The changing order : essays on government, monopoly, and education
Wickersham, George W. (George Woodward), 1858-1936
:M- \s' ;Wk %^ •: V .••••.. Ov 4? \£ik% ^ *v J v /,u\ '*■*' y^ '^'J\ \ ■. >_ n>v* >*. "W •■ ^ <£ V«V *Ks 9 ^ <& V. 'VVi* .& »4q 4^/1^." ,r °«« V* 4> .k.. ** ^0* 0° Vi&Ir. °o v^ tX AnM'\ /<^X / «i- tf #v\ -^Wff ys V y»j»fck% 4.v\>;' v<v The Changing Order Essays on Government, Monopoly, and Education, Written during a Period of Readjustment By George W. Wickersham Sometime Attorney-General of the United States G. P. Putnam's Sons New York and London Gbe "Knickerbocker press 1914 TK27I .VMS Copyright, 1914 BY GEORGE W. WICKERSHAM MAY 29 1914 TSbt Iftnfcfeerbocfter tprese, IRew Korfe ©CLA374245 PREFACE THESE essays are bi-products of the writer's work as head of the United States Depart- ment of Justice during the four years from March 5, 1909, to March 5, 19 13. That period was instinct with great problems. New conceptions of the relation of government to industrial organiza- tion were asserting themselves; new theories of government rinding expression. The old order was changing. The epochal litigation between the government and great industrial combinations culminated in a series of decisions rendered in cases argued during that period in the Federal Supreme Court. By these decisions, the supremacy of law and government over monopoly was established. During the same period, the laws regulating common carriers in interstate commerce were radi- cally amended, and these laws, and great questions arising out of them, also were brought to the Supreme Court for construction and exposition. The admission of the territories of New Mexico and Arizona into the Union gave rise to the discussion at the National Capitol of profound modifications in constitutional government as it had been theretofore understood and practised. These changes were being embodied in new con- stitutions of some of the western States. Their iv Preface inclusion in the constitutions of the new States, presented to the Congress for approval, compelled a consideration of the meaning of the words "republican form of government," as used in the Constitution of the United States. The following essays, which originally were pre- pared for delivery as addresses on special occasions, reflect the conflict of ideas involved in the discus- sion of these questions — problems which go to the very roots of civilized government. It is because of the vital nature of the problems discussed, rather than of any especial merit, literary or otherwise, in the essays, that I venture to hope that what I have written may be of more than ephemeral interest. Constant requests for copies of some of these papers have encouraged me to publish this collec- tion. For while the old order indeed changeth, yet I verily believe there are some fundamental truths concerning government which have stood the test of time, and which cannot be ignored without unhappy consequence. What some of those principles are, I have endeavored to show in the following pages. G. W. W. New York, April, 1 91 4. CONTENTS CHAPTER PAGE I. — The Progress of Law i II. — The State and the Nation . . 17 III. — College Men and Public Questions 30 IV. — Palimpsests 38 V. — Business and the Law . . .53 VI. — Engineering and Culture . . 71 VII. — The Study of Law and the Work of Lawyers .... 82 VIII. — Recent Interpretation of the Sherman Act . . . .103 IX. — Further Regulation of Interstate Commerce 143 X. — Results of the Trust Dissolution Suits 162 XL — Federal Control of Stock and Bond Issues by Interstate Carriers . 179 XII. — New States and Constitutions . 217 XIII. — The Theory of Constitutional Government in 1787 and 19 12 . 269 The Changing Order THE PROGRESS OF LAW1 IT is related by Herodotus that after the deposi- tion of the usurper who seized the throne of Cambyses, King of Persia, the three leaders of the successful movement debated as to the form of a permanent government for that country. Otanes, who contended for a democracy, finding himself in the minority, proposed to yield his preferences to the other two, on condition that neither Megaby- zus nor Darius should reign over him or any of his posterity; which being assented to, he made no further opposition to the establishment of a monarchy, and the historian adds: At the present period this is the only family in Persia which retains its liberty, for all that is required of them is not to transgress the laws of the country. 2 1 Address before the George Washington University, Wash- ington, D. C, February 22, 1910. 2 Herodotus, Beloe's translation, Book 3, p. 165. 