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freedom, all learning, all comfort and beauty of life, in the vain hope that out of murder and rapine and pollution may be generated purity and peace. Here are new enemies to be met, and here, too, we may perhaps help one another.
In England the trouble seems near at hand. The continent of Europe is in sight, the North Sea is narrow, and communication is easy and swift. But our people are meeting the new danger with a stout heart and a cheery spirit, and we shall pull through. After the falls come the rapids, but after the rapids the smooth water. To some of you in this country the danger may appear distant, but you cannot, if you would, wholly disinterest yourselves in this new struggle. I have heard it said that the tides which wash the shores both of Europe and of America have their origin at one and the same point in the South Seas; and so any great change, any crisis in Europe or elsewhere in the world, is not without its effect here on this distant continent. For all practical purposes you are nearer to Eastern Europe today than we were a few years ago; and what happens there touches you as closely as it touches us. The trouble is yours as well as ours. If need be, we are ready, with God's help and the firm comradeship of the sister nations within the British Empire, to meet it alone; but I think that it is written in the book of fate that
you shall face and overcome it together.
THE ASSAULT UPON AMERICAN FUNDAMENTALS.
ALBERT J. BEVERIDGE,
It was America's good fortune that most of her great lawyers in the period preceding and following the Revolution were statesmen. From James Otis to Daniel Webster they looked upon the making, interpretation and execution of constitutions and statutes with the eye of statesmanship rather than of legalism. In an even greater degree the preeminent judges of the period also conspicuously showed this outstanding characteristic. When rendering decisions and delivering opinions, especially in cases involving liberty and affecting government, the members of the Bench whose names we now revere, were always inspired by broad and far-sighted considerations of public policy. This quality particularly distinguished that greatest jurist-statesman of all time, John Marshall.
For example, it is to his courage and vision that we owe the destruction of the cruel and unjust European doctrine of constructive treason, and the establishment in the place of it of the rational, just and humane American law of direct and actual treason. In the face of a public opinion enraged to the point of violence, in defiance of a powerful administration bent upon conviction at any cost, John Marshall threw the shield of a distinctively American interpretation of the Constitution between the accused and those who were clamoring for his life. As a result, he was himself publicly denounced as a traitor, his impeachment was demanded, floods of scurrility and vituperation were poured upon him through the channels of the press, and finally he was liung in effigy on Gallows Hill at Baltimore amid execrations of maddened mobs.
In the notable trials of Aaron Burr and his reputed agents, John Marshall, with the calmness, wisdom and intrepidity of the just and far-seeing statesman, not only decided the legal points at issue, but, in doing so, laid down fundamental rules for the
guidance of those who make and those who execute, as well as those who interpret laws affecting human rights, especially at times of public excitement. He declared, for instance, that since treason is the blackest of offences, and the accusation that a person is guilty of that infamous crime inevitably inflames public, passion and prejudice, courts should be correspondingly calm and temperate in considering such cases. He warned executives against permitting what he termed “the hand of malignity” from seizing and abusing objects of popular wrath; and he asserted that punishment for crime against the state “should be ordained by general laws formed upon deliberation, under the influence of no resentments, and without knowing on whom they are to operate, rather than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime or a construction which would render it flexible, might bring into operation.'
At no time since the historic argument of James Otis against the Writs of Assistance has statesmanship been more required of American lawyers and judges than now and throughout the period upon which we have entered. We are living in dramatic times when human destiny is being determined by the united thought and united action of immense numbers of men in the
Novel doctrines, unfamiliar to civilization” understand that term, are being preached everywhere; and in great portions of the earth inhabited by scores of millions of people, are being put into practice. Throughout Europe and Asia the established order is being boldly challenged, and in every country of the old world the advocates of basic economic, social and political change are gaining in numbers and audacity.
Thoughtful Americans are beginning to realize that it is not impossible that our Republic founded upon our peculiarly American institutions of orderly freedom, may become the one stable and stabilizing force in a world of chaos; and the same vision which enables them to see that inspiring and saving possibility, also shows them the vital necessity of maintaining those American fundamentals without which our nation as established and thus far developed, cannot exist.
' Er parte Bollman and Swartwout, 4 Cranch 125.
