USA > California > Addresses delivered before the California Society of the Sons of the American Revolution, 1913 > Part 8
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It was in that moment, after Francis Scott Key, during those anxious hours, had been framing in his mind the words of that undying song- it was in that moment that his poetic soul burst into a glow of patriot- ism and gave to us that song of triumph, the Star Spangled Banner.
Not many months since, in the Academy of Fine Arts in the City of Florence, Italy, before a moving and wonderful creation, I stood in meditation and thought that in that same city of Florence, 400 years before, there lived a man who might be regarded as among the most renowned in history, one who combined in his person a painter pre-eminent, an architect foremost of them all, and one unrivaled as a sculptor, Michael Angelo, the admitted Colossus in the realm of art. In 1501, this man, as we are informed, stood with rapt gaze and deep abstraction before a block of marble that an unskilled hand, some forty years before, had wrought upon with mallet and chisel, only to mar and cast aside. And as he thus stood, he murmured aloud, "Be- hold the figure in the marble." And from that shapeless mass, patiently, softly, tenderly, as one would lift a sleeping infant from its cradle, he wooed forth that figure, before which I stood, matchless in its beauty, marvelous in the lines of its virile strength the heroic figure of the youthful David, regarded as probably the most perfect specimen of sculpture's art that man, in the countless centuries of his existence upon the earth, has yet produced.
Every ideal, before it is realized, and this abolition of war is such an ideal, is as a figure in the marble. The life work of every man, ere his hand is lifted to the task and as he stands in contemplation before it, ungrasped and unseen save to the mind's eye, is but the figure in the marble. And, as the sculptor, with mallet and chisel, and with infinite devotion and fidelity, brings forth the figure of beauty, so man, with patience and perseverance, ofttimes through sacrifice and struggle, reaches the goal of his ambition and acquires his cherished aims and hopes. Columbus beheld with inward eye what was hidden from the so-called wise men, the rotundity of the earth, and saw the
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lands that lay beyond the sunset sea. Twenty years of persistent purpose, followed through pinching penury and prostrate pride, per- mitted the realization of his ideal, and the old world in amazement looked out and saw rising from the foam of the ceaseless surf beating upon its shores the gemmed and jewelled figure of the wondrous western world.
The American Republic, for which the flag stands, the greatest event and the greatest experiment, for it is still an experiment, in history, is the figure in the marble upon which the present generation of Americans is working, and upon which all the generations which have preceded this, since the formation of our government, have toiled and striven. It was seen by the heroes of 1776, before the struggle for independence actually commenced, only as an image of their patriotic hopes. And it was the unbending purpose, shown in the silent suffering of starving soldiers, in the determined tread of tattered troops, in the blood-stained footprints in the sand, that yield- ing outline to that which had theretofore been intangible and vague, gave to the world its first genuine glance at the entrancing and beaute- ous figure of liberty, typified by that flag which we all adore and for which our fathers and our forefathers fought and bled and died, and for which, were it assailed, we ourselves to-day would do the same; a flag whose field of stars is emblematic of union as lasting, we believe, as are the shining stars themselves in the firmament above.
Shakespeare, the greatest poet and philosopher that ever lived, endowed with the most wonderful intellect ever given to a human being, and gifted with a vocabulary of boundless and amazing richness, does not once, in all his marvelous writings, use the word "patriotism." And yet this word, which the greatest master of the English language seemingly did not know, expresses the sentiment that has brought us here this evening, the sentiment that is inborn with every child of the Republic, the sentiment that has moved our countrymen upon count- less battlefields to deeds of transcendent valor and heroism, and a sentiment that will rise paramount at all times of threatened peril to our country, to save untarnished the glorious emblem of the Union.
