express VII. The scope and pur the Four Amend limitation upon the powers of the States. It Lecture puts life, liberty, and property, upon precisely the same footing of security. It binds them each and all indissolubly together. It places each and all of these poses of primordial rights under the ægis and protection of teenth the national government. By this provision they are ment. each and all adopted as national rights. Under the Fifth Amendment they are each protected from invasion by Congress or the Federal government. By the Fourteenth Amendment they are each protected from invasion by State legislatures, or by the people of the States in any form in which they may attempt to exercise political power. If these rights are not safe and secure, it is because, and only because, of the essential infirmity of constitutional limitations of the most peremptory character. This we cannot admit. The Fourteenth Amendment in the most impressive and solemn form places life, liberty, contracts, and property, and also equality before the law, among the fundamental and indestructible rights of all the people of the United States. tion to property. It sets the seal of national condemnation upon Its protec Proudhon's famous maxim that "property is theft (La propriété c'est le vol): "Property-holders are thieves." This pernicious doctrine has hitherto found no general acceptance among our people or their legislators; and under the Constitution as it now stands this doctrine can obtain no foothold as to any species of property, if the courts are faithful to their high trust as the guardians and defenders of the Constitution. Bear in mind ever that this, like all other provisions of the Constitution, was put into the Constitution "to be enforced by the judiciary as Lecture Duty of the bar and the judiciary the Con one of the departments of the government established by the Constitution.' The value, however, of these constitutional guarantees wholly depends upon whether they are fairly interpreted, and justly and with even hand fully and fearlessly enforced by the courts. In view of these considerations, you must permit me to say that in my judgment the great, paramount, to uphold overshadowing duty of the legal profession in this stitution. country is to defend, protect, and preserve our legal institutions unimpaired and in their full efficiency. If there is any problem which can be said to be yet unsettled, it is whether the bench of this country, State and Federal, is able to bear the great burden of supporting under all circumstances the fundamental law against popular, or supposed popular, demands for enactments in conflict with it. It is the loftiest function and the most sacred duty of the judiciary, unique in the history of the world, to support, maintain, and give full effect to the Constitution against every act of the legislature or the executive in violation of it. This is the great jewel of our liberties. We must not, "like the base Judean, throw a pearl away richer than all his tribe." This is the final breakwater against the 1 United States v. Lee, 106 U. S. Rep., 196, 220, 1882. 2 See comments of Professor Dicey on Munn v. Illinois and the Legal Tender Cases. "In no country has greater skill been expended in constituting an august and impressive national tribunal than in the United States. Moreover, the guardianship of the Constitution is confided not only to the Supreme Court, but to every judge throughout the land. Still it is manifest that even the Supreme Court can hardly support the duties imposed upon it." "Lectures on the Law of the Constitution," lecture iv., p. 163. VII. haste and the passions of the people, - against the Lecture tumultuous ocean of democracy. It must at all costs be maintained. This done, and all is safe ; this omitted, and all is put in peril and may be lost.1 If these observations are at all timely, if they have Concluding obaught of value, and especially if they shall excite servations. further thoughts upon the important subjects which I have touched in such an imperfect way, I shall have accomplished all that I sought, and more than I timidly dare to hope. "I shall then," - I use in closing, slightly changed, the quaint and curious reflections of an old writer on the laws of England, "I shall then, with the vanity of an author, compare myself to one who in his travels over a bleak "and dreary country has picked up some plants, "which he afterwards transfers to some delightful "spot, in a milder climate, where they may attract "notice, even among more agreeable productions, by "those who would never have visited them on their "native soil. And if after all they should have any "medicinal virtues useful in life, they will be welcome, wherever they may be made to grow.' "2 Judge Cooley, the eminent author of "Constitutional Limitations," in an address to the bar of South Carolina in 1886, uttered these wise and weighty words: "The habit of mind which consents to the doing of constitutional wrong, when it is supposed some temporary good may be accomplished, should be recognized as a foe to constitutional limitations and securities, and which therefore, at any cost, must be corrected." Eunomus, or Dialogues concerning the Law and Constitution of England," vol. i., - Essay on Dialogue, p. xc., dated 1767, written by Edward Wynne, Barrister-at-Law. Lecture LECTURE VIII. OUR LAW, ITS EXCELLENCES AND DEFECTS. DOCTRINE OF PROPERTY. IN N the earlier lectures of this course I considered our law in its old home, and noticed some of its distinguishing characteristics. In subsequent lectures I considered our law in its new home, that is to say, its expansion and development in the political and judicial systems of the United States. This development we saw to be a vast extension of the area of the common law, with modifications adapting it to our special situation and circumstances, without, however, changing its generic and essential character. Generally speaking, we found the system of English and of American law to be Character substantially the same. Having thus surveyed in its great outlines the general field of English and American law, I come in this lecture to consider more in detail its general excellences and its special defects. These defects, however, will be found to be mainly the defects of its good qualities. istics of our law. No observant person can pass from State to State, from one section of our country to another, without VIII. versities beneficial noticing that although we are a homogeneous people, Lecture having the same traditions, language, institutions, and aspirations, yet that there are local peculiarities in almost every State or section growing out of the circumstances of its early settlement or history. The people of New England are easily distinguishable from those of New York, and these again from those of Pennsylvania. The Jerseyman has a local flavor. The Western man differs in some respects Local difrom the Eastern, and both differ in other respects and their from the men of the South. And there are local effects. peculiarities among the people of the Southern States. These subordinate diversities are fortunate. They tend to prevent centralization, and to foster and sustain local pride and local government; and local self-government, it cannot be too often enforced, is the true and the only solid basis of our free institutions. A jealous State pride and watchfulness in all that justly belongs to the State, and a dominating national pride and concern in all that justly belongs to the nation, are the valid, healthful, and recognized sentiments of American citizenship and patriotism. Complexfrom our ity arising dual gov The American lawyer has to deal with problems which are more than ordinarily complicated by the existence of two governments exercising authority ernments. over the same territory and people, and largely, at times, over the same subject-matter. But this is unavoidable unless the frame-work of our government is to be changed, the autonomy of the States destroyed, and all power collected at the centre. Few, if any, are so rash as to advocate such changes, and we all cherish the conception of a nation founded |