USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 3
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In this liberal age it is almost impossible to realize that only three hundred and sixty-two years ago, under the supremacy act of Parlia- ment, in the wicked reign of Henry VIII., with church and state united, Bishop Fisher and Sir Thomas More, the ablest and most pure Lord Chancellor who, up to that time, had graced the woolsack, were cruelly beheaded, because they would not proclaim that the King was the supreme head of the church.
The intolerance and religious persecutions of the sixteenth, seven- teenth and eighteenth centuries, in England, peopled the American colonies with much of the best blood and many of the bravest hearts of the world; and such heroes were sufficient in numbers to assimilate, modify and control those who immigrated to the colonies from other countries. As many sects arose in Europe, and especially in the island of Britain, so by reason of such intolerance, many sects settled in the American colonies. The scattered settlements along the coasts, and the weakness and dependency of each sect, tended to make them more
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or less respectful and tolerant of the opinions of each other; and the same facts and the strenuous efforts of men like Jefferson, saved the national government and the several states from any union of church and state; although at first, and for a few years only, the two Carolinas, Delaware, Maryland, Massachusetts and New Hampshire seemed to have started on the old highway leading to the old city of destruction. The common law of England and certain acts of Parliament, as well as the rights secured to Englishmen by Magna Charta, were in force in the colonies. Accordingly, controversies were determined by the course of the common law; and, in a local way, all qualified electors were at liberty to participate in the functions of government. For the colonists, therefore, the school of experience was open from start to finish.
These things, necessarily, kept up a lively interest in the current acts of Parliament and the current decisions of the English courts.
But soon after the accession to the throne of that narrow, unedu- cated, obstinate, and bigoted "slave of deep-rooted selfishness," George III., there appeared in the colonial skies, clouds, portentous with great events, which the wise men of the east like Chatham, Camden, Burke and Charles James Fox would gladly have prevented if they had been able. But man proposes and God disposes. The road to almost every Sinai is through some wilderness. The twelve years immediately pre- ceding the Declaration of Independence were each and all years of serious study and contemplation for every intelligent colonist. It was not so much what the King and Parliament had done, as what they claimed the right to do; and what there was nothing in the British con- stitution to prevent them from doing.
Thus, in 1775, the British government, speaking through the lips of Lord Chief Justice Mansfield, proclaimed the issue in these words: "My lords, we are reduced to the alternative of adopting coercive measures, or at once submitting to a dismemberment of the empire. Consider the question in ever so many lights, every middle way will speedily lead to either of these extremities. The supremacy of the British legislature must be complete, entire and unconditional or, on the other hand, the colonies must be free and independent.
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Concession now is an abdication of sovereignty." These sentiments he reiterated in December, 1775, and in March, 1776. The same doc- trine of absolute dominion and complete subjection had just previously been judicially declared by the unanimous opinion of the court of King's Bench.
The colonists accepted the alternative and challenged the power of coercion. Independence was declared and colonial governments were dissolved. The causes which led to that declaration were so vigor- ously stated by that eminent statesman and illustrious friend of personal liberty, Thomas Jefferson, in the Declaration itself, as to be familiar to all students of American history. And yet there are some foolish enough to believe, or pusillanimous enough to feign, that by the words, "all men are created equal," Jefferson and his compatriots meant that all men were physically equal, mentally equal, morally equal and socially equal, instead of meaning the equal protection of the personal rights of all, as now secured by our fundamental law.
Upon the adoption of the Declaration of Independence and the dissolution of the colonial governments, the work of reconstruction immediately began. What should be the model? The little aristocratic republic of San Marino in the Italian mountains, had hung there like a lone star for over a thousand years; and its structure was undoubted- ly studied with great care by the colonial lawyers and statesmen.
The Swiss confederation, with numerous petit states, differing, more or less, from each other, physically, religiously, politically, socially, industrially, and in language-each with almost absolute indepen- dence as to all domestic affairs, and leagued together as to foreign affairs-had long been successfully maintained; and was, therefore, of special interest.
