diversity of grounds for the conclusions reached are, to say the least, surprising.

One may well ask, after viewing these decisions, if constitutional interpretation as practiced by the Supreme Court is really a science in the pursuit of which the individual temperament, personal views and political sympathies of the Justices do not influence the result. Have we gained enough under this system in the continuity and consistency of our legislative policy and its freedom from class or political bias to compensate us for the loss of popular control? That these questions are likely to receive serious consideration in the near future we can scarcely doubt, when we reflect that the Supreme Court has, by the character of its own decisions, effectually exploded the doctrine of judicial infallibility, which constitutes the only basis upon which its monopoly of constitutional interpretation can be defended.

The evident lack of sympathy with proposed reforms which has, upon the whole, characterized the proceedings of the Federal courts is rather strikingly illustrated in the address of Judge Taft on "Recent Criticisms of the Federal Judiciary." He makes use of the following language: "While socialism, as such, has not obtained much of a foothold in this country, ... schemes which are necessarily socialistic in their nature are accepted planks in the platform of a large political party.

The underlying principle of such schemes is that it is the duty of the government to equalize the inequalities which the rights of free contract and private property have brought about, and by enormous outlay derived as far as possible from the rich to afford occupation and sustenance to the poor. However disguised such plans of social and governmental reform are, they find their support in the willingness of their advocates to transfer without any compensation from one who has acquired a large part of his acquisition to those who have been less prudent, energetic, and fortunate. This, of course, involves confiscation and the destruction of the principle of private property.' This emphatic condemnation of proposed reforms which had the full sympathy and approval of many thoughtful and conscientious people furnishes the show of justification at least for the very criticisms which it was intended to silence.

With the progress of democracy it must become more and more evident that a system which places this far-reaching power in the hands of a body not amenable to popular control, is a constant menace to liberty. It may not only be made to serve the purpose of defeating reform, but may even accomplish the overthrow of popular rights which the Constitution expressly guarantees. In proof of this statement we need but refer to the

'Report of the Am. Bar Association, 1895, p. 246.

recent history of our Federal judiciary. The Sixth Amendment to the Constitution guarantees the right of trial by jury in all criminal prosecutions; but it is a matter of common knowledge that this time-honored safeguard against the tyranny and oppression of ruling classes has been overthrown by the Federal courts. With the ascendency of corporate wealth and influence, government by injunction has become an important feature of our system. The use made of the injunction in recent years in the conflicts between labor and capital has placed a large and important class of crimes beyond the pale of this constitutional provision. Moreover, this particular class of crimes is the one where denial of the right of trial by jury is most likely to result in oppression. Under this mode of procedure the court has virtually assumed the power to enact criminal legislation, and may punish as crimes acts which neither law nor public opinion condemns. It ensures conviction in many cases where the constitutional right of trial by jury would mean acquittal. It places a powerful weapon in the hands of organized wealth which it is not slow to use.1

This so-called government by injunction is

1 For a discussion of this recent use of the injunction by our Federal Courts see Annual Address of the President of the Georgia Bar Association, John W. Akin, on "Aggressions of the Federal Courts," 1898; W. H. Dunbar, "Government by Injunction," Economic Studies, Vol. III; Stimson, Handbook of Am. Labor Laws.

SPIRIT OF AMERICAN GOVERNMENT

merely an outgrowth of the arbitrary power of judges to inflict punishment in cases of contempt. In this respect, as well as in the power to veto legislation, the authority of our courts may be regarded as a survival from monarchy. The right of judges to punish in a summary manner those whom they may hold to be in contempt of their authority has been defended by legal writers generally on the ground that it is the only way in which the necessary respect for judicial authority can be maintained. It is difficult, however, to see why this argument would not apply with equal force to the executive and legislative branches of the government; for there must be some means of enforcing obedience to every lawful authority, legislative, executive, or judicial. The progress toward responsible government has long since deprived the executive of the power to inflict arbitrary punishment, and the legislature, though still retaining in a limited degree the power to imprison for contempt of its authority, seldom uses and almost never abuses it. The question is not whether contempt of authority should be punished, but whether the officer whose authority has been disregarded should also act as judge and jury, should ascertain the guilt and fix the punishment of those whom he as complaining witness has accused of contempt of his authority. This procedure is utterly at variance with the idea of political responsibility, and survives only because

the judicial branch of our government has thus far effectually resisted the inroads of democracy. That the exercise of this arbitrary and irresponsible power is necessary in a democratic community, to ensure proper respect for the courts, seems highly improbable. In fact, no course could be suggested which would be more likely in the end to bring them into disrepute.1

It is interesting to observe that while the Supreme Court of the United States has not hesitated to veto an act of Congress, "no treaty, or legislation based on, or enacted to carry out, any treaty stipulations has ever been declared void or unconstitutional by any court of competent jurisdiction; notwithstanding the fact that in many cases the matters affected, both as to the treaty and the legislation, are apparently beyond the domain of Congressional legislation, and in some instances of Federal jurisdiction."

Why has the Federal Supreme Court freely exercised the power to annul acts of Congress and

1"We should like to see the law so changed that any man arrested for contempt of court, for an act not performed in the presence of the court and during judicial proceedings, should have a right to demand trial by jury before another and an impartial tribunal. It is not safe, and therefore it is not right, to leave the liberties of the citizens of the United States at the hazard involved in conferring such autocratic power upon judges of varied mental and moral caliber as are conferred by the equity powers which our courts have inherited through English precedents." Editorial in the Outlook, Vol. LXXIV, p. 871.

2 C. H. Butler, Treaty-Making Power of the United States, Vol. II, p. 347.