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An Address by
Professor Arthur L. Goodhart As an American who has been teaching law for some years at the universities of Oxford and Cambridge, I am here today to bring you the good wishes of those universities on this historic occasion. I feel that it is fitting that the English law schools should be represented at this ceremony because English and American law are so closely intertwined that it is almost impossible to draw a line between them; they are based on the same fundamental principles of justice, and they subscribe to the same high ideals of fairness and of good faith. Their history, as every student of the law knows, is—to borrow Maitland's phrase—a seamless web that cannot be torn apart. Perhaps the year 1691, which we are celebrating here today, is as good an illustration of this truth as any that we can find. At the time when this Supreme Court was being established so that the people of the Colony of New York might live under the law in peace and quiet, James II, the last of the Stuart kings, had just been driven into exile from England, and order returned at last to that country which had been distracted by civil war for over half a century. There, also, the law was placed on a new and firm foundation, and the danger of arbitrary government was finally destroyed. The English civil war is usually described as a war between the Stuart Royalists and the Puritans, but it was more—much more—than that. It was a struggle to the death between arbitrary power, as represented by the King, on the one hand, and the common law, as represented by the Judges and by Parliament, on the other. It was Sir Edward Coke, the great Chief Justice of England, who stated the principle for which the common people of England fought, when he said that in England every man, including the King, must be under the law. That is not the only time in the history of Anglo-American law that a judge has acted as the spokesman of the people in their fight for liberty, but few have done it with more courage and determination. Coke spoke at the beginning of the Revolution, but a greater political philosopher, John Locke, summed up in 1690 the principles which it had established. In the same year in which this Supreme Court was founded, Locke published his famous Treatise on Government. He began with the doctrine that no man or group of men had the moral right to dominate others by brute force. Government is a power which the people have given in trust to their representatives, and must be used as a trust. Every man has certain fundamental rights of life and liberty which must not be disregarded. Locke fully accepted the doctrine of the common law that the weak must be protected against the strong, and he therefore stated that in every country which desired to be free there must be an independent and fearless judiciary. It was under the protection of the law that man attained the full stature of citizenship—without law he was no better than a slave. Locke recognized what we all recognize here today, that only a country which respects the law can be truly free. Locke's book shows how close has been the interdependence between English and American legal and political thought, because his treatise was read with as much enthusiasm in the Colonies as it was in England. It was in his pages that the Colonists first found the phrase "no taxation without representation." As Professor Morison of Harvard has pointed out, Locke's political theory was one of the obvious sources of the Declaration of Independence. As an American and an Oxford man I therefore feel a double source of pride in that great instrument. Unfortunately a reaction set in in England during the eighteenth century, and some of the principles which Locke had stated in 1690 were forgotten. The Colonists, however, had remembered them, and the American Revolution was fought to re-establish these fundamental rights of the free man. The soldiers of the Continental army were not content to talk about liberty—they were prepared to risk everything, including their lives, in defense of what they held to be right. The Declaration of Independence would have been no more than a literary essay if the men of America had not been prepared to support it with force. But they did more than establish liberty in this country—by their example they gave a tremendous impetus to the movement for freedom in Europe. Even in those days of slow communication, ideas travelled across the ocean with irresistible force. It was because freedom and liberty spread like a wave from this country that so many European countries became free in the nineteenth century. The Oxford historians have taught the truth when they say that the American Revolution of 1776 was one of the foundation stones of modern English liberty. This ideal of law and liberty has been enforced by the Supreme Court of this State for two hundred and fifty years. It has continued unbroken through the Revolution, through the war of a 1812, through the Civil War, and through the last war. In facing these various critical times the people of this country felt that they had built their government so firmly and so true that it could withstand any blow that could be given to it either from without or from within. It is only today that, for the first time, we are being told that our democracy, our system of government, our American way of life cannot survive a war—that we dare not do what we think is right because our liberty might vanish. We who are lawyers have been taught that there is a distinction between law in the books and law in action, and that it is only the latter which really counts. The same is true of liberty. Liberty which crum- bles when it is put to the test of action must be a weak and brittle thing. I do not believe that that is true of my country. Those who argue that liberty and war are incompatible, fail to distinguish between the self-discipline which a free people places on itself in a time of crisis, and the blind obedience of a slave state. This cowardly doctrine, that a democratic free people will lose its liberty if it dares to fight, destroyed France—it was this fear boring from within, rather than the enemy striking from without, which brought humiliation to that great country. It will not happen here. Two hundred and fifty years of freedom and of courage, as typified by the history of this great Court, cannot be forgotten in a single day. It is because this liberty, founded on law, has made us a self-reliant people that we can face the future with confidence and trust. |
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 The Historical Society of the Courts of the State of New York | |