The only other government in Europe at that time entitled to be called free, in any sense, was Great Britain, and yet ten years before, Mansfield had publicly admitted that eight millions of people in Eng- land alone and twelve millions in England and Ireland together, were without any representation in Parliament. The events which had trans- pired, and were then transpiring, developed numerous brave, unselfish,
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able and patriotic men, of whom Washington may be regarded as the highest type, who studied and labored for the coming republic; and through its ultimate efficiency, for the benefaction of the race.
The framers of the constitutions of the several thirteen newly created states were not only free to study the structures of the three govern- ments mentioned, but to gather political wisdom from Palestine, Greece, Rome, France, Holland, Germany and other nations. The result was that the several constitutions and governments of the re- spective states differed more or less from each other. Thus Rhode Island organized a state government with unlimited powers, under its old royal charter granted by Charles II. Connecticut did the same, but adopted a short bill of rights. For twelve years Georgia was under a constitution which authorized but one representative body; and · that body selected a governor and an executive council from its own members. For fourteen years the legislative power of Pennsylvania was vested in one body, and the executive power in another. But the other states severally created state governments with three separate departments-legislative, executive and judicial, more or less inde- pendent of each other-with the legislative department divided into two houses, each having a check upon the other and each responsible for the' laws; and the executive with his veto, having a check upon both, with certain limitations upon each department and officer, and certain rights secured to all by written constitutions which could not be changed or modified except by the people acting in their sovereign capacity. Such written constitutions were the best ever devised by men up to that date. As a rule they embodied and thus made permanent most of the safeguards and guarantees contained in the Magna Charta of the mother country, but unfortunately some of them omitted that provision which would have abolished slavery within their borders. The war which followed the Declaration of Independence, and the weakness of the respective states, made the old Articles of Confederation, similar to the Swiss confederation, a necessity-as a league for defense and offense against the common enemy. But as soon as the imminent danger passed, the confederation was found to be a humiliating failure.
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After eleven years' experience with thirteen separate and independent states or petit republics, the desire for a more perfect union-commer- cially and otherwise-became quite common, and so the original con- stitution of the United States was framed and submitted to the people of the respective states; and finally ratified by them in state conven- tions called for that purpose. In the discussions leading up to the formation of the constitution, there were two extreme views contended for. The one favored a consolidated nationality, in which the states would be mere subordinate dependencies. The other only favored such a confederation or union as would leave the respective states, as inde- pendent sovereignties with the power in each of withdrawing at pleasure. Fortunately for this country and the world, the conservative judgment of the wise men of that day prevailed, and the extreme views men- tioned were rejected, and a middle course was pursued; and so it hap- pened that the framers of the original constitution, encouraged by the successful experiments of the several state governments, ventured to create, for the first time in the history of the world, a new and dual system of government for the people of the United States, with certain powers expressly named, delegated to the national government, to- gether with such incidental or implied powers as were necessary or convenient to carry into execution the great substantive powers thus expressly granted, and which powers were largely exclusive, and to that extent abridgments upon the powers of the respective states, and with certain limitations upon the powers thus granted to the federal government, and certain prohibitions against the exercise of certain powers by the United States, or any of the states-in order that the private rights of the citizen in such matters should be protected against all arbitrary power; but otherwise leaving with the respective states all powers not so exclusively granted, nor abridged nor prohibited. Of course there was furious opposition to the adoption of the original con- stitution. Some fifteen of the delegates in the convention, including Patrick Henry, either left in disgust or refused to sign the instrument. The eighty-five able articles from Jay, Madison and Hamilton in the Federalist indicate something of the anxiety of its friends to secure its
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ratification by the people of the respective states; and probably it would not have been ratified at all had not promises been made for certain amendments, ten of which were proposed by the first Congress and ratified as early as 1791. The general sentiment of the time is fairly indicated by the fact that those ten amendments, as they now stand in the constitution, are each and all limitations upon the powers, or rather what were then supposed to be the powers of the federal government; and were mostly for the protection of the citizen against its arbitrary powers; and none of them were limitations or prohibitions upon the powers of the respective states, but on the contrary, emphasized the reservation of powers "to the states respectively, or to the people."
