William D. Guthrie

“ It abandons absolutely the conception of a justice which is above majorities, of a right in the weak which the strong are bound to respect. It denies the vital truth taught by religion and realized in the hard experience of mankind, and which has inspired every constitution America has produced and every great declaration for human freedom since Magna Carta—the truth that human nature needs to distrust its own impulses and passions, and to establish for its own control the restraining and guiding influence of declared principles of action. ”

“ Let us always bear in mind the lofty words of the great Chief Justice in the case of Aaron Burr, in the decision which excited so much public prejudice and clamor one hundred years ago, when, speaking of the duty of a judge, he said: "If he has no choice in the case; if there is no alternative presented to him but a dereliction of duty, or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace." ”

“ I submit that it is absurd to claim that such a method of nominating state officers to administer government for a population of over 10,000,000 is more likely to secure competent and trustworthy candidates, or to express the real preference and the sober and intelligent judgment of the majority of the voters of each party, than the old method of nominating state officers by public conventions composed of delegates and representatives of the voters from each assembly or election district of the state, proceeding in the open with full opportunity for investigation, discussion and criticism. ”

“ I am confident that if it were left to the people of the United States to determine by their votes the simple question whether they would place in the hands of Congress or of their state legislatures the fundamental, elemental, inalienable rights which every American citizen now enjoys—the inalienable rights proclaimed in the Declaration of Independence—an overwhelming vote would be cast against any such change. ”

“ We lawyers, if worthy of our profession, are in duty bound not merely to defend constitutional guaranties before the courts for individual clients, but to teach the people in season and out of season to value and respect the constitutional rights of others and to respect and cherish the institutions which we have inherited. It is our duty to preach constitutional morality to the rich and to the poor, to all trades and to all professions, to all ranks and to all classes, in the cities and on the plains. ”

“ If legislative power exists to regulate a subject, the extent or degree of its exercise is essentially for the legislature to determine in its discretion and cannot be controlled by the courts. Hence, a court must always consider, in determining the constitutionality of a statute, not merely the features of the particular statute before it and not merely the justice or merits of the particular case as between man and man or between the state and the individual, but what might be done under the same principle if the statute before it were upheld and a precedent established. ”

“ Nothing could be better calculated ultimately to undermine our whole system of constitutional government than the idea that the courts alone are the guardians of the Constitution and that Congress may rightfully enact any statute which the courts cannot properly nullify. ”

“ As Hamilton said, "The genius of liberty reprobates everything arbitrary or discretionary in taxation." And Judge Cooley in his famous work on "Constitutional Limitations" said: "It is of the very essence of taxation that it be levied with equality and uniformity, and to this end, that there should be some system of apportionment. Where the burden is common, there should be common contribution to discharge it. Taxation is the equivalent for the protection which the government affords to the persons and property of its citizens ”

“ But they cannot sacrifice truth to popularity, the Constitution to present expediency. Those who assail the federal judges should bear in mind that the founders in their wisdom constituted the judicial power our bulwark against unadvised, hasty and tyrannical action on the part of those in power and our shield against "those sudden and strong passions to which we are exposed," and which, if unchecked and unrestrained, may lead to ruin. ”

“ The principal political battle-cry to-day seems to be that, if the people are now fit to rule themselves, they no longer need any checks or restraints, that the constitutional form of representative government under which we have lived and prospered has become antiquated and unsatisfactory to the masses, and that we should adopt a pure democracy and leave to the majority itself the decision of every question of government or legislation, with the power to enforce its will or impulse immediately and without restraint. ”

“ It violates, besides, the rule, established by all civilization, that taxation ought to be imposed with the full consent of the taxpayer; for, it is quite clear, that in this case, it is the mass of the voters who relieve themselves of the heavy weight of the tax and cast it upon the few, and these few do not consent, even tacitly, to the excess with which the government wishes to burden them. When the rate of the tax is equal for all, we can consider that the vote for the tax by the legislature carries with it the implied acquiescence of all the assessable ”