1 2 The Changing Order This conception of liberty under law, usually regarded as the product of northern independence of character, and by many, as peculiarly an Anglo- Saxon inheritance, thus appears to be of much greater antiquity, and although often obscured, sometimes for prolonged periods, it has ever re- curred as the highest ideal of civilized human society. Herodotus does not explain to us in what respect the liberty guaranteed to Otanes and his descen- dants differed from that of the other inhabitants of Persia, for, it will be observed, he considers that the family of Otanes enjoyed liberty because all that was required of them was that they should not transgress the laws of the country; but as he does state that the first act of Darius, after he was proclaimed King, was to divide Persia into twenty provinces, and to fix an amount of annual tribute which each was to pay to him, it would seem that the historian meant to indicate a distinction be- tween government and law, and to imply that, while subject to the law, the favored family was relieved from the burdens of government. Mr. James C. Carter, in his work on Law and its Origin, maintains that while Legislation is a command of the Sovereign, the unwritten Law is not a command at all ; that it is not a dictate of Force but an emanation from Order; that it is that form of conduct which social action necessarily exhibits, something which men can neither enact nor repeal, and which advances and becomes The Progress of Law 3 perfect pari passu with the advance and improvement of society. ■ Mr. Carter was a profound student of the Eng- lish common law, and a strong believer in the value of customary or common law, as opposed to statute law, considering that those customary rules of conduct which are the result of the moral con- sciousness and progressive thought of a people, af- ford a better working basis for the government of a civilized state, than do rules of conduct pre- scribed by legislative authority. It is the function of the judges, he says, to watchfully observe the developing moral thought, and catch the indications of improvement in customary conduct, and enlarge and refine correspondingly the legal rules. In this way, step by step, the great fabrics of common law and equity law have been built up without the aid of legislation, and the process is still going on.2 Yet he recognizes the necessity for the employ- ment of legislative action, or what he calls "the conscious agency of society," in the improvement of the law in its application to the constantly developing and increasingly complex forms of mod- ern existence; insisting, however, that the sole function both of law and of legislation is "to se- cure to each individual the utmost liberty which he can enjoy consistently with the preservation of 'Pp. 344-5. *P. 329. 4 The Changing Order the like liberty to all others," and adding, that every abridgment of liberty demands an excuse, and that its only good excuse is the necessity of preserving it. x It is the acknowledged duty of all good citizens to obey the law, be that law written or unwritten. The unwritten law, representing, as it does, a generally prevailing public conception of right action, must necessarily command the readiest obedience; statutory laws too frequently embody the ill-considered views of a moment, the expres- sion of a temporary emotion, or the successful determination of a portion of the community to impose their will upon the remainder. The sound growth and development of the written law must follow and make more specific and more readily enforcible the principles of unwritten law, or it becomes an instrument of dissatisfaction and even of oppression. Yet no progress in the improve- ment of laws is realized through either evasion of or organized opposition to the laws of a self-govern- ing people. As Washington said in his farewell address : The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established govern- ment. All obstructions to the execution of the laws, all combinations and associations under whatever plaus- ible character, with the real design to direct, control, 'P. 337- The Progress of Law 5 counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency. . .. However combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.1 The history of every civilized state presents many points of resemblance with that of every other. Primitive communities are bound together more or less loosely, dependent upon the need of union for common defense against some external enemy. As civilization progresses, a necessity arises for rules to govern the action of the indi- viduals in the community toward each other, more than to protect the group against the aggressions of other groups ; and as communities become more populous, and civilization more complex, rules of conduct must needs be increasingly minute and specific; but the fundamental principle guiding all successful civilization must be to preserve, in as large a measure as is consistent with the welfare of the whole, freedom of action in the individual. In monarchical countries this freedom is menaced more from the head of the state than from other individuals in it. Under democratic governments, 1 Messages and Papers, vol. i., p. 218. 