt Wire Cloth Co. vs. New Jersey Wire Cloth Co., 
 14 N. Y., Supp. 277; Moore vs. Bennett, 29 N. E. R., 888; U. S. 
 vs. Jelico Mountain Coal Co., 46 Fed. R., 432; Gibbs vs. Consoli- 
 dated Gas Co., 130 U. S., 396; Currier vs. Concord Ry. Co., 48 
 N. H., 321; Alger vs. Thacher, 19 Pick., 54; Denver Ry. Co. vs. 
 Atcheson Ry. Co., 15 Fed. R., 650; Morrill vs. Boston Ry. Co., 55 
 N. H., 531; Richardson vs. Buhl, 77 Mich., 632; W. U. Tel. Co. vs. 
 American Tel. Co., 65 Ga., 160; Stewart vs. Erie Trans. Co., 17 
 Minn., 372.
 
 TRANSLATIONS
 
 TRANSLATIONS 
 
 Poetical Translation of the Introduction to Goethe's 
 Faust 
 
 ZUEIGNUNG 
 
 Once more, phantoms, ye are hovering near, 
 Weird visions which my earlier glance revealed. 
 
 Shall I for once attempt to clasp you here, 
 Or let my heart to that illusion yield ? 
 
 Ye gather round! Ah well, your realm be here, 
 As ye come forth from out the misty field 
 
 Of formless vapor, while I breathe again 
 
 The magic breath that folds around your train. 
 
 Ye bring again the forms of other days; 
 
 And many lovely shadows softly rise; 
 Like old tradition's nearly dying lays 
 
 Come friendships and first love that never dies, 
 Renew the pain of labyrinthine ways, 
 
 The wild regret where life's sad error lies, 
 And name the wise, the beautiful, the good, 
 Who people now death 's lonely solitude. 
 
 Alas! No longer this belated song 
 
 Is heard by those for whom at first I strung 
 My lute; and scattered is that friendly throng; 
 
 The echoes dead of all the lays I sung: 
 The world's applause may follow loud and long, 
 
 But o'er my soul a spell of pain is flung, 
 Amid the alien crowd, and turns my heart 
 To those who died or wander far apart. 
 
 407
 
 408 Addresses 
 
 The olden yearning long unfelt I feel, 
 The longing for the far-off spirit land; 
 
 Upon the ear the half-formed tones will steal, 
 As when a harp by idle winds is fanned; 
 
 I tremble ; and the springing tears reveal 
 
 The weakness which the heart may not withstand ; 
 
 The things I have are sunk in gloom and night, 
 
 And vanished forms revive before my sight. 
 
 THE BROKEN VASE 
 
 Translated from the French of Sully-Prudhomme 
 
 That vase wherein a lily droops 
 A lady's dainty fan hath broken; 
 
 The act unheeded was, the flaw 
 Was unrevealed by any token. 
 
 But still the thin and thread like fissure 
 Preyed on the crystal day by day, 
 
 And with its sure and silent progress 
 Made round the vase its fatal way. 
 
 The falling drops, the fading bloom, 
 Disclose at last the doom unspoken, 
 
 And all the world shall come to know 
 They must not touch the vase is broken. 
 
 And thus sometimes the hand we love 
 May give the heart the slightest blow; 
 
 And then the rift will widen out 
 Until the flower of love lies low. 
 
 Unnoticed by the world it weeps, 
 
 Laments its melancholy lot, 
 The hidden wound so fine and deep 
 
 The vase is broken touch it not!
 
 Translations 409 
 
 "KENNST DU DAS BILD AUP ZARTEM 
 GRUNDE?" 
 
 (THE EYE) 
 
 Knowest thou the picture soft of hue? 
 
 Itself the fountain of its light, 
 Each moment changing to the view, 
 
 Yet ever perfect, fresh and bright, 
 Tis painted in the smallest space, 
 
 Within the smallest frame enclosed; 
 But of earth's greatness not a trace 
 
 Without it e'er had been disclosed. 
 
 Can'st thou to me the crystal name? 
 
 No jewel equals it in worth; 
 It flashes, but without a flame, 
 
 Drinks in the boundless sphere of earth, 
 And heaven itself in radiance plays 
 
 Within its magic circle bright; 
 Yet, though it drinks celestial rays; 
 
 More heavenly far is its own light. 
 
 Schiller. 
 
 EINE LEICHENPHANTASIE 
 A Funeral Dirge 
 
 BY FRIEDRICH VON SCHILLER 
 
 With dead and pallid light 
 
 Stands the moon above the grove tonight ; 
 The sighing spectre of the night creeps through the 
 gloom ; 
 
 Planets hover 
 
 Wild mists over, 
 Pallid stars like lamps within the tomb;
 
 410 Addresses 
 
 And like spirits dumb and wan and hollow, 
 
 With sable pomp, death's sad and dark array, 
 
 Attended by the nodding plumes, a train doth follow, 
 Beneath the shrouding mist, the coffined clay. 
 
