AMERICAN COURTS AS LEGISLATIVE CHAMBERS
In one point of view many of the greatest of the Federalists were
idealists. They seem sincerely to have believed that they could, by some
form of written words, constrain a people to be honest against their
will, and almost as soon as the new government went into operation they
tested these beliefs by experiment, with very indifferent success. I
take it that jurists like Jay and Marshall held it to be axiomatic that
rules of conduct should be laid down by them which would be applicable
to rich and poor, great and small, alike, and that courts could maintain
such rules against all pressure. Possibly such principles may be
enforced against individuals, but they cannot be enforced against
communities, and it was here that the Federalist philosophy collapsed,
as Hamilton, at least partly, foresaw that it must.
Sovereigns have always enjoyed immunity from suit by private persons,
unless they have been pleased to assent thereto, not because it is less
wrongful for a sovereign than for an individual to cheat, but because
the sovereign cannot be arrested and the individual can. With the
Declaration of Independence the thirteen colonies became sovereigns.
Petty sovereigns it is true, and singly contemptible in physical force
as against most foreign nations, but none the less tenacious of the
attributes of sovereignty, and especially of the attribute which enabled
them to repudiate their debts. Jay, Marshall, and their like, thought
that they could impose the same moral standard upon the states as upon
private persons; they were unable to do so, but in making the attempt
they involved the American judicial system in a maze of difficulties
whose gravity, I fear, can hardly be exaggerated. Before entering upon
this history, however, I must say a word touching the nature of our law.
Municipal law, to be satisfactory, should be a body of abstract
principles capable of being applied impartially to all relevant facts,
just as Marshall and Jay held it to be. Where exceptions begin, equality
before the law ends, as I have tried to show by the story of King David
and Uriah, and therefore the great effort of civilization has been to
remove judges from the possibility of being subjected to a temptation,
or to a pressure, which may deflect them from impartiality as between
suitors. In modern civilization, especially, nothing is so fatal to the
principle of order as inequality in the dispensation of justice, and it
would have been reasonable to suppose that Americans, beyond all others,
would have been alive to this teaching of experience, and have
studiously withdrawn their bench from politics. In fact they have
ignored it, and instead they have set their judiciary at the focus of
conflicting forces. The result has been the more unfortunate as the
English system of jurisprudence is ill calculated to bear the strain, it
being inflexible. In theory the English law moves logically from
precedent to precedent, the judge originating nothing, only elaborating
ideas which he has received from a predecessor, and which are binding on
him. If the line of precedents leads to wrongful conclusions, the
legislature must intervene with a statute rectifying the wrong. The
Romans, who were gifted with a higher legal genius than we, managed
better. The praetor, by his edict, suppressed inconvenient precedents,
and hence the Romans maintained flexibility in their municipal law
without falling into confusion. We have nothing to correspond to the
praetor.
Thus the English system of binding precedents is troublesome enough in a
civilization in chronic and violent flux like modern civilization, even
when applied to ordinary municipal law which may be changed at will by
legislation, but it brings society almost to a stand when applied to the
most vital functions of government, with no means at hand to obtain a
corrective. For the court of last resort having once declared the
meaning of a clause of the Constitution, that meaning remains fixed
forever, unless the court either reverses itself, which is a disaster,
or the Constitution can be amended by the states, which is not only
difficult, but which, even if it be possible, entails years of delay.
Yet pressing emergencies arise, emergencies in which a settlement of
some kind must almost necessarily be reached somewhat rapidly to avert
very serious disorders, and it has been under this tension, as I
understand American constitutional development, that our courts have
resorted to legislation. Nor is it fair for us to measure the sagacity
of our great jurists by the standard of modern experience. They lived
before the acceleration of movement by electricity and steam. They could
not foresee the rapidity and the profundity of the changes which were
imminent. Hence it was that, in the spirit of great lawyers, who were
also possibly men tinged with a certain enthusiasm for the ideal, they
began their work by ruling on the powers and limitations of sovereignty,
as if they were ruling on the necessity of honest intent in dealings
with one's neighbor.
In 1789 General Washington is said to have offered John Jay his choice
of offices under the new government, and Jay chose the chief
justiceship, because there he thought he could make his influence felt
most widely. If so he had his wish, and very shortly met with
disappointment. In the August Term of 1792, one Chisholm, a citizen of
South Carolina, sued the State of Georgia for a debt. Georgia declined
to appear, and in February, 1793, Jay, in an elaborate opinion, gave
judgment for Chisholm. Jay was followed by his associates with the
exception of Iredell, J., of North Carolina. Forthwith a ferment began,
and in the very next session of Congress an amendment to the
Constitution was proposed to make such suits impossible. In January,
1798, five years after the case was argued, this amendment was declared
to be adopted, but meanwhile Jay had resigned to become governor of New
York. In December, 1800, he was again offered the chief justiceship by
John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely
declined. I have often wondered whether Jay's mortification at having
his only important constitutional decision summarily condemned by the
people may not have given him a distaste for judicial life.
The Federalist attempt to enforce on the states a positive rule of
economic morality, therefore, collapsed at once, but it still remained
possible to approach the same problem from its negative side, through
the clause of the Constitution which forbade any state to impair the
validity of contracts, and Marshall took up this aspect of the task
where Jay left it. In Marshall's mind his work was simple. He had only
to determine the nature of a contract, and the rest followed
automatically. All contracts were to be held sacred. Their greater or
less importance was immaterial.
In 1810 Marshall expounded this general principle in Fletcher _v_.
Peck.[18] "When ... a law is in its nature a contract ... a repeal of
the law cannot devest" rights which have vested under it. A couple of
years later he applied his principle to the extreme case of an unlimited
remission of taxation.[19] The State of New Jersey had granted an
exemption from taxation to lands ceded to certain Indians. Marshall held
that this contract ran with the land, and inured to the benefit of
grantees from the Indians. If the state cared to resume its power of
taxation, it must buy the grant back, and the citizens of New Jersey
must pay for their improvidence.
