Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

CHAPTER 6
The United States Supreme Court the Absolute Power

“The execution of the laws is more important than the making of them.”

Jefferson

“Let everything that is in favor of power be closely construed; everything in favor of the security of the citizen and the protection of the individual comprehensively, for the simple reason that power is power, it is able to take care of itself and tends by its nature to increase, while the citizen needs protection.”

Lieber

“If Parliament changes the law the action of Parliament is known to every man, and Parliament tries in general to respect acquired rights. If the courts were to apply to the decision of substantially the same case one principle today and another principle to-morrow, men would lose rights which they already possessed; a law which was not certain would in reality be no law at all.”

Professor Dicey

Martin Van Buren once said in the Senate:

“There exists not upon this earth, and there never did exist, a judicial tribunal clothed with powers so various and so important as the Supreme Court of the United States.”115

The judges are appointed to the office during good behavior, and their fixed salaries cannot be diminished during the term of their office. The United States District and Circuit Courts can be abolished and their powers conferred on other courts, but the United States Supreme Court, a coordinate branch of the general government created by the Constitution, cannot be legislated out of existence nor can its judicial powers be limited in any respect whatever by Congress. The highest courts of all other countries are dependent upon their parliaments, whose supreme power and authority they must respect, but the United States Supreme Court is practically independent of the whole nation. The Supreme Court can declare a statute, passed by both branches of Congress and approved by the President, void as a violation of constitutional guarantees. Or if an act, vetoed by the President, has been re-passed by a two-thirds majority of each House, the Court still can declare the act repugnant to the Constitution. History presents but one example of the exercise of such power other than by an absolute monarch. The tribune at Rome, elected for a year, had an absolute veto upon any enactment. This powerful officer is said not even to have had a house in which to administer his duties, but sat upon the benches in the open. In all simplicity, standing for the great mass of unprotected Roman citizens against the power of the aristocracy, he had the power to declare the one word which would annul every proposed law of the great Roman Senate.

Though not elected by the people and independent of the nation, with a permanent tenure of office, in the last instance the Supreme Court has the right to prescribe the rules for the control of the other coordinate departments of government. It is the constitutional judge of the powers of Congress as well as of its own powers. “You have made a good Constitution,” said a friend of Gouverneur Morris after the adjournment of the Constitutional Convention. “That,” replied Morris, “depends on how it is construed.”116 This saying of Mr. Morris is true, because the exclusive right to interpret includes the power to change. Says a leading writer on Constitutional Law: “It is one of Blackstone’s maxims that in every constitution a power exists which controls without being controlled, and whose decisions are supreme. This power is represented in the United States by a small oligarchy of nine irremovable judges. I do not know of any more striking political paradox than this supremacy of a nonelected power in the democracy reputed to be of the extreme type.”117

Mr. Dicey says of this power conferred upon the Supreme Court, “That in a confederation like the United States the Courts become the pivot on which the constitutional arrangements of the country turn is obvious. Sovereignty is lodged in a body which rarely exerts its authority and has (so to speak) only a potential existence ; no legislature throughout the land is more than a subordinate lawmaking body capable in strictness of enacting nothing but by-laws: the powers of the executive are again limited by the constitution; and the interpreters of the constitution are the judges. The Bench therefore can and must determine the limits to the authority both of the government and of the legislature; its decision is without appeal; the consequence follows that the Bench of Judges is not only the guardian but also at a given moment the master of the constitution.”118 That branch of government which is its own judge in determining authoritatively for the people what are its own powers over the people, is absolute in its nature.

Leading writers on law have denied the power of the United States Supreme Court to declare acts of Congress unconstitutional.119 The power in the Court to declare a national statute unconstitutional was first asserted in the masterly discussion in Marbury v. Madison by Chief Justice Marshall, but there the conclusion was reached by implication, and no claim was made of express authority in the Constitution.120 Professor Lowell, in his work on “Democracy and the Constitution,” says:

“The Supreme Court of the United States could never have acquired its power of declaring a statute unconstitutional in any other country, at least in any other than an Anglo-Saxon country.”121

The English Parliament may change the powers and prerogatives of courts and even abolish them.122 It is doubtful whether the Federal tribunal of the German Empire, its only great appellate court, has power to inquire into the constitutionality of a statute passed by the Reichstag and the Bundesrath and promulgated by the Emperor, or even to inquire into the constitutionality of an act passed by one of the states. Professor Lowell, speaking of this court, says: “It is certain that the courts have not in fact exercised any general power of refusing to apply statutes on constitutional grounds.”123 In Belgium, jurists are said to claim that a law violating the Constitution ought to be treated by the court as void; still, during the whole period of Belgium’s independence, judgment has never been pronounced upon the constitutionality of an act of its Parliament.124 Both the German Constitution and the Belgium Constitution impose limitations upon the powers of the government.

The French Constitution is not found in a single document, but in a series of distinct laws describing the fundamental rights which the state is enjoined to respect. An act passed by the Chambers and promulgated by the President will be held valid by every tribunal throughout the Republic.125 The Federal tribunal in Switzerland is bound by the Constitution to treat all federal legislation as valid. The Kingdom of Italy has a written Constitution limiting the powers of the government and the monarch. It is the original Constitution of Sardinia expanded into the Constitution of the Kingdom of Italy. It has a Supreme Court, but this court cannot consider the constitutionality of a law which involves the construction of the Constitution.126 Although the Austrian Constitution puts limitations upon the power of the Emperor and of the government, still the Federal Court has no power to question the validity of a statute which has been properly promulgated.127

The origin, however, of the theory that a court could declare an act unconstitutional was found in the history of our charter colonies. Their rights and powers, like the ordinary corporation, were determined by their charter, and when they passed a law in excess of the legal powers conferred by their charter, its illegality could be determined by their local courts, with the right of appeal to the privy council of England. After the establishment of the state governments and before the formation of the Constitution, legislative acts in two states, Rhode Island and North Carolina, were declared unconstitutional. By an act of the general assembly of Rhode Island, passed in May, 1786, provision was made for the emission of paper money. In June the Legislature prescribed that any person who should refuse to receive the money in payment for goods on sale at the face value of the goods, or who should make two prices for such goods, one in paper and the other in silver, on conviction should be fined £200 for the first offense. In August, 1786, the Legislature of Rhode Island passed a law that the offenses under this act should be tried by special courts without a jury, by a majority of the judges present according to the law of the land, and that three members thereof should be sufficient to constitute a court.