6 The Changing Order the individual requires more protection against other individuals or groups of individuals ; yet the abuse of monarchical power has often resulted in the same injury to the welfare of individuals as is occasioned by abuse of the power which, under democratic institutions, individuals or groups of individuals may acquire over other individuals or groups. Queen Elizabeth of England, between the six- teenth and forty-third years of her reign, partly for the purpose of raising revenue, and partly to re- ward her favorites, granted a very large number of patents, conferring upon their holders the exclusive privilege or monopoly for designated periods of time, to manufacture, sell, or deal in specified articles of commerce. The injury to the community caused by these special privileges became so great as finally to produce a most remarkable and spon- taneous outbreak both in and out of Parliament, which led to a complete and absolute disavowal by the Queen of any intention to afflict her subjects, the cancellation of the greater part of these patents, and the submission to the judgment of the courts of law of the validity of the remainder. The odious character of these monopolies in the view of the English people of that day, is vividly depicted in the debates of the time. The list of the objects of the monopolies is truly appalling. They em- braced the exclusive right to deal in such articles as iron, powder, cards, leather, cloth, ashes, vin- egar, sea coals, steel, brushes, saltpeter, and many The Progress of Law 7 others. One Dr. Bennet, during a discussion in Parliament, is recorded as saying : In respect of a grievance out of the City for which I come, I think my self bound to speak that now which I had not intended to speak before; I mean a Monopoly of Salt. It is an old Proverb Sal sapit omnia; Fire and Water are not more necessary. But for other Monopolies of cards, (at which word Sir Walter Raleigh blusht), Dice, Starch and the like, they are (because Monopolies) I must confess very hurtful, though not all alike hurtful. I know there is a great difference in them; And I think if the abuses in this Monopoly of Salt were particularized, this would walk in the fore rank. He was followed by another member who se- verely criticized the monopoly in tin. This brought Sir Walter Raleigh to his feet. He could have contented himself with blushes concerning cards, but the attack on the Tin Monopoly compelled him to speak. The arguments he resorted to in its defense have become familiar to later genera- tions. When the Tinn is taken out of the Mine, and melted and refined [he said], then is every piece containing one hundred weight sealed with the Duke's Seal. Now I will tell you, that before the granting of my Patent, whether Tinn were but of seventeen shillings and so upward to fifty shillings a hundred, yet the Poor Workmen never had above two shillings the week, finding themselves: But since my Patent, 8 The Changing Order whosoever will work, may; and buy Tinn at what price soever, they have four shillings a week truly paid. There is no Poor that will work there, but may, and have that wages. Notwithstanding, [he declared, evidently perceiving that the argument fell upon deaf ears] if all others may be repealed, I will give my consent as freely to the cancelling of this, as any Member of this House.1 Elizabeth was no less shrewd than Raleigh in understanding the temper of the time, and with a clear perception that the public conscience was against her, she disclaimed all purpose of afflicting her subjects, declared she had acted upon bad advice, and authorized her minister, Cecil, to inform the House that There are no Patents now of force, which shall not presently be revoked; for what Patent soever is granted, there shall be left to the overthrow of that Patent, a Liberty agreeable to the Law. There is no Patent if it be Malum in se, but the Queen was ill ap- prised in her Grant. But all to the generality be unacceptable. I take it, there is no Patent whereof the Execution hath not been injurious. Would that they had never been granted. I hope there shall never be more. (All the House said Amen.)2 Therefore, declared Cecil — there shall be a Proclamation general throughout the Realm to notify her Majesties resolution in this be- xD'Ewes, Journals of the Parliaments, pp. 645-6. 'Id., p. 652. The Progress of Law 9 half. And because you may eat your meat more savourly than you have done, every man shall have Salt as good cheap as he can either buy it or make it, freely without danger of that Patent, which shall be presently revoked. . . . And they that have weak stomachs, for their satisfaction, shall have Vinegar and Alegar, and the like set at liberty. Train Oyl shall go the same way; Oyl of Blubber shall march in equal rank; Brushes and Bottles endure the like Judgment. . . . Those that desire to go sprucely in their Ruffs may at less charge than accustomed obtain their wish ; for the Patent for Starch, which hath so much been prosecuted, shall now be repealed.1 In the year following these debates, in the great case of The Monopolies, it was held by the Court of Queen's Bench that a patent granted by Queen Elizabeth, to Ralph Bowes, Esq., conferring on him the sole and exclusive right to make and sell playing cards within the realm for a term of years, was utterly void for two reasons: (1) that it was a monopoly and against common law; (2) that it was against divers acts of Parliament. It was against common law because — 1. All trades, as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labour, for the main- tenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the common- wealth, and therefore the grant to the plaintiff to *P. 652. io The Changing Order have the sole making of them is against the common law, and the benefit and liberty of the subject. 