Part 20 (1/2)

”Great battles,” said he, ”have been fought; there will be no more wars of magnitude. The great principles of the law have all been announced and applied to every conceivable form of human rights and controversy. For example, in our own country there will be no more new and great const.i.tutional arguments. Everything, from now on, will be only an application of what has already been said and decided.

”In invention, there may be some improvements on old and present devices, but there will be no more Edisons, no more Marconis. In medicine, we are about at the top of the mountain. In literature, the creative and fundamental things have all been done. There will be no more Shakespeares, no Miltons, no Dantes, no Goethes. Even Hugo is dead. From now on books will be mere second-hand talk.

”In statesmans.h.i.+p, nothing is left except that common housekeeping which we call administering government. In diplomacy, the same old lies will continue to be told, and so on.”

This young man's profoundly melancholy view of life is that which I have found crus.h.i.+ng the _elan_ out of many young men; and particularly college students. In their hearts they feel that progress is finished, so far as individual effort _by them_ is concerned. They feel that _for them_ there is nothing but to eat, sleep, laugh, grieve and go to their graves. They feel that _for them_ there is no such thing as leaving behind them a monument of their own constructive effort. Talk to most young men in college or school, and you will find this feeling, like a pathetic minor chord, running through their highest and most daring boasts.

Is not our college training responsible for some of this melancholy negativeness of life? However it happens, the truth is that too few young men come out of our great universities with the greater part of the boldness of youth left in them. Somehow or other those fine, and, if you will, absurd enthusiasms which n.o.body but young men and geniuses are blessed with, have been educated out of the graduate. How many seniors in our historic American universities would not have sneered John Bunyan out of existence, or have told the young and unripe Bonaparte how presumptuous he was to think of fighting the trained generals of Europe?

”Yes,” says a certain type of young man, ”all the great things have been done. Nothing is left for me but the commonplaces.” This is not true.

The great things have not all been done; scarcely have they been commenced. ”There is more before us than there is behind us,” said my old forest ”guide,” wise with the wisdom of the woods and their thoughtful silences. And the purpose of this paper is to point out the infinite number of practical possibilities immediately at hand; to awaken each young man who reads these words to some one of the million voices which from all the fields of human endeavor is calling him; and so, by showing him things to do, make him a doer of things, if he will.

Let us take the law--that entrancing subject which exercises such an empire over the minds of most young men. Our own const.i.tutional law is only a part of that universal body of jurisprudence with which all real lawyers must deal. Very well; we have only begun the discussion and settlement of our great const.i.tutional questions. Marshall and Hamilton, it is true, when they formulated the doctrine of implied powers, seemed to unlock the door of all const.i.tutional difficulties, leaving nothing for future lawyers and jurists to do but to find their way through the channels and pa.s.sages thus opened.

But it was only one great field to which they laid down the bars.

Others equally large--yes, larger--lie beyond it. It is generally admitted now by all thorough students of the Const.i.tution that there is such a thing as const.i.tutional progress--const.i.tutional development. The Const.i.tution does and will grow as the American people grow.

Half a dozen questions are now in the public mind that measure, in importance, up to the level of Marshall's elementary decisions. Beyond these is still the application of inst.i.tutional law to the interpretation of the Const.i.tution. There is no book so much needed in the present, or that will be so much needed in the future, as a great work on our inst.i.tutional law--such a work as the world sees once in a century.

Consider this one phase of jurisprudence for only a moment, young man, just to see what a world of thought it opens to the mind.

Inst.i.tutional law is older, deeper, and even more vital than const.i.tutional law. Our Const.i.tution is one of the concrete manifestations of our inst.i.tutions; our statutes are another; the decisions of our courts are another; our habits, methods, and customs as a people and a race are still another.

Our inst.i.tutional law is like the atmosphere--impalpable, imperceptible, but all-pervading, and the source of life itself. Most leading decisions of our courts of last resort, involving great const.i.tutional questions, refer to the spirit of our inst.i.tutions as interpreting our Const.i.tution. It is our inst.i.tutional law which, flowing like our blood through the written Const.i.tution, gives that instrument vitality and power of development.