Seven years later, in 1810, Marshall may, perhaps, be said to have
reached the culmination of his career, for then he carried his moral
standard to a breaking strain. But, though his theory broke down,
perhaps the most striking evidence of his wonderful intellectual
superiority is that he convinced the Democrat, Joseph Story,--a man who
had been nominated by Madison to oppose him, and of undoubted strength
of character,--of the soundness of his thesis. In 1769 King George III
incorporated certain Trustees of Dartmouth College. The charter was
accepted and both real and personal property were thereupon conveyed to
this corporate body, in trust for educational purposes. In 1816 the
legislature of New Hampshire reorganized the board of trustees against
their will. If the incorporation amounted to a contract, the Court was
clear that this statute impaired it; therefore the only really debatable
issue was whether the grant of a charter by the king amounted to a
contract by him, with his subjects to whom he granted it. After
prolonged consideration Marshall concluded that it did, and I conceive
that, in the eye of history, he was right. Throughout the Middle Ages
corporate privileges of all kinds, but especially municipal corporate
privileges, had been subjects of purchase and sale, and indeed the
mediaeval social system rested on such contracts. So much was this the
case that the right to return members of Parliament from incorporated
boroughs was, as Lord Eldon pointed out in the debates on the Reform
Bill, as much private property "as any of your lordships'" titles and
peerages.
It was here that Marshall faltered. He felt that the public would not
support him if he held that states could not alter town and county
charters, so he arbitrarily split corporations in halves, protecting
only those which handled exclusively private funds, and abandoning
"instruments of government," as he called them, to the mercy of
legislative assemblies.
Toward 1832 it became convenient for middle class Englishmen to
confiscate most of the property which the aristocracy had invested in
parliamentary boroughs, and this social revolution was effected without
straining the judicial system, because of the supremacy of Parliament.
In America, at about the same time, it became, in like manner,
convenient to confiscate numerous equally well-vested rights, because,
to have compensated the owners would have entailed a considerable
sacrifice which neither the public nor the promoters of new enterprises
were willing to make. The same end was reached in America as in England,
in spite of Chief Justice Marshall and the Dartmouth College Case, only
in America it was attained by a legal somerset which has disordered the
course of justice ever since.
In 1697 King William III incorporated Trinity Church in the City of New
York, confirming to the society the possession of a parcel of land,
adjoining the church, to be used as a churchyard for the burial of the
dead. In 1823 the government of New York prohibited interments within
the city limits, thus closing the churchyard for the purposes for which
it had been granted. As compensation was refused, it appeared to be a
clear case of confiscation, and Trinity resisted. In the teeth of recent
precedents the Supreme Court of New York decided that, under the _Police
Power_, the legislature of New York might authorize this sort of
appropriation of private property for sanitary purposes, without paying
the owners for any loss they might thereby sustain.[20]
The court thus simply dispensed the legislature from obedience to the
law, saying in effect, "although the Constitution forbids impairing
contracts, and although this is a contract which you have impaired, yet,
in our discretion, we suspend the operation of the Constitution, in this
instance, by calling your act an exercise of a power unknown to the
framers of the Constitution." I cannot doubt that Marshall would have
flouted this theory had he lived to pass upon it, but Marshall died in
1835, and the Charles River Bridge Case, in which this question was
first presented to the Supreme Court of the United States, did not come
up until 1837. Then Joseph Story, who remained as the representative of
Marshall's philosophy upon the bench, vehemently protested against the
latitudinarianism of Chief Justice Taney and his associates, but without
producing the slightest effect.
In 1785 the Massachusetts legislature chartered the Charles River Bridge
Company to build a bridge between Boston and Charlestown, authorizing
it, by way of consideration, to collect tolls for forty years. In 1792
the franchise was extended to seventy years, when the bridge was to
revert to the Commonwealth. In 1828 the legislature chartered the Warren
Bridge Company, expressly to build a bridge parallel to and practically
adjoining the Charles River Bridge, the Warren Bridge to become a free
bridge after six years. The purpose, of course, was to accelerate
movement by ruining the Charles River Bridge Company. The Charles River
Bridge Company sought to restrain the building of the Warren Bridge as a
breach of contract by the State, but failed to obtain relief in the
state courts, and before the cause could be argued at Washington the
Warren Bridge had become free and had destroyed the value of the Charles
River Bridge, though its franchise had still twenty years to run. As
Story pointed out, no one denied that the charter of the Charles River
Bridge Company was a contract, and, as he insisted, it is only common
sense as well as common justice and elementary law, that contracts of
this character should be reasonably interpreted so far as quiet
enjoyment of the consideration granted is concerned; but all this
availed nothing. The gist of the opposing argument is contained in a
single sentence in the opinion of the Chief Justice who spoke for the
majority of the court: "The millions of property which have been
invested in railroads and canals, upon lines of travel which had been
before occupied by turnpike corporations, will be put in jeopardy" if
this doctrine is to prevail.[21]
The effect of the adoption by the Supreme Court of the United States of
the New York theory of the Police Power was to vest in the judiciary, by
the use of this catch-word, an almost unparalleled prerogative. They
assumed a supreme function which can only be compared to the Dispensing
Power claimed by the Stuarts, or to the authority which, according to
the Council of Constance, inheres in the Church, to "grant indulgences
for reasonable causes." I suppose nothing in modern judicial history has
ever resembled this assumption; and yet, when we examine it, we find it
to be not only the logical, but the inevitable, effect of those
mechanical causes which constrain mankind to move along the lines of
least resistance.
Marshall, in a series of decisions, laid down a general principle which
had been proved to be sound when applied by ordinary courts, dealing
with ordinary social forces, and operating under the corrective power of
either a legislature or a praetor, but which had a different aspect
under the American constitutional system. He held that the fundamental
law, embodied in the Constitution, commanded that all contracts should
be sacred. Therefore he, as a judge, had but two questions to resolve:
First, whether, in the case before him, a contract had been proved to
exist. Second, admitting that a contract had been proved, whether it had
also been shown to have been impaired.