John Trevett tendered this money to John Weeden, a butcher, for meat, and when Weeden refused to accept the money, Trevett sued for the fine. It was objected that the trial by jury was a fundamental right in the State of Rhode Island, that the Legislature had no power to enact a law depriving a citizen of that right, and that the court could declare the act invalid. The court overruled this defense, and an appeal was taken to the Supreme Court of the state. But Rhode Island, unlike all the other states but Connecticut, had no written constitution in the modern sense, having continued after the Revolution under its colonial government. So the question before the higher court involved the invalidity, of the statute because of its repugnancy to the provisions of the common law securing to the citizen the right of trial by jury. While the five judges were considering this act, the excited people in the streets were breathing forth their threats against them if they declared it invalid. Notwithstanding, they all agreed that the act was void. The legislature threatened impeachment and refused to reeled them. No opinion was written, but when the judges appeared before the legislature in October, 1786, on charges of treason and misconduct, some of them gave as a reason for their decision that the defendant was entitled to trial by jury according to the law of the land.128 Here we have a case where an act was declared invalid because it deprived the defendant, not of a constitutional guarantee, but of a right secured to him by the common law.

The law of North Carolina provided for the sale, by a commission appointed by the legislature, of lands in that state belonging to the loyalists, and the payment of the money into the state treasury. The purchaser received a certificate from the commissioner making the sale in behalf of the state, stating the time of sale and the payment; and if sued in ejectment he was entitled under the law of the state, upon making affidavit that he held the disputed property under a sale from the commissioner of forfeited estates, to dismiss the suit on motion. Mrs. Bayard, the plaintiff in a suit, was the heir of one Cornell, whose estates had been confiscated. The defendant had purchased her lands from the commissioner, had received the certificate, and, when sued, presented the certificate to the court and procured a dismissal of the action. A large number of other suits involving the same question were pending, and the constitutionality of the act was duly brought to the attention of the court on a motion to set aside the dismissal. The court in May, 1787, the same month when the Convention to frame the Constitution of the United States was gathering at Philadelphia, held this act unconstitutional, saying: “By the constitution every citizen had undoubtedly a right to a decision of his property rights in a trial by jury. For that if the legislature could take away this right, and require him to stand condemned in his property without a trial, it might with as much authority require his life to be taken away without trial by Jury, and that he should stand condemned to die without the formality of any trial at all,” etc.129 And they declared that the act must “stand as abrogated and without effect.” William R. Davy, one of the framers of the Constitution, was the plaintiff’s counsel in the case and, at the time of its decision in May, 1787, was attending the Convention in Philadelphia.

It was assumed by many of the members of the Constitutional Convention, as appears by their declarations at that time, that the United States Supreme Court would have the power to declare acts unconstitutional. Section 2 of Article 6 of the Constitution states that “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” We first observe that the laws referred to are declared to be the supreme law of the land only when made in pursuance of the Constitution. The provision continues by declaring that “the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” The words “the supreme law of the land” had a meaning established by five hundred years of English history, and from that meaning it well may be inferred that a law in pursuance of the Constitution bound the states and individuals and courts, and all laws not in pursuance thereof were void.

With great reluctance the United States Supreme Court approached the question of declaring a law enacted by Congress unconstitutional. Only two such statutes were declared unconstitutional prior to the Civil War.130 In two other cases the Court refused to perform duties imposed upon them by law which were not judicial in their character, but it was not until after the Civil War that the power of declaring a law of Congress unconstitutional was freely exercised. It is too late now to urge that this power, exercised for over a hundred years, does not exist. It would be rash, indeed, to contend that this supreme mandate, which renders the United States Supreme Court the most absolute power in existence, is without foundation. The danger attending the exercise of this power, however, is great. It matters not that the court calls it a judicial power, it is quite as much legislative in its nature. The grounds upon which it has been based, as stated in the opinions declaring laws unconstitutional, have been largely economic, political, or sociological. Public policy likewise has been invoked again and again by learned Judges of the United States Supreme Court as a reason. In every opinion holding an act unconstitutional, you can find expression after expression tending to show that the views of the writer as to government, political power, economic truth, or the effect of the act upon the public interests, have greatly influenced the decision. In about twenty-five cases the Supreme Court has declared a United States statute repugnant to the Constitution, but in only a very few have the judges been unanimous. In about two hundred cases they have declared the statutes of states forbidden by the provisions of the national Constitution.

When Marshall became the Chief Justice of the United States Supreme Court, there had been only two decisions involving the question of the constitutionality of a state or national statute. During his term of office, from 1801 to 1835, the constitutionally of fifty-one acts was passed upon, and the great Chief Justice wrote the prevailing opinion in the greater number of these cases. His powerful mind, his terse, logical, graphic statement of a legal proposition, his strong personality, his acute intellect and masterful character, directed the current of opinion in that court toward a liberal construction of the powers of government. Never has a judge spoken from any court in this country, or probably in the world, with such a clear ringing voice for the vindication of what he deemed the powers of the court over which he presided. John Marshall’s construction of the Constitution made the United States in truth one nation. He, indeed, forged the trenchant blade with which Abraham Lincoln slew the dragon of secession.

Our American people are given to believing that a law of Congress or of a state legislature is a sovereign specific for all evils, and in like manner they always have had the utmost confidence in courts. We have been in the habit of ascribing to courts a sort of supernatural power to regulate aright the affairs of the people, to restrain excesses, and to protect everyone in life and property. It is only occasionally, when some decision comes down, which the common man by instinct knows to be violative of his rights, that murmurs of discontent are heard.

The courts were not always looked on in this way. When, in 1794, the United States Supreme Court, in Chisholm v. Georgia, held that a state could be sued by a citizen of another state, the states were aroused, and proceeded quickly to bring about the passage of the eleventh amendment to the Constitution for their protection. Judge Samuel Chase, a very able but partisan Judge, appointed by President Washington as Associate Justice of the Supreme Court in 1796, was impeached in 1804 at the instigation of John Randolph for arbitrary and oppressive conduct. He was tried in 1805, but was acquitted. In 1803, Judge Calvin Pease, Judge of the third Circuit Court of Ohio, held that an act of the legislature of that state, conferring jurisdiction upon a justice of the peace to try without a jury an action where judgment was asked for more than $20, was unconstitutional because of the provision for a jury trial in the seventh amendment to the Constitution of the United States. His decision was affirmed. Not only Judge Pease, but also Judge Todd of the appellate court, who voted for an affirmation of Judge Pease’s decision, was impeached by the assembly of the State of Ohio. Each of them was arraigned before the Senate and tried upon the impeachment, but both were acquitted.131 The case of Green v. Biddle132 created so much opposition in Kentucky, that an attempt was made to impeach the judges of the state courts who had followed that decision in other similar cases.

