Charles Houston died of heart failure on April 22, 1950. He was 54 years old. He was survived by his second wife, Henrietta Williams Houston and six-year-old son, Charles Hamilton Houston, Jr.
In a speech Marshall made in 1966, he pays tribute to Charles Houston as he talks about the role of the Negro lawyer in the struggle for civil rights.
Marshall: Chick and Clyde, Judge Robinson, Judge Bryant and his excellency [laughter]…the reason I do it that way is because I learned early in the game, and it's very hard to get out of what you learned early in the game, and that is to coattail judges at every opportunity [laughter] and I don't fail. Indeed Judge Robinson when he was sworn in yesterday happened to mention late, after the occasion when I got a little obstreperous, he said very hopefully, "Isn't it true that sometimes a solicitor general comes into the court of appeals?" And I said, "No." [laughter]
We have come and tonight we want to talk about Negro lawyers. I was willing to give it all up and die in peace because I found out we had arrived. I found out we had arrived because a little before I got into the office of solicitor general, and certainly, shortly after I got in there I found that the lucrative practice of law today was in the power field, utilities, the gas, pipelines, etc. These were the boys that didn't carry the fees and chunks of money. They carried in the huge bags of chunks of money. And the first session I had involving a utilities case and a power case involving the Federal Power Commission, I had the hearing in my office. I was so proud to see a good friend of mine among that group of lawyers, Bill Coleman over here. You see, so I figure well boy, now we have arrived! I can peacefully drop off dead until it dawned on me it was him and it wasn't me [laughter].
And so tonight I want to talk a little about this responsibility because we have changed considerably. Tonight I have to go back a little in history. The reason I have to go back is because today when you hear as I've been told on dozens of occasions "Boy, you just don't know what's going on!" Nothing happened until we got black power and I think at times we have to go back a little and at least as lawyers, members of the legal profession, and people who are interested in our profession, we have to go back to the bedrock because I think the position of the lawyer and especially, even today, especially the Negro lawyer has the responsibility of interpreting to the people of the individual communities exactly what we're talking about.
And I go back to the two bedrock documents, the Declaration of Independence and the Constitution. And I realize what the framers went into. They knew they were drawing a novel document. They knew it was opposed to all of the legal thinking up to that moment. They knew, and indeed every right-thinking Englishman knew, that the power of sovereignty must be undivided and unlimited. Blackstone said there is, and must be, in all forms of government a supreme, irresistible, absolute, uncontrolled authority in which the rights of sovereignty reside.
With what Blackstone had said, despite what Blackstone had said, the framers of our Constitution conceived of a plan of government in which governmental powers were not only carefully limited but also divided up among the branches of the government and dispersed among the components of a federal system. Then too everyone in those days knew that liberty and stability could be successfully maintained only in a State in which the respective virtues of monarchy, aristocracy and democracy were skillfully combined and balanced on the model of the British rule.
That was the learning of the ages at that time. It was propounded as gospel by such liberal thinkers as Montesquieu. Yet the Americans - hopefully, though perhaps with trepidation most certainly - gambled on the notion that they could dispense with king and nobles and that liberty and order could be maintained without the mediating power of a privileged social class. Indeed they called into question the whole time-honored system of distinction based on class and birth. These shocking and unprecedented ideas, forged in the years leading up to the Revolution and the Constitution, have of course, become part of the fabric of our national life.
That leads me to suggest a second respect in which those old documents are remarkable. Not only did they launch our government on dangerously new principles, but they continued to bespeak. After all these years, a conception of society which continues to challenge us, which continues to hold out unfilled promises and unrealized aspirations.
Nearly two centuries have not exhausted their capacity to demand reexamination of the status quo and to summon the energies of reform from one end of the land to the other. Somehow those documents were molded out of elements, which set off a chain reaction in the minds of men, which has persisted down to this very day.
I think it is very clear in Washington today, in the Congress and the executive branch; of course, not at least, the judicial branch, that activity and change are being prompted by the transforming of logic of principle, which were first glimpsed there as the colonialists thought their way to independence. Throughout the country, wherever the disfranchised are registered to vote, wherever schools, hospitals and recreation centers are being desegregated, wherever election districts are being more fairly apportioned, wherever indigents are being afforded counsel to secure their rights, in hundreds of polling places and hundreds of slums and hundreds of courtrooms, these ideas are on the march. And so I think if we want to know what is happening, and where we are or where we're going, we'd do well to recall where we started.
A few decades ago it was fashion among American historians to see the events leading up to the Revolution and the Constitutional Convention as a result of the struggle of classes and economic forces in which ideas and ideals played only a subordinate role, largely as camouflaged from what was really going on. More recent scholarship has focuses anew on what men said and have thereby rediscovered the extent to which things are swept along by force of ideas.