Within ten years after these decisions it had been found in practice
that public opinion would not sustain so rigid an administration of the
law. No legislature could intervene, and a pressure was brought to bear
which the judges could not withstand; therefore, the Court yielded,
declaring that if impairing a contract were, on the whole, for the
public welfare, the Constitution, as Marshall interpreted it, should be
suspended in favor of the legislation which impaired it. They called
this suspension the operation of the "Police Power." It followed, as the
"Police Power" could only come into operation at the discretion of the
Court, that, therefore, within the limits of judicial discretion,
confiscation, however arbitrary and to whatever extent, might go on. In
the energetic language of the Supreme Court of Maine: "This duty and
consequent power override all statute or contract exemptions. The state
cannot free any person or corporation from subjection to this power.
All personal, as well as property rights must be held subject to the
Police Power of the state."[22]
Once the theory of the Police Power was established it became desirable
to define the limits of judicial discretion, but that proved to be
impossible. It could not be determined in advance by abstract reasoning.
Hence, as each litigation arose, the judges could follow no rule but the
rule of common sense, and the Police Power, translated into plain
English, presently came to signify whatever, at the moment, the judges
happened to think reasonable. Consequently, they began guessing at the
drift of public opinion, as it percolated to them through the medium of
their education and prejudices. Sometimes they guessed right and
sometimes wrong, and when they guessed wrong they were cast aside, as
appeared dramatically enough in the temperance agitation.
Up to about the middle of the last century the lawfulness of the liquor
business had been unquestioned in the United States, and money had been
invested as freely in it as in any other legitimate enterprise; but, as
the temperance agitation swept over the country, in obedience to the
impulsion given by science to the study of hygiene, dealing in liquor
came to be condemned as a crime. Presently legislatures began to pass
statutes to confiscate, more or less completely, this kind of property,
and sufferers brought their cases before the courts to have the
constitutionality of the acts tested, under the provisions which existed
in all state constitutions, forbidding the taking, by the public, of
private property without compensation, or without due process of law.
Such a provision existed hi the constitution of the State of New York,
adopted in 1846, and it was to invoke the protection of this clause that
one Wynehamer, who had been indicted in 1855, carried his case to the
Court of Appeals in the year 1856. In that cause Mr. Justice Comstock,
who was one of the ablest jurists New York ever produced, gave an
opinion which is a model of judicial' reasoning. He showed conclusively
the absurdity of constitutional restrictions, if due process of law may
be held to mean the enactment of the very statute drawn to work
confiscation.[23] This decision, which represented the profoundest
convictions of men of the calibre of Comstock and Denio, deserves to
rank with Marshall's effort in the Dartmouth College Case. In both
instances the tribunal exerted itself to carry out Hamilton's principle
of judicial duty by exercising its _judgment_ and not its _will_. In
other words, the judges propounded a general rule and then simply
determined whether the set of facts presented to them fell within that
rule. They resolutely declined to legislate by entering upon a
consideration of the soundness or reasonableness of the policy which
underlay the action of the legislature. In the one case as in the other
the effort was unavailing, as Jefferson prophesied that it would be. I
have told of Marshall's overthrow in the Charles River Bridge Case, and
in 1887, after controversies of this category had begun to come before
the Supreme Court of the United States under the Fourteenth Amendment,
Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring
an argument which was unanswerable.[24] The same series of phenomena
have appeared in regard to laws confiscating property invested in
lotteries, when opinion turned against lotteries, or in occupations
supposed to be unsanitary, as in the celebrated case of the taxing out
of existence of the rendering establishment which had been erected as a
public benefit to relieve the City of Chicago of its offal.[25] In fine,
whenever pressure has reached a given intensity, on one pretext or
another, courts have enforced or dispensed with constitutional
limitations with quite as much facility as have legislatures, and for
the same reasons. The only difference has been that the pressure which
has operated most directly upon courts has not always been the pressure
which has swayed legislatures, though sometimes both influences have
combined. For example, during the Civil War, the courts sanctioned
everything the popular majority demanded under the pretext of the War
Power, as in peace they have sanctioned confiscations for certain
popular purposes, under the name of the Police Power. But then, courts
have always been sensitive to financial influences, and if they have
been flexible in permitting popular confiscation when the path of least
resistance has lain that way, they have gone quite as far in the
reverse direction when the amount of capital threatened has been large
enough to be with them a countervailing force.
As the federal Constitution originally contained no restriction upon the
states touching the confiscation of the property of their own citizens,
provided contracts were not impaired, it was only in 1868, by the
passage of the Fourteenth Amendment, that the Supreme Court of the
United States acquired the possibility of becoming the censor of state
legislation in such matters. Nor did the Supreme Court accept this
burden very willingly or in haste. For a number of years it labored to
confine its function to defining the limits of the Police Power,
guarding itself from the responsibility of passing upon the
"reasonableness" with which that power was used. It was only by somewhat
slow degrees, as the value of the threatened property grew to be vast,
that the Court was deflected from this conservative course into
effective legislation. The first prayers for relief came from the
Southern states, who were still groaning under reconstruction
governments; but as the Southern whites were then rather poor, their
complaints were neglected. The first very famous cause of this category
is known as the Slaughter House Cases. In 1869 the Carpet Bag government
of Louisiana conceived the plan of confiscating most of the property of
the butchers who slaughtered for New Orleans, within a district about as
large as the State of Rhode Island. The Fourteenth Amendment forbade
states to deprive any person of life, liberty, or property, without due
process of law, and the butchers of New Orleans prayed for protection,
alleging that the manner in which their property had been taken was
utterly lawless. But the Supreme Court declined to interfere, explaining
that the Fourteenth Amendment had been contrived to protect the
emancipated slaves, and not to make the federal judiciary "a perpetual
censor upon all legislation of the states, on the civil rights of their
own citizens, with authority to nullify such as it did not approve."[26]
Although, even at that relatively early day, this conservatism met with
strong opposition within the Court itself, the pressure of vested wealth
did not gather enough momentum to overcome the inertia of the bench for
nearly another generation. It was the concentration of capital in
monopoly, and the consequent effort by the public to regulate monopoly
prices, which created the stress which changed the legal equilibrium.