But the practice of deifying the courts and regarding the Constitution as sacred commenced early in the nineteenth century. As President Woodrow Wilson says, “The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage.”133 The people modified their state governments to correspond with the national government. But the tendencies of democracy were so strong that gradually they elected their governors and judges by popular vote instead of by the legislature as in Revolutionary times. From time to time they also amended their constitutions, thus keeping in touch with the progressive tendencies of society, although the national Constitution continued from 1804 for over sixty years without a change. Well would it be for the people if they were more watchful of the action of courts today, instead of permitting absorption in their own affairs to make them oblivious of how their dearest rights are guarded. This era of gross materialism, when men are thinking only of becoming rich, is an era of danger to our institutions. A hundred times more dangerous than the wildest excesses of angry men is the benumbing, deadening influence of materialism on the patriotism of the citizen.

Of all systems of government the most difficult to establish and render effective is the federative system. Apparently simple, it is in practice the most complex, for it has to apportion the degree of independence and local liberty which should remain in the states with the amount of power delegated to the central government, and to nicely adjust these relations. The United States Constitution creates no rights for the citizen, but simply provides for the apportionment of those which he ever has had. The United States Supreme Court derives its judicial power from the Constitution, and can exercise no power which is not conferred or necessary to the powers conferred, while the highest courts of the states have original common-law jurisdiction over all domestic affairs, unless prohibited by the United States Constitution.

It is to be observed that the state governments, in approving the Constitution, consented that the United States Supreme Court should have the final power to determine all questions when their rights should come into conflict with the provisions of the Constitution, or the laws made in pursuance of it. In short, they have delegated to a court, created by the national government, the right to determine between their interests and the interests of that government; and it must be said to the credit of this august court that, until recently, it has exercised that power with great discretion and commendable impartiality. Mr. Justice Miller, in 1872, referring to the rights of the states and their relations to the national government, very truthfully said: “But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions require, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution or any of its parts.”134 This statement was undoubtedly true at the time it was made, but since then the decisions of the United States Supreme Court, as to the power conferred upon Congress to control interstate commerce, have been steadily destroying the powers of the states. This tendency culminated in the Lottery Case135 which practically held that the national government, through the control of commerce, possessed the police power of destroying a pernicious lottery. Mr. Root tells us that this tendency will be carried still farther, and that sooner or later constructions of the Constitution will be found to vest the unexercised powers of the states in the national government. As the only binding constructions of the Constitution are those given by the Supreme Court of the United States, we assume that Mr. Root refers to that court as the power which sooner or later will make the constructions necessary to vest the power sought in the national government. It was just such a use of the power of construction that some of the Conventions which adopted the Constitution feared. The Convention of the State of New York, while adopting the Constitution, among other declarations, said: “That the jurisdiction of the Supreme Court of the United States or of any other court to be instituted by the Congress, is not in any way to be increased, enlarged, or extended by any fiction, collusion, or mere suggestion.”l36

Resorting to fiction to bring about a change of law has ever been a favorite method with courts. Interpretation which changes the law is just as effective as a constitutional amendment, and surely the sworn guardians of the law ought not to attempt to bring about such a change by construction. Yet we know what human nature is and what history has taught us. Where the Constitution is interpreted by a court from which there is no appeal, and which by its own decision can increase its own power, it is apt to invoke implied powers with considerable latitude. A strict construction of the Constitution is the constant security of the people against tyrannical government. The rule which allows the United States Supreme Court to hold a statute unconstitutional requires that before it is so held it must be plain beyond a reasonable doubt that the law considered is repugnant to the Constitution. Yet its decisions as to the unconstitutionality of national statutes have generally been made by a divided court. Roman lawyers, taking the twelve tables as a basis, worked out by the means of implication and construction, and analogy therefrom, the extensive system of law codified in the reign of the Emperor Justinian. The impelling forces today in our country are almost identical with those of the last fifty years of the Roman republic and the earlier years of the empire. It must not then be put down to idle fear or ignorant suspicion, if intelligent men look with apprehension at the tendency in our day of the highest courts to first conclude what they wish to decide, and then find reasons for the decision. The means which they use to accomplish this is implication of powers, always so dangerous because unbounded. If admitted at all it is capable of the utmost extension. If the United States Supreme Court desires sooner or later to find constructions of the Constitution which will vest the power, spoken of by Mr. Root, in the national government they can easily accomplish the result.

This all-powerful Court as yet has not manifested a fixed intent to construe the Constitution so as to rob the states of their reserved rights, but they have alarmed the people in several cases where they seem to have divided in their decision of legal questions upon preconceived opinions of public policy. Section 8 of Article 1 confers upon Congress the power “To borrow money on the credit of the United States; … To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures.” By the Articles of Confederation, the general government had been allowed to issue bills of credit and to make them legal tender in payment of debts. The states at the same time possessed concurrent powers, and, between the Federal government and the several states, millions of dollars of paper money had been issued which had become of little or no value. This condition precipitated the very crisis which brought about the Constitution and thus deprived the states of such powers. When these clauses were inserted the members of the Convention were agreed, with two exceptions, Mercer and Martin, of Maryland, that the opportunity had come to destroy forever the power of both the national and state governments to make a bill of credit, issued by either, a legal tender in payment of a debt. The question was thoroughly discussed whether an express prohibition to make such paper a legal tender was necessary, and, inasmuch as the government which they were creating was one of enumerated powers, they all agreed that it was sufficient to withhold the power, since the Federal government could not exercise it unless expressly permitted by the Constitution. “Thus,” says Madison in his narrative of the proceedings, “the pretext for a paper currency, and particularly for making the bills a tender either for public or private debts, was cut off.”137

From the day when the Constitution was finally adopted by the states until the Civil War all the leading statesmen and jurists, like Marshall, Webster, Story, and Curtis, had again and again declared the absence of power in the national government to make anything but gold and silver coin a legal tender in the payment of debts. When in the Civil War the banks suspended payments, Salmon P. Chase, Secretary of the United States Treasury, recommended to Congress the issue of United States notes, to be made receivable for all loans to the United States and all government dues except duties on imports. He said: “The Secretary recommends, therefore, no mere paper-money scheme, but on the contrary a series of measures looking to a safe and gradual return to gold and silver as the only permanent basis, standard, and measure of value recognized by the Constitution.” Congress had the power to prescribe that these notes should be accepted in payment by the government, and in many ways could have aided in giving them value as a circulating medium without making them legal tender.