Once involved on the problem of rationalizing their relationship with Great Britain, the Americans, in the early years, found themselves led step by step to reexamine and reject most of the received accepted orthodox principles of social organization, and to fashion new principles for a new society. Not all the implications of those new principles were seen at once while being seen or acted upon. Indeed it was so radical at that time, so pregnant with change, that we are still finding new implications and new applications. And new aspects of life are being subjected to that transforming power.
After all these years, some of the reasonable inferences to be drawn from such notions as the equality of man continue to take a lot of people by surprise as late as 1966. Again and again throughout our history, principles, which seemed as familiar as platitudes, have turned out to be battle cries for the future.
Let me give you a few examples. When the Americans became concerned with the problem of taxes levied by a Parliament in which they hade no voice, they were told that every good Englishman knew that Parliament represented all the citizens, not actually, but "virtually." And that Americans were virtually represented in the same way as were the inhabitants of Manchester or Birmingham, who also had no vote and elected no representatives.
This of course led to the analysis of nature of representative government, and to the conclusion that if Manchester and Birmingham weren't actually represented, they ought to be. That the capacity to represent in Legislature arises only from the election of those represented. That the Legislature should be a miniature and exact portrait of the people at large. And that equal interest among the people should have equal interest in it, and this is increasing or decreasing with the number of voters.
Those ideas of John Adams have been translated in our time as "one man one vote," and serve as the impulse underlying the reapportionment cases. It has been said of course that whatever the merits of redistricting, it is no business of the courts. The Congress had been over that ground too. Faced with an omnipotent Parliament they had said that there was, or ought to be, a law superior to the Parliament. And from there they proceeded to argue, as one lawyer did as early as 1761, not only did an act of Parliament "against the Constitution as void" way back in 1761, but that it was the duty of the courts to "pass such acts into disuse." Judicial review by an independent Judiciary was soon seen as the sine qua non of constitutional government. In a few years they were to list among their grievances against the King that he made his judgments dependent on his will alone for the tenure of their offices and the amount and payment of their salaries.
Let me give you another example. While pursuing their problem with England, the Americans began to stumble over the largely local problem of religious establishments, supported and maintained and sanctioned with varying force in each of the colonies. Could men properly be taxed to support churches to which they did not belong? Was it consistent to demand political liberty from England while denying liberty of conscience due to sentence at home? Did a government of limited powers have any business legislating on man's relationship to his maker?
And then shortly John Adams, a pillar of the established church of Massachusetts, concluded that no legislature has "power to enact articles of doctrine or forms of discipline on modes of worship." Do you catch intimation that perhaps the New York Board of Education has no business drafting prayers for school children?
Established religion was not the only institution which came under scrutiny. Examination of the new thinking spread out unexpectedly in all directions. Once it had been suggested to Parliament that all men are born free, the embarrassing discrepancy between the professed principle of freedom and the reality of a half a million Negro slaves here in this country could not readily be overlooked. The incompatibility of slavery and freedom did not go unnoticed. A decade before the Revolution, the institution of slavery and the laws which upheld it came under increasingly difficult and forceful attack. As early as 1770, several of the future states prohibited the importation of slaves. Some ruled that any slaves imported should automatically become free. And in April of 1776 Congress proscribed further importation of slaves into any of the colonies.
Of course, tragically for the future, the nation's slavery was not then and there disposed of. There was compromise and backsliding. The Constitution recognized and protected slave-holding. But the incongruity of slavery in a nation conceived in liberty and dedicated to the equality of all men had been perceived, and that perception floated through our history like an iceberg awaiting the inevitable collision.
Not only slavery but also the caste system, which was eventually substituted for it, stood condemned. Not by the Supreme Court or by Congress, but from the outset, by the very principle on which the nation was launched. And as we struggled to cut the knots tied by the long years of bondage of cradle-to-grave segregation, disfranchisement and equal protection of the laws, we are still reaching out for that first principle of our national life. And it is among these principles, which we dare not deny, which point the way to cases like the school cases and the cases since that time. In this and in other areas of concern, it is because those principles still give drive and direction that I am not troubled by the much-criticized activism of the Supreme Court.
It seems clear to me the Court is doing exactly what it was supposed to be doing. It is trying, as it must, to bring law into congruity with the constitutional assumptions of our society from the very beginning. It is undeniable that in recent years the Court has worked far-reaching and, for some, disturbing changes in the patterns of our communal life. For those who are dismayed by the fast-moving recent developments and have taken issue with the Court have mistaken the source of their distress. They quarrel, I submit, is with Jefferson and Patrick Henry Adams and their colleagues, and not with Chief Justice Warren and his colleagues.
