of the universe."1 In borrowing the expression of Thomas Hobbes those three states, unlike him, distinguished between the substance and the form of government; and while they acknowledge the substance to be the creation and gift of the "supreme ruler of the universe," they also realized that they are empowered by Him to select and adopt the form in which sovereignty should exercise its functions. A constitution is a collection of principles and rules established by the sovereign body, in accordance with which the government of the state is administered, and usually consists of two distinct parts, one of which is concerned with the structure of the government, and the other, with the fundamental rights in rem, known as the bill of rights. These fundamental rights are three, namely, the right of life, liberty and property. Blackstone says that they "were formerly, either by inheritance or by purchase, the rights of all mankind," but they are in the declaration of independence denominated "inalienable."2 Furthermore, Blackstone gives the reason why these rights are termed fundamental, namely, "because, as there is no other known method of compulsion, or abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these inviolate may justly be said 1 Maryland: "All government of right originates from the people, is founded in compact only. . . " Massachusetts: "It is a social compact . . . " The constitution of South Carolina--adopted in 1895--says nothing about a compact. Its predecessor, adopted in 1868, called itself "a solemn compact." The constitution of Maryland does not declare that there is "a supreme ruler of the universe"; that of Massachusetts--adopted in 1780--effusively refers to "the great Legislator Of the universe . . . the Supreme Being, the great Creator and Preserver of ' the universe."--ED. 2 The rights specified in the declaration of Independence as, inalienable are "life, liberty, and the pursuit of happiness. "--ED. |
include the preservation of our civil immunities in their largest and most extensive sense." Finally they are all included in the code promulgated on the Mount of Sinai. In the constitution of each state the bill of rights, collected or diffused, enumerates, specifically or generally, those three fundamental rights in rem in all their bearings on the destiny of man. As to the immediate source of authority in government a practically uniform expression is used by the several states. Alabama, Arkansas, California, Connecticut, Florida, Idaho, Iowa, Kansas, Minnesota, Nevada, New Jersey, North Dakota, Missouri, Montana, North Carolina, Ohio, Washington, South Carolina, employ the formula, all "political power is inherent in the people."3 Colorado, North Carolina, Montana, Mississippi, use the expression, "vested in and derived from"; Delaware, "is derived only"; Illinois, "deriving their just powers from the consent of the governed"; Indiana, "founded on their authority"; which is identical with that of Kentucky, Louisiana, Texas, Oregon, Pennsylvania, on which Michigan is silent; Rhode Island speaks indefinitely, thus: "The basis of our political systems is the right of the people to make and alter their constitutions of government." In determining the structure of the government of the United States, as well as of each particular state, the 3 Montana: "All political power is vested in and derived from the people . . . " North Carolina, the same. South Carolina: "All political power is vested in and derived from the people only . . . " Delaware: "All just authority in the institutions of political society is derived from the people . . . " Indiana: "All power is inherent in the people; and all free governments are founded on their authority." Louisiana: "All government of right originates with the people, is founded on their will alone."--ED. |
experience of all other peoples in regard to governments, and especially those of Greece, Rome and England, was exhaustively analyzed, and the wisdom thereby gained was a shining light to the framers. If history be what Cicero described it to be, namely, the witness of ages, torch of truth, life of memory, messenger of antiquity, directress of life, in no other work of man for the upbuilding and regulating of society has the experience and wisdom of history been so admirably investigated and so completely and effectively appropriated and applied. From Rome and Greece they learned the division and distribution of powers, a single rather than a plural executive and a plural rather than a single legislature and judiciary; and from England and other nations they preferred an elective rather than an hereditary executive. The executive established by the constitution of the United States is, with the limitation of appointments "by and with the advice and consent of the senate," an absolute unity, while the executives established by the constitutions of the states divide and diffuse the executive power; in the former it is conferred on one by the electors, while in the latter it is conferred by the electors on several individuals independent of each other and responsible only to the electors. The vastness of the territory to be controlled, the reluctance of sovereign states to surrender anything of sovereignty, the necessity of exerting in a consolidated and united form the whole force of the people and presenting a unity in all relations with other governments, the experience of the confederation with a single body of plural legislators without an executive, and of those of antiquity and of the middle ages, were Powerfully persuasive in the adoption of such an executive, notwithstanding fears arising from the yet vague of the federal form in government, of which |
