[1]

Charles River Bridge v. Warren Bridge, II Peters, 608, 609.

[2]

Fitchburg R.R. v. Gage, 12 Gray 393, and innumerable cases following it.

[3]

See the decisions of the Commerce Court on the Long and Short-Haul Clause. Atchison, T.&S.F. By. v. United States, 191 Federal Rep. 856.

[4]

Darcy v. Allein, 11 Rep. 84.

[5]

68 Pa. 173.

[6]

The relation of courts to legislation in European countries has been pretty fully considered by Brinton Coxe, in Judicial Power and Constitutional Legislation.

[7]

Federalist No. LXXVIII.

[8]

The Federalist, No. LXXVIII.

[9]

The Federalist, No. LXXVIII.

[10]

Cohens v. Virginia, 6 Wheaton 415.

[11]

To Madison, Ford, 9, 275.

[12]

Marshall's constitutional doctrine was not universally accepted, even in the courts of the northern states, until long afterward. As eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able dissenting opinion in opposition in Eakin v. Raub, 12 S.&R., 344.

[13]

Memoirs, I, 322.

[14]

Hepburn v. Griswold, 8 Wallace 603. Decided in conference on Nov. 27, 1869, more than a month before Grier's resignation. Knox v. Lee, 12 Wallace 457.

[15]

157 U.S. 608.

[16]

Pollock v. The Farmers' Loan & Trust Co., 158 U.S. 715.

[17]

In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of Congress which up to that time had been held to be unconstitutional. It is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV. Mr. Davis has, however, omitted from his list the Dred Scott Case, probably for the technical reason that, in 1857, when the cause was decided, the Missouri Compromise had been repealed. Nevertheless, though this is true, Tansy's decision hinged upon the invalidity of the law.

Besides the statutes which I have mentioned in the test, the two most important, I suppose, which have been annulled, have to me no little interest. These are the Civil Rights Act of 1875, and the Employers' Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly unpopular, and the decision which overturned it coincided with the strong drift of opinion. The Civil Rights Cases were decided in October, 1883, and Mr. Cleveland was elected President in 1884. Doubtless the law would have been repealed had the judiciary supported it. Therefore this adjudication stood.

On the other hand, the Employers' Liability Act of 1906 was held bad because Congress undertook to deal with commerce conducted wholly within the states, and therefore beyond the national jurisdiction. The Court, consequently, in the Employers' Liability Cases, simply defined the limits of sovereignty, as a Canadian Court might do; it did not question the existence of sovereignty itself. In 1908 Congress passed a statute free from this objection, and the Court, in the Second Employers' Liability Cases, 223 U.S. 1, sustained the legislation in the most thoroughgoing manner. I know not where to look for two better illustrations of my theory.

[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.

[40]

Histoire du Tribunal Revolutionaire de Paris, H. Wallon, I, 57.

[41]

"C'est demain qu'on me tue; n'êtes-vous donc qu'un lache?"

[42]

In these observations on the intellectual tendencies of capital I speak generally. Not only individual capitalists, but great corporations, exist, who are noble examples of law-abiding and intelligent citizenship. Their rarity, however, and their conspicuousness, seem to prove the general rule.

[43]

By the Law of November 27, 1790, priests refusing to swear allegiance to the "civil constitution" of the clergy were punished by loss of pay and of rights of citizenship if they continued their functions. By Law of August 26, 1792, by transportation to Cayenne.