2. The sole trade of any mechanical artifice, or any other monopoly, is not only a damage and preju- dice to those who exercise the same trade, but also to all other subjects, for the end of all these monopolies is for the private gain of the patentees ; and although provisions and cautions are added to moderate them, yet ... it is mere folly to think that there is any measure in mischief or wickedness: and, therefore, there are three inseparable incidents to every mon- opoly against the commonwealth, sc. i. That the price of the same commodity will be raised, for he who has the sole selling of any commodity, may and will make the price as he pleases. . . . The 2d in- cident to a monopoly is, that after the monopoly is granted, the commodity is not so good and merchant- able as it was before ; for the patentee having the sole trade, regards only his private benefit, and not the common wealth. 3. It tends to the impoverish- ment of divers artificers, and others, who before, by the labor of their hands in their art or trade, had maintained themselves and their families, who now will of necessity be constrained to live in idleness and beggary. . .. 3. The Queen was deceived in her grant; for the Queen, as by the preamble appears, intended it to be for the weal public, and it will be employed for the private gain of the patentee, and for the prejudice of the weal public ; . . . x The principles of this great decision have been recognized as immutable in all later discussions 1 11 Coke's Reports, 84 b. The Progress of Law 1 1 of the subject in the law of England or America. All subsequent statutes against monopolies in England and America depend for their reason on the principles so clearly and so quaintly set forth in this judgment. In the development of our modern civilization, with our boundless natural wealth and our unexampled facilities of transpor- tation and communication, by individual effort working through the machinery of compact organization, the people of the United States twenty years ago found themselves confronted with conditions strongly resembling those which aroused the people of England and their represen- tatives in Parliament to the point of revolt against even so beloved a sovereign as their Virgin Queen. These conditions, however, unlike those of 1601, were not wholly occasioned by sovereign grant, although they were in large measure the result of the abuses of grants by sovereign powers of cor- porate existence and the facilities of corporate organization. No such comprehensive control over any one of the great industries which were dominated by those large aggregations of capital called "trusts" could have been attained but through the exercise of powers granted by the sovereign States ; and the condition, therefore, was strongly analogous to that which arose in the reign of Elizabeth. True, this form of control had not yet resulted in that absolute power which the patentees of Elizabeth possessed over the sale of salt, vinegar, and the like. But mindful that 12 The Changing Order "Eternal vigilance is the price of liberty,' ' and to employ Webster's immortal phrase, " While actual suffering was yet afar off." We, like our ancestors of revolutionary days, raised our arms, by the peaceful method of legislation, against a power which we perceived rising cloud-like on our eco- nomic horizon. We saw the rapid concentration of power over our great industries in a few hands ; a power which no free state can long suffer to endure; the power of fixing prices at will, deter- mining the amount of production, dictating the terms on which thousands of our fellow-country- men might pursue their means of livelihood; the power to exclude or permit competition ; all the ele- ments of those monopolies which so stirred the generation of Englishmen from whom the Pilgrim Fathers came. The problem was complicated by the dual nature of our government. Concerted action by the States was impracticable, it may be said, impossible. Efforts at control by one State were evaded, first by removing to another; then by the device of holding corporations. Therefore the evil could not be met merely through the de- velopment and application of the unwritten law, although its principles clearly established the un- lawfulness of all monopolies. Some means had to be found through the exercise of national power to check the continued concentration of control of the great industrial life of the country. In this instance, as in so many others in our national history, there was found in the simple but The Progress of Law 13 comprehensive charter of our national government the basis for a solution of the problem, and the prevention of the further growth of these great abuses, by the exercise of what Mr. Carter called ' ' the conscious agency of society " speaking through the national legislature. In the power conferred upon the Congress to regulate trade and commerce among the States and with foreign nations, there was discovered