The modern American monopoly seems first to have generated that amount
of friction, which habitually finds vent in a great litigation, about
the year 1870; but only some years later did the states enter upon a
determined policy of regulating monopoly prices by law, with the
establishment by the Illinois legislature of a tariff for the Chicago
elevators. The elevator companies resisted, on the ground that
regulation of prices in private business was equivalent to confiscation,
and so in 1876 the Supreme Court was dragged into this fiercest of
controversies, thereby becoming subject to a stress to which no
judiciary can safely be exposed. Obviously two questions were presented
for adjudication: The first, which by courtesy might be termed legal,
was whether the fixing of prices by statute was a prerogative which a
state legislature might constitutionally exercise at all; the second,
which was purely political, was whether, admitting that, in the
abstract, such a power could be exercised by the state, Illinois had,
in this particular case, behaved _reasonably_. The Supreme Court made a
conscientious effort to adhere to the theory of Hamilton, that it
should, in emergencies like this, use its _judgment_ only, and not its
_will_; that it should lay down a rule, not vote on the wisdom of a
policy. So the judges decided that, from time immemorial, the fixing of
prices in certain trades and occupations had been a legislative
function, which they supposed might be classified as a branch of the
Police Power, but they declared that with this expression of opinion
their jurisdiction ended. When it came to asking them to criticise the
propriety of legislation, it was, in substance, proposing that they
should substitute their _will_ for the _will_ of the representatives of
the people, which was impossible. I well remember the stir made by the
case of Munn _v_. Illinois.[27]
Both in and out of the legal profession, those in harmony with the great
vested interests complained that the Court had shirked its duty. But
these complaints soon ceased, for a movement was in progress which
swept, for the moment, all before it. The great aggregations of capital,
which had been accumulating ever since the Charles River Bridge Case,
not long after Munn _v._ Illinois attained to a point at which they
began to grasp many important prerogatives of sovereignty, and to
impose, what was tantamount to, arbitrary taxation upon a large scale.
The crucial trial of strength came on the contest for control of the
railways, and in that contest concentrated capital prevailed. The
Supreme Court reversed its attitude, and undertook to do that which it
had solemnly protested it could not do. It began to censor legislation
in the interest of the strongest force for the time being, that force
being actually financial. By the year 1800 the railway interest had
expanded prodigiously. Between 1876 and 1890 the investment in railways
had far more than doubled, and, during the last five years of this
period, the increment had been at an average of about $450,000,000
annually. At this point the majority of the court yielded, as ordinary
political chambers always must yield, to extraordinary pressure. Mr.
Justice Bradley, however, was not an ordinary man. He was, on the
contrary, one of the ablest and strongest lawyers who sat on the federal
bench during the last half of the nineteenth century; and Bradley, like
Story before him, remonstrated against turning the bench of magistrates,
to which he belonged, from a tribunal which should propound general
rules applicable to all material facts, into a jury to find verdicts on
the reasonableness of the votes of representative assemblies. The
legislature of Minnesota, in 1887, passed a statute to regulate railway
rates, and provided that the findings of the commission which it erected
to fix those rates should be final. The Chicago, Milwaukee & St. Paul
Railway contended that this statute was unconstitutional, because it was
unreasonable, and the majority of the Court sustained their
contention.[28] Justices Bradley, Gray, and Lamar dissented, and Bradley
on this occasion delivered an opinion, from which I shall quote a
paragraph or two, since the argument appears to me conclusive, not only
from the point of view of law, but of political expediency and of common
sense:--
"I cannot agree to the decision of the court in this case. It
practically overrules Munn _v._ Illinois.... The governing principle of
those cases was that the regulation and settlement of the fares of
railroads and other public accommodations is a legislative prerogative,
and not a judicial one. This is a principle which I regard as of great
importance....
"But it is said that all charges should be reasonable, and that none but
reasonable charges can be exacted; and it is urged that what is a
reasonable charge is a judicial question. On the contrary, it is
preëminently a legislative one, involving considerations of policy as
well as of remuneration.... By the decision now made we declare, in
effect, that the judiciary, and not the legislature, is the final
arbiter in the regulation of fares and freights of railroads.... It is
an assumption of authority on the part of the judiciary which, ... it
has no right to make. The assertion of jurisdiction by this court makes
it the duty of every court of general jurisdiction, state or federal, to
entertain complaints [of this nature], for all courts are bound by the
Constitution of the United States, the same as we are."
There is little to add to these words. When the Supreme Court thus
undertook to determine the reasonableness of legislation it assumed,
under a somewhat thin disguise, the position of an upper chamber, which,
though it could not originate, could absolutely veto most statutes
touching the use or protection of property, for the administration of
modern American society now hinges on this doctrine of judicial
dispensation under the Police Power. Whether it be a regulation of rates
and prices, of hours of labor, of height of buildings, of municipal
distribution of charity, of flooding a cranberry bog, or of prescribing
to sleeping-car porters duties regarding the lowering of upper
berths,--in questions great and small, the courts vote upon the
reasonableness of the use of the Police Power, like any old-fashioned
town meeting. There is no rule of law involved. There is only opinion or
prejudice, or pecuniary interest. The judges admit frankly that this is
so. They avow that they try to weigh public opinion, as well as they
can, and then vote. In 1911 Mr. Justice Holmes first explained that the
Police Power extended to all great public needs, and then went on to
observe that this Police Power, or extraordinary prerogative, might be
put forth by legislatures "in aid of what is sanctioned by usage, or
held by ... preponderant opinion to be ... necessary to the public
welfare."[29]
A representative chamber reaches its conclusions touching "preponderant
opinion" by a simple process, but the influences which sway courts are
obscurer,--often, probably, beyond the sphere of the consciousness of
the judges themselves. Nor is this the worst; for, as I have already
explained, the very constitution of a court, if it be a court calculated
to do its legitimate work upon a lofty level, precludes it from keeping
pace with the movement in science and the arts. Necessarily it lags some
years behind. And this tendency, which is a benefit in the dispensation
of justice as between private litigants, becomes a menace when courts
are involved in politics. A long line of sinister precedents crowd
unbidden upon the mind. The Court of King's Bench, when it held Hampden
to be liable for the Ship Money, draped the scaffold for Charles I. The
Parliament of Paris, when it denounced Turgot's edict touching the
corvée, threw wide the gate by which the aristocracy of France passed to
the guillotine. The ruling of the Superior Court of the Province of
Massachusetts Bay, in the case of the Writs of Assistance, presaged the
American Revolution; and the Dred Scott decision was the prelude to the
Civil War.