To be sure, there are always difficult questions and hard choices before the court, as to which reasonable men will certainly differ. But I think we have tended to forget or overlook the extent to which demanding and potentially transforming idealism was laid down as the very constitution of our Constitutional system. And as that fact is grasped, change is less surprising. If you set out on a voyage of discovery, you'll probably put in at many unexpected ports.
We have not come to the end of the road. It is not even in sight. Do we deny the equality of all men before the law when many lack effective representation by counsel? Do we perpetuate distinctions of birth when many children are condemned to grow up in slums? Do we perpetuate distinctions of birth when we many children are in the third generation living in slums? Do we obstruct the pursuit of happiness when many are denied an opportunity for an adequate education? I could go on, and believe me, we will go on.
Some of you may undoubtedly disagree with some of the recent changes in social patterns, and indeed some may even disagree with the law. Well-considered dissent some might want to make is, of course, an intimate part of the process of social change, and that doesn't worry me. But we must be equipped to give to the people who do dissent, and to give to the people who do object, the only type of salient advice that a lawyer can give from his legal training - being able to analyze the issue and to use his training and advocacy to persuade the people of the inevitable future.
And so it is against this background that each lawyer must decide for himself what role he will play and what function he will serve as a lawyer in society. And I say to each lawyer in the group, and each lawyer that the lawyers here encounter, to go back to Charlie Houston's phrase, that regardless of what you might do and you must do, the lawyer is in truth and in fact a social engineer. Not a mere technician in pulling down law books.
Some of you will concentrate and are concentrating and will continue to concentrate on the details of civil law where you make a good buck. Or perhaps tax law without ever having been stirred by greater things. And this is true of Negro lawyer as well as it is of every other lawyer. That is not to say, of course, that any of these areas of law are without important social consequences. However, to the extent that they are highly specialized or become easy for one to develop the technical expertise necessary to become a successful practitioner without developing the corresponding appreciation of the true social policies inherent in their refined technicalities.
To those who envision lawyers as merely technicians than as craftsmen and social reformers, I have little to say. But I am sure that the majority of you do not believe that your service in law will be governed by so limited a concept of your functions.
One of the most remarkable changes in the law in recent years relates to the development of legal representation for the poor. Its development from Powell [v.] Alabama to Gideon [v.] Wainwright is a story in itself, one which all of you know. And if you don't know it, you'll soon learn it.
It is a story, which in a few years will involve every lawyer at the bar. Every lawyer at the bar eventually will have to be called upon to represent indigent defendants in criminal cases. And if you don't believe it, start looking up the statistics. I remember one statistic that in District of Columbia on a Saturday night in August, a year ago, there were 1,400 arrests in the District of Columbia. And we're still trying to find out where we would find 1,400 lawyers on a hot Saturday night in the District of Columbia.
When under the decision of the Supreme Court, we will find them. We'll find a way to find them. So I say no one is going to be able to escape. I don't see why we should want to. For we all share the responsibility of seeing that the fairness of a man's trial does not depend upon the amount of money he has in his pocket. But there is now emerging a whole new concept of this responsibility, a new chapter in this story. I speak of the now-developing idea that the poor have a right to legal representation in civil cases as well as in criminal cases. And there's great criticism, one of the poverty legal programs in the Middle West, once they set the program in motion, in very few months, ninety percent of the cases were divorce actions. So what? It helps out too sometimes [laughter].
The institution of this neighborhood legal service program, within the orders of economic opportunity is a harbinger of things to come. I submit that the Negro lawyer in the future, and within every increasing group of lawyers of other ethnic groups, will play a major role in shaping this newly conceived right to counsel, as well as in the development of yet, yet-unconceived ideas of social reform and change through law. For it has been the traditional task and responsibility of lawyers to mediate between principle and practice, between man's heritage and his hopes. Every day members of legal profession are called upon to draw, from archives of tradition, guidelines to the future. You have a major responsibility for the translation of these into fact. The continuous process of reform needs and deserves the best interest, the best efforts, of legal profession.
And regardless of what anyone might say, there is no better time than the future to demonstrate to the world what Charlie Houston and the Howard Law School started out in the late '20s to do - to impress upon the Negro lawyer the need to make his contribution to his people. And it's a mere addition to what any good, thinking law professor or lawyer has always said.
Anybody that goes through college, and through professional graduate school, or professional school, owes a measure of his education to the community. That goes as true for Harvard, Yale, Princeton, as it does for Howard and any of the other schools. I care not how wealthy the school is, how well endowed it is, it draws money from the state if in no more than it draws it from tax exemption. And so once you obtain that, there is a responsibility automatically to pay it back. Take a part of what you have gotten from your education and give it back to your community. The lawyer is better equipped than anyone, with the possible exception of the doctor, to do this. And the Negro lawyer has even greater opportunity because his people need it so much more than the others. That I conceive to be the major responsibility of the Negro lawyer [applause].