a weapon adequate to the need; and the simple, comprehensive enactment that all contracts and combinations in restraint of interstate or foreign commerce should be unlawful, and that the Fed- eral courts should be empowered to enjoin and restrain violations of the act, placed in the hands of the national judiciary the power to stem the rising tide of monopoly. The underlying principle in this legislation is the preservation of the right of the individual to carry on trade and commerce, free from undue control and restraint on the part of great ag- gregations of individuals or capital; in a word, to protect the individual from the tyranny of a group. In the development of civilization, after four hundred years, in a new world, the same menace to free institutions had arisen which had recurred from time to time in earlier civilizations; and by the application of the principles of liberty, based upon the fundamental conceptions expressed by the ancient Persian and recorded by Herodotus, 14 The Changing Order there was found an effective bulwark for the protection of a people from industrial slavery. Well might Washington say as he did in his farewell message: To the efficacy and permanency of your union a government for the whole is indispensable. . .. Sensible of this momentous truth, you have improved upon your first essay by the adoption of a Constitu- tion of Government better calculated than your former for an intimate union and for the efficacious management of your common concerns. This Gov- ernment, the offspring of your own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confi- dence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The need and the purpose of our Federal Con- stitution never have been more comprehensively and accurately stated than in Washington's dec- laration in the paragraph just read: "for an in- timate union and for the efficacious management of your common concerns.' ' It is because of the increase in the number and character of our common concerns that we are turning more and more to the source of national power for the principles which permit of its appli- The Progress of Law 15 cation to new evils as they arise, and to the ex- tension of benefits and advantages which are of common concern to all; not merely to a particular State or locality. The f ramers of the Constitution were thoroughly imbued with the principles of the common law, and they understood the language of the law. In expressing the grant of power which they agreed upon to the new Federal government, they were possessed by no pedantic love of minute accuracy. On the contrary, they employed the broadest and most comprehensive language possible to express the principles which they were formulat- ing, thus leaving unfettered the application of those principles to the manifold and changing phases which future growth and development might make essential to the preservation of the fundamental object of the Union; to provide "for the efficacious management* ' of "the common concerns" of the whole country. Very shrewdly were these great powers devolved upon the national government. Hamilton an- swered the objection that they would tend to render the government of the Union too powerful in the seventeenth paper in the Federalist. Speaking of the principle embodied in the Con- stitution of legislating for the individual citizens rather than for the States, and adverting to the objection that such principles would tend to make the Union too powerful and enable it "to absorb those residuary authorities which it might be 16 The Changing Order judged proper to leave with the States for local purposes," he said: Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons entrusted with the administration of the general government could ever feel to divest the states of the authorities of that description. The regulation of the mere domestic police of a state appears to me to hold out slender allurements to ambition. Hamilton's mind was ever imperial! Commerce [he continued], finance, negotiation and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought in the first instance to be lodged in the national depository. And so there they were lodged by the charter of our indissoluble union; and to them, as our need bids, we turn for the effective vehicles of the progressive development of a great and free coun- try; whose laws must be adequate to cope with every problem which the restless ambition of man can invent, to the end that this land may ever display a signal example of Liberty and Union Now and forever One and inseparable. II THE STATE AND THE NATION * THE administration of Federal justice is the most vital agency of the national govern- ment. The system of Federal government under which a separate and distinct sovereignty erects its agencies and expounds, administers, and enforces its laws within the States, independently of those of the States, also in theory sovereign, except where and to the extent that they have voluntarily parted with some attribute of sovereignty, is at once the admiration and the despair of foreign students of our institutions, and is often a source of perplexity to ourselves. The Constitution of the United States and laws and treaties made pursuant to its authority are, it is agreed, the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. But ever since the foundation of the Federal government a constant pressure has developed, first one way, then an- other; State against nation, nation against State, 1 The substance of an address delivered at the opening of a new Federal building in Cleveland, Ohio, March 20, 191 1. 