Read the Full HTML Version of The Story of Law
The struggle of the Colonies with the Parliament of England began, and in the struggle was revived the ancient dogma of the Greek and Roman law that power must emanate from the people. A new adaptation of the law was that charters of government create inviolable rights and covenants binding upon rulers and subjects. Upon those ideas of binding and inviolable limitations upon government and of the people as a social community with full power, is based the great charter of our liberties, which is called the Constitution. In it the judicial power with its right to make the supreme law binding upon all departments of the government and upon every governmental officer from the highest to the lowest is securely intrenched. In the Constitution is applied, also, the collected wisdom of all the ages, an application made possible by the fact that a government is being founded in a new land, not tied down and bound by inherited ideas or by fixed divisions among men. That collected wisdom made possible a division of the powers of government among separate and independent departments, a legislative, an executive, and a judicial. With unexampled rapidity the great lands west of the original Colonies were wrested from the savages. Broader and broader extended the national domain until at last men who were children at the adoption of the Constitution were living to see the banners of the Republic dipping “their fringes in the western sea.”
In looking back over English legal history it must appear plain that all the different phases through which the law passed were necessary to give that extended experience, whose results are embodied in our national Constitution. It does not take many words to define those prohibitions upon government but each short phrase represents the settled experience of mankind through hundreds of years. That experience determined what principles of government are necessary to be protected against either popular, or legislative or executive power. Above all it had been shown that the only feasible method of restraining such power was a prohibition by a supreme unalterable law enforced by an independent judiciary.
This prophetic vision was correct. In the years from 1787 to 1860 the institutions of our government were solidified and strengthened under the aegis of the judicial power until at last the whole power of the nation, the posse comitatus of the whole Republic, was to fight out on many a bloody field the two questions: First, was the constitutional rule imposed by the people upon themselves a binding rule when it made an indestructible union? And second, was the age-old Roman doctrine of Ulpian that by the law of nature and of God all men are created free, to become not alone the heritage of a part of the citizens but the inalienable possession of all the citizens? Those questions were forever settled on the anniversary of our Independence Day when the sound of the guns of the Indestructible Union at Gettysburg was echoed from the surrendered heights at Vicksburg. At last it had been proven that the Reign of Law was an accomplished fact. Since then other great federated Commonwealths have come to convince us that our experiment in government has passed from the stage of experiment to that of unalterable success. We may cherish the belief that in the years to come the decisions of our Supreme Court on constitutional questions may be often illustrated by decisions from the highest courts of the Commonwealths of Australia and of Canada.
One jurist, a figure as commanding as that of Papinian, stands forth. Before the Capitol at Washington is the statue of John Marshall, which was erected by the Bar of the United States. Even the most hardened and unimaginative lawyer cannot pass it without reverence, for there sits in serene and sagacious contemplation the man who more than all others molded our constitutional law, and made possible the beneficent government which brings contentment and happiness to so many millions of men. Great judge and great lawyer as he was, he was even greater in that his character even to his inmost soul was without a stain. The simple virtues of goodness, generosity, and kindliness made him a lovable man. Like all men of that description he had quick sympathies.
It must have been an extraordinary sight to see Webster finishing his speech in the Dartmouth College case. The great orator was giving to his close that touch of emotion without which all oratory is a dull and lifeless thing. The advocate was an impressive man. His great head, dark countenance and deep-sunken, gleaming black eyes aroused even the dyspeptic Carlyle to some enthusiasm in his description of this parliamentary Hercules. Webster after his argument as he came to the end, sunk his deep voice. The justices were bending forward to catch his words. He was speaking as if to Marshall alone. No feature of the clear-cut composed countenance of the Chief Justice moved, as Webster in his poignant tone of suppressed feeling, said of his Alma Mater: “It is a small college, but there are those who love it.” He hesitated on the words, his voice broke, the great eyes filled, while down the granite face of the Chief Justice furrowed by years of thought, started the tears. Then lifting his voice Webster made his magnificent close. The scene shows us that the greatest are the most human.