On February 7, 1870, the United States Supreme Court, in the case of Hepburn v. Griswold, announced from the Bench its decision that the legal-tender acts of 1862 and 1863, as regards the payment of debts existing before their passage, were unconstitutional. Chief Justice Salmon P. Chase, Justices Nelson, Clifford, Greer, and Field concurred therein and Justices Swayne, Davis, and Miller dissented. By an act passed during President Johnson’s administration, the number of judges of the Supreme Court was reduced from nine to seven, for the purpose of depriving him of the right to fill the vacancies which were about to occur. Soon after President Grant’s inauguration a new act restored the number to nine to take effect on the first Monday of December, 1869. On February 7, 1870, the day on which the decision affecting the legal-tender act was handed down, two vacancies existed. On February 18, 1870, the President appointed William Strong, of Pennsylvania, to fill one of said vacancies, and on March 21, 1870, Joseph P. Bradley, of New Jersey, to fill the other.

Of these appointments President Woodrow Wilson says:138 “In December, 1869, the Supreme Court decided against the constitutionality of Congress’s pet Legal Tender Acts; and in the following March a vacancy on the bench opportunely occurring, and a new justiceship having been created to meet the emergency, the Senate gave the President to understand that no nominee unfavorable to the debated acts would be confirmed, two justices of the predominant party’s way of thinking were appointed, the hostile majority of the court was outvoted, and the obnoxious decision reversed.” Mr. Rhoades reaches the conclusion that there is no circumstantial evidence to show that the appointments of Judges Strong and Bradley were made with the intention of reversing this decision,139 and he tells us that the appointments were sent to the Senate by the President on the very morning of February 7, 1870, before the decision, which had been made in December, 1869, was handed down. The decision of Hepburn v. Griswold, however, was made in conference November 27, 1869; and this might well have been known by Attorney-General Hoar, who cherished a bitter feeling- toward Chief Justice Chase, and who was, we are told, instrumental in bringing about the new appointments. Upon the appointment of the new judges, the Attorney-General immediately moved that two cases involving the constitutionality of the legal-tender issue be taken up and argued, notwithstanding the prior decision of the court. The court, by the five judges who thereafter voted for reversal, instead of rebuking the Attorney-General ordered that these cases be heard.

On May 1, 1871, the two cases having been brought on for hearing before the court as reorganized, a decision was announced reversing the prior decision, and on January 15, 1872, the opinions were read in open court.140 The five judges who voted to hear the re-argument all concurred in this decision of reversal. Mr. Justice Strong, one of the new appointees, wrote the prevailing opinion, Mr. Justice Bradley, the other, writing a concurring opinion. Mr. Justice Greer, who had sat in the prior case of Hepburn v. Griswold, had retired from the court; but Chief Justice Chase and Justices Nelson, Clifford, and Field dissented from the decision. The prevailing opinion held that the power to issue these notes could be inferred from the powers which grow out of the aggregate of powers conferred upon the government by the Constitution, or out of the sovereignty instituted by it.

Legal precedents in law become rules of property and muniments of personal rights. It is a well-established rule that a court never should overrule its decision in a case affecting private rights of property which has been followed for some period of time, because it has been relied on by people in exchanging values. “No man,” said Sir William Jones, “who is not a lawyer would in many instances know how to act, and no man who is a lawyer would in many instances know how to advise, unless the courts were bound by authority as firmly as pagan deities were supposed to be bound by the decrees of fate.” The people had relied upon the lack of power in the government to issue irredeemable paper money as a legal tender, from the formation of the Constitution until the passage of the Legal Tender Acts. The case of Hepburn v. Griswold was decided in February, 1870, and until May 1, 1871, business had been conducted upon the basis of that decision. The price of gold had steadily declined, notwithstanding the decision in the case of Hepburn v. Griswold, until May, 1871; and Mr. Rhoades tells us:

“Had the country acquiesced in the decision of the court, and had Congress supplemented it by legislation permitting the Secretary of the Treasury gradually to contract the greenbacks, specie payments would have been reached by 1873 and the financial panic of that year postponed.”141

But the United States Supreme Court did not stop with this decision. Once started in this course it was easy to go to the end, and so in a case,142 decided in March, 1884, the court finally determined that the reissue of the greenbacks, under an act passed in 1878, in a time of peace, there being no necessity for their reissue, should be upheld as an attribute to that sovereignty which appertains to all governments at all times. So by construction they finally arrived at the conclusion that the power to coin money included the power to stamp paper and declare it a legal tender in a time of peace. The reasoning on which this opinion rests is of interest, for if it be good the Constitution has no limitations, and it will avail nothing to examine carefully as to the powers delegated by the states and the people to the national government. The court said: “The governments of Europe, acting through the monarch or the legislature, according to the distribution of powers under their respective constitutions, had and have as sovereign a power of issuing paper money as of stamping coin. This power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the Emperor of Austria, as King of Hungary, obtained from the English Court of Chancery an injunction against the issue in England, without his license, of notes purporting to be public paper money of Hungary.” And from this the power was implied to make government notes a legal tender in payment of private debts, as one of the powers belonging to the sovereignty of other nations and “not expressly withheld from Congress by the Constitution.”

