Part 28 (1/2)

I had expected to render what a.s.sistance I could during the next session, which convened in December, in framing the bill in committee and to a.s.sist in its pa.s.sage in the Senate. But very unfortunately, just at the beginning of the next session of Congress, when the hearings were all concluded and the committee was prepared to go into executive session to consider the bill itself, I was taken ill and compelled to spend a couple of months in Florida to recover my health. It may seem strange, but the fact is, that my absence expedited the consideration of the bill by the committee and its report to the Senate. I had telegraphed and written my late colleague, Senator Dolliver, to record me as voting for the favorable report of the bill from the committee to the Senate. It was expected that the committee would have to hold many sessions to consider the numerous amendments that had been offered. Senator Dolliver, at one of the first meetings of the committee called to consider the bill, read my telegram and letter asking to be voted in favor of reporting the bill. Objection was made to recording me, and one distinguished Senator raised the point respecting how I was to be recorded on the question of amendments. Considerable controversy, I understand, took place, and Senator Dolliver then moved to report the bill to the Senate with the amendments already adopted in committee. This closed the discussion in the committee; the vote was taken, and the bill was ordered reported to the Senate, my vote being recorded in the affirmative; after which Senator Aldrich, in order to make it appear all the more ridiculous, moved that Senator Tillman, a minority member of the committee, be authorized to report the bill. This motion prevailed; Senator Tillman did report it, and he had charge of its pa.s.sage in the Senate. So, as I have stated, my absence, through the controversy over counting my vote, really expedited the bill through the committee.

I returned to my seat in the Senate in February, while the bill was being considered, and a.s.sisted as best I could through conferences with President Roosevelt and members of the Senate in agreeing on sections of the bill which were in controversy, particularly the court review section. I was also one of the conferees on the part of the Senate that finally settled the differences between the two Houses.

It was a very satisfactory bill, in the form in which it finally became a law.

CHAPTER XXII JOHN MARSHALL HARLAN

I have always admired Mr. Justice John Marshall Harlan, who has served some thirty-five years as a member of the Supreme Court of the United States, and who for a time after the death of Chief Justice Fuller acted as Chief Justice of the United States.

Upon the death of Judge Allen, who had for many years been United States District Judge for the Southern District of Illinois, it was suggested that his portrait be placed in the court room of the United States Circuit and District Court at Springfield, Illinois.

The movement developed into the broader suggestion that portraits of other distinguished judges, who had presided over the United States Court at Springfield, and also a portrait of Chief Justice Marshall, be procured and added to the collection. The portraits of Judges John Marshall, Walter Q. Gresham, David Davis, Samuel H.

Treat, Thomas Drummond, William J. Allen, John McLean, Nathaniel Pope, and John Marshall Harlan were procured, and it was planned that a suitable ceremony should take place in Springfield on June 2, 1903.

Judge Humphrey wrote me, telling me of the plans of the committee appointed by the Bar of the United States Court at Springfield, and asking me to say something concerning any one of these distinguished judges whom I might designate, leaving the selection to me.

I thought the matter over and determined that, inasmuch as I had known Justice Harlan more or less intimately ever since I became a member of the Senate, I should like to talk about him.

The occasion was quite a notable one. Vice-President Fairbanks delivered an address on Judge Gresham; Judge Kohlsaat, on Chief Justice Marshall; Lawrence Weldon, on David Davis; Judge Creighton, on Samuel H. Treat; Mr. John W. Jewett, on Thomas Drummond; J. C.

Allen, on W. J. Allen; Mr. Logan Hay, on John McLean; General Alfred Orendorff, on Nathaniel Pope; and the portraits were accepted in the name of the Court at Springfield by the Hon. J. Otis Humphrey, the District Judge.

There was a very distinguished gathering of lawyers, of Federal and State judges from Illinois and adjacent States, and of many members of the families of the deceased jurists. Judges Kohlsaat, Humphrey, and Anderson occupied the bench. The whole proceeding was a very dignified and appropriate one.