The capital essential of justice is that, under like conditions, all
should fare alike. The magistrate should be no respecter of persons. The
vice of our system of judicial dispensation is that it discriminates
among suitors in proportion to their power of resistance. This is so
because, under adequate pressure, our courts yield along the path of
least resistance. I should not suppose that any man could calmly turn
over the pages of the recent volumes of the reports of the Supreme Court
of the United States and not rise from the perusal convinced that the
rich and the poor, the strong and the weak, do not receive a common
measure of justice before that judgment seat. Disregarding the
discrimination which is always apparent against those who are unpopular,
or who suffer under special opprobrium, as do liquor dealers, owners of
lotteries, and the like,[30] I will take, nearly at random, a couple of
examples of rate regulation, where tenderness has been shown property in
something approaching to a mathematical ratio to the amount involved.
In April, 1894, a record was produced before the Supreme Court which
showed that the State of North Dakota had in 1891 established rates for
elevating and storing grain, which rates the defendant, named Brass, who
owned a small elevator, alleged to be, to him in particular, _utterly_
ruinous, and to be in general unreasonable. He averred that he used his
elevator for the storage of his own grain, that it cost about $3000,
that he had no monopoly, as there were many hundred such elevators in
the state, and, as land fit for the purpose of building elevators was
plenty and cheap, that any man could build an elevator in the town in
which he lived, as well as he; that the rates he charged were
reasonable, and that, were he compelled to receive grain generally at
the rates fixed by the statute, he could not store his own grain. All
these facts were admitted by demurrer, and Brass contended that if any
man's property were ever to be held to be appropriated by the public
without compensation, and under no form of law at all save a predatory
statute, it should be his; but the Supreme Court voted the Dakota
statute to be a reasonable exercise of the Police Power,[31] and
dismissed Brass to his fate.
The converse case is a very famous one known as Smyth _v._ Ames,[32]
decided four years later, in 1898. In that case it appeared that the
State of Nebraska had, in 1893, reduced freight rates within the state
about twenty-nine per cent, in order to bring them into some sort of
relation to the rates charged in the adjoining State of Iowa, which were
calculated to be forty per cent lower than the Nebraska rates. Several
of the most opulent and powerful corporations of the Union were affected
by this law, among others the exceedingly prosperous and influential
Chicago, Burlington & Quincy Railway. No one pretended that, were the
law to be enforced, the total revenues of the Burlington would be
seriously impaired, nor was it even clear that, were the estimate of
reduction, revenue, and cost confined altogether to the commerce carried
on within the limits of the State of Nebraska, leaving interstate
commerce out of consideration, a loss would be suffered during the
following year. Trade might increase with cheaper rates, or economies
might be made by the company, or both causes and many others of
increased earnings might combine. Corporation counsel, however, argued
that, were the principle of the statute admitted, and should all the
states through which the line passed do the like, ultimately a point
might be reached at which the railway would be unable to maintain, even
approximately, its dividend of eight per cent, and that the creation of
such a possibility was conceding the power of confiscation, and,
therefore, an unreasonable exercise of the Police Power, by the State of
Nebraska. With this argument the Supreme Court concurred. They held the
Nebraska statute to be unreasonable. Very possibly it may have been
unsound legislation, yet it is noteworthy that within three years after
this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the
rate of $200 for every share of stock of the par value of $100, thus
fixing forever, on the community tributary to the road, the burden of
paying a revenue on just double the value of all the stock which it had
been found necessary to issue to build the highway. Even at this price
Mr. Hill is supposed to have made a brilliant bargain.
This brings me to the heart of my theorem. Ever since Hamilton's time,
it has been assumed as axiomatic, by conservative Americans, that courts
whose function is to expound a written constitution can and do act as a
"barrier to the encroachments and oppressions of the representative
body."[33] I apprehend that courts can perform no such office and that
in assuming attributes beyond the limitations of their being they, as
history has abundantly proved, not only fail in their object, but shake
the foundations of authority, and immolate themselves. Hitherto I have
confined myself to adducing historical evidence to prove that American
courts have, as a whole, been gifted with so little political sagacity
that their interference with legislation, on behalf of particular
suitors, has, in the end, been a danger rather than a protection to
those suitors, because of the animosity which it has engendered. I shall
now go further. For the sake of argument I am willing to admit that the
courts, in the exercise of the dispensing prerogative, called the
Police Power, have always acted wisely, so much so that every such
decree which they have issued may be triumphantly defended upon
economic, moral, or social grounds. Yet, assuming this to be true,
though I think I have shown it to be untrue, the assumption only
strengthens my contention, that our courts have ceased to be true
courts, and are converted into legislative chambers, thereby promising
shortly to become, if they are not already, a menace to order. I take it
to be clear that the function of a legislature is to embody the will of
the dominant social force, for the time being, in a political policy
explained by statutes, and when that policy has reached a certain stage
of development, to cause it to be digested, together with the judicial
decisions relevant to it, in a code. This process of correlation is the
highest triumph of the jurist, and it was by their easy supremacy in
this field of thought, that Roman lawyers chiefly showed their
preeminence as compared with modern lawyers. Still, while admitting this
superiority, it is probably true that the Romans owed much of their
success in codification to the greater permanence of the Roman
legislative tenure of office, and, therefore, stability of
policy,--phenomena which were both probably effects of a slower social
movement among the ancients. The Romans, therefore, had less need than
we of a permanent judiciary to counteract the disintegrating tendency of
redundant legislation; _a fortiori_, of course, they had still less to
isolate the judiciary from political onslaughts which might cause
justice to become a series of exceptions to general principles, rather
than a code of unvarying rules.