Until the time of this decision it had been supposed that the only sovereignty which the national government had was conferred upon it by the express grants of the Constitution, together with such powers as were necessary and proper to carry those express grants into execution. Until this decision it had never been suggested that the power of Congress arose from what was “expressly withheld from Congress by the Constitution,” but rather arose from what was expressly granted to Congress by the Constitution. Still this learned court, eight judges concurring, deliberately invoked the sovereign powers of the Austrian Empire as the basis for inferring a like sovereignty in the United States; and then emphasized the fact as an important one that the power to issue such notes was “not expressly withheld from Congress by the Constitution,” when in the Constitutional Convention the very question was discussed, with the result that those great lawyers and constructive statesmen determined it to be unnecessary to prohibit the United States from issuing paper money and making it a legal tender in payment of debts, since the Federal government could not exercise a power unless it was expressly granted in the Constitution.143 If this kind of judicial reasoning is to prevail in the courts there is nothing to hinder the United States Supreme Court from holding that the government has inherent powers. That doctrine once established the Constitution at one blow is reduced to blank paper, and then our judges may commence to examine the exercise of power by absolute governments in the history of the world, as a basis for ascertaining what power is vested in Congress.

Subdivision 1 of Section 8, Article 1, of the Constitution, empowers Congress “To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.” Subdivision 4, Section 9, Article 1, provides that “No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration” directed by the Constitution. Another provision of the Constitution prescribes that representatives and direct taxes shall be apportioned among the several states according to their respective numbers. The Wilson Bill imposed a tax of two per cent upon all incomes of more than $4,000, the tax to remain in force until January 1, 1900. This clause was passed in the House of Representatives by a vote of 204 to 140, and the whole bill was passed by a vote of 182 to 106, sixty-one members not voting. Income taxes had been passed from time to time in the history of the country, especially during the Civil War, when eight of such laws were enacted.

The constitutionality of this act, so far as it imposed a duty upon incomes, was contested in the United States Supreme Court in a suit in equity by one Pollock against the Farmers’ Loan and Trust Company,144 to prevent a threatened breach of trust by the defendant in the misapplication or diversion of its funds by the illegal payment from its capital of the income tax on its profits. Pollock was a stockholder of the defendant, and he alleged that they threatened to pay the tax and thus impair his interest, and, as the payment would result in a multiplicity of suits, that he asked an injunction from the Equity Court enjoining the defendant from paying the tax. It was the claim of the plaintiff that the income tax was a direct tax, and therefore must be apportioned among the several states according to their respective numbers, and could not be imposed as a duty, impost, or excise uniformly throughout the United States upon annual incomes.

By the Act of June 5, 1794, Congress laid a tax upon carriages for the conveyance of persons, and the question whether this was a direct tax within the meaning of the Constitution was decided at that time by the United States Supreme Court.145 Mr. Justice Wilson, who was one of the most prominent members of the Convention framing the Constitution, Mr. Justice Chase, one of the ablest jurists of his time, Mr. Justice Patter-son and Mr. Justice Iredell, sitting in that court at that time, each expressed the reasons for their conclusions holding that the tax was an indirect tax or duty. Mr. Justice Patterson, who read the principal opinion, said:

“I never entertained a doubt that the principal, I will not say the only, objects that the framers of the Constitution contemplated as falling within the rule of apportionment, were a capitation tax and a tax on land.”

This case had been cited by every text-book writer on the Constitution from that time until the Pollock case, as holding conclusively that a direct tax within the meaning of the Constitution was only a poll or capitation tax or a tax directly upon real estate; and that all other taxes were indirect taxes, duties, imposts, or excises. For over a hundred years the United States Government had thus construed the law.

Commencing with 1798, and extending down to 1816, five income taxes had been imposed, and in every one of those cases the government had followed the decision in the Hilton case, the assumption being that that decision had settled the law for this country. From 1861 to 1870, eight different statutes imposing taxes on income arising from both real estate and personal property had been enacted. Literally, hundreds of millions of dollars had been taken from the taxpayers through income taxes of the same nature as the provision in the Wilson Bill. In Springer against the United States, a case decided in 1884, the question of the validity of one of the Civil War income taxes was involved.146 Springer was assessed on his professional earnings and on the interest of United States bonds. He refused to pay, and, his real estate consequently being sold, the suit involved the validity of the tax as a basis for the sale. The United States Supreme Court held the tax valid.

Notwithstanding this hundred years of unbroken history in its courts and in all of the departments of government, recognizing that a direct tax meant only a poll tax or tax on real estate, the United States Supreme Court by a majority of five to four declared the provision in the Wilson Bill unconstitutional. On April 8, 1895, a partial decision of the case was made, in which the court, consisting of eight members only, was evenly divided as to the constitutionality of the tax imposed upon an income from personal property, but a majority of the court determined that the tax was unconstitutional as to the provision on incomes from real estate and municipal bonds. A final decision on the constitutionality of the law as regards personalty was deferred owing to the absence from illness of Mr. Justice Jackson. A few weeks later the court rendered its decision, but in the meantime Mr. Justice Shiras, who on April 8th had been favorable to the constitutionality of the law as to personal property, had changed his opinion; so on May 20th the whole act was declared unconstitutional, Justices Harlan, Brown, Jackson, and White dissenting. In the early part of the last century the Irish courts relied for precedents upon the decisions of the House of Lords and the other appellate courts of England. Mr. Plunket, the greatest of the Irish barristers of those days, was addressing Lord Manners on a question of law, when the following colloquy took place: “Are you sure, Mr. Plunket,” said Lord Manners, “that what you have stated is the law?” “It unquestionably was the law a half hour ago,” replied Mr. Plunket, pulling out his watch, “but by this time the packet has arrived with a new batch of decisions and I shall not be positive.”147

“The Constitution,” says Mr. Cooley, “is not to be made to mean one thing at one time and another at some subsequent time, when the circumstances have so changed as perhaps to make a different rule in a case seem desirable.” Yet this was just what occurred in the Income Tax case. The meaning of a direct tax having been established by the men who framed the Constitution and their contemporaries, and that construction having- prevailed for over a hundred years, during which time the government took from private persons hundreds of millions of dollars upon that construction, a majority of the United States Supreme Court deliberately overruled all their predecessors, basing their decision very largely upon the definition of direct and indirect taxes, as laid down by Adam Smith and other political economists. The United States Supreme Court has practically reversed itself in many other cases in recent days.148 Again and again we find the Justice of that court who writes the prevailing opinion reasoning upon the result of a contrary decision, and invoking the rule of inconvenience and the effect of such decision upon the public interests.149 These considerations which are purely questions of public policy, and not of law, are to be considered by legislative bodies and not by courts, still they have been influential in shaping judicial action.