It is something for a court to have the tradition of such a man as Marshall, but it is a greater thing that the profession reverenced him in life and reveres him in death, for he is the personification to all of us of the just man, not only capable and learned in the law, but also endowed with the statesmanlike vision, that is the very soul of aspiring humanity dreaming on things to come.
The fortunes of the law depend upon the profession. From its ranks come the judges. Harsh things can be said of the lawyers, that are all true. But we have seen that this is always true. We can look back to the very finest days of the Roman law, and read the denouncing words of Pliny the Younger upon the profession in his time. But at that time the legal profession was building the structure of law that still rules the world. And so it is with the law itself. At any period in its history we may see how much it failed to reach perfection. In the days of the greatness of the Roman Republic no man was safe from the attacks of the informer or the demagogue, public law was disgraced, bribery at elections was the rule. In the days of the Antonines when the civilized world enjoyed such perfect peace and repose, when men in point of well-being had little of which to complain, when the private law secured to citizens even-handed distributive justice, the public law made the Empire a despotism, and no man of importance, in the event of a bad ruler, could hope for any safety in life, unless he became a sycophant and a slave. The burning fire of patriotism which had made the Republic was extinct and any man of reflection would have gladly gone back to the days when, with all its evils, Rome was free. All through the Dark Ages men were in the black night of despair. Law, security, hope in life or in death seemed to have departed. For a lover of his kind the eye could find nothing on which to repose. The great Pope Gregory VII summed up the times in his dying words: “I have loved righteousness and hated iniquity, so I am dying in exile.” In the fifteenth century of English law, when the jury system had broken down, when nothing in life was safe, when the law seemed a travesty of justice, no one could look forward with any hope. In the next ages savage intolerance left no citizen the right of free speech and for mere beliefs men were burning at the stake. Let one try to conceive how dark seemed the future after our Revolutionary War when it appeared that the Colonies were deliberately committing suicide. In the private law itself the state of the prisons, the institution of imprisonment for debt caused untold human suffering. In the ten years before our Civil War, it seemed that the Union of the States was doomed.
But as we look back for almost a thousand years the law, public and private, has steadily improved. We may praise the good old times, but would any one be willing to go back to them? The blots we see upon the law are all made by human hands and by those hands they can be taken away. The two things of which we can most justly complain, the ineffectiveness of the administration of the criminal law and the corruptions in municipal government, are constantly meeting an awakened public sentiment. The great bulk of the law and the differences in law among the various states are steadily being corrected, while at the present time the disinterested lawyers of the whole country are engaged in the gigantic task of restating in smaller bulk, and in simplifying, the law. There never has been a time upon the earth like the present, when men could look around them not only at their own land, but over the whole civilized world and be so well satisfied with the future of law. This situation is due more to the rule of law than to all other human activities.
The story of the law must teach us that changes are to be made by the innovations of time slowly and by degrees. If suddenly we begin hacking to pieces our aged mother, only evil can result. It must not be true that for some fancied benefit we shall unsettle the landmarks that mark the progress of the ages. Personal desires, the theories of particular men can have little or no effect upon the law, for she must represent the wishes and desires of us all. She must have still the standard that was her standard ages ago, the ordinary reasonable man, not easily moved to action, clinging to his ancestral robe of habits and accustomed ways, yet in the main striving to make this world a better place for his children. The law is like this her favorite son, the average reasonable man. She too must cling to the institutions which she knows and has proven, for she bears upon her shoulders the burdens of humanity. We must not blame her for our many human errors; she gives us the rule, she asks us to apply it reasonably and fairly and when we fail, out of our own want of insight, we turn upon her and bitterly arraign her, but she answers not a word.
Yes, we arraign her but she,
The weary Titan with deaf
Ears and labor-dimmed eyes,
Regarding neither to right
Nor left, goes passively by,
Bearing on shoulders immense,
Atlantean, the load
Well-nigh not to be borne
Of the too vast orb of her fate.