It is precisely because they are, and are intended to be, arenas of
political combat, that legislatures cannot be trustworthy courts, and it
was because this fact was notorious that the founders of this government
tried to separate the legislative from the judicial function, and to
make this separation the foundation of the new republic. They failed, as
I conceive, not because they made their legislatures courts, but
because, under the system they devised, their courts have become
legislatures. A disease, perhaps, the more insidious of the two.
Insidious because it undermines, order, while legislative murder and
confiscation induce reaction.
If a legislative chamber would act as a court, the first necessity is to
eliminate its legislative character. For example, the House of Lords in
England has long discharged the duties of a tribunal of last resort for
the empire, and with general approbation, but only because, when sitting
as a court, the law lords sit alone. Politicians and political
influences are excluded. Where political influences enter disaster
follows. Hence the infamous renown of political decisions in legal
controversies, such as bills of attainder and _ex post facto_ laws, or
special legislation to satisfy claims which could not be defended before
legitimate courts, or the scandals always attending the trial of
election petitions. The object of true courts is to shield the public
from these and kindred abuses.
In primitive communities courts are erected to defend the weak against
the strong, by correlating local customs in such wise that some general
principle can be deduced which shall protect the civil rights of those
who cannot protect themselves, against the arbitrary exactions of
powerful neighbors. In no community can every person have equal civil
rights. That is impossible. Civil rights must vary according to status.
But such rights as any person may have, those the courts are bound to
guard indifferently. If the courts do not perform this, their first and
most sacred duty, I apprehend that order cannot be permanently
maintained, for this is equality before the law; and equality before the
law is the cornerstone of order in every modern state.
I conceive that the lawyers of the age of Washington were the ablest
that America has ever produced. No men ever understood the principle of
equality before the law more thoroughly than they, and after the
establishment of this government a long series of great and upright
magistrates strove, as I have shown, to carry this principle into
effect. Jay and Marshall, Story and Bradley, and many, many more,
struggled, protested, and failed. Failed, as I believe, through no fault
of their own, but because fortune had placed them in a position
untenable for the judge. When plunged in the vortex of politics, courts
must waver as do legislatures, and nothing is to me more painful than to
watch the process of deterioration by which our judges lose the instinct
which should warn them to shun legislation as a breach of trust, and to
cleave to those general principles which permit of no exceptions. To
illustrate my meaning I shall refer to but one litigation, but that one
is so extraordinary that I must deal with it in detail.
In 1890 the dread of the enhancement of prices by monopoly, as the
Supreme Court itself has explained, caused Congress to pass the famous
Sherman Act, which prohibited indiscriminately all monopolies or
restraints of trade. Presently the government brought a bill to dissolve
an obnoxious railway pool, called the Trans-Missouri Freight
Association, and in 1896 the case came up for adjudication. I have
nothing to say touching the policy involved. I am only concerned with a
series of phenomena, developed through several years, as effects of
pressure acting upon a judiciary, exposed as the judiciary, under our
system, is exposed.
The Trans-Missouri Case was argued on December 8, 1896, very elaborately
and by the most eminent counsel. After long consideration, and profound
reflection, Mr. Justice Peckham, speaking for the majority of the
tribunal, laid down a general principle in conformity to the legislative
will, precisely as Marshall had laid down a general principle in the
Dartmouth College Case, or Story in the Charles River Bridge Case, or
Waite in Munn _v_. Illinois, or Bradley in the Minnesota Rate Case. Then
the process of agitation immediately began. In the words of Mr. Justice
Harlan, fifteen years later: "But those who were in combinations that
were illegal did not despair. They at once set up the baseless claim
that the decision of 1896 disturbed the 'business interests of the
country,' and let it be known that they would never be content until the
rule was established that would permit interstate commerce to be
subjected to _reasonable_ restraints."[34]
Other great causes, involving the same issue, were tried, the question
was repeatedly reargued, but the Supreme Court tenaciously adhered to
its general principle, that, under the Sherman Act, _all_ restraints of
trade, or monopolies, were unlawful, and, therefore, the Court had but
two matters before it, first to define a restraint of trade or a
monopoly, second to determine whether the particular combination
complained of fell within that definition. No discretion was permitted.
Judicial duty ended there.
The Court being found to be inflexible, recourse was had to Congress,
and a bill in the form of an amendment to the Sherman Act was brought
into the Senate authorizing, in substance, those who felt unsafe under
the law, to apply to certain government officials, to be permitted to
produce evidence of the reasonable methods they employed, and, if the
evidence were satisfactory, to receive, what was tantamount to, an
indulgence. The subject thus reopened, the Senate Committee on the
Judiciary went into the whole question of monopoly anew, and in 1909
Senator Nelson presented an exhaustive report against the proposed
relaxation. Thereupon the Senate indefinitely postponed further
consideration of the amendment. The chief reasons given by Senator
Nelson were summed up in a single sentence: "The defence of reasonable
restraint would be made in every case and there would be as many
different rules of reasonableness as cases, courts, and juries.... To
amend the anti-trust act, as suggested by this bill, would be to
entirely emasculate it, and for all practical purposes render it
nugatory as a remedial statute.... The act as it exists is clear,
comprehensive, certain and highly remedial. It practically covers the
field of federal jurisdiction, and is in every respect a model law. To
destroy or undermine it at the present juncture, ... would be a
calamity.
"In view of the foregoing, your committee recommend the indefinite
postponement of the bill."[35]
And so the Senate did indefinitely postpone the bill.
Matters stood thus when the government brought process to dissolve the
Standard Oil Company, as an unlawful combination. The cause was decided
on May 15, 1911, the Chief Justice speaking for the majority of the
bench, in one of the most suggestive opinions which I have ever read. To
me this opinion, like Taney's opinion in the Charles River Bridge Case,
indicates that the tension had reached the breaking point, the court
yielding in all directions at once, while the dominant preoccupation of
the presiding judge seemed to be to plant his tribunal in such a
position that it could so yield, without stultifying itself hopelessly
before the legal profession and the public. In striving to reach this
position, however, I apprehend that the Chief Justice, unreservedly,
crossed the chasm on whose brink American jurists had been shuddering
for ninety years. The task the Chief Justice assumed was difficult
almost beyond precedent. He proposed to surrender to the vested
interests the principle of _reasonableness_ which they demanded, and
which the tribunal he represented, together with Congress, had refused
to surrender for fifteen years. To pacify the public, which would
certainly resent this surrender, he was prepared to punish two hated
corporations, while he strove to preserve, so far as he could, the
respect of the legal profession and of the public, for the court over
which he presided, by maintaining a semblance of consistency.