The result of the income tax decision was to withhold the burdens of taxation from a few hundred thousand wealthy men, and to place a considerable proportion of those burdens, through the indirect taxation of the tariff, upon the heads of families working in factories, and upon farms all over the country. Ofttimes judges and great lawyers speak of the lack of intelligence and of the prejudice and passion of juries, but these are not half so powerful as the preconceived opinions and the influence of social relations upon the action of judges. The instinct of a great body of men of even a low grade of intelligence frequently carries them not only to the popular but to the right side of a public question. Leading Englishmen, before the War, justly derided us for continuing the terrible evil of slavery so long in a democratic republic. But when the South marshalled her forces in rebellion without a ship on the ocean, and with Jefferson Davis but just elected as President of the Southern Confederacy, England recognized them as belligerents, and the sympathies of her men of wealth and social standing were with the South from the beginning to the end of the war. At the same time millions of poor English workingmen, out of work and starving because of the cotton famine which resulted from the war, gave their sympathies to liberty and to the Northern cause.

France has recently adopted an income tax; and today all the leading countries of the civilized world, with the exception of the United States, Russia, Belgium, Hungary, and Portugal, are depending upon this means of raising money for the support of government. The President, in his Jamestown speech, has recently given utterance to words which indicate that he hopes that the income tax decision of the United States Supreme Court will be reversed. Mr. Hannis Taylor, author of “Jurisdiction and Procedure of the United States Supreme Court,” recently wrote of this decision: “Because by a single vote the Supreme Court decided some time ago against the validity of a proportional income tax levied in a certain form, there is no reason to believe that the Court, as it is now, or as it will be constituted in the near future, will attempt to annul acts drafted in the proper form, imposing graduated taxes upon both incomes and inheritances.” Is it possible that anyone contemplates that the United States Supreme Court will again reverse itself? Better a hundred times amend the Constitution, and make it clear beyond doubt that the government has the right to impose an income tax. The Dred Scott decision shattered the faith of thousands of honest and intelligent men in the United States Supreme Court. Every consideration of public policy requires that that Court shall not again reverse itself.

But other changes are going on in this august court, much more worthy of the careful examination of the citizen than either the legal tender or the income tax cases. In Downes v. Bidwell,150 Mr. Justice Brown uttered these significant words: “We suggest, without intending to decide, that there may be a distinction between certain natural rights, enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of Jurisprudence.” A later case exemplifies what the learned judge meant by such a distinction.151 That case was a petition by one Mankichi for a writ of habeas corpus to obtain his release from imprisonment in Hawaii upon conviction for manslaughter. He alleged that Hawaii had been incorporated into the United States; that, by the joint resolution of its incorporation, the administration of the criminal law, as it existed at the time of the joint resolution, was to be continued only so far as it was “not contrary to the Constitution of the United States “; that he was arraigned only upon an information of the Attorney-General of the territory, and not on an indictment for manslaughter; and that he was tried by a common-law jury, but that only nine of the jurors were in favor of his conviction, the other three dissenting.

It appears that, under the procedure existing in Hawaii at the time of the joint resolution incorporating it into the United States, a person could be held for a capital or otherwise infamous crime on the information of the Attorney-General, without any presentment or indictment of a grand jury, and that he could be convicted upon the verdict of nine of the twelve jurors voting guilty. The jury trial mentioned in the Sixth Amendment to the Constitution requires the unanimous verdict of the twelve jurors,152 while the Fifth Amendment provides that, “No person shall be held to answer for a capital or otherwise infamous crime, unless on the presentment or indictment of a grand jury.” These provisions apply in full force to the courts of Hawaii.

Mr. Justice Brown, of the United States Supreme Court, wrote the opinion of the Court on this appeal, and an extract from his opinion will disclose the most dangerous law ever laid down by a court of justice: “It is not intended here to decide that the words ‘nor contrary to the Constitution of the United States’ are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing provisions conducive to the peace and order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: ‘Would municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legislature and without process, or confiscating private property for public use without compensation, remain in force after an annexation of the territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution?’ We would even go farther, and say that most, if not all, the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property, and their well being.”

If the right when upon trial under the United States statutes, whether in the District of Columbia, or in Hawaii, to be held only on a presentment or indictment of a grand jury, and to be convicted only by a unanimous verdict of a jury of twelve men, is not a right fundamental in its nature, then it would be difficult to select any right prescribed in the first eight amendments to the Constitution which is fundamental. The first eight amendments to the Constitution embody the Bill of Rights and, in the main, are principles of English liberty which existed three to five hundred years before the making of the Constitution. The people made those amendments to the Constitution because of their fear that the national government in its courts would not recognize these bulwarks of liberty. And now the Supreme Court has taken upon itself to determine that a person being tried for a crime in a territory of the United States, annexed with such a provision as we have recited, shall not have the protection which the fifth and sixth amendments of the Constitution secure to him; namely, that he shall be held on the presentment or indictment of a grand jury and shall be tried by a common-law jury, which means a jury of twelve men, and convicted only upon their unanimous verdict.

Where does the United States Supreme Court get the power to decide what portions of the first eight amendments shall be extended to criminals being tried in our territories, and what portions shall be withheld? By what power does it distinguish between those guaranteed rights, according as it may deem them fundamental or not fundamental in their nature? Is such a discretion as that reposed in the United States Supreme Court? If the court, as now constituted, can allow a man charged with crime to receive the benefit of some of the amendments and withhold from him others, how long- will it be before some court will regard all of these amendments as not fundamental in their nature? The presiding Justice of the Court and three of the Associates, Justices Harlan, Brewer, and Peckham, dissented from this startling doctrine.

The court, in a more recent case,153 declared that the Philippine Islands have not been incorporated into the United States; and that, therefore, the provisions of the amendments to the Constitution are not extended to those Islands; and it results that an inhabitant of those Islands could be convicted of treason on circumstantial evidence, or on the testimony of one witness, notwithstanding the Constitution provides to the contrary. The property of an inhabitant likewise could be taken from him without due process of law and confiscated for public use without compensation. There is not a right secured to the citizen of the United States today of which the people of the Philippines could not be deprived without protection from the fourteen amendments to the Constitution, because, forsooth, we have not incorporated the Philippine Islands into the territory of the United States. We acquired the Philippines through treaty, and the right to make the treaty and to acquire them came from the Constitution. But although we acquired these Islands through the Constitution, still the rule of the Constitution does not extend to them. We are in possession of the Philippines; we make the laws that control them, impose taxes upon them, fix the duties to be paid on the admission of imports to them, pass laws controlling their lives as completely as the life of the citizen in this country, and still we have not incorporated them so that the Constitution, through which we acquired them, protects them.

