illustration which occurs to me. Congress once passed a law taxing the salaries of State judges. The Supreme Court declared the law to be unconstitutional and void. Now, should the officers of the executive collect this tax, and the marshal of the United States court protect the incumbent of the State office from such collection? Can the officers of one and the same government be engaged in such a direct conflict of duties? What would become of the highest officer, it may be, of a State court between such antagonism? One department certainly must yield to the other. They can not be co-equal practically, and remain a government. Chaos would reign. The common sense of the American people has acted upon the idea that, in such cases, the Judicial is paramount to the Executive or the Legislative department. It is such common sense in the affairs of government which has carried us through a hundred years of successful experiment through even the Niagara of civil war. By this common sense we now float tranquilly on the waters of Ontario, as before on those of the upper lakes. By it we shall go through rapids without danger, to the ocean of the future." 1

Concluding his remarks, Judge Bradley said :

"In no government in the world has such power been vested in the judicial department as in ours. It is, like all power, especially when new and untried, liable to abuse. It has been abused. It is also true that the decision of a court does not close discussion, even in that forum. Witness the jurisdiction over corporations, and the admiralty jurisdiction of the United States courts, and the decisions on the Legal Tender acts. Still less does a judicial decision close discussion in the legislative bodies and before the people. The Judiciary is like a dam; it holds back public action for a time, but for a time only. The great current of human life and thought is paramount to it, and must sooner or later have its course. With these and such concessions to the thought of the writer [Mr. Street], we must still maintain that, rightfully at times, and often, the Judicial department is supreme." 2

Mr. Emory A. Storrs, of Chicago, delivered a short speech, original and unique. It reminded one of the style of Emerson. It consisted in a succession of detached sentences, each having more or less relation to the general subject, and every sentence containing a germ of truth. In his opinion, judicial legislation

Ibid., pp. 29, 30.

Ibid., p. 33.

was much worse than legislative legislation. He did not believe that we ought to veneer that practice by the convenient phrases of "judicial evolution," or "judicial development." He was as reluctant and averse to a judge legislating as he was to a legislator adjudicating. Among other things, he said : —

"Take the whole history of civil liberty in this country and in Great Britain together; the lawyers have done a great deal for its advancement, and in the main the judges but very little. I think it may be said with absolute truthfulness, that, taking the whole history of the common law together, and of the judges under that system, the judges have inflicted more serious injuries upon civil liberty than generals. The judges never gave us the liberty of the press, or of speech, or of the pen. The lawyers did fight for it, and in the main it was lawyers, aided by legislators, who secured it."'1

It is possibly remarkable that two of these able debaters, Judge Bradley advocating, and Mr. Storrs opposing, the doctrine of judicial supremacy" demolished that doctrine, the former by his admissions, the latter by his assertions. Judge Bradley admitted that judicial decisions could do no more than dam up and hold back for a time the tide of public opinion and action. Mr. Storrs pointed out that the two greatest decisions which the Supreme Court of the United States had ever rendered, the Dartmouth College decision and the Dred Scott decision, had been reversed, not by the Court itself, but by public opinion and action. The Dartmouth College case had to be explained or qualified, or else" a revolution;" and the Dred Scott decision "was reversed - who reversed it?”

II. Legislative Power Advancing in Europe and Receding in America.

If an intelligent foreigner, not familiar with our institutions, had listened to that debate, his mind would have been filled with extraordinary reflections. The thought would have struck him at once that legislative power, which, in recent times, has been steadily advancing in Europe, has been steadily declining in America. He would have recalled that, in the country from which America inherited her free institutions and laws, the progress of freedom for two hun

1 Ibid, p. 36.

dred years has taken the form of legislative supremacy, curtailing at once the power of the Executive and the power of the judges, who, in most cases, were subservient tools of the Executive. He might have regarded it as extraordinary that a people, supposing themselves to be free, had vested in their judges, - who, in the course of history, had done so little for popular liberty and so much for tyranny,- a supremacy over all the other branches of the Government, consisting of the power to annul the work of the Legislature and to send coercive writs against the officers of the executive department. He would have recalled the fact that, three hundred years ago, the kings of England exercised the power to set aside acts of Parliament by refusing to enforce them, called "the dispensing power;" and it might have struck him as remarkable that the American judges had shown themselves possessed of so much superior wisdom and virtue that the people had intrusted them with the power to do the same thing. But if he had been told that the people never intrusted them with that power, but that they had seized it, and that the people had acquiesced in the seizure, he would have been further amazed. And if he had been told that the judges who had seized this power were not elected by the people as are the other branches of the Government, he would have begun to doubt whether our boast of being a free people is justified by our actual condition. If the same intelligent foreigner could have remained on our shores for fourteen years thereafter, he III. Rise of the Judge would have witnessed still more remarkable judicial evolution" in the gradual decline and suppression of the right of trial by jury, and the gradual absorption by the judges of the functions of juries. He might have recalled that the progress of freedom in Europe during the present century has been co-existent with the growth of the right of trial by jury; and he might have deplored the fact that, while the subjects of kings and emperors have been pleading for an enlargement of this right, the free citizens of America have been putting it aside and neglecting it, and substituting for it trial by judge-trial by the legal scholar upon the bench, and by him alone. He might have contrasted the rise of jury trial in England with its decline in America. He

and Decline of the Jury.

