[Speech of Melville W. Fuller at the fifth annual dinner of the New
England Society of Pennsylvania, Philadelphia, December 22, 1888. The
President, Heman L. Wayland, D.D., said in introducing Justice
Fuller:--"The reverence of New England for law and her readiness to
make law (a readiness, perhaps our enemies will say, to make them for
other people) naturally suggests the topic which is first on the
programme--'New England in the Supreme Court.' I shall not enlarge
upon the sentiment, lest I should only mar the canvas which will
shortly be illumined by the hand of a master. The case of New England
versus The World has long been in court; the evidence is in; the
learned counsel have been heard; and now, before the case is finally
given to the intelligent jury of the human race, it remains only that
we hear a charge from his honor, the Chief Justice of the United
States."]
MR. PRESIDENT AND GENTLEMEN OF THE NEW ENGLAND SOCIETY:--I
thank you sincerely for the courtesy which has afforded me the
opportunity of being with you this evening, and am deeply sensible of
the compliment paid in the request to respond to the sentiment just
given.
We all know--we have heard over and over again--that the "Day We
Celebrate" commemorates an emigration peculiar in its causes. It was not
the desire to acquire wealth or power, nor even the spirit of adventure,
that sent these colonists forth. They did not go to return, but to
abide; and while they sought to make another country theirs, primarily
to enjoy religious independence, they were much too sagacious not to
know that emancipation from the ecclesiastical thraldom, of which they
complained, involved the attainment of political rights and immunities
as well. And so this day commemorates not simply the heroism of struggle
and endurance in silence and apart, for a great cause, not simply the
unfeigned faith which rendered such heroism possible, but the planting
of that germ of local self-government which has borne glorious fruit in
the reconcilement of individual freedom with a national sway of imperial
proportions.
It commemorates the advent of that first written constitution of civil
government, that first attempt of a people in that form, by self-imposed
fundamental law, to put it out of their own power to work injustice;
that agreement, signed upon the sea, "to enact, constitute and frame
such just and equal laws and ordinances, acts, constitutions and
offices," as should be "thought most meet and convenient for the general
good of the colony," to which all "due submission and obedience" was
promised. And this was followed a few years later in the sister colony
of Massachusetts Bay by that "Body of Liberties" which, it is well said,
may challenge comparison with Magna Charta itself or the latest Bill of
Rights. Instinct with the spirit of common law, though somewhat
ameliorating its rigor, these "rites, privileges and liberties," to be
"impartially and inviolably enjoyed and observed throughout our
jurisdiction forever," commence with the preamble that "the free
fruition of such liberties, Immunities and privileges humanitie,
Civilitie and Christianitie call for as due to every man in his place
and proportion without impeachment and Infringement, hath ever been and
ever will be the tranquillitie and Stabilitie of Churches and
Commonwealths. And the deniall and deprivall thereof, the disturbance.
If not the ruine of both. We hould it therefore our dutie and saftie,
whilst we are about the further establishment of this Government, to
collect and expresse all such freedomes as for present we foresee may
concern us, and our posteritie after us."
And so they ordain that no man's life or liberty or property can be
taken away, or his honor or good name stained, or his goods or estate in
any way damaged under color of law or countenance of authority, unless
by due process; that every person, inhabitant or foreign, shall enjoy
the same justice and law general to the plantation; that there shall be
no monopolies, except for new inventions profitable to the country, and
for a short time; no imprisonment without bail except for crimes capital
and contempts in open court; freedom of alienation and power to devise;
no primogeniture, no escheats on attainder and execution for felony;
succor to those fleeing from tyranny; full freedom to advise, vote, give
verdict or sentence according to true judgment and conscience; in short,
the expression or the indication of those safeguards to liberty, the
possession of which enables a people to become and to remain free.
Well may we claim for these documents large influence in forerunning the
organic laws of the several States, and that matchless instrument which
a century ago was framed in this fortunate city, which had been blessed
before as the place where the Declaration put on immortality.
And now in the latter half of the third century, since the bearers of
the underlying principles of Republican rule placed their feet upon that
rock, whose shadow was to become a solace to the weariness of the
perpetual toils and encounters of the land, we may well hope that what
they sought has been achieved, an enduring Government of laws and not of
men; security to freedom and to justice, "justice, that venerable
virtue, without which," as exclaimed New England's eloquent orator,
"freedom, valor and power are but vulgar things."
It is delightful to keep these remembrances alive, and while duly
recognizing the rightful claims of all our brothers to their share in
the foundation of the institutions of a common country, to dwell upon
what the forefathers were, what they accomplished and what they still
accomplish through the works that follow them. And as it is not
unnatural that at the same time we should felicitate ourselves upon
whatever of eminence or good fortune has attended the efforts of their
descendants, the reference, Mr. President, you have made in connection
with this toast to the court over which I have the honor to preside
enables me with propriety to indulge in an allusion to those from New
England who have labored in that field.
On the seventh of April, 1789, a committee was appointed by the Senate
"to bring in a bill for organizing the judiciary of the United States."
Able as were his colleagues, it has been generally conceded that "that
great act was penned" by the chairman of that committee, Oliver
Ellsworth, of Connecticut. On the twenty-fourth of September--the day
upon which the Judiciary Act became a law--President Washington
nominated for the Supreme Court of the United States a chief justice and
five associates, among the latter William Cushing, of Massachusetts,
who, after holding high judicial office under the Crown, but supporting
the cause of his country in the Revolution, becoming the first chief
justice of the State of Massachusetts, passed from that distinguished
station to the Federal bench, as one of his eminent successors has done
in our day, and who was commissioned to, but compelled to decline, the
headship of the court. Then came Ellsworth, whose great services in
framing the Federal Constitution in the Connecticut Convention, in the
United States Senate, in high diplomatic position, were complemented by
those he performed in the discharge of the duties of this exalted
office.
And so, following the careers of Marshall and Taney, Chase (fresh from
magnificent conduct of the national finances under circumstances of
tremendous difficulty), and Waite, from long and successful practice at
the bar, won enduring fame by deserving and obtaining the commendation
that a place rendered so illustrious by their predecessors had lost
nothing in their hands; men of New England birth, thus dividing in
number the incumbency in succession to Ellsworth, while he who has but
just entered upon that service, proud of the Prairie State from whence
he comes, has never ceased to regard with affection that particular
portion of the Fatherland in which he first saw the light.
Ellsworth and Waite, Baldwin and Field, and Strong, of Connecticut;
Chase and Woodbury, and Clifford, of New Hampshire; Cushing and Storey,
and Curtis, and Gray, of Massachusetts--these are names written
imperishably upon the records of the Court. But of the five from
Connecticut, Pennsylvania and California and Ohio claim four, and of the
three from New Hampshire, Ohio and Maine two; while the Old Bay State
preserved her hold on hers.
Surely it is not too much for me to say, that up to the present time New
England has in this sphere of public usefulness vindicated her title to
regard by the exhibition on the part of her sons of that devotion to
duty and that adherence to principle which characterized the men to
whose memory the celebration of this day is dedicated.
May that memory ever be precious, and reliance upon that Providence
which sustained them under the tribulations of their time, and has
conducted their children in triumphant progress through succeeding
years, never be less. [Applause.]