Patriotism, however, is not limited to America. Other peoples have love of country. But American patriotism is the highest form of patriotism in the world, the deepest and the most enduring, because it is enlightened, and because also it is founded upon a principle that is mankind's dearest and most treasured possession, the principle which led our ancestors to seek inhospitable shores, that nerved them to battle with the craft and cruelty of the painted savage, the principle that underlies our government and enters into every portion of the
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fabric, the principle that has animated every patriot from Plymouth Rock to the present moment, the principle upon which the flag of the Republic rests, and which national expansion, no matter how broad, will never subvert or destroy, the principle which rules now and ever will rule wherever the sovereignty of the stars and stripes is recog- nized, and that principle is the principle of civil, religious, and po- litical liberty. Upon this principle, American patriotism is founded, and this is what the flag eternally stands for.
A month or more ago, in the City of New York, in Trinity church- yard, I stood at the grave of Alexander Hamilton. Chiseled upon the cold white stone that marks the spot where lies the unheeding dust once animated by that mighty soul, I read the words, "To the memory of Alexander Hamilton, the corporation of Trinity Church have erected this monument, in testimony of their respect for the patriot of incorruptible integrity, the soldier of approved valor, the statesman of consummate wisdom, whose talents and virtues will be remembered by a grateful posterity long after this marble shaft shall have crumbled to the dust. ] He died July 12, 1804, aged 47." As I stood in con- templation there, the thought swept in upon me of the extreme brevity of human life. I thought of our country, one of the youngest nations in the world, and reflected that not one of those whose heroism and valor helped to unfurl to the boundless dome of heaven the eternal flag of the Republic, not one of those who helped to frame the govern- ment and with rare and enlightened patriotism to start it upon its career of grandeur-not one of those who lived in that second war of independence to prove to an unwilling mother country that America was indeed a nation-not one, no, not one, abides on earth today. I thought of Hamilton, so powerful in the creation of our government, passing onward at forty-seven, his luminous intellect filling the world with wonder, and in the brevity of its glow resembling a brilliant star shining for a moment through a rift in the moving clouds of a murky sky. I thought that the human race, while it flows in endless, cease- less, surging current, between the dark gray walls of an unfathomed past and the impenetrable future, an individual man glistens for but a moment upon the breaking crest of the roaring stream, and in that moment, ere the shining drop merges again into the infinite flood, he lives and his appointed work is done. Near Hamilton's monument there is a tablet which tells us that the wife whom he honored sleeps beside him. She did not join him for more than fifty years after he had passed away. And those who performed the sacred office of preparing the voiceless clay for its awaiting niche by the side of her illustrious husband, found about her neck a locket, containing a tender
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and sentimental verse, composed by Hamilton and written to her more than seventy years before in their courtship days, amid the stressful hours of the Revolution. The sentiment surrounding that verse sur- vived to the last moment of the ninety-seven years that she lived. Of all her earthly possessions, that verse was the most loved and cher- ished. Indeed, my friends, of sentiment let it be said that it has ever ruled the world, and has ever been the mainspring of man's high- est and loftiest efforts and aspirations. In all ages of the world, men have ventured everything for sentiment-fortune and life had been held as baubles as against that mighty force. The crown of wild olives, the chief trophy of the Olympic games, the greatest festival of the greatest people of the ancient world, was intrinsically without value. Yet to gain it, men would willingly, nay, gladly, place at hazard even life itself. To win the Victorian cross of iron, the medal of greatest honor in the world today, men will face almost certain death, and do deeds of transcendent valor and heroism.
A materialist will tell us that a country's flag consists of so many colors, thus and so arranged, and so much material. Yet this flut- tering emblem means more. It means inspiration, consecration, and is followed with cheers through the din and the roar and the tragedy of battle, and to die enwrapped in its folds, becomes an elysium of glory.
