Mr. PRESIDENT: Every Nation must stand for, em body and represent some adequate, underlying principle which permeates, vitalizes, and binds it together. True, all sovereignty must be founded on territory, since without territory it is impossible to conceive of National existence. But real National grandeur and National exaltation are not measured by territorial area, but are determined by the moral and intellect ual character, aspirations, ideas, aims and purposes of its people.

tions and duties, duties as citizens toward our country, and duties as lawyers toward its laws and jurisprudence?

I offer no apology for this line of remark, since it is impossible properly to estimate the merits and value of any system of laws, dissociated from the institu| tions out of which those laws spring and to which they relate, and since also it ought never to be forgotten that our primary and fundamental relation is that of citizens. We were citizens before we were lawyers; the lawyer does not merge the citizen. It is not uncommon to hear it said that although we have not as yet gone to pieces, we are liable to do so; at any rate, the practical workings of our institutions are unsatiswill be found in almost every considerable city of Europe an American colony, where it is rather the pre

tinction at home, to talk in this deprecatory strain, and to award to other governments and institutions a superiority to their own. As more than any other class, the lawyers of a century ago shaped and moulded our institutions,* it is especially the duty of the lawyers of to-day, to show, in their lives and conversation, that they appreciate at their undiminished value the free and popular institutions of their country, and to acknowledge that howsoever much we owe to law, we owe more to liberty.

Our system of government, State and National, embodies and rests upon the fundamental proposition of the absolute and essential civil and political equality of all its citizens, whose collective will, expressed by majorities, is the rightful and only source of all politi-factory, and they have failed of real success. There cal power, and the only supreme majesty. By this principle, we must stand or fall. In adopting it, we reversed the accepted doctrines of the old world, Eng-vailing tone, especially among those without social disland included; which doctrines were, "that all popular and constitutional rights, all useful and necessary changes in legislation and administration, can only emanate from the free will and concession of the monarch or instituted government." You will recall the discussion of this subject by Mr. Webster in the celebrated Hulsemann correspondence. The political doctrine he asserted, as well as the elevated style and the sustained dignity, force and logic of this remarkable State paper, combined to fix upon it the attention of the contemporary world. Is this fundamental principle sound? As applied to our government, it has now stood the test of a century, overcoming our fears, strengthening and establishing our faith. I do not purpose to discuss its soundness. The stage of discussion ended with us more than a century ago. We then adopted it. We staked everything upon it; our institutions to-day have no other foundation, and by it "we must sink or swim, live or die, survive or perish." We must believe and maintain, indeed, that such a government rests upon the broadest, deepest, and most secure of all possible foundations, since it rests upon the consent and interest of all; in a word upon the sovereignty of society at large, which possesses all the powers necessary to preserve and promote the general welfare and safety, "powers which," says Blackstone, no climate, no time, no Constitution, no contract, can ever destroy or diminish. 1 Black. Com. 245.

Our institutions failed of success! I deny it. A thousand times, I deny it! In the name of every man, who like myself, has come through the terrible ordeal of poverty, and knows what it is; in the name of the unnumbered and unborn thousands of generous youth, who must yet walk barefoot upon the heated ploughshares of this ordeal, I deny it; for the genius of our institutions will attend them, unseen throughout the fiery trial, and give them a safe deliverance. What, let me ask is the cause of our unexampled growth, our matchless prospects? Not alone, or chiefly, a favored climate and a fertile soil, but the magnetic force and marvellous power of our free institutions, whose chief glory is, that every man is equal before the law, whose priceless benefaction is, that every man has equal opportunities.

It is, Mr. President, the laws and the legal in stitutions of such a Nation, founded upon the sov

It would seem to result from this that our self-gov-ereignty of the public will, with the cherished tradierned Nation is fitted to live, that it ought to live, and that it will live so long as it promotes the interest, protects the rights and liberties, and secures the general welfare and happiness of its people.