It is therefore indispensable that the American people, and especially the American bench and bar, shall again make accurate measurement of American fundamentals, take careful note whether and to what extent they have been assailed or impaired, and form clear and determined resolution to restore and maintain them. More than ever before in half a century, America now needs Pinkneys at the Bar, Websters in the Congress, Marshalls on the Bench.
Perhaps all will agree that the guarantees of personal liberty made in the First, Fourth and Fifth Amendments of our national Constitution-freedom of speech, press and assemblage, security from unreasonable search and seizure without warrant, the safeguards which due process of law throws about life, liberty and property—are the foundations upon which our free society rests.
Equally important is the liberty of representatives elected by the people to enact laws for the general good uncoerced by force or threat of force. Nobody will deny that such freedom of legislative action is inherent in the very nature of free government.
When, by menacing the nation with disaster, organizations compel Congress to submit to a ukase issued by chiefs of those organizations, a blow is struck at the very existence of regular government under general laws freely passed by duly-elected representatives of all the people. This was the vital issue raised by the methods by which the Adamson law was forced upon the statute books. The merits of that law had absolutely nothing to do with the method by which its enactment was coerced.' That issue ought to have been fought out the moment it appeared. It must be fought out in the end. Mere adjustment is temporary,
? See able statement of the Railway Union's case : Locomotive Engineers' Journal L. 838 et seq.
The Brotherhood Chiefs frankly admitted the issue: “ The intervention of Congress by the enactment of an eight-hour law is all that prevented the strike with its inconveniences and destructive opportunities for the rabble, as one of the Congressmen said an opportunity for a revolution !.” Ib., 927.
They said that they were seeking bettered conditions through the only means available." Ib., 838.
“ The four organizations in the transportation service, having been denied a shorter day, caused the intervention of President Wilson and led to the appeal he made to the joint session of Congress to redress the grievances by some act that would prevent a nation-wide strike." Ib.
Stating the deadlock between the railroad managers and the chiefs of the labor unions, Chief Justice White says in Wilson v. New, 243, etc. 342: “ Before the disagreement was resolved the representatives of the employees abruptly called a general strike throughout the whole country fixed for an early day. The President save the commercial disaster, the property injury and personal suffering of all, not to say starvation, which would be brought to many among the vast body of people if the strike was not prevented, asked Congress " for legislation that would avoid the im. pending disaster.
Congress responded by enacting " the Adamson law. Ib., 342.
invites new demands in the expectation of other like adjustments and makes sterner the final conflict. If organizations of a small part of the people are allowed to overawe Congress and President, then free representative government ceases, and the whole nation is ruled by the eccentric despotism of particular groups which happen to be strong enough, physically, to enforce their will. This is the very principle which, we are told, is asserted by that tyranny which now scourges desolated Russia.
No reason, no excuse, no pretext can exist for thus assailing the fundamental of the liberty of legislative bodies, so long as we maintain those other American fundamentals guaranteed in our National Bill of Rights. If any man or body of men feel that they have a just grievance, let them, by speaking, writing, agitating and organizing, win public opinion to their side, and their wrongs will be righted in the effective way marked out by our Constitution. But if freedom of speech, press and assemblage are impaired; if security of person and property are overthrown; if the First, Fourth and Fifth Amendments are denatured, then, indeed, have all men a grievance—then, indeed, are we deprived of the one unanswerable argument against the methods by which the Adamson law was forced through Congress.
This plain truth affords another reason why we must make, without delay, a new survey of these American fundamentals. In the doing of this essential and immediate task, we are aided by the undoubted and undenied records of history. The guarantees secured by the First, Fourth and Fifth Amendments were omitted from the Constitution only because it was conceded on all hands that they were not necessary. It was said that since our national government is one of delegated powers, and that since Congress was not given authority to pass laws concerning speech, press, religion, assemblage, search and seizure, Congress obviously had no power whatever to deal with such subjects at all. It was even urged that to include in the Constitution inhibitions upon Congress to enact statutes abridging freedom of the press, would be an admission that Congress possessed all other powers not expressly forbidden.'
* Farrand: Records of Federal Convention, II, 587-8, 617-18 ; III, 290:
Charles Pinkney reported to the Legislature of South Carolina that: “ With regard to the liberty of the press, the discussion of that matter was not forgotten by members