Speech given by former President of the United States (and future Chief Justice of the Supreme Court of the United States) William Howard Taft, upon the laying of the cornerstone of the Hamilton County Courthouse on April 1, 1915. This speech was reported by the Cincinnati Enquirer.
Citizens of Hamilton County: We are met to lay the cornerstone of a new, ample and commodious courthouse. It is an occasion to which ceremony is appropriate. The oldest courthouse in Cincinnati was burned in 1812. Another courthouse which succeed that was burned in 1840. This was situated on Fifth street. The Courthouse we first knew stood on part of this present site and was built and completed about 1854. It was burned by the mob in 1884. The courthouse which has given way to the structure whose cornerstone we are laying was completed in 1887.
It is impossible in this presence and environment to avoid reminiscence and personal local history. As we grow older, we are wont to exalt the men and deed of the past; to forget the defects of those who are gone; to be blind to the evils of the old days and to make comparisons with former generations that are not always just to the present. Making allowance for this tendency, however, I think we may properly say that the legal profession of Hamilton County in the generations which saw the gigantic political struggle of the North and South over slavery and national sovereignty and the actual conflict which followed, furnished to the administration of justice of this community and in the country at large on the bench and at the bar, an exceptional body of able lawyers, who held high professional and personal standards and from whom came patriotic leaders of public thought and action in the county, state and nation in a period when the constitutional form of our country’s government was finally settled.
It is dangerous and perhaps invidious to give a few of the names of the members of the bar of that time now dead, which this function in this place of three courthouses suggests. Chase, Matthews, Walker, Gholson, Spencer, Storer, Worthington, Stanberry, Taft, Perry, Pendleton, Groesbeck, Telford, Hoadly, Lincoln, King, Stallo, Pugh, McCook, Key, Hayes, Force, Cox, Collins, Herron, Mallon, Sage, Johnson, Sayler and a host of others were familiar figures in the courthouse that was home of the courts from 1854 to 1884. They were men who worked hard, lived well and most of them died poor. The law was to them a profession. It was not commercialized, it was an active life in forensic struggles. They felt and acted upon a loyalty to the court and the public as well as to their clients and their examples are full of value to those who have come after them.
The character of the old bar was shown in the successful struggle its members made to create a worthy Law Library. It grew from a day of small things in 1843 to be one of the first half dozen Law Libraries in the country. It was destroyed in the fire of 1884 with the exception of three volumes, and has now been restored through a spirit of emulation that found its impulse in pride of the bar in the old library, so that in its completeness it holds the same rank in the country as it did before the fire.
In the period of which I am speaking the issue as to the better mode of selecting Judges was in abeyance because popular elections gave us men like Gholson, Walker, Spencer, Storer, Matthews, Hoadly, Taft, Stallo and Force.
I am not censor morus – I am anxious to avoid being thought Laudator temporis acti. But I cannot think it inappropriate to call attention to a difference in the conditions surrounding our administration of justice throughout the country today and those which prevailed in the golden days of the Hamilton County Bar.
As I have said, our courthouse with nearly all its valuable records was burned and completely destroyed in 1884 through the blind and lawless violence of an infuriated mob, A palpably unjust verdict was rendered in a murder case, secured, as it was believed, through the corrupt manipulation of the jury by counsel for the defense. The verdict was only one circumstance in a chain of cumulative evidence that a permanent local conspiracy existed to pollute the fountains of justice. Good citizens were roused. A public meeting was called to condemn the conditions under which such a verdict was possible. The meeting was orderly; the speeches made were not incendiary and the formal action taken was entirely within the proper bounds. In separating, however, the lawless element came to the front, the suggestion was made to go to the jail and take out the murderer. The match was struck. The powder ignited and the mob sprang full armed into being. The jail was strong and resisted assault. The murderer had been wisely and quietly removed before the attack, but of this the assailants were not advised. The mob, as mobs do, rapidly passed to the control of the most vicious, the most lawless and the most criminal. Its intermittent battles with the police and the militia, which ensued lasted for two days. Failing in the assault upon the jail, it developed a spirit of looting and devilish destruction.
It directed its energy toward the unprotected courthouse in front of the jail That was soon in flames, because the Fire Department was halted in it work by the mob. The blood of scores was shed and the roll of the dead was never certainly known. An able brave attractive member of the bar, John J. Desmond, a Captain in the National Guard, was killed, giving up his life for the preservation of order. The event startled the whole country and awakened our local community and bar into action. Investigations and prosecutions were begun to end the vicious manipulation of juries and the unprofessional practices that had brought about such a dire result. The atmosphere of the Courts was cleared and a great change for the better followed.
