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The Work of the Constitutional




Mr. President and Gentlemen:

It is a great honor to be invited to address the Virginia State Bar Association. I appreciate that honor, and making my acknowledgments, I give you one and all the greetings of fraternity.

Profound and thrilling themes have been discussed before you, ranging from the philosophies of corporate development and the technicalities of legal and equitable jurisprudence, to the great dramas of State trials and public issues. Your orators and essayists have made the record of your meetings a rich contribution to the history and literature of the law, and I venture in their footsteps with a practical work-day topic, not altogether new, and to other than very interested parties, somewhat dry.

As a rule, your speakers have chosen their own subjects, but mine for this occasion, was chosen for me by your Executive Committee—"The Work of the Constitutional Convention of 1901-1902.” It often saves perplexity to have your subject chosen for you. It is also after the manner of the Bar, which always has its subjects chosen for it by those paramount people



“Our Clients.' We sometimes wish we had better ones. We sometimes regret that as the courts discover our views of them are not consonant with the law. Still if we have done our best, our consciences are composed. If our tempers are not always as composed as our consciences, we have the consolation of “taking it out on the Court," and telling our friends behind the scenes that it is not as learned or as able a Court as we used to think it to be. As the years roll by, and the doctrines settled against our protest have become recognized principles of law, and some day we turn to the Report and read over again the decision in which our hopes were blasted, a suspicion steals over us that maybe after all the Court was wise and right in its conclusion. Some other day a client calls and tells his tale.

a As the facts unfold you realize that they bring his case under the saving grace of that once reviled decision. When you have won it for him in that once depreciated Court, pocketed your final fee, and sent the happy client on his way rejoicing, you admit to yourself "That it is a pretty good Court after all,” regard your original opinion of its learning and ability as thoroughly vindicated, and salute it in the end as Shylock did prematurely with "oh! most righteous Judge.” We note here the effect of the standpoint on opinion, and the Convention, we shall see, has illustrated that effect as well as your own experiences.


But time is the great test of men and measures; and time must test the workings and the practical effect of the new Constitution before a just estimate can be made of its value; for a Constitution is like a shoe or a coat, you must try it on and wear it to tell its fitness and worth. John Locke made a Constitution for North Carolina which was swiftly relegated to the tomb of the Capulets. Benjamin Franklin presided over the first Pennsylvanian Constitutional Convention and predominated in its work, but their Constitution, with its almost omnipotent siugle power of legislation, was as swiftly repudiated as John Locke's. On the other hand, the Massachusetts Constitution of

John Adams remains to-day, with slight alterations, the massive monument of a massive man. There were but four lawyers in that first Pennsylvanian Convention! A fact the significance whereof you will not fail to appreciate.


The Convention consisted of one hundred members, eightyeight Democrats and twelve Republicans, all white men. Shades of Underwood! Have thirty years of education educated the Republican party of Virginia to conclude that not one colored man was suitable to represent them? That Underwood Convention of 1867 had one hundred and five memberstwenty-four colored men, thirteen New Yorkers, one Pennsylvanian, one Ohioan, one Vermonter, one Marylander, one from Maine, one from Connecticut, one from the District of Columbia, one from Canada, one from Nova Scotia, two Englishmen, one Scotchman, and one Irishman, with thirty-five of our own folks, and fourteen native born opponents who might "have left their country for their country's good,” but up to that time had failed in that patriotic duty.

Sixty-two members of our late Convention were lawyers, twenty-two were judges or ex-judges, one had been AttorneyGeneral, and one was elected from the Convention to that office. Some, who do not reverence our profession, might say that this was “Ominous of a bad sign,” but remember Pennsylvania ! This jury, at any rate, I think I may rely on to give a verdict of "Not guilty” to this soft impeachment. But farmers also there were by the score, and railroad men, bank men, newspaper men, fruit men, cattle men, storekeepers, and clerks, doctors, preachers and teachers--and they, maybe, leavened the whole legal lump. A lawyer, by request, called the Convention to order. Another one, our beloved associate, Hon. Wm. B. Pettit, was chosen temporary President. Still another, the Hon. John Goode, ex-Solicitor-General of the United States, ex-President of this Association, and ex-member, too, of the Convention

of 1860—John Goode, with the bloom of perpetual youth on his face, and perennial love of Old Virginia in his heart, was unanimously elected President—a choice vindicated by the serene justice and apt ability with which he administered his office.


The body sat long and debated much. It numbered 379 days from tip to tip-June 12th, 1901, when it met; June 26th, 1902, when it adjourned without day. But some two months in vacations. Public opinion about it showed great fluctuation. When it met, it was saluted as a band of sages. As unfruitful months departed, doubts of its ability began to be murmured, with cries of "Time! Time!” A little later, irreverent banqueters mimicked its members, and ridiculed its proceedings, and it became the mark of the comic actors of the passing show.

The eternal pessimist and prophet of the past declared that he had always opposed the Convention, and always knew it would do nothing but spend the people's money. The Convention was patient. Neither sultry Summer, bleak December, or returning Spring spurred. its speed. Numberless plans and specifications for almost everything were proffered from without—some as wild as the rocket's flight, some as curious as any curio of Old Curiosity Shop. They, if at all available, were being sized up, studied, compared, debated, winnowed out, chewed and digested.

As Summer came again, out of laths and plaster, brick and mortar, scantlings and shavings, a new Constitutional structure arose. As its proportions outlined themselves to view, and lower taxes, better revenues, stricter administration, corporate restrictions, enlarged privilege of labor, and fortified white ascendancy were recognized, crabbed accents changed to harmonious notes. When on May 29th, 1902, the Constitution was ordained, the people in most sections of the State were crying out “Ordain! Ordain! give us a turnkey job!” And some

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