To accomplish these contradictory results, the Chief Justice began,
rather after the manner of Marshall in Marbury _v_. Madison, by an
extra-judicial disquisition. The object of this disquisition was to
justify his admission of the evidence of reasonableness as a defence,
although it was not needful to decide that such evidence must be
admitted in order to dispose of that particular cause. For the Chief
Justice very readily agreed that the Standard Oil Company was, in fact,
an unreasonable restraint of trade, and must be dissolved, no matter
whether it were allowed to prove its reasonable methods or not.
Accordingly, he might have contented himself with stating that,
admitting for the sake of argument but without approving, all the
defendant advanced, he should sustain the government; but to have so
disposed of the case would not have suited his purpose. What the Chief
Justice had it at heart to do was to surrender a fundamental principle,
and yet to appear to make no surrender at all. Hence, he prepared his
preliminary and extra-judicial essay on the human reason, of whose
precise meaning, I must admit, I still, after many perusals, have grave
doubts. I sometimes suspect that the Chief Justice did not wish to be
too explicit. So far as I comprehend the Chief Justice, his chain of
reasoning amounted to something like this: It was true, he observed,
that for fifteen years the Supreme Court had rejected the evidence of
reasonableness which he admitted, and had insisted upon a general
principle which he might be supposed to renounce, but this apparent
discrepancy involved no contradiction. It was only a progression in
thought. For, he continued, the judges who, on various previous
occasions, sustained that general principle, must have reached their
conclusions by the light of reason; to-day we reach a contrary
conclusion, but we also do so by the light of reason; therefore, as all
these decisions are guided by the light of reason they fundamentally
coincide, however much superficially they may seem to differ.[36]
I have never supposed that this argument carried complete conviction
either to the legal profession, to the public, or to Congress.
Certainly, it did not convince Mr. Justice Harlan, who failed to fathom
it, and bluntly expressed his astonishment in a dissenting opinion in
another cause from which I regret to say I can only quote a couple of
paragraphs, although the whole deserves attentive perusal:--
"If I do not misapprehend the opinion just delivered, the Court insists
that what was said in the opinion in the Standard Oil Case, was in
accordance with our previous decisions in the Trans-Missouri and Joint
Traffic Cases, ... if we resort to _reason_. This statement surprises me
quite as much as would a statement that black was white or white was
black."
"But now the Court, in accordance with what it denominates the 'rule of
reason,' in effect inserts in the act the word 'undue,' which means the
same as 'unreasonable,' and thereby makes Congress say what it did not
say.... And what, since the passage of the act, it has explicitly
refused to say.... In short, the Court now, by judicial legislation, in
effect, amends an Act of Congress relating to a subject over which that
department of the Government has exclusive cognizance."[37]
The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly
comprehensible, if we reflect a little on the conflict of forces
involved, and on the path of least resistance open to an American judge
seeking to find for this conflict, a resultant. The regulation or the
domination of monopoly was an issue going to the foundation of society,
and popular and financial energy had come into violent impact in regard
to the control of prices. Popular energy found vent through Congress,
while the financiers, as financiers always have and always will, took
shelter behind the courts. Congress, in 1890, passed a statute to
constrain monopolies, against which financiers protested as being a
species of confiscation, and which the Chief Justice himself thought
harsh. To this statute the Supreme Court gave a harsh construction, as
the Chief Justice had more than once pointed out, when he was still an
associate upon the bench. From a series of these decisions an appeal had
been made to Congress, and the Senate, in the report from which I have
quoted, had sustained the construction given to the statute by the
majority of his brethren with whom the Chief Justice differed. Since the
last of these decisions, however, the complexion of the bench had been
considerably changed by new appointments, much as it had been after
Hepburn _v_. Griswold, and an opportunity seemed to be presented to
conciliate every one.
In any other country than the United States, a chief justice so situated
would doubtless have affirmed the old precedents, permitting himself, at
most, to point out the mischief which, he thought, they worked. Not so a
lawyer nurtured under the American constitutional system, which breeds
in the judge the conviction that he is superior to the legislator. His
instinct, under adequate pressure, is always to overrule anything
repugnant to him that a legitimate legislative assembly may have done.
In this instance, had the case been one of first impression, nothing
would have been easier than to have nullified the Sherman Act as an
unreasonable exercise of the Police Power, as judges had been nullifying
statutes of which they disapproved for a couple of generations
previously; but the case was not one of first impression. On the
contrary, the constitutionality of the Sherman Act had been so often
upheld by the judiciary that the Chief Justice himself admitted that so
long as Congress allowed him to use his reason, these "contentions
[were] plainly foreclosed." Therefore, for him the path of least
resistance was to use his _reason_, and, as a magistrate, to amend a
statute which Congress ought to have amended, but had _unreasonably_
omitted to amend. Such was the final and logical result of the blending
of judicial and legislative functions in a court, as they are blended
under the American constitutional system. Nor is it unworthy of
remark, that the Chief Justice, in abstaining from questioning the
constitutionality of the act, expressly intimated that he did so
because, by the use of his reason, he could make that reasonable and
constitutional which otherwise might be unreasonable and
unconstitutional. The defendants pressed the argument that destroying
the freedom of contract, as the Sherman Law destroyed it, was to
infringe upon the "constitutional guaranty of due process of law." To
this the Chief Justice rejoined: "But the ultimate foundation of all
these arguments is the assumption that reason may not be resorted to in
interpreting and applying the statute.... As the premise is demonstrated
to be unsound by the construction we have given the statute," these
arguments need no further notice.[38]
Should Congress amend the Sherman Act, as it seems somewhat disposed to
do, by explicitly enacting the rule of the Trans-Missouri Case, a grave
issue would be presented. The Chief Justice might submit, and thus
avert, temporarily at least, a clash; or, he might hold such an
amendment unconstitutional as denying to the Court the right to
administer the law according to due process. A trial of strength would
then be imminent.