In every country the value set upon human life and liberty is the measure of the degree of its civilization. It is perfectly evident that the value of the lives and the/liberties of that great proportion of our people who are either poor or in moderate circumstances, has been decreasing with great rapidity in recent years. The thing which the people prize most dearly will be most sacredly protected by the law, and the lawyer must be blind and deaf who is not aware that property is much more carefully protected today than life or liberty. Because of this worship of wealth it is practically impossible to convict a man of great wealth of a crime. Just as in the Netherlands, in the time of Philip II, it took fifty witnesses to convict a Bishop; and just as in England, in early times, the privilege of the clergy protected learning, just so here today wealth and social position are regarded as so sacred that it is impossible to execute the criminal laws against millionaire criminals. Along with this condition and as a direct result of this view of life, the courts, state as well as Federal, have been gradually impairing and destroying the barriers which our fathers erected against the exercise of tyranny.

What would men in the days of the birth of the Constitution have thought had courts attempted to distinguish between guarantees in the Bill of Rights as fundamental and not fundamental? What would they have thought had the United States Supreme Court in their day held that certain of those guarantees of liberty should be applied to protect citizens and that others should not be applied? There simply would have been a revolution, and that straightway. The disregard of those guarantees in the Alien and Sedition Laws practically brought about the destruction of the Federalist party, root and branch, and put the Democratic party in power for forty years. Even seventy years later the Dred Scott decision, practically deciding that the Missouri Compromise was unconstitutional and that there were no limitations in our territory upon the use of the slaveholders of their property, brought about another revolution. But the worship of wealth and the universal maddening struggle for its attainment in our day has stilled the feelings of jealousy in men at the impairment of their liberties. If this tide of materialism should ebb, and there should be an awakening to what is taking place, serious results would follow.

In no direction have our Federal courts extended their power so far in recent days as in the indiscriminate use of the granting of injunctions. The right to a temporary injunction formerly always rested upon the inadequacy of a remedy at law, and the irreparable injury which would result from its not being granted. Where the act, which was sought to be enjoined, was a criminal act only, the injunction was not granted. The right to an injunction was always based on apprehended injury to the property belonging to the person asking for the writ.154 In the numerous cases where the employers have procured temporary injunctions against employees or labor unions, the right of property was the right to continue the relation of employer or employee, or assume or create such relation with any particular person or persons, or to carry on business of a particular kind or in a particular place, and the courts construed such a right as a property right and as a basis for the injunction. For the purpose of sustaining the writ in the Debs Case,155 the United States Supreme Court held that the United States had a property interest in the mails, and that the stoppage of trains would injure this property right, and would also be an interference with interstate commerce. Obstruction of the mails and a conspiracy against interstate commerce is a crime.156 It has also held that the receivers of a railroad company actually may enjoin their employees for refusing to haul cars, or from even leaving the receivers’ employ so as to cripple the road, or by any device to hinder its operation.157 The intent to hinder the management of a railroad by the receiver has been held sufficient to authorize the issuing of a temporary injunction.158

In states where the legislatures have enacted statutes declaring saloons to be public nuisances, and then-existence and continuance a crime, injunctions have been issued at the instance of the state, and the Supreme Court of the United States has sustained the doctrine.159 To find any authority for such writs it would be necessary to go back to the days of the Court of Star Chamber, in the disorderly times that followed the War of the Roses.160 The result is that the punishment for crimes is gradually being transmuted into contempt proceedings, based upon mere affidavits, in the different branches of the United States Supreme Court. And even when it is the duty of the United States to prosecute criminally, it uses its obligation as a foundation of the equitable remedy of a temporary injunction, thereby subverting the right of trial by jury.161

The execution of the laws has well been said to be far more important than the making of them. Respect for the courts is of the highest public importance, and any line of action on their part which will tend to create a bitter feeling on the part of the people toward them, should not be treated as of little importance, since our hope is not only in having laws honestly and ably interpreted by the United States Supreme Court, but in having the people believe that they are honestly and ably interpreted. In view of this fact, it is of great importance for the court to avoid such an arbitrary exercise of its power as will arouse great opposition. Such opposition has come from the free use of injunctions and will come again.

In many of the District and Circuit Courts of the United States some large corporate interest of a public nature, under the claim that the state laws fixing rates are confiscating its property, in the first instance procures preliminary injunctions staying- the execution of these laws. In the State of New York, a few years ago, the legislature appointed a committee to investigate the cost of gas furnished by a single company to the whole City of New York. That committee was represented by most eminent counsel. A most thorough examination into the cost of gas was made, and a report sent to the legislature, which passed a law fixing, as a maximum price for gas in that city, eighty cents per thousand cubic feet. That act was approved by the governor, but its execution was stayed by a preliminary injunction procured from a United States Judge, based upon affidavits, and the question of facts was referred to a single Master in Chancery, according to whose opinion the price fixed amounted to a confiscation of the defendant’s property. This finding is presumably correct; but it is, however, a significant fact that on June 24, 1907, the day the Master filed his report, the Boston Consolidated Gas Company reduced the price from eighty-five to eighty cents per thousand cubic feet, that being the fourth reduction the company had made during the last two years. The important consideration, however, is that such proceedings, practically annulling state laws in the first instance upon mere affidavits, without a hearing or witnesses, and the reference of questions of fact involved to a single Master of Chancery, where hundreds of millions of dollars are at stake upon his decision, will in time become intolerable to the people of every state where it occurs.

In Alabama, North Carolina, and in other states, the United States Circuit or District Judges, in the first instance, have granted such injunctions. The state authorities in North Carolina have practically set at defiance such action. As the matter becomes discussed more and more, unfortunate conflicts between the state and national governments are liable to arise. I submit with all candor that the practice of granting such temporary injunctions upon mere affidavits will become in-tolerable and will provoke unseemly and dangerous conflicts, and that Congress should enact a law forbidding its exercise.

