PAPER

READ BY

ALFRED P. THOM.

THE INEVITABLE READJUSTMENT OF LAW.

Since the independence of the colonies two great revolutions have swept over this country. One when the league between the States was converted into 66 a more perfect union"; the other, when the divergent constructions placed upon the Constitution culminated in civil war.

The first was a peaceful revolution. Champions of contending theories sought by intellectual methods for the truth. They filled their slings, not with stones, but with arguments drawn from eternal principles. They won their victories in the forum of debate, and from their efforts sprung the Constitution of the Union with its first twelve amendments-a system of government which gives assurance to all the nations that civil liberty will endure forever.

But it was not destined that the peace which marked the birth of the Union should always distinguish its history. The two divergent views which had met in debate over the adoption of the Constitution quickly manifested themselves upon the question of its construction. The one side asserted that the Union was still a league among the States, but with greater concessions of power to the General Government than existed under the confederation, and claimed for each State the sovereign right to break the Union at will and to renounce its obligations.

The other side proclaimed that by the adoption of the Constitution the United States became a nation—a nation with delegated and limited powers, but still a nation, from which no State could

voluntarily and without the assent of the others withdraw, and that the Union was intended to be perpetual.

The differing intellectual convictions entertained by the adherents of either view were soon reinforced by material interests, and what were at first theories soon grew into conditions. Influenced by considerations of interest, the great question of constitutional construction became rapidly sectional, and was finally submitted to the arbitrament of war.

In that war the secession idea perished and the national idea was firmly established as the true theory of our government, at least for the future.

The effect of that decision has been universal. It has brought with it consequences operating upon the legal rights, the social relations and the ultimate destinies of our people. It has impressed itself upon the genius of our institutions. It has affected the fundamental relations between the States and the Union, and has necessitated modification in the principles applicable to these modified relations. This may be aptly termed

THE INEVITABLE READJUSTMENT OF LAW,

and it is to this subject that I propose, with your permission, to devote this paper.

My purpose is not to attempt its exhaustive treatment in the narrow limits which confine me. That task might well be the work of years and the results fill many volumes, but it is possible, even within the space that I may justly claim, to give something of an outline sketch, and to at least invite attention to this most attractive field of thought.

For more than twenty-five years the minds of statesmen and of jurists have been engaged in the effort to adjust our laws to our new conditions. Their work is not yet complete. At times they will have, perhaps, to retrace their steps; but the process of evolution has begun and has proceeded far enough for us to observe its direction, to measure completed results and to foresee, at least partially, its probable outcome.

It was inevitable that this evolution should find expression not only in constitutional and statutory changes, but also in the action of the courts.

It is not possible in the limits of a single paper, and not essential to the present purpose, to consider the statutory changes which have grown out of the triumphant establishment of the national idea. Some of these will, however, be incidentally mentioned in considering the pertinent decisions of the United States Supreme Court.

But the amendments to the Constitution have been fundamental -fundamental in its broadest sense-not merely expressing some incidental modification or enlargement of existing power, but creating new governmental functions and impressing radical changes upon the governmental system.

It was natural for the prevailing side to establish in enduring form the principles for which they fought. This they proceeded to do in three amendments to the Constitution, known as the thirteenth, fourteenth and fifteenth.

The thirteenth prohibited slavery and involuntary servitude, except as a punishment for crime.

The fourteenth created a citizenship of the United States separate and distinct from the citizenship of a State, and prohibited the States from making or enforcing any law abridging the privileges or immunities of citizens of the United States from depriving any person of life, liberty or property without due process of law, from denying to any person within their jurisdiction the equal protection of the law, and required that representatives should be apportioned among the several States according to their respective numbers, excluding Indians not taxed, and provided that this representation should be reduced in proportion to the number of male inhabitants of legal age and citizens of the United States denied the right of suffrage.

The fifteenth amendment declared that the right of citizens of. the United States to vote should not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.

These amendments were adopted almost amid the passions of actual civil conflict and amid the exultation of victorious partisans. Notwithstanding the fact that all possibility of deliberate consideration was destroyed, the thirteenth amendment has the undivided support of a reunited people; the fourteenth is recog

nized as the logical and necessary outcome of our changed conditions and is accepted as sound in principle and beyond the reach of successful disputation; but the fifteenth amendment is even now challenged from influential quarters and will in time receive a patriotic and statesmanlike re-examination.

On the other hand, the courts have not been, to the same extent, subjected to disturbing influences. Their judges have been clothed with the independence guaranteed to them by the Constitution. They have dwelt in an atmosphere where popular clamor need never reach, and it is in their constitutional decisions, evolved as they have been during a long series of years, that we can best trace the modifications of our system of government and discern the principles which are permanently to control our destinies. They deal not alone with constitutional and statutory provisions. It is their function to apprehend the great moral, social and material forces which operate permanently upon the people, and to announce in their decisions rules of conduct and principles of law adjusted to the sustained progress of civilization. In studying, then, the growth and influence of the national idea as indicated in the action of the courts, it must not be forgotten that we will find here, not merely the expression of principles triumphant in war, but a recognition of the philosophic basis on which they rest.

Steam and electricity have made of this a new world. New conditions have arisen which cannot be ignored, when a man can breakfast one morning in New York and the next in Chicago, and when gold deposited in the sub-treasury in Wall street may within an hour be utilized by the financial exchanges of San Francisco.

When time and space as elements in the transactions of men are practically annihilated, the agencies by which this is accomplished become great unifying forces in human affairs and practically irresistible in their tendency to establish closer social and political relationships.

The national idea, when subjected to these influences, is no longer the mere creature of triumphant physical force, but becomes the harmonious expression of the thought, the tendencies and the spirit of the age.

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It was not only in the presence of a recently restored Union and under the influence of the impetus given to nationalizing tendencies by successful war, but in full recognition of the other great unifying forces which surrounded them, that the Supreme Court of the United States undertook the work of formulating the principles applicable to our changed conditions.

It will be remembered that among the amendments to the Constitution there was none declaring this to be an indissoluble Union.

The omission was doubtless based upon the idea that the Constitution already, properly construed, provided for a perpetual Union, and that to declare this now by express amendment would be to concede that it did not exist before, and, as a necessary consequence, that the war upon the seceding States was without constitutional justification. The impartial historian, however, will be called upon to chronicle the fact that this construction was not considered indisputable even by the leading statesmen of the victorious party. If it was logical to omit all amendment on this subject from the Federal Constitution, it would have been equally so to let the whole matter rest where the issues of war had put it. But this was not done. Virginia and other seceding States, while not perhaps expressly, were in effect required, as a condition of their full restoration to the privileges of the Union, to adopt a Constitution which, among other things, provided:

"That this State shall ever remain a member of the United States of America, and that the people thereof are part of the American nation, and that all attempts, from whatever source or upon whatever pretext, to dissolve said Union or to sever said nation ought to be resisted with the whole power of the State.”

It thus happens that the seceding States have in their organic law a guarantee of perpetual Union, while other States have not. If that principle were already contained in the Constitution of the Union, there was no necessity for putting it in the Constitution of any of the States; if it were necessary to put it in the Constitution of any it should have been put in the Constitution of all, and the inquiry would, perhaps, possess some speculative and theoretical interest as to whether the fact that it is not a part of the organic law of some of the States places them