Nearly a century ago, Jefferson wrote to Spencer Roane, "The
Constitution, on this hypothesis, is a mere thing of wax in the hands of
the judiciary, which they may twist and shape into any form they
please."[39] And however much we may recoil from admitting Jefferson's
conclusion to be true, it none the less remains the fact that it has
proved itself to be true, and that the people have recognized it to be
true, and have taken measures to protect themselves by bringing the
judiciary under the same degree of control which they enforce on other
legislators. The progression has been steady and uniform, each advance
toward an assumption of the legislative function by the judiciary having
been counterbalanced by a corresponding extension of authority over the
courts by the people. First came the protest against Marbury and Madison
in the impeachment of Chase, because, as Giles explained, if judges were
to annul laws, the dominant party must have on the bench judges they
could trust. Next the Supreme Court of New York imagined the theory of
the Police Power, which was adopted by the Supreme Court of the United
States in 1837. But it stood to reason that if judges were to suspend
constitutional limitations according to their notions of reasonableness,
the people must have the means of securing judges whose views touching
reasonableness coincided with their own. And behold, within ten years,
by the constitution of 1846, New York adopted an elective judiciary.
Then followed the Dred Scott Case, the Civil War, and the attack on
legislative authority in Hepburn _v_. Griswold. Straightway the Court
received an admonition which it remembered for a generation. Somewhat
forgetful of this, on May 15, 1911, Chief Justice White gave his opinion
in the Standard Oil Case, which followed hard upon a number of state
decisions intended to override legislation upon several burning social
issues. Forthwith, in 1912, the proposition to submit all decisions
involving a question of constitutional law to a popular vote became an
issue in a presidential election. Only one step farther could be taken,
and that we see being taken all about us. Experience has shown, in New
York and elsewhere, that an election, even for a somewhat short term,
does not bring the judge so immediately under popular control that
decisions objectionable to the majority may not be made. Hence the
recall. The degradation of the judicial function can, in theory at
least, go no farther. Thus the state courts may be said already to be
prostrate, or likely shortly to become prostrate. The United States
courts alone remain, and, should there be a struggle between them and
Congress, the result can hardly be doubted. An event has recently
occurred abroad which we may do well to ponder.
Among European nations England has long represented intelligent
conservatism, and at the heart of her conservatism lay the House of
Lords. Through many centuries; and under many vicissitudes this ancient
chamber had performed functions of the highest moment, until of late it
had come to occupy a position not dissimilar to that which the Supreme
Court of the United States yet holds. On one side it was the highest
legal tribunal of the Empire, on the other it was a non-representative
assembly, seldom indeed originating important legislation, but enjoying
an absolute veto on legislation sent it from the Commons. One day in a
moment of heated controversy the Lords vetoed a bill on which the
Commons had determined. A dissolution followed and the House of Lords,
as a political power, faded into a shadow; yet, notwithstanding this,
its preeminence as a court has remained intact. Were a similar clash to
occur in America no such result could be anticipated. Supposing a
President, supported by a congressional majority, were to formulate some
policy no more subversive than that which has been formulated by the
present British Cabinet, and this policy were to be resisted, as it
surely would be, by potent financial interests, the conflicting forces
would converge upon the Supreme Court. The courts are always believed to
tend toward conservatism, therefore they are generally supported by the
conservative interest, both here and elsewhere. In this case a dilemma
would be presented. Either the judges would seek to give expression to
"preponderant" popular opinion, or they would legislate. In the one
event they would be worthless as a restraining influence. In the other,
I apprehend, a blow would fall similar to the blow which fell upon the
House of Lords, only it would cut deeper. Shearing the House of Lords of
political power did not dislocate the administration of English justice,
because the law lords are exclusively judges. They never legislate.
Therefore no one denounced them. Not even the wildest radical demanded
that their tenure should be made elective, much less that they should be
subjected to the recall. With us an entirely different problem would be
presented for solution. A tribunal, nominally judicial, would throw
itself across the path of the national movement. It would undertake to
correct a disturbance of the social equilibrium. But what a shifting of
the social equilibrium means, and what follows upon tampering with it,
is a subject which demands a chapter by itself.
FOOTNOTES:
[18] 6 Cranch 135.
[19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812.
[20] Coates _v_. Mayor of New York, 7 Cowen 585.
[21] Charles River Bridge _v_. Warren Bridge, 11 Peters 420, 553.
[22] Boston & Maine Railroad _v_. County Commissioners, 79 Maine 393.
[23] Wynehamer _v_. The People, 13 N.Y. 393.
[24] Mugler _v._ Kansas, 133 U.S. 623.
[25] Fertilizing Co. _v_. Hyde Park, 97 U.S. 659.
[26] Slaughter House Cases, 16 Wallace 78, decided in 1873.
[27] 94 U.S. 113.
[28] Chicago, Milwaukee & St. Paul Ry. _v._ Minnesota, 134 U.S. 461,
decided March 24, 1890.
[29] Noble State Bank _v._ Haskell, 219 U.S. 104.
[30] See the extraordinary case of Douglas _v._ Kentucky, 168 U.S. 488,
which must be read in connection with Gregory _v._ Trustees of Shelby
College, 2 Metc. (Kentucky) 589.
[31] Brass _v._ North Dakota, 133 U.S. 391.
[32] 169 U.S. 466.
[33] _The Federalist_, No. LXXVIII.
[34] 221 U.S. 91.
[35] 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report
by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, page 11.
[36] Standard Oil Company _v_. United States, 221 U.S. 1.
[37] United States _v_. American Tobacco Company, 221 U.S. 191, 192.
[38] 221 U.S. 69.
[39] To Spencer Roane, Sept. 6, 1819, Ford, 10, 141.