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as to insidiously instill into the popular mind the idea that our ministers of justice are corruptible and partisan, and he who joins the rabble outcry against them, that thrift may fol low fawning, is a most false-hearted knight. A lawyer without moral courage is unequal to great causes and the emergent occasion. Cicero talked with the honeyed words of Minerva, but history records him as a coward and a trimmer. I doubt if the theater of action ever presented a grander scene to the orator than that which confronted him when he defended Milo. The butchered Clodius, with has many gaping wounds, had been picked up by the Roman senator Tedius and conveyed to the city, where his body was exposed to the view of the enraged populace. Cicero stood before the august senatorial commission to deliver his defense of Milo under the charge of murder, in the historic arena of the Forum, surrounded by the temples of the gods. All the shops of the city were closed, and imperial Rome gave him audience. The glittering arms of Pompey's grim soldiers commanded silence. From every window and commanding eminence fair women and the multitude gazed down upon him in eager expectancy, feeling that upon Milo's acquittal depended the safety of their homes and lives. If ever there was the lion in the heart of man, "speech in dumbness, and language in gesture," then was the hour and there was the place. Cicero's eulogist says that the speech which we read to-day, so bristling with virile rhetoric, had been written and committed to memory, but under the agitation of the scene Cicero had a lapse of memory. But the cold fact is that when he heard the hoarse murmurings of the seething populi his heart turned to ambrosia, and he faced about from his artillery of prepared invective against Clodius with cringing adulation to placate the mob, and Milo was banished. And when Milo, in exile, read the speech as it was originally written, he exclaimed: "If Cicero had only spoken thus I should not now be eating figs at Marseilles."

And we read the masterful speeches of Erskine with something of a regretful recollection that a man so eloquent and intellectual should have shrunk from the defense of Warren Hastings for fear of public sentiment. It was after this betrayal of weakness that Sheridan, meeting Erskine at a dinner table and being heated with wine, said to him: "You are afraid of Pitt, and that is the flabby part of your character."

With a judiciary possessed of that fortitude and moral strength which prefer the approval of conscience to the smiles of the false-hearted harlot, public clamor, and a bar that would prefer to surrender to the state its license than to see justice profaned in her own temple-the one having no politics in its law, and the other more law in its politics, we may continue to enjoy the assurance that liberty regulated by law will ever be the richest jewel in the coronet of the American republic.

ADDRESS

OF

DAVID J. BREWER,

JUSTICE,

SUPREME COURT OF THE UNITED STATES.

"GROWTH OF THE JUDICIAL FUNCTION."

Mr. President, Gentlemen of the Bar Association of Colorado, and if I may be permitted to turn my vision for one moment from the cold face of the law to the pictures of beauty that I see before me, I shall add, and Ladies-I remember hearing Professor Silliman say that when he arose to speak he found it difficult to commence; that after he had started he found it equally difficult to stop. I have noticed that this last difficulty is common to the bar, and perhaps before I am through you may think it is also one of the weaknesses of the bench. Indeed, yesterday when it was proposed that I should speak this morning, my friend, Judge Philips, thought that it was hardly the proper thing, and intimated that by the time I had finished every man would seize his hat and rush for the first train for Denver, and so we have arranged that he speak first. When the gentlemen of this association called on me in Denver the other day and notified me that I must speak here to-day, I told them that in my early experience in Kansas, Judge Pettit, who was the Chief Justice of our territory, holding court in Doniphan county, sustained a motion to dissolve an order of attachment. Subsequent reflection convinced him that he had made a mistake, and when he came to Leavenworth, a lawyer, who had heard of the ruling in Doniphan county, filed a similar motion in a precisely similar case, and when the motion was presented, Judge Pettit promptly overruled it, much to the astonishment of the lawyer. He looked up and said:

"Why, if your honor please, I understood that you ruled the other way in Doniphan county and sustained the motion to dissolve the attachment." "Oh, well," said Pettit, "that may be good law in Doniphan county, but it is not good law in Leavenworth county," and some one promptly suggested to the lawyer that he take a change of venue to Doniphan county. So when they came and told me that the Bar Association was to meet here to-day and that I must come down and say a few words, I suggested that I should apply for a change of venue to Kansas or some other state in which the Bar Association does not meet in the summer; but, unfortunately, my application did not come until after the decision was made, and that, you know, is always too late. I suppose that may be classed as one of the mistakes of federal judges, of which we hear so much to-day.

I must, however, move to have the record corrected, and as this is the pending term, I suppose that it may be done with propriety. In the circular issued by the association it was given out that I, with others, am to deliver an address. That is a mistake. My friend, Judge Philips, has had plenty of notice, and he came here with his prepared address, and so with my friend Judge Gabbert, but I only agreed to do a little talking, and that is all I am going to try to do this afternoon.

It gives me great pleasure to meet with the members of the bar of this state. It is one of the states in the eighth circuit, and that is the largest circuit in the country in territory, in population, in number of states, and of federal judges, as well as in the amount and variety of legal business. This eighth circuit is an empire in itself, and there is no form of litigation, no question of law, that does not arise within its limits. In the thirty-three and a half years that I have been on the bench, either in or connected with this circuit, there is no kind of controversy that I have not been called upon to decide. Indeed, I believe I am the only known successor of King Solomon, for I never heard of any other living judge called upon to decide between two women claiming to be the mother of the same babe. Not having the despotic power of that monarch, I could not propose to bisect the babe, but had to hear the testimony and then give the babe to the true mother. Not only is this state a part of the eighth circuit, but also it is one in connection with which I have very pleasant memories. I came into its midst long before it was a state. I came, though only for a short stay, I presume before any one of you in this

room, for I was but a few miles from this place thirty-nine years ago, coming on that then hopeless errand of finding gold at the base of Pike's Peak. Since then it was my pleasant duty for years to preside in the Circuit Court of the United States for this state and district, and I have formed among the lawyers of Colorado some of the closest and most delightful friendships that man can have. And I find, too, on the Supreme Bench of this state, one of my old boys, Judge Goddard, and I believe he is reflecting the greatest credit on his instructor. So, it is very pleasant to come and be in your midst and talk to you a little, and the thing about which I propose to say a few words is, the growth of the judicial function.

We hear much to-day about the courts standing in the way of the people. Bitter things have been said about government by injunction, and it has been asserted over and over again that the courts stand in the way of the true progress of democratic institutions in this country, and that the ideal government of, by and for the people will never be realized until the courts have been set aside. Notwithstanding all this, I assert before you that there has been, there is to-day, and there will be in the ages to come, a constant growth of the judicial function. What is the judicial function? It is the power of determining controversies; not simply a power or right to advise, but a power to decide. When the first bill passed congress, creating the Court of Claims, it provided that that tribunal should advise congress as to any supposed obligation of the government, and that either the claimant or the government might appeal to the Supreme Court, but when the first appeal was attempted to be taken, the court dismissed it. Chief Justice Taney delivered the opinion, holding that the giving of advice was not the exercise of the judicial function; that it was essential that there should be a power of determining. Congress thereupon amended the law, makthe judgments of the Supreme Court final. The power to de termine was recognized. So you have not forgotten the controversy which arose two or three years ago in which Venezuela, Great Britain and the United States were interested, and that on the recommendation of the President a commission was appointed to investigate and report to him the true divisional line between Venezuela and the British colony of Guiana. That report, if it had been made and the work of the commission carried into completion, would not have been

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