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there was no other single reason for increasing the required preparation and lengthening terms of study I should deem it an all-sufficient one that the change will furnish opportunity for and open the way to a study of the science of jurisprudence, and will tend to make our young men, not merely technical practitioners, but strong, intelligent, schol. arly lawyers, and, what is equally needed, strong, intelligent and scholarly men. For these boys of ours are not to be mere lawyers. They may float for a while in the accustomed waters, but very soon an irresistible undertow sweeps them into the stormy sea and among the pounding waves of political life. They are to be our leaders, our civic rulers, our law makers. What law will he make who is stone blind to the law that has been made? How will he know how to guide our growth who does not understand the growth already attained ? Shall we leave our legislator who is to be to propose ignorantly the experiment of laws which were tried and tested in the old years and finally thrown with a swing of disgust into the rag bin of fool projects? No, gentlemen of the bar, no! Our law schools must give us something more than the mere artisan who can draw a pleading or trip a lying witness. Their product must be men as well as lawyers, vitalized by the air of historic jurisprudence, fascinated by the absorbing interest of the study, strengthened and lifted by its world-old lessons. I grant that it is not an easy thing to do and that the teacher must first teach himself. But if one may do that in the gray of his gathering winter how much better may those do it who have youth and strength for their handmaids and years for their arena. I grant again that the young men will sometimes be both restless and doubt. ful, but if you take them firmly in hand and hold them to their work, very soon, if there is the making of a man in them, they will grow eager and joyous in the study, and some day add wealth to its domain. And so I plead with our admirable Court that the schools may have the opportunity through the requirement of higher preparation and longer lines of study to train up men who will be an honor to the profession and a blessing to the State.

And now I must relieve your patience. I have said what I should ; I have done what I could. This effort in

behalf of legal education is possibly the last service which I can render to the State in which my life has been lived, and to which I owe both allegiance and gratitude. It might have been more interesting to have discussed before you some problem of the law or some unsettled question of historical jurisprudence; but what I have said has seemed to me a duty not to be postponed or neglected, or in any way subordinated to the mere pleasure of the occasion. No man knows more thoroughly than I do the need of . speaking as I have spoken ; and whatever the outcome I shall feel at least that I have not been unfaithful to my chosen profession.




THE conquest and purchase of the new territory which

has come to us as the result of the Spanish war of 1898 has certainly stimulated the study of constitutional law and of the constitutional history of our country. Even to the hottest military ardor of the day it is becoming evident that in measuring and adjusting the results of war the Constitution must still be reckoned with; and that the Government of newly acquired territory, the rights and privileges of its inhabitants, the effect of both upon the citizens of the Hinterland, are problems which the sword alone cannot solve and the proper treatment of which requires them to be referred to the tests of constitutional requirements, if the experiment of self-government which originated with the adoption of that Constitution is to en. dure and continue its uplifting and beneficent influence upon humanity. In the course of one century the extent of that influence has so modified the methods of the motherland that the Dominion of Canada and the Federation of Australia have become realities, and even while the Transvaal Republic is struggling in the death grapple there looms up the possibility of a South African commonwealth that may give evidence of a self-government still more free from the central restraint than either of the predecessors already named. Only the example of the Nation which the exercise of self-government has developed out of the weak Atlantic Colonies who were only reluctantly driven to revolt by the accumulated injustice related in the Declararation, can account for the unbroken hope that stimulates the heroism in South Africa, and threatens to fuse into one common cause all the populations from Rhodesia to the Cape.

At this juncture it is whispered here and there that the Constitution in its integrity is inadequate to the spread of self-government over the new lands which we have compelled a conquered foe to cede to us, and that it might be well to take a leaf from the English book of colonial government (the old edition of which was destroyed in 1776) rather than attempt the application of home principles to the tutelage of these unwelcome Uitlanders.

If in this process respect for these home principles and for the charter of the People which embodies them is to

all events, none to be considered beside the aggrandisement of material wealth and property which the exploitation of outlying provinces by a home government promises to the generation of to-day.

We believe a careful study of the Constitution and of the history of our development under its prescriptions—a study made with a sincere desire to preserve its fundamental principles and to find in its provisions fair means of administering the property and respecting the lives and liberties of our new wards, carrying to them without derogation the vivifying influence of those principles, will reveal a ready way of accomplishing the desired result.

The first step in the acquisition of conquered territory is manifestly occupation-military occupation. The status during military occupation is not subject to doubt. As John Quincy Adams said in 1842, “when your country is actually in war, whether it be a war of invasion or a war of insurrection, Congress has power to carry on the war, and must carry it on according to the laws of war; and by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. This power in Congress has, perhaps, never been called into exercise under the present Constitution of the United States."

He had already said in 1836: “The war power is only limited by the usage of nations. This power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty and of life.”

Under these circumstances, there is no trammel to the governing power save the laws of civilization. Burdens, imposts, military contributions, everything that may harass the enemy for the benefit of the military occupant, short of things concededly cruel and inhuman are lawful, constitutional. The occupation of the Town of Castine in Maine by the British soldiery in the war of 1812, the occupation of the Port of Tampico in Mexico by the American troops during the Mexican war, are instances of this temporary military rule, “ strictly constitutional,” as Mr. Adams says, but without any of the restraints which the Constitution provides for times of peace.

But this first step of military occupation and the constitutional exercise of the war power ends with a treaty of peace, with the cession of sovereignty to the conquering power. It was held that the surrender of Monterey in July, 1846, so displaced Mexican rule and established the authority of the United States that our Constitution was there in vigor, and the power which under that Constitution Congress has in the disposition of public lands became the law of that terri. tory. Complete conquest, therefore, and permanent occupation put an end to that war power, and the constitutional barriers “ so anxiously erected for the protection of liberty and of life,” to quote from John Quincy Adams, are resurrected. The military occupation of the enemy's country ceases, and the constitutional power given to Congress over all territory of the United States not matured into Statehood comes into operation.

As our Supreme Court has repeatedly said, “every nation acquiring property by treaty or otherwise must hold it subject to the Constitution and laws of its own gov. ernment" (3 How., 212-225). “Every nation which acquires territory by treaty or conquest holds it according to its own Constitution and laws" (9 How., 615). “The government de facto will, of course, exercise no power inconsistent with the powers of the Constitution of the United States, which is the supreme law of the land ” (Cross v. Harrison, 16 How., 164).

Pending the exercise by Congress, however, of its rights and duties with reference to such government, the country is not left to lawlessness; if no officials are appointed to exercise the civil power nor any rules or laws laid down for its operation, the military officials in control of the conquered country constitute a de facto government until Congress shall provide another. As such de facto

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