America was ordained of fate to be the battle ground of human liberty. It was ordained of fate that here should center the world's struggle of the race for freedom, freedom to think and to act, freedom to govern itself. And when the battles of the Revolution were suc- ceeded by the great battles of ideas, when, to save the liberated col- onies from anarchy and chaos, became a greater task than to throw off the yoke of England, then the true genius of America shone forth. A constitution was formed, admittedly the greatest charter ever drafted by the wisdom of men, which gave to the general government rights over the individual citizen, power to touch him with its laws, power to compel his obedience; the enactments of the general govern- ment ceased, as under the old confederation, to be recommendations to the states which they could comply with or not, as they saw fit, and within its soverign power became mandates to the individual to be disobeyed by him at his peril. The government ceased to be a league of states, and became a union. The framers of our Constitution were deep students of the governments of history. They were familiar with the reasons and the causes which had rendered every previous attempt by a people on the earth at self government a failure. They saw the necessity of combining strength of organization with safeguards
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against the unsurpation of power. They built, not for a day, but for all time. They found their ideal, not in a monarchy, which they ab- horred, nor yet in a democracy, which is a government by men, good only while men are good, and hence never good; they found their ideal in a government of law and by law-better to obey a bad law than permit its abrogation by the will of one man, even though that man were a Washington or a Roosevelt. They found their ideal in a representative republic and made from a loosely jointed group of con- tending colonies a cohesive, indissoluble, indestructible whole, a union of all, superior, sovereign, and supreme; a nation imperfect, it is true, because human nature is imperfect, but a nation in which we believe, are centered the hopes of humanity throughout the world, not be- cause wrongs and injustice do not therein exist, for they do, but because the form and structure of the government is such as to per- mit the expansion and the evolution of ideals, a form sufficiently flex- ible as to permit and not restrain the advancing to higher levels, and a government which advances as the people themselves advance and are perfected, a government which recognizes as its cornerstone the su- preme and the paramount necessity of intelligence, a government which has for its foundation the idea that the goal of the human race is the development and perfection of individual character, and the supreme object not only of government, but of life itself. And the nation that propagates from such a soil a patriotism and a love of country that are daily becoming more and more irresistible and inevitable-such a nation is our own, America, the only truly great republic the world has ever seen.
Do we despair of America or of its destiny ? Never. To despair of America would be to despair of humanity. Do we join with those who, in the contemplation of the economic strifes of the present day, of the great combinations of capital and privilege on the one hand, and of skill and labor upon the other, see the destruction of liberty or the downfall of the republic? Never. That there are unsolved problems, is true. That from the beginning of the history of the human race, man has ever been confronted with unsolved problems, it is also true. And that he will never cease to be thus confronted, may we not de- voutly hope and pray ? May we not thank God that all the problems have not yet been solved? Development and growth mean simply the surmounting of obstacles, the removing of difficulties, the solving of problems. And when these tasks cease to confront mankind, man- kind will cease to grow. Heaven itself cannot be a place or a con- dition of happiness, save that it presents problems to solve, and per- mits us everlasting growth.
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In the century and a third or more of the existence of Amer- ica as a nation, it has met and wisely solved many grave and por- tentous questions. No responsibility was ever placed upon the re- public for which the republic was not adequate, and no duty will ever come to America, as a nation, that will be beyond the measure of its powers and its capabilities. In our great republic are fused soundness and the courage of the West with the wisdom and the ex- perience of the East. From the long past of Europe and the past peoples of Europe, arises a long, unmeasured, glorious future, which applies to America.
We love our country, we love our state, the brightest, fairest, dearest spot upon the footstool of the Almighty. As well presume to depict in words the effulgence of the noonday sun, as to describe the worth and the witchery of California. Let us name only its crowning glory. The crowning glory of California is found, not in the opulence of its soil and its mines, not in the wild grandeur of its majestic mountain creeks and canyons, not in the bewildering wild- ness of bloom and fragrance, nor yet, in her peerless women, in whose character and disposition are woven the matchless purity of the air and sky and the gracious splendor of the sunshine. But that which constitutes the crowning glory of California, as well as the crowning glory of every state in this broad land, whether it be Cali- fornia or Florida, Maine or Mississippi or Texas, is that it forms an integral part of an indissoluble union, a part of the greatest nation that the sun has ever shone upon, a nation of aggressive, progressive, thinking people, where freedom of thought, of speech, of press, is guaranteed, and where, under those circumstances right, though oftentimes struggling through error, must in all cases in the end prevail; a nation whose flag, wherever it floats, whether upon the hills or in the valleys of our own land, or upon the distant shores of the frozen ocean, or in the islands of the tropical seas, typifies and stands for, now and always, peace and progress, liberty and freedom.