Dissatisfaction having arisen because the original constitution authorized a private citizen to sue a sovereign state in a federal court without its consent, the eleventh amendment took away the right in 1798.
To prevent a repetition of the disreputable effort of Aaron Burr to supplant his own associate upon the ticket, Thomas Jefferson, for the presidency, the twelfth amendment was adopted in 1804.
But our Magna Charta was incomplete while men, women and chil- dren could be bought and sold on the public markets, not only in half the states of the Union, but in the District of Columbia, and under the dicta of five of the justices of the supreme court of the United States, after holding that they had no jurisdiction, in the Dred Scott case, in all the territories as well. But the crowning glories of American citi- zenship, through the necessities of the war, at last, came in the form of three constitutional amendments, the thirteenth, adopted in 1865, the fourteenth in 1868, and the fifteenth in 1870, during Grant's first term as President. By these three amendments slavery and involuntary servi- tude were abolished throughout the land; the rights, privileges and immunities of American citizens were defined, and the respective states expressly prohibited from abridging any of them; and it was therein expressly declared, that no state should "deprive any person of life, liberty, or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protection of the laws." This
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includes, and is an improvement upon that great personal guarantee, wrung from an arbitrary king more than six hundred and eighty-two years ago, and by the fifth amendment applied to our national govern- ment, one hundred and six years ago; but which some of the state con- stitutions wholly omitted, or limited to certain classes.
What figures can indicate-what language can express-the ex- penditure of blood and treasure to secure such grand consummations! To the great and good men who devised and executed and preserved, be the praise.
As some of the most useful inventions consist of a new combination of old elements, so while our dual system of state and national govern- ments embrace many elements that are old, yet some of the elements are new, and the combination is entirely new, and hence, was patentable.
In no other government are the rights of the people so thoroughly guarded. In no other system does so large a per cent. of the people participate in the functions of government; and, hence, it is highly educational, both mentally and morally.
True, it is well calculated to stimulate controversy; but that, neces- sarily, stimulates study, thought, discrimination and the reasoning faculties-and all those things tend to higher citizenship.
One of the tests by which the comparative efficiency of governments and the contentment of their citizens may be determined, is the amount of military force required in each in time of peace, to preserve order and enforce the laws. Astounding as it may seem to us as American citizens, Italy, with a population of less than thirty-one millions, has a standing army of officers and men of 282,382. France, with a popula- tion of less than thirty-nine millions, has a standing army of 494,285 at home, and over 70,000 abroad. Austria and Hungary, with a popula- tion of less than forty-two millions, has a standing army of 347,297. Germany, with a population of less than fifty millions, has a standing army of 511,885. Russia, with a population of less than one hundred and twenty millions, has a standing army of 781,574. Great Britain and Ireland are more isolated and since the suffrage act of 1885, the elective franchise has been nearly as general as here, yet with a population of
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less than thirty-nine millions, they have a standing army of 106,115 at home, and a still greater number abroad. In broad contrast with all these nationalities, the United States, with a population of more than sixty-five millions, has a standing army of only 27,957, and a large por- tion of these are employed in keeping the Indians in subjection and another large portion in protecting our own citizens from the savagery of the mob-mostly composed of immigrants, who have never become naturalized and who know nothing and care nothing about the genius or purpose of our dual system of government-led on by those who have been "irreconcilables" in continental Europe-making war upon all existing forms of government. Such irreconcilables, like anarchists, are worse than the Pharisees, for they neither render unto Cæsar the things that are Cæsar's, nor unto God the things that are God's. Thus, in this country, obedience to the law, when authoritatively ascertained by our own citizens, is nearly what it should be-spontaneous. Of course the frequency, the size and the successful organization of mobs necessitates standing armies of more or less magnitude, and the cost of such armies stimulates discontent. Every mob has a supposed griev- ance. Some mobs have a real grievance; but even then, the remedy is worse than the disease. A common mob commits a riot. A rebellious mob commits high treason. To incite or encourage a mob is to incite