that of last fall, but the Convention in Chicago thought that Indiana ought to be carried or I ought to be somewhat disgraced [laughter and applause], and I made up my mind I would not be disgraced. When I come back here four years from this time-by the way, I'm coming here more frequently than heretofore; you invite me, don't you? [Applause.] I want to bring from Indiana. good cheer for the State of Massachusetts, and then I want to meet the Bay State Club and have them tell me that Massachusetts meets Indiana and grasps her by the hand, and takes from her the banner that represents the Democracy of a whole nation for the purposes and for the sake of reform in the public service. [Tremendous applause.] XXI. THE SUPREME COURT OF THE UNITED STATES, AND AN ORATION DELIVERED BEFORE THE GRADUATING CLASSES AND ALUMNI OF THE YALE LAW SCHOOL, At its Sixty-first Anniversary, June 23, 1885. Mr. President: The people of the United States of America occupy to-day the first place among the nations. They are neither disturbed nor threatened by European dissensions. They repose in the confidence of irresistible power. The quiet that reigns within their borders attests the undisputed sway of law and order. Less than one hundred years have passed since they came together under the Constitution of a common country. Why this imposing result? What is there about this limited Constitution of the Americans, that has brought them this incompar able success, in their effort for a republic? The compact under which the States conducted the Revolution was found to be insufficient for the purposes of a permanent Government. "A more perfect Union" had become a necessity. Delays were not allowed. The Constitutional Convention of Philadelphia followed fast on the surrender at Yorktown. The result was an "indestructible Union of indestructible States"; and a government of each of the several States "possessing all the powers of government not delegated nor prohibited." A thoughtful writer has said of the patriots and statesmen who framed the Constitution, that they "were persons of as much learning, experience, sagacity and probity as any equal number that have lived in the world." They were schooled in field and council, and had learned the lessons of political wisdom in the discussions that attended and followed the Revolution. In their work they hoped for a free and stable republic. They clothed the Government of the United States with power necessary to guard and protect the interests that were common to all the people, and "to provide for the common defense and general welfare." They recognized the thirteen States of the Confederation as sovereign within their sphere, and they provided in the Constitution for the admission of many new States. They put the machinery of many governments in motion, each and all endowed with life, and will, and purpose. As wise men they foresaw that, among numerous and powerful States, feuds and controversies must arise; that disputes of boundaries, conflicts of jurisdiction, and jarring interferences were inevitable. And they knew as well also, that among equal States, controversy appeals to pride, and conflict must follow. The work of establishing a confederacy of equal States, stable, harmonious and enduring, was defective and unfinished until a tribunal should be provided capable of commanding the re spect and confidence of all the parties to the Union, and clothed with authority to enforce obedience and submission. And thus it was that the Supreme Court came into existence the potent agent of conservatism-and at the same time a great authority in the State. The founders of government never before clothed any judicial institution with such dignity and control. Indeed, such a Court could exist only in a government of defined and limited powers and under a written constitution. Because of its importance and power the founders of the Government sought to make the Federal Judiciary upright, fearless and independent; independent of legislative aggression and executive assumption, and also of interests, parties and classes as well. To that end the Judges were made secure in their salaries, which can not be reduced during their holding; and in their terms of service, which are fixed at good behavior, subject only to impeachment. The number of the Judges was not fixed by the Constitution, and Congress has from time to time regulated the numerical status of the Court. The action in that respect has been criticised as inspired by sinister aims, the claim being that the change in the number of the Judges was sought in order to secure a bench whose views on Constitutional and political questions should be in accord with those of the law makers, and the dominant political party. Assuming that such criticism has been unwarranted, and the inspiration of partisan zeal, we are still confronted with the suggestion that the structure of the Court, as established by the framers of the Constitution, was faulty in this particular. It must be conceded that neither Congress, nor a political party represented by the Executive, should possess the power to control the utterances of the Court by making the voice of the minority of yesterday that of the majority of to-day. It is gratifying, however, to find but one ground of criticism in the constitutional it may organization of the Supreme Court, and that even there be found difficult to substitute a better mode. From its organization to the present day the Supreme Court of the United States has been the wise expounder and firm defender of the great organic charter from which it derived its existence. For nearly one hundred years it has stood proudly among the great institutions of our country, strong, conservative and impartial. When party conflicts, and the passions they arouse, have carried the other departments of Government beyond the constitutional limit of their powers; when the reserved rights and powers of the States have been invaded, or, when any of the constituent sovereignties have attempted to encroach upon the just powers of the national Government, its voice, calm and morally omnipotent, has arrested the encroachment of usurped power. Our inquiry for this occasion is how and why did it occur that in a country so new as ours, and so imperfectly developed, there should arise an institution, not only instinct with the spirit of truth and justice, and wonderfully capable of judicial investigation, but strong to deal with questions affecting government as well as its citizens. It may hardly be claimed that our judges have surpassed the judges of other lands in culture and capability of thought. We may well boast of Marshall, of Taney, and of Story, eminent in all the qualities that adorn great judges; but we can not forget that of right England cherishes, with gratified pride, the memories of her illustrious jurists, of Hale, Holt, Mansfield, Eldon. Opportunity often decides who shall be esteemed the greatest. The opportunity for our great court was found in the ample jurisdiction with which it was clothed, and in the complicated character of our political institutions. It could not remain a common Court in the exercise of its constitutional jurisdiction. With such powers and prerogatives no Court had ever been clothed. Its jurisdiction is original in all cases affecting the representatives of foreign powers, and in that respect it stands between our country and possible troubles abroad. It is original also in controversies between States, giving the highest assurance of permanent harmony among the members of the Union. Its jurisdiction is appellate in controversies of the seas; in controversies between citizens of different State's; in disputes arising under land grants of different States; also in controversies between a State or the citizens thereof and foreign States, their citizens or subjects; and in controversies to which the United States shall be a party; and beyond these, to "all cases in law and equity arising under this Constitution, the laws of the United States and treaties." Out of the powers thus grouped has grown the judicial structure which Judge Curtis speaks of as "the greatest Court in the civilized world." Because that Court has to deal with the greatest questions it became greatest. Like other courts of law and equity, it had to consider and decide important questions of practice, of pleading, of evidence; and like them also questions of fraud, of trust, of contract, of title; but beyond and above all these it became its high duty to consider and settle questions growing out of the peculiar character and complicated structure of our political institutions; questions of constitutional power, of conflicting jurisdictions, of revenue, of currency. The welfare of a free State requires, as reason and experience suggests, that its powers be divided into the legislative, executive and judicial; that they shall be clearly and distinctly defined; and that in their practical operations there shall be no confusion; and that neither shall encroach upon the rightful province of another. It is the highest duty of all who may be charged with the affairs of government to preserve these powers separate and distinct. But "offences must needs come," and however |