66

might have recalled the time when in England the king, by a recognized legal process, punished the jurors for bringing in a verdict against him; and he might have contrasted this with the modern jury trial in England in criminal prosecutions for libel and in other criminal cases, where the jurors are judges of the law as well as of the facts, in the sense of not being bound by the instructions of the Court. And then he might have stood amazed at seeing an institution which has so greatly expanded with the growth of freedom in England, giving way in America, to that exotic of the civil law, the chancery writ of injunction, followed up by process of contempt, where there is no trial by jury, but where the accused is dragged before the judge and compelled to answer interrogatories in accordance with an inquisitorial system of trial prevailing upon the Continent of Europe and borrowed from the Roman law. He would have witnessed with amazement the steady growth of this foreign exotic; and he would have seen how, in Kansas, in Iowa, and possibly in other States, the writ of injunction is used to enforce the criminal laws against persons keeping dram shops; and how in the Federal courts everywhere this writ is used to restrain unlawful acts of striking laborers injurious to property and business, although such acts come within the purview of the criminal laws of the States. And he might have soliloquized thus: "In the reign of the Tudors in England, the kings dispensed with acts of Parliament; in free America, the judges dispense with acts of the Legislature. In England, in the times of the Tudors, the king punished the jury for bringing in a verdict against the charge of the king's tool, the judge; in free America, they are doing better, by dispensing with the inconvenience of juries altogether.' It is certain that the framers of our Federal constitution never intended to remit the decision of political questions to the judges. All that has been preserved to us of the debates in the Constitutional Convention of 1787 upon

IV. The Decision

of Political Questions by the Judges.

the Judiciary Article of the constitution indicates that it was the purpose of the framers of that instrument to confine the judicial

1 Bushell's Case, Vaughan, 185.

branch of the government to "judiciary matters,'

2

"I and to the trial and decision of "cases.' Nevertheless, the power to decide political questions has been assumed by the Federal judiciary and has been greatly extended, and generally with the public approbation. The highest national court has, indeed, more than once disclaimed jurisdiction to decide such questions; but it has frequently departed from this rule. There has been a natural tendency on the part of the politicians to run to the judges with their controversies; and so we have seen the Federal court of last resort deciding such questions as the boundary between States of the Union,- thus extending the scope of its granted jurisdiction of "all cases in law and equity" to questions of sovereign right. We have seen the President of the United States refuse to enforce a law for the expulsion of Chinese aliens who have come unlawfully upon our shores, until he could get up a case and invoke the decision of the Supreme Court upon the question of the validity of the law, earnestly desiring, but without his desire being gratified, to have them hold it unconstitutional. We have seen the Federal Supreme Court deciding such questions as the power of a State to extend its municipal laws over an Indian reservation, Congress and the executive not opposing; the question which of two contestants has been

1 In the convention which framed the Federal constitution, on Aug. 6, 1787, a committee reported a draft of a constitution. Section 3, of Art. 9, read as follows: "The jurisdiction of the Supreme Court shall extend to all cases arising under the laws of the United States," etc. When motion was made to insert the words "the constitution," objection was raised, because "it was thought going too far to extend the jurisdiction of the courts generally to cases arising under the constitution, and that it ought to be limited to cases of a judiciary nature." The motion was agreed to nem con., "it being generally understood that the jurisdiction was, constructively, limited to cases of a judiciary nature." & Elliott's Debates, 488.

2 See for example Cherokee Nation v. Georgia, 5 Pet. 1, 29, 30; Georgia v. Stanton, 6 Wall. (U. S.) 50; Luther v. Borden, 7 How. (U. S.) 1. See also Smith v. Good, 34 Fed. Rep. 204.

8 Rhode Island v. Massachusetts, 12 Pet. (U. S.) 657; Florida v. Georgia, 17 How. (U. S.) 478; Virginia v. West Virginia, 11 Wall. (U. S.).

4 I allude to the case of Fong Yue Ting v. United States, 149 U. S. 698, which was notoriously gotten up in this way. See 28 Am. Law Rev. 289. The court rightly held it to be a political question, following Neshimura Ekiu v. United States, 142 U. S. 651, 659.

5 Worcester v. Georgia, 6 Pet. (U. S.) 515.