The review by the Federal Courts of the official action of state legislatures and of the Interstate Commerce Commission, where they have passed upon questions of fact, will be found in practice to be most difficult and most unsatisfactory. Chief Justice Cooley, as the Chairman of the Commission appointed by President Cleveland in 1887, said that the fixing of freight rates for the whole country by the Commission would be a superhuman task. If the fixing of freight rates by a commission the members of whom give their wholes attention to the investigation of such questions, and who hear the witnesses and judge of their credibility, is a superhuman task, how much more difficult is the task of the court which sees the witnesses upon paper only? In a case years ago, Mr. Justice Brewer, in discussing the fixing of value of railway property and the justice of rates imposed by a state commission, said:

“No more difficult problem can be presented than this.”162

Will the Federal Courts, with only the records before them, without hearing the witnesses, without the advantage of the thousand little indications of truth and falsehood that can be appreciated only by those present during the entire investigation, attempt to determine values? Well may it be said that such a task is beyond the ability of any court to perform with justice.

Usurpations of power on the part of the executive and of Congress have been growing more frequent in recent days. The Constitution has conferred such vast powers upon the United States Supreme Court that it would seem that it should be satisfied to construe its powers so strictly, that the states, who have no authority over its action and who have surrendered to it the final arbitrament of all their rights, should find no real cause for discontent with its decisions. Still, every lawyer, acquainted with its decisions, especially in recent years, is alarmed at the advancement of centralization. “For thirty years,” said Senator Bailey, of Texas, in the United States Senate on April 10, 1906, “the people of this country have been accustomed to see the courts exercise arbitrary and extraordinary power: and a new generation of lawyers have come to the bar who think it treason and who call it anarchy to restrain those powers.” The Supreme Court should be placed by its exalted position far above party strife and far above the desire to exercise arbitrary power. Its careful observance of constitutional limitations would be a beneficial example not only to the other departments of government but to the highest courts of all the states.


NOTES

   115.   Elliot’s Deb., vol. iv, p. 485.
   116.   Gordy, Political Parties in the United States, vol. 1, p. 114.
   117.   Boutmy, Studies in Constitutional Law, pp. 117, 118, Eng. Trans.
   118.   Dicey, The Law of the Constitution, pp. 170, 171.
   119.   Chief Justice Gibson, 12 Sergeant & Rawle, 330, 356; Professor Trickett, Judicial Nullification of Congressional Acts, North American Review, August 16, 1907; Mr. McMutry, Judicial Power and Unconstitutional Legislation, Coxe, pp. 30-41; Judge Dark, Yale Law Journal, December, 1906, pp. 75-79.
   120.   Coxe, Judicial Power and Unconstitutional Legislation, pp. 54-7.
   121.   Lowell, Democracy and the Constitution, p. 72.
   122.   Dicey, Law of the Constitution, p. 153.
   123.   Governments and Parties in Continental Europe, p. 283.
   124.   Dicey, Law of the Constitution, p. 131.
   125.   Dicey, Law of the Constitution, p. 130.
   126.   Lowell, Gov. and Parties in Cont. Europe, p. 151, Note 1.
   127.   Lowell, Gov. and Parties in Cont. Europe, vol. ii, p. 84.
   128.   Coxe, Judicial Power and Const. Legislation, pp. 234, 246, 249.
   129.   Coxe, Judicial Power and Constitutional Legislation, p. 249; Bayard v. Singleton, Martin’s Reports, N. C., 50, 52.
   130.   Marbury v. Madison, 1 Cranch, 137; Dred Scott v. Sanford, 19 Howard, 393.
   131.   Cooley, Constitutional Lim., p. 194, note.
   132.   Green v. Biddle, 8 Wheaton, 1.
   133.   Wilson, Congressional Government, p. 4.
   134.   Slaughter House Cases, 16 Wallace, 82.
   135.   188 U. S. 321.
   136.   Elliot’s Deb., vol. i, p. 329.
   137.   Fiske, The Critical Period of American History, p. 296.
   138.   Congressional Government, p. 38.
   139.   Rhoades, History of the United States, vol. vi, pp. 268-273.
   140.   Legal Tender Cases, 79 U. S. 457.
   141.   Rhoades, History of the United States, vol. vi, p. 266.
   142.   Juilliard v. Greenman, 110 U. S. 447-449.
   143.   Fiske, The Critical Period of Amencan History, p 296, Legal Tender Cases, 79 U. S. 652-656 of opinion by Field.
   144.   Pollock v. Farmers’ Loan and Trust Co., 157 U. S. 429.
   145.   Milton v. United States, 3 Dallas, 171.
   146.   Springer v. United States, 102 U. S. 586.
   147.   Shiel, Sketches of the Irish Bar, p. 158, note.
   148.   S. Carolina v. U. S., 199 U. S. 439, practically reversing Collector v. Day, n Wallace, 113; and Income Tax Case so far as it held that the provision affecting municipal corporations was unconstitutional; Haddock v. Haddock, 201 U. S. 562, practically overruling Atherton v. Atherton, 181 U. S. 155; Leisy v. Hardin, 135 U. S. 100, practically reversing the License Cases, 5 Howard, 504.
   149.   Opinion of Mr. Justice Miller in Slaughter House Cases, 16 Wallace, 589, 599; Pine v. City of New York, 185 U. S. 93; S. Car. v. U. S., 199 U. S. 455; Maxwell v. Dow, 176 U. S. 590; Lottery Case, 188 U. S. 321.
   150.   Downes v. Bidwell, 182 U. S. 282.
   151.   Hawaii v. Mankichi, 190 U. S. 197.
   152.   Springville v. Thomas, 166 U. S. 707, 708.
   153.   Dorr v. United States, 195 U. S. 138.
   154.   Northern Pacific R R. v. Whalen, 149 U. S. , 162
   155.   In re Debs, 158 V S , 581.
   156.   U S. Revised Statutes, Sect 3 995, Act of July 2, 1890
   157.   In re Lennon, 166 U S , 548, Arthur v. Oak, 63 Fed. Rep , 310.
   158.   In re Doolittle, 23 Federal Reporter, 544.
   159.   Ellenbach v. Plymouth, 134 U. S , 31.
   160.   1 Spence, Eq. Juris , 350, Gneist Eng. Const , 507 and note.
   161.   Professor Langdell, Harvard Law Review, vol. xvi, pp. 552, 553.
   162.   Ames v. Northern Pac. Ry. Co., 64 Fed. Rep., 165, 173.

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