The useful lessons of this tragedy in our administration of justice were not lost and have been, we hope, permanent in this community. They were of universal application, but they were to be drawn from local and more or less sporadic cause. They were the appropriate subjects for discussion at the dedication of the Courthouse erected to take the place of the one which was burned. The building of this new and grander temple of justice, however, prompted by the growth of the city and the county and the larger facilities demanded and not by the burning of a previous structure suggests a somewhat different though cognate theme, to wit, the present condition affecting the administration of justice not in this community alone, but in the country at large.
Since 1884 we have been passing through a period of material expansion, and accumulation of wealth never before known. It affected our people in many ways. Its contribution to the comfort and happiness of all I need not dwell on. But it has its evils too. It affected our politics. It threatened to turn over control of our municipal, state and national Government to corporate combinations of invested capital through the rise of political bosses and machines. Plutocracy faced us. The people were slowly aroused to the dangers. Finally, however, their attention was directed from the chase for the dollar which for a time affected all, and a popular crusade began.
A great reform followed. Bosses and machines became anathema. Corporations were driven out of politics. Radical measures were proposed to prevent the recurrence of such conditions. The leviathan of the people, once stirred to indignant action, could not stop at the medium line. It was not to be expected that they would avoid excesses. These were a part of the cost of the original disease. The people went too far. We are now in the aftermath of a great step forward. It is time for a retracing of some of our steps, not to conditions which required the great reform but to the line of justice, equity and good sense.
We have in many states seriously injured popular Government and rendered it less efficient and certain of success by crippling the system of representative government.
I do not intend on this occasion to discuss its value or to point out the inevitable deterioration in political results, both in legislation and in the selection of able, courageous agents and leaders of the people for office, which the adoption of the initiative the referendum the recall and the general primary with the abolition of the convention is now bringing about and which will become more apparent as time goes on. I only mention them in connection with another change in the popular attitude which is part of the same movement. It was urged that the danger of Plutocracy had arisen under the representative system. Therefore, it was said, the system was responsible for corrupt conditions. Abolish it. The advocates of the change did not see that any system will fall if the people neglect their political duties and scrutiny.
The same method of reasoning was adopted to impeach our administration of justice. Political corruption and consequent injustice and inequality were possible under our courts as at present constituted. Therefore, the system must be changed. We’ll have a pure democracy. The people shall legislate directly, they shall execute directly; they shall hear and adjudge directly. Agency for the people will be abolished as far as possible. As for legislation, we’ll have the initiative and referendum. For election, we’ll have the general primary and the recall. For the selecting of judges and judicial work we’ll have the general primary, the general recall of Judges and the recall of judicial decisions.
As I have said, this is no time to discuss or detail the pros and cons of the change in the machinery for legislative and executive governmental action, and the wisdom of destroying the representative system. It is appropriate, however, to refer to the danger to our administration of justice involved in the effort to have the people en masse carry on the Courts and decide cases. This attempt to change our judicial system was inaugurated by a muck-raking campaign intended to discredit the Judges and the Courts. Their motives and so-called class prejudices were attacked. Every case in which the judgment could be tortured into a demagogic argument against the Court rendering it was used to fan the flame. Judges were said to be tyrants and to be cherishing a doctrine called the divine right of Judges. They were charged, each time they held a law palpably in violation of the constitution to be invalid, with defeating the will of the people. When the crudities and inconsistencies of hasty legislation they were obliged to resort to judicial construction to reconcile the laws and make them workable, their decisions were heralded as Judge-made law and the results of the judicial usurpation. We can never quite estimate the injury to our society which this attempt to destroy the confidence of the public in our Courts has done.
I am not here to attack the good faith of the many who joined in this movement. They were led into the attitude of hostility to the Courts and suspicion of them by sincere belief in the charges made against them. Then there were those who disbelieved in the constitutional bias of our Government resting as it does on the guarantees of personal rights, including the right of property.
They deemed the Courts as the refuge of property and vested interests, as indeed they must be. Therefore, the courts shared the antagonism stimulated and directed against accumulated wealth and invested capital. The tendency toward socialism and a division of wealth and state control of all industry, found expression in attacks upon Courts and in proposed legislation to restrict and hamper Judges in the exercise of judicial power. The legal procedure was tinkered with and made more and more detailed while the power of Juries and of lawyers was greatly increased and the power of Judges was minimized. Then, having taken from Judges their old common law discretion to control and expedite headings and business and to secure speedy justice, the public criticized the Judges for delays in the Courts.
The remedies proposed in the recall of Judges and the recall of judicial decisions were urged on a radically erroneous ground. It is said that in deciding cases, Judges were merely servants of the people to carry out their will and that if they failed to so, the people ought to have an opportunity to recall them and substitute more obedient servants, and ought to have a further opportunity to reverse their decision which they did not like. Such a point of view was utterly at variance with what a proper judicial system should be under any form of civilized government. Courts are to decide cases between the litigants according to law and justice. The people enact law through the Legislature under limitations established by people in the constitution.