Let us rise, if we may, to adequate conceptions. We have already a population exceeding 50,000,000, a number greater than all the other peoples who speak the English language, inhabiting 38 States and 9 Territories, reaching in unbroken continuity from ocean to ocean, and from the lakes to the gulf. Behold the map of our country. How fortunate that the great mountain ranges and the intervening rivers run from north to south, nature's eternal ligaments. If the Rocky mountains or the Mississippi river had been co-incident with what was ere while known as Mason and Dixon's line, the Nation probably had not come out of the civil war undivided. Consider not only its territorial extent, but the variety of climate, soil, productions and resources. Territory suited to the most varied agriculture, vast plains adapted to grazing; coal and iron lying side by side; long stretches of mountain ranges rich with deposits of the precious metals. If we apply to the future the law of our past growth (and why may we not?), there are those present who will live to see our country with a population of 100,000,000 of people.

Shall we, the lawyers of America, be insensible to the responsibilities growing out of our two-fold rela

tions and rich heritage of its past history and achievements, with its present greatness and grandeur, with the bright visions of the future which it opens to our view, and which expanding illimitably as we gaze, swell our hopes and exalt our pride; a homogeneous people, widely distributed over a Territory of more than imperial extent, with a common language, with common interests, with common aspirations and hopes; it is the laws and legal institutions of such a country, that are placed under the immediate guardianship of the bar of America, and in no small degree of this association, which is National in its membership and objects.

The lawyers of America ought especially to remember that the strength of a Nation largely depends upon its laws and the manner in which they are administered. Are the laws just and are they justly administered? The inquiry must be answered by the

*In one of the greatest of all his speeches, "For Conciliation with America," March 22, 1775, Burke observes of the American Colonies, "in no country, perhaps in the world, is the law so general a study. The profession itself is numerous and powerful and in most provinces it takes the lead. The greater number of the deputies sent to Congress were lawyers. I hear that they have sold nearly as many of Blackstone's commentaries (then recently published) in America as in England."

divine test. "By their fruits, ye shall know them. Do men gather grapes of thorns, or figs of thistles?" Justice is the fruit of good laws, well executed; and "Justice," says Sir James Mackintosh, in his famous lectures, delivered in Lincoln's Inn Hall, "is the permanent interest of all men and of all Commonwealths." Conscious of its general truth, we give a ready assent to this sentiment, without often pausing to inquire why it is that justice is of such commanding and supreme importance to the Nation as well as the individual. It is the justice of good laws, well enforced, that restrains and punishes the criminal; that erects the only effectual barrier against the uncurbed and multitudinous passions of men as they come surging on with the power of the ocean, and proclaims "thus far and no farther;" that protects with absolute impartiality every right recognized by the law, whether in favor of natural persons or corporate, of the weak or the strong, against any who menaces or invades it; that stands as the impersonation of the highest attribute of God, not passively with her scales in equipoise, but with flaming sword, to guard the injured and the innocent, and to strike down the highhanded or the fraudulent wrong-doer.

The most satisfactory ideal, I have ever been able to form of justice is embodied in the picture of a judge, courageous enough to give the Devil his due," whether he be in the right or in the wrong.

hand, the eulogies so often pronounced upon it, or on the other, the complaints so frequently made against it. Such a survey will moreover tend to define the extent to which the "choice and tender business" of introducing changes therein seems to be practicable and expedient.

It is observed of the constitution of the human mind, that it "continually oscillates between an incli · nation to complain without sufficient cause, and to be too easily satisfied." Guizot Hist. Civ. Europe, Lect. 1. Either extreme is injurious. If we erroneously conceive an institution or system to be perfect, it induces self-satisfaction and inactivity. If we magnify its defects, it may discourage the needful attempt to remedy them. Let us come then to this inquiry, not as partisans, nor with the zeal and bias of the advocate, but with the "cold neutrality of impartial judges." "Paint me as I am," was the command of Oliver Cromwell to Lely. "If you leave out the wart, the scars, or the wrinkles, I will not pay you a shilling."

