The courts of this country at least have uniformly held, whenever the question has arisen in any case, that questions of the wisdom or desirability of legislation rest solely with the legislature. That the courts, both federal and state, not only have the right, but that it is their duty, to pass upon and determine whether a law passed by a legislative body is or is not in conflict with the Constitution is too well settled to require further discussion. Mr. Lincoln never contended that the courts did not possess that power. On the contrary, he was a firm supporter of it, and believed that when any decision had been affirmed by subsequent decisions it would be "revolutionary not to acquiesce in it." He declared in his speech of June 26, 1857, and elsewhere, that when fully settled, the law as laid down by the Supreme Court should be obeyed even on questions of the general policy, "subject to be disturbed only by amendments to the Constitution as provided in that instrument itself." He never suggested a direct appeal from the courts to the people. He did what many lawyers have done in other cases both before and since his time, namely, declared his belief that the court in its decision of the Dred Scott Case had rendered a judgment which was wrong, and gave his reasons for so believing, as well as for his belief that the judges had been influenced by their political

affiliations; but never throughout his career did he assail the judicial system of his country or seek to cast reproach upon the judicial officers of the state or nation. Those who have sought to make it appear that he did so have cast unwarranted reproach upon the name of one of the most illustrious defenders of the institutions of the Republic.

More than seventy-five years ago, De Toqueville, in his "Democracy in America" wrote:

I am aware that a secret tendency to diminish the judicial power exists in the United States. . . . I venture to predict that these innovations will sooner or later be attended with fatal consequences, and that it will be found out at some future period that the attack which is made upon the judicial power has affected the democratic republic itself.

In recent years these attacks have become more formidable than ever in the history of the country and have generally assumed the form of a demand for the recall of judges by popular vote. So far as the writer is aware it has not, however, been claimed by any one that Mr. Lincoln either suggested or approved of that method of compelling submission by the judges to the popular will. This is probably due to the fact that he has left a record of his attitude upon substantially the same subject, wherein he strongly condemned the action of the legislature of Illinois for enacting a law which had the effect of

recalling all of the circuit judges of the State, adding five new judges to the Supreme Court and imposing upon the judges of the latter court the performance of the duties which had theretofore been performed by circuit judges. A protest signed by Mr. Lincoln (then a member of the legislature) and others was presented to the legislature, condemning the action of the majority of that body by whose votes was passed the act in question, and giving the reasons for their disapprobation, among which were the following:

I. It violates the great principles of free government by subjecting the judiciary to the legislature.

2. It is a fatal blow at the independence of the judges and the constitutional term of their office. . . .

5. It will give our courts a political and partisan character, thereby impairing public confidence in their decisions.

6. It will impair our standing with other states and the world.

This protest was presented to and entered upon the journal of the House of Representatives, February 26, 1841. Mr. Lincoln and five other members of the legislature had issued an address to the people of Illinois on the same subject on the 8th of the same month, in which this "recall of judges" was strongly condemned. When it is remembered that at the time of the passage of the legislation mentioned, the con

stitution of that State then in force left with the legislature entire control of the election of judges throughout the State, it is difficult to perceive any difference in principle between the interference with the independence of the judiciary which Mr. Lincoln condemned, and that which must result from a system which permits a recall of judges by popular

vote.

CHAPTER V

THE ORATOR

F oratory, Justice David J. Brewer said:

OF

Oratory is the masterful art. Poetry, painting, music, sculpture, architecture, please, thrill, inspire; but oratory rules. The orator dominates those who hear him, convinces their reason, controls their judgment, compels their action.

If this be true and the oratory of Lincoln be thus measured, few orators have left on record more substantial evidence of the possession of great oratorical power than he.

Daniel Webster's great reply to Hayne stands out boldly as the greatest of all the speeches of the greatest of all American orators, and closely in its wake follows his oration at the dedication of Bunker Hill Monument; and while their author delivered many great addresses, it is by these that he is chiefly remembered, for the average man has heard little of any other. Henry Clay is known to the world as an orator of extraordinary power, yet few there are who can name a single speech made by him during his long public service. But if the results of the forensic efforts of Webster and Clay be taken as the means of