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PRESENT STATUS OF THE REFORM IN CRIMINAL PROCEDURE
By Beverly L. Hodghead, LL. B.,
Ex-Mayor of Berkeley, at Bellevue Hotel, San Francisco, Sept. 4, 1912.
It is indeed a pleasant privilege to meet and dine with your so- ciety, an organization of such ancient and honorable origin and laud- able purpose. Many of the distinguished patriots of the period we now commemorate, who had the honor of being your ancestors divided their spare time between fighting for independence and reforming the procedure of the courts, the main difference being that the one task was accomplished and the other we are working at yet.
I was requested by your committee to review the subject of Ju- dicial Procedure with particular reference to criminal actions. The subject is most comprehensive and within the limits of a brief dis- cussion I can only hope to give but a synopsis of what has been accomplished and what remains to be done. In other words, to describe the present status of the case.
The subject of criminal procedure, it would seem, could best be dealt with by someone who had had experience in criminal practice. My own acquaintance with the question has been derived from a some- what limited study of the subject in connection with the committees of the Bar Association and the Commonwealth Club, both of which organizations have been quite active in the past few years in attempt- ing to secure improvements in our system of jurisprudence. Since the American Revolution, the memories and achievements of which this organization was designed to perpetuate, there have been efforts from time to time, more or less spasmodic, directed toward the improve- ment and reform of court procedure, but with varying success. There have been enough bills introduced into our Legislature on this subject to make a respectable code of itself, but they did not pass. The reform of procedure is a subject which is much influenced by and is dependent upon public opinion, or the lack of it. It takes lawyers to reform judicial procedure, but it takes public sentiment to force them to do it. This subject has received its share of attention, induced by a some- what intensified public sentiment concerning governmental conditions which has prevailed for the past few years, as, for instance, in the
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matter of City Charters and Municipal Government generally. In fact, there has been a sort of a renaissance in this field of activity as in many others within the last decade, since the people have decided to do things which formerly had been considered monstrous or im- possible.
For many years the Commonwealth Club has been making a study of the subject of reform of procedure, more especially in crim- inal cases. This study began prior to the recent so-called graft prosecu- tion, which aroused so much public interest. The task, therefore, was not induced by that prosecution, but experiences of those trials demon- strated the truth of the club's contentions and the necessity for some reform. The activity in this direction, however, is not confined to California, but pervades most of the States of the Union. We find that committees of bar associations of many of the States and the American Bar Association are discussing the same questions we are considering here, and along the same general lines.
In 1909 the American Institute of Criminal Law and Criminology was organized, and has been doing effective work in this direction.
The objection to our procedure is mainly on account of the delay in the administration of justice. It is cumbersome, involved and technical. And it is said it gives the accused person an advantage against the State.
Singularly enough, the most advanced procedure which we are seeking to adopt is the procedure in England, from which country we originally derived the cumbersome, involved and technical system we are endeavoring to get rid of. The early English system was designed to meet conditions which existed at that time, when capital punishment was inflicted for petty offenses. It was in the procedure that the rights of accused persons found some protection against the rigor and tyranny of the early English law, when there was religious intol- erance and when royalty was aggressive. We have emerged from those conditions; we have changed the substantive law, but retain the procedure in many particulars. We don't hang people now for steal- ing a loaf of bread or speaking ill of the king or the president or even of a candidate for president. If we did, there would be room for mercy upon the mortality of distinguished politicians whom I could mention. But we have retained much of the procedure used when they did such things, with the result that we don't hang people some- times when they should be hanged.