The constitution is a restraint imposed by the people on themselves and their instruments, the Legislature and the executive, to avoid the injustice that may result from hasty and passionate action of a majority of the people to the minority and to individuals. These restraints ought to be enforced by Courts, independent and courageous by their decisions in litigated cases that come before them. Their duty is prescribed by the constitution. The laws are enacted by the people in accordance with the constitution and by the customary or common law which the people have not changed. They must do justice according to the law and not according to the will of the people as manifested by a plurality of the electors in an election for a recall of a Judge or a decision. The Judges are the servants of the people to do justice according to the law, not according to the verdict at the polls as to a particular Judge or a particular decision. There is a radical distinction between the character of the agency for the people which legislators and executives have and exercise that which Judges have. That of the Legislature and executive is to do the will of the people within the restraints imposed by the people themselves in this constitution. That of the Courts is to decide cases which come before them according to the law and justice and not according to the will of the people except as that is duly enacted into law by the people.
To hold that a Judge who upholds a constitutional guaranty in behalf of a majority or an individual should be subject to removal by a majority of voters in his district who don’t like the individual or the application of the guaranty in his case or to uphold that the same majority may suspend the protection of that guaranty of the right of such an unpopular individual by a recall of the judicial decision in his case to give up the administration of uninformed equal justice.
It is to introduce the tyranny of special favoritism and to subject every individual and his most cherished rights to the passionate exercise of unrestrained power of a majority who have no opportunity for a judicial hearing, deliberation and decision and who, however high their average intelligence, have no trained knowledge of the law or experience to render their decision safe or just.
A majority of the electors in a republic must always rule, but they must rule according to general fundamental law, which they themselves adopt in their calm deliberation after full discussion and without reference to particular issues or persons calculated to arouse temporary prejudice or passion in a people, however intelligent or trained in self-government. They select Judges as skilled agents to interpret this fundamental law and statutory law and common law and apply it to special cases and particular individuals. If the majority is to intervene and control their skilled agents in this work we shall have government by special instances, despotism of the majority, gross injustice and the structure of popular self-government, which rests for its foundation stone on the equality of all before the law and on justice to each, will fall. I am glad to say that the riotous imagination of such radical judicial reformers as I have had in mind has largely lost its influence. While the Courts have not regained the confidence in the popular mind which they should enjoy, a slow reaction has set in that has discouraged a judicial muckraking in magazines and the public press.
The attention of the public is now being turned in a right direction and that is toward an improvement in the judicial procedure and its simplification. The trend, and it is a most necessary one, is toward giving Judges greater power in framing the procedure by rules of Court and greater executive control to distribute the judicial forces of Judges of a state or district with a view to the disposition of arears of business. Delays in our Courts and high cost of litigation are the great obstruction to the flow of even justice. Poor litigants are constantly at a disadvantage from both. Reduction of these is the greatest reform to be sought in the interest of all the people.
These can be accomplished by wise legislation and by conferring greater power on our Judges. More than this, any change in the machinery for selecting Judges, in the amount of their compensation, in their independence of political control, which will secure in them more learning, more ability, more experience and more courage, will improve the administration of justice in the interest not of the rich for they can generally look after themselves, but in the interest of the poorer litigants. The wildest fallacy that ever permeated the mind of a legislator is that the Courts in which the poorer litigants throng, there we may properly have poorly paid, unskilled Judges, with little training, experience or knowledge of the law.
The evil effects of the unmeasured attack upon our Courts and the wild and fatal changes proposed in the recall of Judges and the judicial decisions have not promoted the cause of the law and order in the country. The prevalence of a disposition to mob and lynch law has not been mitigated by it. The open and persistent defense of lawless violence in Colorado, in Georgia and in other states continues to be alarming to all who believe that order is heaven’s first law and that no justice or happiness is possible without it.
It can only be remedied by the cultivation of wise, patriotic and self-restrained and self-restraining public opinion, which shall enforce earnest effort on the part of our Legislatures and Courts to form our judicial procedure and to make more speedy and certain the enforcement of our civil and criminal law.
But I must close. The corner stone we are laying will support a busy courthouse in which justice will in all probability be administered for the people of Hamilton County long after the most of us here are gathered to our fathers. May the high priests in this temple of justice always be worthy of their office. May they ever have the power and courage to do even justice. May they strengthen the cause of popular self-government by showing in their judgments that under it, more than under any other form, we have a government of law and not of men.
TAFT: LAYS CORNER STONE OF COURTHOUSE BEFORE THOUSANDS OF PEOPLE. COURTS ARE DEFENDED BY FORMER PRESIDENT IN SPEECH POINTING OUT DANGERS OF RECALL AS APPLIED TO THE JUDICIARY--IMPRESSIVE CEREMONIES PRECEDED BY NOTABLE CIVIC PARADE. (1915, Oct 02). Cincinnati Enquirer (1872-1922) Retrieved from https://search-proquest-com.research.cincinnatilibrary.org/docview/870092505?accountid=39387