history presented no example for guidance; while, in the states, a comparatively limited territory, a closer and more immediate and more direct relation to the electors with more frequent return to them for an accounting, with the usual and lasting fears of a free people for a tyranny, all tended to create a preference for something akin to plurality in the executive as well as in the other branches of government. Furthermore, in the language conveying powers, the constitutions of the states employ, for the most part, concrete expressions which entirely eliminate the power of expansion to meet new conditions arising in the continuity of the growth of states and which can be adequately provided for only by recourse to the sovereign body for a grant of new powers; while in the constitution of the United States the language conveying power is usually, almost entirely, abstract. In other words, abstract principles are declared, which, on due analysis and profound study, will be found to contain the rule for the determination of each concrete case. As an example of this difference, the growing and vast importance of the interstate commerce clause, passed in the convention almost without debate, is now found to embrace rules for the universally altered industrial conditions, undreamed of by the convention that framed the constitution of the United States. Many of the state constitutions, on the other hand, have, in addition to the reasons previously referred to, been loaded down with enactments more appropriately assigned to the functions of the legislature, which, by frequent orders from the sovereign body committed to new agents, would be more elastic to meet growing or changing conditions. Nebraska has experienced the difficulty of making needed improvement in her fundamental law but, in the three amendments adopted in the last few years, has raised her constitution to a place |
where it may fairly be said to hold the golden middle of the two extremes of constitutions. That extreme, where a constitution is weighted down with legislative functions, manifests a fear of the people, which is either well founded or not well founded. If well founded, there can be no remedy for it but the Roman submission to a tyranny; for when a people cease to care for the administration of their government, how else can it be administered but by tyranny, unless one would call anarchy administration of government. The other extreme, namely, where few, if any, functions of a legislature are embodied in a constitution, demonstrates a healthy, vigilant, active, energetic interest in public affairs and a serious appreciation of a free government. No greater stigma of degeneration can appear among a free people than indifference to the public weal, neglect to perform the duties of citizenship, or to use government for private interest, not for the pub-, lie welfare. When the public conscience slumbers, when patriotism is extinguished or extinguishing, the writings on constitutional parchments become mere hieroglyphics, undecipherable, and the sovereign power has been abdicated by the people to be grasped by another and stronger hand. One of the greatest and most profound writers and philosophers, St. Thomas Aquinas, inferring from history and illumined by supernal light, leaves us this conclusion: "If a people be a well moderated, grave and most diligent custodian of the commonwealth, in which each esteems his private property less than the public welfare, is not a law rightly enacted, by which such a people is allowed to select for themselves magistrates, through whom the republic may be administered? But if, by degrees, that, same people becomes depraved, considers the right of suffrage a thing to be sold and bought, and intrusts the 6 |
government to the wicked and criminal, the power of conferring honors is rightly taken away from such a people and given back to the discretion of the few, who are virtuous." The stream is not purer than its source, and a people indifferent to and negligent of public affairs cannot be saved or preserved in liberty by any written documents. For some years, there has been a periodical demand, which thus far has not accumulated the required energy, for a change in the mode of electing United States senators.4 When the original thought of the framers of that constitution is considered, namely the two-fold representation in Congress, of the people directly and immediately in the House of Representatives, and of the organized states in their corporate capacity directly and immediately in the one and indirectly and mediately in the other, together with the history of one and a third century of results, it does not seem that one can conclude that there is either wisdom or necessity for the demand. If the people are not pure and incorruptible and patriotic and selfish enough to elect a legislature pure enough and incorruptible enough and patriotic, enough and true enough to its constituents to select and commission the senator they demand, how can they themselves perform directly and immediately that most important of functions? Is there any reason now to believe, is there thus far any fact on which to rest such a belief, that the same interests that now are said to corrupt a legislature in such a selection, may not also corrupt the body sovereign, that is, discover and corrupt sufficient electors holding the balance of power, sometimes many, often only a very few? 4 The seventeenth amendment to the constitution of the United States, which was adopted May 31, 1913, provides that United States senators shall be elected by the people.--ED. |
