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VI.

The Su-
Court of

preme

ingness to hear counsel and full conferences among Lecture the judges in the presence of each other prior to decision or assigning the record to a judge to write the opinion, the Supreme Court of the United States is a model for every appellate tribunal in the country.

the United

States a

model of excellence.

jurispru

be im

When the ideal of legal education shall be the mastery of principles, so that the first impulse of the lawyer in cases not depending upon local legislation will be to find the "principle" and not the "case" that governs the matter in hand; when arguments at the bar shall be mainly directed, first How our to an ascertainment of the peculiar and controlling dence may facts of the case under consideration, and then to proved. pointing out the principles of law which apply to this precise state of facts, each of which operations requires the disciplined exercise of intellectual qualities of a high order; when the bench shall be constituted of the flower of the bar, and appellate judgments shall not be given without a previous conference of the judges at which the grounds of the judgment shall be agreed upon before the record is allotted for the opinion to be written; when opinions shall be rigidly restricted, without unnecessary disquisition and essay-writing, to the precise points needful to the decision, we shall have an abler bar, better judgments, and an improved jurisprudence, in which erroneous and conflicting decisions will be few, and reduced to the minimum.

And here I must close. My purpose in this and the preceding lecture has been to show that our system of laws and jurisprudence is consonant with the

VI.

Advantages

from the

substan

tial iden

English

and Amer

ican systems of law.

Lecture genius of our people and with our civil and political institutions; that it is an outgrowth of them, and powerfully supports and sustains them. It is, in its springing ground-work, the system that prevails wherever, on either continent, our language is spoken. In our law tity of the libraries we find the learning and labors of judges administering this system in law reports from India, South Africa, Australia, New Zealand, the Dominion. of Canada, the Sandwich Islands, and the West Indies. All this is the heritage, by what I may call a species of tenancy in common, of the English and American lawyer, who wherever, within this wide horizon, he finds his language spoken, finds also individual and civil liberty, popular institutions, the grand and petit jury, legislative assemblies, Magna Charta, Habeas Corpus, equality before the law, the same sacred regard for individual rights, the same reverential affection for, and instinctive obedience to law. What incalculable advantages! We have the same legal literature. We have the same legal firmament, in which we behold Hale and Marshall, Hardwicke and Story, Blackstone and Kent, Erskine and Webster. We partake freely of the benefits of the labors of each other. Whoever achieves anything for the advancement or improvement of the law, achieves it not for his own country alone, but for all English-speaking and English-governed peoples. My further purpose has been to show that although this system is not without serious defects, mostly, however, of form rather than of substance, the remedy is not to substitute an alien system, but to engraft the needed amendments and changes on our own hardy, native stock.

VI.

the Amer

improve

its scope

The special duty of the American lawyer is, of Lecture course, to improve and promote the laws and jurisprudence of his own country. What great and Duty of complex problems confront the American lawyer, ican bar to growing out of our vast territorial extent and our our laws: distinct Federal and State systems of government and diffiand jurisprudence; out of the changes wrought by culty. iron, steam, and electricity in business and all the modes of communication and transportation; out of the combinations of capital almost without limit in corporate form, affecting interests vital to individuals and to society. The law has to be adapted to these new situations and circumstances. What a weighty work! Truly it demands the most attentive study, the most penetrating observation, the most sedate consideration, the ripest judgment. Here will be found work for all. We have laid, as I have attempted to show, the foundations of a noble jurisprudence, and during the two centuries of our colonial and national life, the structure has been carried along so as to meet contemporary wants and needs. The work must, however, go forward with the progress of the States and the nation. What more generous ambition can inspire, what higher duty can engage, the American lawyer than to assist, in his day, in advancing this structure, and adapting it, by alteration and enlargement, to the changed and changing conditions of society; a work which must ever go on, yet never be completed.

"Some unfinished window
In Aladdin's tower

Unfinished must remain."

Lecture
VII.

LECTURE VII.

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OUR LAW IN ITS NEW HOME, AMERICA; ITS EXPANSION,
DEVELOPMENT, AND CHARACTERISTICS IN THE POLITI-
CAL AND JUDICIAL SYSTEMS OF THE UNITED STATES,
AND HEREIN OF OUR WRITTEN CONSTITUTIONS, THEIR
RATIONALE, LIMITATIONS, AND GUARANTEES (CONCLUDED).

THE

HE absolutely unique feature of the political and legal institutions of the American republic is its written constitutions, which are organic limitations whereby the people by an act of unprefeature of cedented wisdom have, "in order to establish jus

Written constitu

tions the

unique

American legal institutions.

66

tice, to promote the general welfare and secure "the blessings of liberty to themselves and their "posterity," protected themselves against themselves. What renders this the more extraordinary is that these constitutions are self-imposed restraints. The spectacle is that of the acknowledged possessors of all political power voluntarily circumscribing and limiting the plenary and unrestrained use of it. History affords many examples where the holders of political power have been forced to surrender or to curtail it for the general good; but the example of the people constituting the American political communities in limiting, by their own free will, the exercise of their own power, stood alone when this sublime sacrifice was made, and it has not been

66

Lecture

VII.

preme law

followed in any country in Europe, nor successfully put in operation elsewhere than in the United States.1 I said that in this way the people had protected themselves against themselves; and this they have done by making the Constitution in reality The suwhat, in its sixth article, it expressly declares itself of the to be, namely, "the supreme law of the land, bind- land. ing the judges in every State, anything in the "constitution or laws of any State to the contrary "notwithstanding." This latter purpose they accomplished by providing that the Constitution should be interpreted and enforced by the judiciary as one of the departments of the government established by the Constitution, and that the judgment of the courts thereon should be, if necessary, carried into execu

1 Political and speculative writers there are in Europe who still maintain that it is idle, unwise, or at any rate self-contradictory, for the sovereign or supreme power in a State to put limits upon itself; but more than a century ago the people of this country did restrain the exercise of their own power by organic limitations upon all of the organs of the State. The wisdom and general efficiency of this political invention, for such it was, have been vindicated and established by our long experience. The device — the idea -- the political conception, if I may so term it-of written constitutions, belongs to the statesmen who founded our political institutions. It is true, as the late Professor Dwight has pointed out (" Political Science Quarterly," vol. ii., no. 1, March, 1887), that in Harrington's "Oceana" appears "the first sketch in English political science of a written constitution limiting sovereign power;" that he declared that government should be an "empire of laws and not of men;" "that the exercise of all just authority over a free people ought (under God) to arise from their own consent," which is Jefferson's exact phrase in the Declaration of Independence; and doubtless true, also, it is, that Harrington's writings were familiar to our statesmen a hundred years after Harrington's death. At the very utmost, his speculations are but adumbrations of the work which was conceived, put into form, and made an actual, living, working reality by the great men who established the political and legal institutions of the United States.

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