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CHAPTER III
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.