Is it not charged that it has been accomplished in elections to other offices? and have not the conditions sometimes been such that the corruption of a very few electors in a few precincts would have elevated other candidates to the supreme magistracy? If this be true, the improvement effected by the change would not be valuable. Besides, would there not be in such a change a substitution of the principle of a confederation or of an empire for that of a federal union? There certainly would be a diminution of the division of people and the combination of them according to various and diversified interests and peculiarities of localities which it is now sought to have represented in legislation, in order that a somewhat equitable concern for so diversified and often conflicting interests may receive in a general enactment sufficient recognition. Thus far, however, the people as a whole have not been sufficiently impressed or convinced of the necessity or utility of so momentous a change. Passing from this hasty and too brief consideration of this portion of public substantive law, it may be here permitted to state that, while the common law has been for ages an object of legal worship, nevertheless the kingdom in which it was begotten, perceiving its cramped and inadequate rules, too often denying justice or working unnecessary hardships, has been occupied during the last half century with remedial legislation better adapted to declaring justice between man and man. In so doing Great Britain has gone back many ages to adopt from the civil code whole systems of private substantive law. It was thought that when New York in 1848 adopted the code procedure a great advance in jurisprudence had been effected; but it is now well apparent that New York, instead of progressing, retrograded about twenty-four centuries, where she beheld the Roman praetor clothed |
Justice to the dead and self-interest prompt the living not to permit the good that men do to be interred with their bones. Judge Broady had a successful practical career. That is, he wisely adapted himself to his social environment, even to the extent of being many times an available candidate for political office. Coming to Brownville, Nemaha county, from Illinois, in 1867, he served the law as his jealous mistress until 1875, when he became a delegate to the constitutional convention of that year; and he was chosen district attorney for the second judicial district, comprising the counties of Cass, Lancaster, Nemaha, and Otoe, at the same election at which the constitution was adopted, in the fall of 1875. In 1883 he was elected judge of the first judicial district, which comprised the counties of Gage, Johnson, Nemaha, Pawnee, and Richardson; and he was reëlected at the close of his first term in 1887. In 1891 he was nominated by the democratic state convention for judge of the supreme court but, influenced mainly by the need of resuming the practice of the law, the better to support his large family of seven children, he declined the nomination, and at the close of his second judicial term, in 1891, he changed his residence to Lincoln. In the spring of 1895 he was a candidate for the office of mayor of Lincoln; in 1896 he was a candidate for membership of the federal house of representatives, and in 1902 he was a candidate for the office of attorney-general of Nebraska. That he was three times elected to judicial offices upon his party ticket, in districts very strongly republican, shows that be possessed, in high degree, that quality of character which inspires and holds public confidence. The chief components of this quality or characteristic were, strict integrity and, allied to it, conscien- |
tious and industrious devotion to the very exacting duties of his office; a clear and sound understanding of the principles of law; a sympathetic appreciation of the spirit of equity jurisprudence; and all manifested through a naive democratic simplicity of spirit and demeanor. That these qualities were so strong and so admirable as to deserve distinguished public recognition is most creditable to Judge Broady; that they were so recognized, is equally creditable to his neighbors and other fellow citizens. He was defeated only when he ran for distinctively political offices--the immemorial common fate of democratic aspiration in Nebraska. Judge Broady's career, as it directly affected society at large, was bound up in his work as country lawyer and judge; and it was not only well-rounded: it was uniformly and creditably successful. The country doctor and the country lawyer of the traditional type are perhaps the most useful and enviable of social functionaries. Balzac has justly immortalized the doctor; and if some other great interpreter of men and social life has not already paid the same tribute to the country lawyer, the opportunity and duty await him; and he might well adopt Judge Broady for his model. The country lawyer is the confidential "guide, philosopher and friend" of his clientele in particular and, in less degree, of his neighbors in general. In many instances he safely steers his more dependent friends or clients through the dangers and difficulties which constantly beset us all. For Mark Tapley spoke for all in a serious sense thus: "For I'm always a-bein', sometimes a-doin', and continually a-sufferin'." The country lawyer who fitly responds to his high calling, supplies, so far as may be done by proxy, thought, thrift, prudence, integrity, to his needy clients. Less seduced by social diversions than his brother of the |
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