“ Yet, in differentiating between Pilgrim and Puritan and in recalling the facts as to the origin of religious freedom and the separation of Church and State, the greatest of all the blessings we now enjoy—in giving most of the glory to the Pilgrims, notwithstanding the claims of Catholic Maryland—I am not at all unmindful that in religion and in politics the Pilgrim and the Puritan had many views in common, that our debt to both is quite inseparable, and that our gratitude to them should be eternal. ”

“ There is no doubt that any state may levy income taxes. Nor is there any doubt that, under the federal Constitution as it now stands, Congress may levy an income tax provided it be apportioned according to population as required in regard to all direct federal taxes. There is also no doubt that Congress, by means of an excise tax, may reach income derived from any business or profession, and that any such tax, being essentially an excise tax on business, need not be apportioned but need merely be uniform throughout the United States. ”

“ The Pennsylvania legislature might pass an act, similar to that enacted by the British parliament in 1720 and again in 1800, making it a crime for laborers to combine to obtain an advance of wages or to lessen or alter their hours of work. Is it inconceivable that the time may come when the majority of the voters in Pennsylvania will believe that it is imperative thus to regulate labor in coal mines and on the railroads, both of which industries are indispensable, serve every household in the state, affect every individual, rich or poor, and compel all to pay tribute? ”

“ If history teaches us that there is anything certain in human nature, if experience, which is of far more value than any mere reasoning or theorizing, has again and again demonstrated any practical and eternal truth in politics, it is that unrestrained power inevitably leads sooner or later to abuse and tyranny, and that no one official, be he emperor, king, president, or governor, can safely be entrusted with any such power. ”

“ The framers had grasped the great truth that jurisprudence is a science, that the law must be administered by men learned in that science and bound to obey its rules and follow its precedents, that uniformity and certainty are essential to the administration of justice, and that the highest political liberty is the right to justice according to law and not according to the will of the judge or the judge's master, or according to the judge's individual discretion, or his notions of right and wrong. ”

“ The greater part of England's history is our history; her Magna Carta is our Magna Carta, and the immortal deeds of valor of the English, Scotch, Irish and Welsh are our heritage and the source of our inspiration. Our hearts, therefore, cannot but beat faster day after day as we read of the splendid heroism and noble self-sacrifice of your great race. ”

“ Few of us, I assume, would seriously suggest that the judicial department is to be above criticism, or that it is to be deemed sacrosanct so that we must bow and submit in silence, without the right of challenge, criticism, or censure, to whatever the courts declare to be law. Such a view would be absurd. Of course, judges make mistakes as the wisest and best men make mistakes. They are not infallible. But neither are our legislative bodies infallible, nor is the crowd. ”

“ But does not this answer contain the gist of the whole problem and the whole principle and virtue of the American system of constitutional restraints? If the critics of our system would have some rights, and particularly their own, protected by the courts, must they not then confess that in truth they only wish changes where the rights of others are concerned, and that they would cling to the Constitution and invoke the protection of the judicial power in all those respects in which their own personal liberty and their own personal and property rights are affected? ”

“ He found that this homage excited at once the deepest emotion and the most powerful inspiration of the race, shaping their national character, directing their national life, teaching them reverence, obedience, self-restraint, temperance, loyalty, courage, devotion and sacrifice, and making them ever conscious of the prodigious debt the present owes to the past, as well as keenly sensible of the duty of love and gratitude to the departed for their labors and suffering. ”

“ Argue as we may from the admonitions and experience of the past, the defiant answer is that the people will select the executive and are prepared to trust him, an answer that singularly disregards the fact that they now select the legislators whom they no longer trust, and that practical reform in legislation is ready to their hand if they will only insist upon character and ability in their representatives. ”

“ Every tie that can bind one people to another binds the American people to the English. Most of us are of the Anglo-Saxon race and have the same blood coursing through our veins. To the great majority of Americans, England has ever been the [Pg 267] mother country. We speak the same language, read the same literature, strive for the same ideals, are governed by the same principles of politics and jurisprudence, and entertain the same fundamental conceptions of right and wrong and justice as among men and among nations. ”