or encourage riot or treason. To stimulate anarchy is to discourage patriotism and to encourage lawlessness, mob rule and revolution. "Irreconcilables" in governmental affairs, like irreconcilables in re- ligion, are generally the promoters of strife and discord, rather than piety and patriotism. The most dangerous revolutionists is that in- sidious class who loudly profess loyalty to an existing government and sympathetic devotion to some species of suffering, and thereby secure power through popular suffrage, and then traitorously use the power so obtained, to wholly or partially overthrow the government they professed to love. Such revolutionists are mostly brooded and nurtured in the old world, and in the oligarchies of South America, which for many years have masqueraded as republics. Such men are occasionally found in our own country, applying their deceptive arts with the en-
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thusiasm of new converts or original inventors-even to the extent of destroying those personal rights secured by the fundamental law- as for instance, personal liberty, the sacredness of contracts, the right to acquire property or to hold it after it has been acquired. In the language of Mr. Finch, for many years an able judge of New York, in a recent lecture at Cornell, back of ownership, "there was nothing but force-the brutal brawn of the stronger -- the spear and club of the chief-superior only by means of tougher muscle and uglier will.
But out of all this darkness, slowly and painfully emerged the idea of ownership as a right of the individual"-ownership of "everything which is most precious to a man may depend upon this question: his property, his liberty, his honor and even his life." In a recent address before the New York Bar Association, that eminent jurist, John F. Dillon, is equally emphatic along the same lines, and declares, that any "denial of the right of private property, or of its full enjoyment, is radically pernicious, or Utopian." The trend of the decisions in the American courts are all in the same direction. The right to liberty and property secured by the fundamental law includes the right to make and enforce contracts for the acquisition of property. To destroy the rights thus secured, would be to turn the wheels of civilization back- ward for centuries. The frequent holding up, robbing and wrecking of railroad trains, freighted with precious lives, as well as property, and the organized combinations which enable the few to enrich themselves by oppressing the many, or which compel men against their will to break their contracts with others, induce the repetition of the remark of the Boston D. D., who recently declared in London, that "philan- thropy was overdone and justice underdone." The irreconcilables, the anarchists and the revolutionists mentioned may be exceedingly dan- gerous in a country where the constitution is no more binding than a mere statute, and may be overturned by a single body of men, elected at the same time by a single surge of popular excitement. Such fear of revolution seems to have been an element in the late election in Great Britain; and so Mr. Gladstone explains, that he is not conscious of ever having expressed an opinion favoring the abolition of the House of
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Lords. But with us, the fundamental law can only be overturned or modified by successive votes of numerous bodies composed of members elected at different times and in numerous districts or sections; and hence, if an enemy of the state or nation gets into office, and thus ex- poses his real character, he is quite sure to be relegated to private life before he has destroyed or permanently injured the perpetuity of the government. And yet, if there is any danger to our republic, it is along these lines; and hence, the same should be counteracted by the restric- tion of immigration to those who are likely to become American citi- zens, by educating the rising generations-by social and moral culture -stimulated by the good and patriotic along all the avenues of thought. Of course our fundamental law may be improved by its friends-here a little and there a little-but its enemies should never be allowed to meddle with it. It may be asked, however, is there no work for the reformer? Certainly, there is room for all legitimate reforms. Civiliza- tion has not reached its maximum; and society has not reached per- fection. Ignorance, avarice, envy, ambition, intemperance, passion, jealousy, brutality, revenge, and the different forms of vice, have not yet ceased to be disturbing elements. Undoubtedly grave wrongs are com- mitted every day in the year and in every state in the Union-not so much for want of laws, as for the want of the prosecution of laws. But the broad discretion vested in legislative bodies enables them, within constitutional limits, to shape all matters of policy-domestic, inter- state and international. The broad discretion vested in all executive, administrative and municipal officers furnishes abundant opportunity for experiment and improvement. Such are some of the outlines of that dual system of government known as the American republic; and some of the steps which led to its establishment, and to the completion of its great fundamental charter. It was evolved from the experience of the ages. It was conceived by those who had graduated in the schools of adversity and necessity. It was, under the guidance of Providence, fashioned by the most unselfish, brave, patriotic, magnanimous and wise band of compatriots that ever attempted such an undertaking; and, all things considered, they accomplished their purpose under the most