I cannot give a better estimate of my regard for Justice Harlan than by quoting some extracts from the address I delivered on that occasion:

”The Supreme Court to-day is composed on nine eminent justices, of one of whom I have been asked to speak; and I do believe that the Justice of whom I speak, in all that goes to make a noted and able jurist, is second only to that learned Chief Justice, John Marshall, of whom Judge Kohlsaat has so interestingly spoken.

”I speak of John Marshall Harlan, who has been an honored member of the Supreme Court of the United States for more than a quarter of a century.

”Justice Harlan from his youth was the architect of his own fortune; he has been a man of remarkable individuality and force of character; he impressed himself from boyhood upon the community in which he lived. Before he reached his nineteenth year he was made Adjutant- General of the State of Kentucky. Like Lincoln, he performed the obligations of a citizen, both in private and official life, with zeal and faithfulness to duty. . . .

”When Justice Harlan was but a young man, slavery became the paramount issue of the day, and naturally being a staunch Union man, he took an active part in the discussion and struggles that became more or less bitter in his very early manhood. He was one of the first to enlist and lead his regiment in the field in favor of the Union and was a.s.signed a place in that division of the army commanded by the gallant old soldier and patriot, General Thomas. . . .

”Justice Harlan's record as a soldier was a brilliant one. Certain promotion and higher honors were a.s.sured him, and he was nominated by President Lincoln to the position of Brigadier-General; but the responsibilities resulting from the death of his father compelled him to abandon what was certain to have been a distinguished military career, and he reluctantly returned to Kentucky. . . .

”Following the struggle in arms came important reconstruction legislation and important Const.i.tutional amendments, necessitating judicial interpretations. These grave questions of state gave opportunity for the development of great statesmen and judges.

”Great crises produce great men. Justice Harlan was at home in the thickest of the struggle, through the period of reconstruction, an able lawyer, an uncompromisingly bold man, a.s.serting his position without fear or favor. While many of the important judicial and Const.i.tutional questions growing out of reconstruction legislation remained unsettled, Justice Harlan took his place on the Supreme Bench, having been appointed by President Hayes in 1877, and an examination of the decisions of the Court since that year will show the prominent part he has taken in the disposition of these Const.i.tutional questions.

”It has been said that there never was a very powerful character, a truly masculine, commanding man, who was not made so by struggles with great difficulties. Daily observation and history prove the truth of this statement. Hence I believe that the rough-and-tumble existence to which the majority of ambitious young men of our country are subjected, does much to prepare them for the higher duties of substantial, valuable citizens.h.i.+p. The active life and early struggles of Justice Harlan in his State have had their influence in making him the fearless jurist that he is.

”Shortly after his appointment, Justice Harlan was a.s.signed as the Supreme Justice for this circuit, and served here for eighteen years. Many of you present remember his visit to Springfield and his holding court in this room.

”To be a member of the Federal Judiciary is the highest honor that can be conferred upon an American lawyer. The crowning glory of our Nation was the establishment, by the fathers, of the independent Federal Judiciary, which is the conservator of the Const.i.tution.

I have unbounded faith in it. It is the protector of those fundamental liberties so dear to the Anglo-Saxon race. State Legislatures and the Congress may be swayed by the heat and pa.s.sion of the hour; but so long as our independent Federal Judiciary remains, our people are safe in their legal, fundamental, Const.i.tutional rights.

”Perhaps there is nothing that ill.u.s.trates so well Justice Harlan's character, the equality of all men before the law, as do some of his dissenting opinions.”

I then referred to his famous dissent in the Civil Rights case, delivered in 1883; to his dissent in the Income Tax case, and others of his notable utterances from the Supreme Bench; and at the same time I referred to the fact that he had written more than seven hundred opinions, covering nearly every branch of the law, the opinions on Const.i.tutional questions being unusually large. I added:

”In many respects Justice Harlan resembles his namesake, John Marshall. Like John Marshall, he received his early training for the bench in the active practice at the Bar. Like John Marshall, he enlisted and fought for his country. Like John Marshall, while still a young man, he was appointed a Justice of the Supreme Court, and has for more than a quarter of a century occupied that position.