“ She must invoke the spirit of Oliver Cromwell, whose mighty arm made the name of England terrible to her enemies and laid the foundations of her empire, who led her to conquest, who never fought a battle without gaining it, whose soldiers' backs no enemy ever saw, who humbled Spain on the land and Holland on the sea, and who left a tradition of military valor which is now the inspiration of the splendid courage, heroism and sacrifice of England's soldiers on the continent of Europe. ”

“ The boast of Englishmen for centuries had been that no officer of the government was above the ordinary law. In his interesting lectures at Oxford as a successor of Blackstone in the Vinerian professorship, Professor Dicey says: "In England the idea of legal equality, or of the universal subjection of all classes, to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. ”

“ It has been repeatedly asserted that the Constitution of the United States has become practically unamendable, when as a matter of fact its amendment does not involve any greater difficulties than were intended or than would seem reasonably necessary, or than would be provided if we were now framing a new national constitution. The prescribed machinery of a vote by two-thirds of both houses of Congress and ratification by three-fourths of the states simply compels deliberation and prevents hasty and unconsidered action. ”

“ Chief Judge Cullen of the New York Court of Appeals recently said that "the great misfortune of the day is the mania for regulating all human conduct by statute, from responsibility for which few are exempt, since many of our most intelligent and highly educated citizens, who resent as paternalism and socialism legislative interference with affairs in which they are interested, are most persistent in the attempt to regulate by law the conduct of others." ”

“ He had only to issue from time to time high-sounding declarations about his staunch patriotism, his own virtue, his uncompromising veracity, his self-sacrificing loyalty to duty, the infallibility of his judgment, the purity of his motives, and the corruption and mendacity of his adversaries. He had only to rail at corporations, at the builders of the industries of the country and at bankers and capitalists, in order to secure the applause of envy and discontent. He had only to inveigh against predatory wealth to become at once the idol of predatory poverty. ”

“ The one great contribution which the English-speaking race has made to the science of politics has been the representative principle. It has been truly declared that every lasting liberty secured for the individual, every lasting reform towards stability in government and permanent effectiveness in administration, every lasting advancement made in politics during the past two centuries, has been by and through the representative system. The subordination of public officials to the law, and their liability under the law for every illegal act, sprang from the representative principle. ”

“ Yet, no matter that our factories may be closed and our wage-earners thrown out of work as in 1894, 1895 and 1896, no matter how easily Europe and Asia could make our country their dumping-ground and could make a prey of our necessities after closing our workshops and destroying our industries, no matter how beneficial to all classes it may be to have a diversity of industries—the Democratic party, nevertheless, proclaims that our national government is powerless, and that there is neither the right nor the power to enact a tariff except for revenue. ”

“ No honest men, believing as the majority did, could have done otherwise than obey the constitutional mandate expressly reserving to the states the legislative powers not delegated to Congress. In the light of the long-established and wise rule that courts should avoid judicial legislation and not revise or give effect to a statute in a manner not clearly intended by the legislative body, the justices could not, of course, have upheld and enforced the statute simply because the individual cases before them excited their sympathy or involved the claims of widows. ”

“ The power to regulate the exercise of any right does not necessarily imply the power to deny it altogether. All rights of property as well as of personal liberty are subject to reasonable regulation, but this does not involve the power absolutely or arbitrarily to destroy such rights. The right of inheritance by children was not originally the creation of statute law at all, although the contrary is often assumed. It was a customary right long before the Conquest and prior to any statute of which we have record. It is treated by legal historians as "our common law of inheritance." ”

“ The power of the courts to punish for contempt has, from the earliest history of jurisprudence and as far back as the annals of our law extend, "been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge," and "a court without the power effectually to protect itself against the assaults of the lawless or to enforce its orders, judgments, or decrees against the recusant parties before it, would be a disgrace to the legislature, and a stigma upon the age which invented it." ”

“ But it is mischievous and dangerous for the people to be taught that there is great or insurmountable difficulty in securing amendments to the Constitution in order to supply its defects or to meet changed conditions and that they must therefore accomplish their wishes by indirect means or by perverting delegated powers. The future contentment of the American people requires that they shall feel that they may readily, and are at liberty to, amend their organic law according to their mature judgment whenever they deem it necessary to do so. ”