Besides, prisoners formerly were not allowed to testify in their own defense, and until the law was modified to guarantee a speedy
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trial a prisoner often served his sentence before he was tried. When these conditions prevailed, it was proper to give defendant some pro- tection through the law of procedure. But there is now little danger of prisoners, prominent or obscure, languishing in loathsome prisons, when they are really desirous of being tried. They are permitted to testify in their own behalf, but are not always willing to do so, pre- sumably because the presumption of their innocence is stronger than their evidence. We have long since passed the period when there is any real danger in this country of convicting innocent persons. The serious problem with which we are now confronted is the possibility of convicting persons who are guilty. It is entirely consistent with the protection of the legal rights of an accused person to adopt some form of procedure which enables the State to ascertain in the most direct and simple manner the single question, whether or not the defendant committed the act of which he is charged. Our procedure has become so involved, and the ingenuity of counsel so far-reaching and ob- structive, that in important cases the question of the guilt or inno- cence of the accused seems to sink into insignificance compared with the question whether a member of the Grand Jury was in the proper frame of mind when the indictment was found, or a trial juror had read some account of the case in the morning papers.
We don't have one law for the rich and another for the poor, as is often claimed. We have the same law, but the rich are able to assert their rights thereunder, or rather their wrongs, with greater vigor.
The growing dissatisfaction with the courts and procedure, which has been so widespread in recent years, has been quite fully justified in many instances by the conditions as they exist, and it is quite time that a studied and intelligent effort be made to ameliorate conditions and correct and reform the procedure, which in part is responsible for the interminable delays and consequent denial of justice. It is said by some authorities, but those statistics are not at all complete, that from 40 to 50 per cent of the cases that come before the appellate courts are reversed, and half of the reversals are based upon errors not connected with the merits of the cause or the guilt or innocence of the accused, but upon the question of procedure. I think this estimate is overstated, and particularly in California, as will subsequently be shown. But the fact is that crime has been on the increase in this country and the decrease in others, due largely, no doubt, to social conditions, but in part to our procedure, which does not have the deterrent effect it would have were the administration of the law more speedy and certain.
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There is no more ideal system of administration of the law than the English system is thought to be. It does not work quite so well on the ground, if we are to listen to some of the adverse criticism which even the English system has to endure. England improved its own system in the enactment of the Judicature Act of 1873, by adopting much of the reform American procedure, and we in turn could no doubt profit by following in a measure the present English procedure.
The American Institute of Criminal Law and Criminology a year or two ago appointed two commissioners to visit England and make a study of the criminal procedure in that country. Their commissions were endorsed by the President, Attorney General and Department of State, thus giving their appointment some official semblance and affording them full opportunity to make an exhaustive study of the subject. After spending some months in attendance upon the sessions of the English courts, they made their report respecting the particulars wherein the criminal procedure differs from our own. I can well imagine it was an interesting study, because I had the pleasure last summer of spending a brief time in the English courts and witnessing the trial of a few cases. Before referring to the conclusions of the commissioners, I might digress a moment, with your indulgence, to speak of the impressions I gained in the short time I was there.
The royal courts of justice are situated in Fleet street, opposite Temple Bar, where the English courts are held. This is the court house, not of London only, but of England. The original jurisdiction in all matters of importance is vested in the High Court of Justice, of which there are three divisions, the Kings Bench, the Chancery and Probate, Divorce and Admiralty. Their names signify in a general way the jurisdiction of the court, the Kings Bench being the forum for trial of actions at law. There are only twenty-two judges of the High Court in all England; they all hold court in London. The president of the High Court is the Lord Chancellor, who presides over the Chan- cery division. The vice-president is the Lord Chief Justice, who is in the Kings Bench division. Appeals from these courts are taken to the Court of Appeal, consisting of five Lord Justices and the Master of the Rolls. The bench of England is made up of picked men of legal profession ; they hold office for life, receive large salaries and when a vacancy occurs one of the most distinguished members of the bar-in fact, usually the leader of the bar-is selected for the place. He is appointed, not elected. The appointment is made nominally by the King but in fact by the Lord Chancellor. This system of selecting judges by appointment is less democratic than by popular elections,
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