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MARSHALL AND THE

CONSTITUTION

WILLIAM BOURKE COCKRAN

AN ADDRESS DELIVERED BEFORE THE ERIE COUNTY BAR ASSOCIATION, BUFFALO, NEW YORK, FEBRUARY 14, 1901, UPON THE OCCASION OF THE CENTENNIAL ANNIVERSARY OF MARSHALL'S APPOINTMENT AS CHIEF JUSTICE OF THE UNITED STATES SUPREME COURT.

INTRODUCTION

William Bourke Cockran, lawyer, politician, and orator, is one of the many men of Irish birth who have become noted as American orators. He was born in Ireland, February 28, 1854. He was educated in that country and in France, migrating to the United States in 1871. For five years he taught school in New York, studying law at the same time. In 1876 he was admitted to the New York State bar, and soon took a prominent part in state politics. His ability as a lawyer gained for him a place on the New York commission for revising the judiciary clause of the State Constitution. In 1882 he became counsel to the sheriff of New York City, and was reappointed in 1885. In politics Mr. Cockran is a "gold" Democrat. He supported McKinley for the presidency in 1896, but advocated the election of Bryan in 1900 on account of the "imperialism" issue. With some intermissions, he has represented New York in Congress since 1886.

Mr. Cockran is a ready, polished, and eloquent speaker. As a campaign orator he has been a tower of strength to whatever side he espoused, and he is also a favorite as an orator for special occasions. He is a man with a strong personal magnetism, his speeches losing not a little in the reading. He himself says in a

raneous.

letter to the editor: "Nearly all my speeches have been extempoIt is hard for me to say which I consider the best, or indeed, that I think any of them meritorious. As I read them now my principal feeling is one of surprise at the measure of success which they achieved when delivered."

1. If there be any one capable of disputing that, aside from the establishment of Christianity, the foundation of this Republic was the most memorable event in the history of man, we would not be apt to seek him at this board or to find him in 5. this country. And if the foundation of this government be the most momentous human achievement of all the centuries, then clearly the appointment of John Marshall to the Chief Justiceship of the United States was the first event of the last century no less in the magnitude of its importance than in the 10 order of its occurrence.

2. To the judicial career whose initial stage we celebrate this country mainly owes its independent Judiciary, the unique feature of our political system, the distinctive contribution of American democracy to the civilization of the 15 world, the vital principle of constitutional freedom, on which depend the strength which this government possesses, the fruit which it has borne, the cloudless prospect which it enjoys.

3. It is certainly beyond dispute that this government, 20 which is the freest, is also the most stable in the world. During the period of its existence what changes have swept over the earth; what upheavals have convulsed society; what dynasties have been established and overthrown; what empires have risen and fallen; what political enterprises have been 25 undertaken and abandoned; what constitutions framed in high. hopes have perished in disappointment and confusion! It has seen the Whig oligarchy, which ruled England for a century. and a half, give place to a republic preserving the outward form of monarchy only to veil the democratic character of its

evolution. It has seen the king who aided these colonies to achieve their liberty immolated on the scaffold in the name of liberty, and France, after staggering through anarchy to military despotism, sink back into monarchy; and after again overturning thrones and stumbling once more into imperialism, 5 while groping towards republicanism, engage in a third attempt to establish some form of constitutional freedom.

4. It has seen Prussia rise from the ashes of defeat and humiliation, and after humbling the pride of the Hapsburgs assume the military primacy of Europe when her king, raised 10 to imperial dignity on the bucklers of his triumphant soldiery, proclaimed a new empire of Germany in the conquered halls of Louis the Magnificent. It has seen the Republic of Venice perish in its age and decay; the German principalities disappear from the banks of the Rhine; the ancient city of Leo 15 and of Gregory become the capital of a new kingdom, and Spain begin to recover in the cultivation of her own lands the prosperity which she sacrificed in attempts to conquer other lands. It has seen the veil of darkness and ignorance rent in the East. As I speak, it sees the forces of Western 20 civilization standing in the battered gateways of Far Cathay. And through all these changes, convulsions, revolutions, this Republic stands to-day, as it went into operation one hundred and twelve years ago, unchanged in any of its essential features, except that its foundations have sunk deeper in the affections 25 of the people whose security it has maintained, whose prosperity it has promoted, whose conditions it has blessed.

5. To what must we attribute this stability which has maintained our government unmoved and apparently immovable on solid foundations amid the upheavals which have engulfed 30 ancient systems? It is not explained by the lofty purpose which animated its founders, because other governments conceived in equally high aspirations have perished at the first attempt to put them in practical operation. It is not because

it rests on a written constitution, for the pathway of man is strewn with the wrecks of constitutional experiments. It is not because our Constitution declares certain elementary rights of man to be inviolable. Its provisions in this respect 5 were modeled on existing institutions. Their very language was not original. In terms as well as in substance they were borrowed from other charters of liberty. The French Constitution of 1793 and the Declaration of the Rights of Man, which was made a part of it, contained even more elaborate 10 provisions for the safety of the individual. But while the French Constitution was munificent in its promises of privileges to the citizen, the means which it adopted to secure them were inadequate and indeed puerile. You remember how that remarkable document sought to enforce its provisions 15 by directing the Constitution to be "written upon tablets and placed in the midst of the legislative body and in public places," that in the language of the Declaration "the people may always have before its eyes the fundamental pillars of its liberty and strength, and the authorities the standard of their 20 duties, and the legislator the object of his problem." The Constitution was placed "under the guarantee of all the virtues," and the Declaration concluded by solemnly enacting that "resistance to oppression is the inference from the other rights of man. It is oppression of the whole society if but 25 one of its members be oppressed. When government violates the rights of the people, insurrection of the people and of every single part of it is the most sacred of its rights and the highest of its duties."

6. The framers of that Constitution made the fatal mistake 30 of assuming that to declare certain privileges the right of the

citizen was equivalent to placing them in his possession. In practical operation, however, it was soon found that the sacred right of insurrection was too unwieldy a weapon to be wielded by a single arm. "All the virtues" proved but indifferent

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