2 17 18 The Changing Order to magnify or minimize the powers granted to the Federal government by the Constitution. During the last decade or two there has been a growing tendency in the States to call on the na- tional government for many things which are properly within the functions and duties of the States, but which, through the extension of certain powers granted to Congress, may be also brought within the scope of Federal regulation. v This tendency has been so marked, that at times the States seem to have abdicated an important part of their ordinary police powers, and to have sought to escape their natural responsibilities by devolving them upon the general government. The principles regulating the respective powers of State and Federal government are clearly stated by Mr. Justice Harlan in delivering the judgment of the Supreme Court in a very recent case. There are, he says, certain fundamental prin- ciples which prior decisions, to which he refers in his opinion, recognize, and — which are not open to dispute. . . . Briefly stated, those principles are: That the Government created by the Federal Constitution is one of enumerated powers, and can not, by any of its agencies, exercise an authority not granted by that instrument, either in express words or by necessary implication; that a power may be implied when necessary to give effect to a power expressly granted; that while the Consti- tution of the United States and the laws enacted in pursuance thereof, together with any treaties made The State and the Nation 19 under the authority of the United States, constitute the supreme law of the land, a State of the Union may exercise all such governmental authority as is con- sistent with its own constitution, and not in conflict with the Federal Constitution; that such a power in the State, generally referred to as its police power, is not granted by or derived from the Federal Consti- tution but exists independently of it, by reason of its never having been surrendered by the State to the General Government; that among the powers of the State, not surrendered — which power therefore re- mains with the State — is the power to so regulate the relative rights and duties of all within its jurisdiction, so as to guard the public morals, the public safety and the public health, as well as to promote the pub- lic convenience and the common good ; and that it is with the State to devise the means to be employed to such ends, taking care always that the means devised do not go beyond the necessities of the case, have some real or substantial relation to the objects to be accomplished, and are not inconsistent with its own constitution or the Constitution of the United States.1 That these principles have not been always clearly perceived is illustrated by the history of the State of Ohio — not to mention that of other States. In the Ordinance of July 13, 1787, providing for the government of the northwestern territory, certain articles were formulated as "articles of compact between the original States and the people and States in the said territory" for the purpose of 1 House v. Mayes (219 U. S., 270, 281). 20 The Changing Order " extending the fundamental principles of civil and religious liberty, which form the basis wherein these republics, their laws, and constitution are erected; to fix and establish those principles as the basis of all laws, constitutions, and govern- ments which forever hereafter shall be formed in the said territory." These articles, it was de- clared, should "forever remain unalterable, unless by common consent." These articles in effect embodied those funda- mental principles of civil liberty which have been the woof and fabric of Anglo-Saxon institutions since they were first set forth in Magna Chart a: principles which were also embodied in the first ten amendments to the Constitution of the United States, adopted in November, 1791. The Ordinance further provided that — The navigable waters leading into the Mississippi and St. Lawrence and the carrying places between the same shall be common highways and forever free as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor. Freedom of trade and commerce was a matter of the utmost concern on the part of the great men who framed this Ordinance and the Constitution of the United States, and the Jay treaty of 1794 secured to the subjects of both Great Britain and the United States the right — The State and the Nation 21 freely to pass and repass by land or inland navigation into the respective territories and countries of the two parties on the continent of America (the country within the bounds of the Hudson Bay Co. only excepted), and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and