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 assigned 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 assured 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 Constitutional 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, asserting his position without fear or favor. While many of the important judicial and Constitutional 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 Constitutional 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 citizenship. 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 assigned 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 Constitution. 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 passion of the hour; but so long as our independent Federal Judiciary remains, our people are safe in their legal, fundamental, Constitutional rights.
"Perhaps there is nothing that illustrates 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 Constitutional 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. And like John Marshall, his great work on the bench has been in cases involving the construction and application of the Constitution. He has been especially assigned by the Court to the writing of opinions on Constitutional Law. In my opinion he stands to-day as the greatest living Constitutional lawyer.
"If the Court please, I desire to refer to one more phase of Justice Harlan's character. He is a religious man. He does not parade his belief before the world, yet he possesses deep and devout convictions and has given deep study to church questions. And it may be said that the great men of the world from the earliest dawn of civilization, with but few exceptions, have believed that the life of the soul does not end with the death of the body. Cicero, long before the birth of the Saviour, said:
'When I consider the wonderful activity of the mind, so great a memory of what has passed, and such a capacity of penetrating into the future; when I behold such a number of arts and sciences, and such a multitude of discoveries thence arising, I believe and am firmly persuaded that a nature which contains so many things within itself can not be mortal.'
"Centuries later the famous Dr. Johnson well said: 'How gloomy would be the mansions of the dead to him who did not know that he should never die; that what now acts shall continue its agency, and what now thinks shall think on for ever.'
"Justice Harlan is a firm and devout believer in the immortality of the soul.
"He is now approaching the age when under the law he may retire from the bench, yet he is in the vigor of health and is perhaps the greater judge to-day than at any time in his past career. I am sure I voice the general desire of the Bar of the whole country that he shall, so long as his health and strength continue, remain an active member of that great Court."
It is more than eight years since I delivered that address. In the ensuing period, five justices of the Supreme Court have either retired under the law, or passed away, none of whom enjoyed a length of service equal to Judge Harlan's; and yet Justice Harlan is attending daily to his duties as a member of that court, apparently in vigorous health and certainly as profound and learned a judge to-day as at any time in his past career. And I repeat now what I said eight years ago—that I hope he shall for years to come remain an active member of that great court.