Now the great fact, which as we approach this subject meets our view, is that the common law (including in the phrase common law" as here used, the supplemental equity system of the court of chancery which grew out of the common law and constitutes a part of it), underlies the whole system of American jurisprudence. The expression "the common law " is used in various senses; (a) sometimes in distinction to statute law; (b) sometimes in distinction to equity law; and (c) sometimes in distinction to the Roman or civil law. I use it in this address in the latter seuse. I do not stop to inquire how the common law came to be introduced here, and adopted by us. I deal with the fact as it exists, which is, that the common law is the basis of the laws of every State and Territory of the Union, with comparatively unimportant, and gradually receding exceptions. And it is indeed a most fortunate circumstance, that divided as our Territory is into so many States, each supreme within the limits of its power, a common and uniform general system of jurisprudence underlies and pervades them

It is to protect public and private rights that courts, with their judges and officers, their jurisdiction and machinery, are established and maintained. Their usual function, their most obvious use is to decide civil and criminal causes. But this is far from the measure of their usefulness. We readily see how important the admistration of justice is to the individual but why is it so important to the Nation. What however, let it be asked, is the Nation but the aggregate of individual citizens? In our times, certainly in our country, no government is secure that does not rest upon the interest and affection of the governed. Ordinarily when things are moving on in the even, accustomed tenor of their way, we lose sight of the vital dependence of National life upon National justice | all. But let the safety of the Nation be threatened from within or without, in the pressure and stress of such an exigency, which comes sooner or later to all Nations, then is instantly perceived and felt the vital relation between the National justice and the National existence. If all interests in the State, those of labor and those of capital, which are always closely allied and rarely antagonistic except as the result of laws which operate unjustly upon the one or the other; if all persons within the State regardless of birth, race, religion, or condition feel that the State is the highest embodiment of practical beneficence, and surely to be relied on to do equal and exact justice to all men and all interests, then in the moment of peril, all persons rise and rally, dilated and transfigured by a sublime and irresistible patriotism, bringing as free-will offerings their treasure and lives to defend and preserve laws and institutions which they have found to be so dear. Then especially it is that the strength of popular institutions, such as ours, is revealed and demonstrated.

If these observations be well founded, can the lawyer, statesman or citizen, conceive any inquiry more important than an examination into the character and condition of the laws and jurisprudence of his country.

I therefore purpose to attempt a survey, necessarily brief, of the general nature of our system of laws and its practical workings, with a view to see how far it is consonant with our political institutions, and adapted to the temper and wants of our people, and with the further view to see how far it deserves on the one

Taking into consideration the genius and situation of our people, and the nature of political institutions at which, with this view, I have already glanced, the inquiry presents itself, what is the general character of the common law? What its adaptation to our people and our situation? what its merits? what its defects?

The first observation I submit is, that the common law, as well as the institutions which it developed or along side of which it grew up, is pervaded by a spirit of freedom, which distinguishes it from all other systems and peculiarly adapts it to the institutions of a self-governed people. It is clearly established by the laborious and learned researches which have been more recently made, that the germs and elements of this law and of English polity are of Germanic origin. Stubb's Const. Hist. ch. 1, et seq. The Saxon conquerors of Great Britain were not mere bodies of armed invaders. They went to England during several centuries in families and communities. And what manner of men were they? Guizot, certainly no partial witness, dwells upon the fact that the distinguishing character of the Germans was their powerful sentiment of personal liberty, personal independence and individuality." He affirms and repeatedly reiterates, that it was they who "introduced this sentiment of personal independence, this love of individual liberty, into European civilization; that this was unknown among the Romans; unknown in the Christian church; and unknown in nearly all the civilizations of antiquity. The liberty which we meet with in ancient civilizations is political liberty-the liberty of the citizen, not the

personal liberty of the man himself." Hist. Civ. Europe, Lect. 11.

fairs of each road-district, school-district, township, county, town and city locally self-managed, including the administration of local justice. Every township in the United States has a local court with power to summon a jury of the vicinage, thereby bringing justice home to the business and bosoms of the people, and making it their own affair. We are somewhat apt to look with disdain upon the courts held by justices of the peace. But in reality, we have few more useful institutions. The eyes of the ordinary justice have not indeed been couched to the "gladsome light of jurisprudence." He may be prone to make technical mistakes, but in general, he manages by himself or the jury to work out substantial justice in the decision of the disputes arising out of the everyday affairs of the people. It is in no slight degree instructive to trace the institutions of this new country back to the germs of the Saxon or Anglo Saxon polity, for when we touch to-day, even in our frontier settlements the electric chain wherewith Providence hath bound the ages and the generations of men together, we discover that we are in historic communion with rude and remote ancestors although separated from us by seas, mountains, and centuries.