com- merce with each other. The Ordinance of 1787 also made provision for the erection of States out of the territory to which it applied, whenever any of such States should have 60,000 free inhabitants, provided the permanent constitution and State government which should be formed "shall be republican and in conformity to the principles contained in these articles." That portion of the articles which dealt with the government of the territory, provided for the appointment of a court to consist of three judges, with common-law jurisdiction, and whose commis- sions should continue in force during good be- havior. Among the provisions which were declared to be unalterable save by common consent was that — The inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus and of the trial by jury, of a proportionate represen- tation of the people in the legislature, and of judicial proceedings according to the course of the common law. The principles of government embodied in the Federal Constitution, adopted in 1789, were a 22 The Changing Order distribution of powers among three separate co- ordinate branches — legislative, executive, and ju- dicial. The legislative power was to be exercised by representatives of the people, and senators re- presenting the States, with the participation of the President, to the extent of recommending legisla- tion and exercising a qualified veto over measures passed in Congress. The executive officers were to be chosen for definite terms, and during such terms were to be free from interference by either of the other branches of government, save when impeached for high crimes or misdemeanors; and the judicial power was to be exercised by judges holding office during good behavior and free from interference or control by the other branches of government. An independent judiciary was re- garded by the framers of the Constitution as absolutely essential to the success of the govern- ment created by it. Pursuant to the provisions of the Ordinance, a constitution was adopted, and the State of Ohio was admitted into the Union on March I, 1803. Those who prepared that constitution had before them as models and guides the Ord- inance for the government of the northwestern territory, the Constitution of the United States, and the Jay treaty. But they were unable to grasp the wisdom embodied in those famous documents. Rufus King, in his sketch of the history of Ohio, says of this constitution: The State and the Nation 23 It was framed by men of little experience in matters of state, and under circumstances unfavorable to much forecast. With such a model of simplicity and strength before them as the national Constitution, which had just been formed, the wonder is that some of its ideas were not borrowed. It seems to have been studiously disregarded, and Ohio, as well as some States farther westward, which her emigrant sons, with filial regard, induced to follow her example, has suffered ever since from a weak form of government, made up in haste and apparently in mortal dread of Gov. St. Clair. . . . Briefly stated, it was a govern- ment which had no executive, a half-starved, short- lived judiciary, and a lopsided legislature.1 The student of American history must con- stantly wonder at finding so often developed a hostile attitude toward the judiciary. Disputes which can only be settled by the arbitrament of independent and incorruptible judges constantly arise between citizens, between States, between a State and the nation. The existence of a stand- ing body of judges — men of learning and character, withdrawn from the ordinary pursuits of business life, and independent of all influences which might warp their judgment and prevent them from reaching decisions based only upon the fair and unbiased consideration of the law as applied to the evidence in the case — would seem to be of such obvi- ous advantage to every member of the community that no argument were needed to demonstrate it. 1 Ohio, by Rufus King. Houghton, Mifflin & Co., 1903. 24 The Changing Order Yet in the early history of Ohio, as in the later history of some of our present States and Territories, from time to time waves of feeling hostile to the judicial establishment arose, generally originating in the resentment of some class of the community to judicial decisions preventing that particular class from carrying out schemes for its own ad- vantage, to the detriment of the rest of the com- munity. The latest manifestation of this spirit in consti- tutional provisions for the recall of judges by popular vote, is, in effect, the same as that which was resorted to in Ohio in 1809, as a means of punishing the Common- Pleas judges who had ruled that an act of the Legislature granting to jus^'ces of the peace jurisdiction to try suits for any amount not exceeding $50 without a jury, was a violation of the right of trial by jury secured by the Seventh Amendment to the Constitution of the United States, in all suits at common law where the value in controversy shall exceed twenty dollars. Although this decision was affirmed by the Supreme Court of the State, an effort was made to impeach the judges who rendered it, and when this