 And leaning on his staff, lo one who passes by 
 
 With gloomy and despairing gaze, 
 Whose bitter anguish speaks but in a broken cry, 
 
 Sore vexed, whom iron fate betrays, 
 Whose footsteps falter where the waving plumes are 
 
 nigh. 
 Was it "Father" sounded from the clammy lips? 
 
 Fearful shudders answer to that name; 
 All his senses darken in a wild eclipse, 
 
 Silver hair is streaming o'er that stricken frame. 
 Torn again are all his wounds of flame, 
 
 Pierced his soul with many a cruel dart; 
 "Father," from the frozen lips there came, 
 
 "Son," responded still the father's heart; 
 Ice-cold, ice-cold lieth he within this hearse, 
 
 And thy vision, dearer than all price, 
 Sunlit, sweet and golden, turns into a curse, 
 
 This thy pleasure and thy Paradise. 
 
 Mild as surrounded by breathings of Heaven, 
 
 Pure as escaped from Aurora's embrace, 
 Roseate perfumes as rained from the odorous even, 
 
 Circled with these sped his life like a summer day 's 
 
 chase, 
 
 Through the fresh gardens of flowers where Flora was 
 smiling, 
 
 Fountains reflecting in silver the glow of his face, 
 Seeming to laugh and rejoice at the happy beguiling, 
 
 Laughing at kisses to maidens pursued in the race. 
 
 Eager he sprang to the forum where manhood was vieing, 
 Like a young roe on the mountain's stern height;
 
 Translations 411 
 
 Heaven he flew through with courage elate and undying, 
 
 High as an eagle in loftiest flight. 
 Proud as a courser whose eyes gleam in splendour, 
 
 Seeing the battle advancing with swiftness of wings, 
 Scorning to rein or to rider to yield or surrender, 
 
 Wandered he onward regardless of slaves or of 
 
 Kings. 
 Joyous as springtime, no shade on the dial, 
 
 Flew life away as entranced as Hesper's soft glance; 
 In the gay cup he forgot every care, every trial, 
 
 Dashed away pain in the whirl of the dance. 
 Worlds seemed to sleep in his promise of manhood, 
 When the young bud to fullness shall ripen. 
 
 Not so, father ! Hark ! The churchyard door is creaking ; 
 
 Brazen hinges rattle where the dead abide, 
 How it harrows! And your father's heart is breaking; 
 
 Yet repress not now thy tears' unstaying tide. 
 Go, thou blessed, follow in the path of light; 
 
 Press thou onward where a brighter morning glows, 
 Quench thy noble thirst for pleasure and delight, 
 
 thou pain-delivered, in Valhalla's long repose. 
 
 Heavenly thought that tells of other meeting, 
 
 Other meeting there by Eden's dawn! 
 Hark, the coffin sinks with hollow greeting, 
 
 Sighs the quivering cord as upward drawn! 
 Here we stand like drunkards reeling, 
 
 Lips are silent, eye to eye is calling 
 Hold! the touch of grief our hearts is steeling 
 
 Tears are now more warmly falling. 
 
 With dead and pallid light, 
 Stands the moon above the grove to-night; 
 The sighing spectre of the night creeps through the 
 gloom ;
 
 412 Addresses 
 
 Planets hover 
 
 Wild mist over, 
 
 Pallid stars like lamps within the tomb. 
 Slowly grows the grave into a mound; 
 
 for earthly treasure yet one glance ! In vain ! 
 Everlasting is death's final bound 
 Smoothly grows the heap of earth into a mound; 
 
 And the grave gives never back again. 
 
 ABSCHIED 
 From the German 
 
 So fare thee well thou silent house ; 
 
 With saddened heart I bid adieu, 
 Not knowing where my way shall lie, 
 
 Still hoping peace may dwell with you. 
 
 So fare ye well, my faithful friends, 
 I take my leave with troubled mind; 
 
 Though fortune smile on other lands, 
 I'll think of those I left behind. 
 
 So fare thee well, oh lady mine; 
 
 My path from thine afar off lies ; 
 Give me once more thy gentle hand, 
 
 Nor doubt the love that never dies. 
 
 Sleep sweetly through the dewy night 
 Until a better morning break; 
 
 For me no rising dawn shall bring 
 The morn thine eyes alone can make. 
 
 And when in other days I come, 
 If then I find no change in thee, 
 
 I shall be rich though Fortune frown, 
 For thou art all the world to me. 
 
 UNIVERSITY OF SOUTHERN CALIFORNIA LIBRARJ
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
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