Inst.i.tutional law existed before the Const.i.tution. Our inst.i.tutions had their beginnings well-nigh with the beginning of time. They have developed through the ages. Magna Charta only marked a period in their growth; the a.s.sertion of the rights of the Commons marked another; our Revolution marked another; the adoption of our Const.i.tution marked another still.

I have no respect for const.i.tutional learning which deals alone with the written words of the Const.i.tution, or even with the intention of its framers, and ignores the sources and spirit of that great instrument. The Const.i.tution did not give us free inst.i.tutions; free inst.i.tutions gave us our Const.i.tution. All our progress toward liberty and popular government, made since the adoption of the Const.i.tution, has been the spirit of our inst.i.tutions working out its sure results, through the Const.i.tution when possible, modifying it when necessary.

Jefferson wrote in the Declaration of Independence a denunciation of slavery, and called it an ”execrable commerce.” It was stricken out at the request of Georgia and South Carolina, and years afterward slavery was recognized in our Const.i.tution.

But slavery was opposed to the spirit of our inst.i.tutions, and while legalized by our Const.i.tution and defended by armies as brave as ever marched to battle, const.i.tutional slavery went down before inst.i.tutional liberty; and Appomattox was the capitulation of the word of death in our Const.i.tution to the spirit of life in our inst.i.tutions. Every amendment of our Const.i.tution marks the progress of our inst.i.tutions.

The Const.i.tution contemplated and provided for the election of Presidents by electors, who should select the best man to preside over the Republic, irrespective of the people's choice. That was the intention of the fathers. But in that they did not correctly interpret the spirit and tendency of our inst.i.tutions, which is toward getting the Government as close to the people as possible.

And so, in spite of the Const.i.tution, in spite of the intention of the fathers, in spite of the fact that this plan was pursued for several elections, the spirit of our inst.i.tutions prevailed over our Const.i.tution, and no presidential elector now dare cast his ballot against the candidate for whom the people instruct him to vote.

Even outside of the doctrine of implied powers by which our written Const.i.tution has been made to meet many of the emergencies of our history, there are important things in our National life that have all the force of organic law which are unprovided for by the Const.i.tution.

For example, the Const.i.tution does not say that a congressman must live in the district which he represents. So far as const.i.tutional law is concerned, he might live anywhere. But no matter--our inst.i.tutional law settles that. The theory of local self-government requires the representative of a locality to live in that locality.

Wherever our Const.i.tution has been weak and insufficient in its apparent expressed powers, the spirit of our inst.i.tutions has given it life. Read Marshall's opinions; read most of our great const.i.tutional decisions; read the whole history of American const.i.tutional progress, if you would know the beneficent influence of our inst.i.tutions on our Const.i.tution.

Thus we see that our inst.i.tutions are the preservers of our Const.i.tution. The doctrine of implied powers, which has saved the country and the Const.i.tution too, has been made possible only by reading our Const.i.tution by the light of our inst.i.tutions, as Hamilton and Marshall did.

And so our security is not in the written word of the Const.i.tution alone; it is there, of course, but it is in our inst.i.tutions also which are the spirit of the Const.i.tution, which illumine and emphasize the meaning of that n.o.ble instrument. England has no written const.i.tution; certain other countries have had and have now ideal written const.i.tutions.

And yet England has steady and continuous liberty and law, while those others, even with written const.i.tutions, frequently have had bureaucracy and military absolutism. They had the _forms_ of liberty and popular government in these written const.i.tutions, but they did not have free inst.i.tutions, which alone make formal const.i.tutions living and vital things.

England, without a written const.i.tution, is almost as free a government as ours. Law reigns supreme. The poorest gatherer of rags has equal rights before the bar of justice with belted earl or millionaire, and those equal rights are impartially enforced. Neither wealth nor t.i.tle are favored more than poverty or humble rank in the courts of England; and even royalty appears as witness, the same as his meanest subject.