failed, resort was had, as Rufus King states in his history of Ohio, "toa more efficacious course" : The term of office was seven years, and the term of seven years since the State constitution went into operation was just expiring. Most of the judges had been chosen much later, either as new appointments The State and the Nation 25 or to fill vacancies. It was resolved by the majority in both branches of the assembly that their terms of office must all be limited by the original term of those who had been first appointed. The three supreme judges, three president judges of the common pleas, all the associate judges of that court, more than a hundred in number, and all the justices of the peace, were discharged at a swoop. x The history of Ohio furnishes no repetition of such an attack on the independence of the judi- ciary as this, but it was many years before the courts recovered from the effects of this blow to their independence. Not, indeed, until after the decision by the Supreme Court of Ohio, in 1887, that it was empowered and in duty bound to declare a law invalid if not passed in due consti- tutional form, did the judiciary of Ohio take the place which that branch of the government must occupy, in order that republican government as it was understood by the framers of the Consti- tution of the United States may be accomplished. Ohio, in common with many of the other States, had her experience in resisting the supremacy of the Constitution of the United States and laws and treaties made in pursuance of it. In 18 19 she undertook to impose a tax on each of the two branches of the United States Bank, and Osborn, the auditor of state, summarily took from one of the branches a sum of money large enough to cover the tax on both. He was advised by counsel xOhio, Rufus King, p. 314. 26 The Changing Order that as the State could not be sued by the nation he was secure from Federal redress. But the supremacy of the national government was declared, and the insufficiency of Osborn's defense demonstrated, in an opinion by Chief Justice Marshall, which is one of the great land- marks of constitutional law. The act of the Legislature of Ohio under which Osborn proceeded, was declared to be in conflict with the Federal Constitution and therefore void; consequently Osborn's act was not the act of the State; he was a mere trespasser, and as such amenable to the pro- cess of the Federal court. x Representative republican government is founded upon a practical recognition of the fact that in a busy, prosperous community the average citizen can give but little time to the details of his gov- ernment. He therefore joins with his fellow- electors in selecting representatives to frame the laws by which he is to be governed, and in choosing the principal officers who are to execute them. His life, liberty, and property are protected from un- due invasion by either branch of the government by means of constitutional restrictions upon their powers; and by limiting the terms for which they are chosen, there is required of representatives and agents alike a periodical account of their stewardship. This system secures freedom from undue interference during the term of office, thus affording a reasonable time to work out any given 1 Osborn v. U. S. Bank, 9 Wheat., 938. The State and the Nation 27 problem, and to submit it to the test of experience before it is either approved or condemned. The most beautiful work of the most skilled artisan presents a crude and unlovely appearance, prom- ising anything but perfection, at some stage of its production, and if the capacity of its author and the value of the work were determined at that period, neither the artist nor the work could ever win approval. Abuses of power occur under all forms of govern- ment. The representatives chosen to make laws for State or nation have not always been faithful to their trust. The greater importance of the national legislature, upon which the eyes of the nation are constantly turned, has, as a rule, pre- served it from the corruption and the inefficiency of many of the State legislatures. The history of the latter has been too often a history of venality and stupidity. But is the remedy to be found in the overthrow of the whole system of representative government? If the head of a large commercial establishment should discover that his clerks and officials had disobeyed his instructions, stolen his money, and impaired his fortune, would he mend the case by undertaking to do all their work him- self, or by so hampering his new employees with restrictions and penalties and threats of instant dismissal for apparent offenses, that their only certainty in not offending would lie in doing nothing? Can public business be carried on by a system based on distrust, any better than private 28 The Changing Order business can be successfully so conducted? Is not the remedy to be found rather in greater care in the selection of agents and the more rigid enforce- ment of their responsibilities? Political and social reformers alike are prone to advocate the over- throw of a system rather than the more difficult task of selecting fit agents to carry on government. 