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favorable circumstances. While slavery has always been abhorrent to a very large portion of American citizens, and now, it is hoped, to all, yet in view of the events of the last hundred years it would seem that Providence used the influence of the institution, as he did the influence of wicked rulers in other times and in other countries, to acquire terri- tories for the purpose of ultimately establishing thereon better govern- ments. Thus Florida was acquired from Spain. The great Louisiana purchase was acquired from France, extending, as it did, from the mouth to the source of the Mississippi, and far to the westward. So Texas and California and the vast territories west of the Louisiana pur- chase and south of what is now Oregon, were obtained. The aggregate area of the territories thus acquired is far greater than the entire do- minions of the United States a hundred years ago. Thus, the home missionaries, in the schools of American citizenship and patriotic ad- vancements, have fields for aggressive enterprise, which, otherwise, would never have existed.
But the republic of Grant, Cleveland, Harrison and Mckinley is far superior to the republic of Washington, Jackson and Buchanan. Half an hour while waiting alone for a train at midnight and in winter, is long enough. Fifty centuries were none too long for Providence, acting through human agencies, to produce a republic as imperfect as ours was in the beginning, and still another century to produce what we now behold. Attempts to get ahead of Providence are always foolish, and generally end in retrogression rather than advancement. The Jewish king who could not bear the thought of being killed by a woman in battle, foolishly ordered his own death by his own men. It is always dangerous to get in front of God's chariots, or to obstruct his pathway. Napoleon tried it and woke up on St. Helena. Jefferson Davis and his coadjutors attempted the same feat, but the result was failure. All attempts to supplant the individualism, incident to our form of govern- ment, by a stupendous paternalism, are but subtle attempts to supplant our democratic republic by a theocratic or imperial monarchy. It may be that in some climates and some nationalities where ignorance is al- most universal, mature and healthy men should be treated as babes in
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the woods, but in this free land, they should rather be treated as stal- warts on the hills-in the valleys-on the plains-in the mountains. Even the blind may properly be required to go down into the water as a condition of restored sight. The glasses which reveal nothing wrong or bad in this republic may be defective; but the glasses which reveal everything in the government of this country as inferior to the govern- ments of the old world, are not only defective, but inverted. Some kind-hearted, but narrow minded men-like the "worldly" or the so- called "wise men" mentioned by Dickens in Barnaby Rudge-make everything they see or hear "reflect the only images their minds con- tain." Only three years ago the French Chamber of Deputies declared themselves against a separation of church and state by a vote of 305 to 205; and over the highest court in France is a painting of the Cruci- fixion. And yet, we are told by Cardinal Gibbons, on his return from his recent European tour, in effect, that he observed an absence of religion in all branches of the French government, while it is present (in spirit if not in form) in all branches of this government; and so he thanks God that "we enjoy in this country the amplest liberty of wor- ship and freedom of conscience." Providence generally moves along natural, conservative and practical lines. The earthquake and the cy- clone-the saving of Jonah and the raising of Lazarus-may be excep- tions. Every man should have a firm grasp upon something permanent and above himself, before he attempts to walk on the water. The im- portant question is not how most effectually to govern-control men, but what kind of government will best stimulate men to govern them- selves, to develop the largest per cent. of noble manhood-character- the highest type of citizenship. A government should be a sort of moral and intellectual gymnasium, where all may have an opportunity for exercise with the least injury to any and the greatest good to all. The chief glory of the founders of the republic is in the fact that they were willing to cooperate with Providence in the establishment of a national government for national purposes, and, as indicated in James Madison's letter of submission, to that end yield and forego all minor considerations, even to the extent of allowing to the respective states
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