Thus conquering and colonizing England, they carried with them "from lands where the Roman eagle had never been seen, or seen only during the momentary incursions of Drusus and Germanicus" (Freem. Norm. Conq., ch. 1), their language, their religion, their customs, their laws and their organizations. These were indigenous-homebred, without trace or tincture of the Roman law and institutions. Digby, 11, 12. They borrowed nothing from antiquity or from surrounding people. They founded, and in the course of centuries their successors and descendants, the people of England, built up their institutions on their own model. Macaulay speaks of this with his accustomed vividness. "The foundations of our Constitution," he says, "were laid by men who knew nothing of the Greeks, but that they had denied the orthodox procession and cheated the crusaders; and nothing of Rome but that the Pope lived there. Those who followed contented themselves with improving on the original plan. They found models at home; and therefore they did not look for them abroad." Essay on Hist. In words, well known, the author of the Spirit of the Laws, referring to the checks and balances of the English Constitution, says: "This beautiful system has been found in the forests of Ger-ally create and regulate independent of Federal conmany." Ce beau système à été trouvé dans les bois. Montesquieu, Book 11, ch. 6.

This love of personal freedom and independence was impressed upon the institutions they founded, or adopted or modified.

Learned investigators differ concerning the extent to which Roman law existed and prevailed at the time of the Saxon conquest, and the extent to which it was adopted or incorporated into the English laws, usages and institutions. But there is a universal assent to these propositions, viz., that the Saxon spirit of freedom was embodied in the various local courts; that it was in these popular tribunals that the principles of law and local government were cultivated and disseminated; that the Saxons breathed into the English government and institutions "a spirit of equity and freedom which has never entirely departed from them." Mackint. Hist. Eng., vol. 5, ch. 1; Reeves Hist. Com. Law, Introduction by Finlason; and that in the course of time the common law intertwined its roots and fibres inseparably into the Constitution. polity, local, and municipal institutions, the civil and criminal jurisprudence, the family relation, and the rights of person and of property. So from an immemorial or early period, the local territorial subdivisions of England, such as towns and parishes, enjoyed a degree of freedom and were permitted to assess upon themselves their local taxes and manage their local affairs. The rate-payers were thus dignified by being an integral part of the communal life; the founda.ions of municipal liberty were laid; political power was decentralized; knowledge of the laws and reverence for the obedience to them were constantly taught by a participation in their administration and enforcement. This is exactly the opposite of the systems prevailing on the continent, where the central power absorbs, governs, regulates every thing, thereby destroying municipal freedom and the capacity to enjoy and exercise it, as well as the power to defend and preserve it.

In our country, this system of decentralizing political power, and of intrusting the direction of local affairs to the local constituencies, has from the earliest colonial periods been carried to a much greater extent than in England. As you pass from one end of this country to the other, alike in the older regions and in the newest organized settlement, you will see the af

The States of this country bind together the congeries of local municipal institutions, which they sever

trol; thus happily preventing a concentration at the National center of the governmental power and duty of legislating for and regulating the affairs of local communities throughout a country of such vast extent, that with its exact situation, wants, and interests, it would be impossible for Congress to become accurately acquainted.

So in the ascending scale, the Federal Constitution constitutes the States and the people of all the States into a National government. It defines the relations of the States to each other and to the general government, and limits the power of the States under any pretext, to deprive any citizen however humble of the great primordial rights of freedom and equality before the law.

Magna Charta remains to-day one of the chief foundations of English liberty.* Its chief glory is the provision "that no freeman shall be imprisoned or diseized of his freehold, but by the lawful judgment of his peers or the law of the land." This provision, memorable in its origin, historic in its associations, luminous with the light of universal justice, beneficent in its effects, and long ago embodied in all of the State Constitutions, has been recently carried into the Federal Constitution, thereby placing the rights of life, liberty and property, as against invasion by the States, under the protection of the National authority. The ancient lawgivers, to induce the highest possible veneration and esteem for the laws, taught that they came from Heaven and were sacred. If any human work ought to be regarded with sanctity by us, it is the Constitution of the United States. Unmatched and matchless instrument; source and guaranty of National life, of general prosperity and of countless blessings-making the States and the people one great, free, happy, united Nation.

If the Supreme Court during the period of active National development covered by the long official career of Chief Justice Marshall had put a narrow and inelastic construction upon the Federal Constitution, so that it could not have expanded with the growth and answered the necessities of a great people, it