CORNELL LAW UERARY KF 45ro CORNELL UNIVEBbliT i-ionMi 3 1924 064 833 712 TABLE OF CONTENTS FACE Preface vii Introduction 9 Chapter I. Suability of States 16 Chapter II. Impairment of the Obligation of Contracts 43 Chapter III. Due Process of Law 59 Chapter IV. Interstate and Foreign Commerce. . . 83 Chapter V. Equal Protection of the Laws 126 Chapter VI. Jurisdiction of Courts 153 Chapter VII. Miscellaneous Topics 173 Chapter VIII. Judicial Legislation 193 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924064833712 THE CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN Series xxxiil No. 4 JOHN HOPKINS UNIVERSITY STUDIES IN Historical and Political Science Under the Direction of the Departments of History, Political Economy, and Political Science THE CONSTITUTIONS DOCTRINES OF JUSTICE HARLAN BY FLOYD BARZILIA CLARK, Ph.D. Assistant Professor of Political Science in Pennsylvania State College BALTIMORE THE JOHNS HOPKINS PRESS 1915 Copyright 1915 by THE JOHNS HOPKINS PRESS PRESS OF THE NEW ERA PRINTINS COMPANY LANCASTER, PA. PREFACE Two temptations assail writers of biographies, or of studies of a similar kind, — ^to overestimate or to underesti- mate. It is hard for the student of a man's career to see both sides, and after giving due consideration to each, to form a fair judgment. Throughout this study I have been aware of these two dangers, but I am not sure that in all re- spects they have been avoided. It needs to be emphasized that in studying the constitu- tional doctrines of a single great judge as found in his dis- senting opinions, the prevailing opinions of the court must of necessity appear at their worst, for the criticisms of the minority are of course directed at the weak points in the reasoning of the majority. In so far, then, as I have ac- cepted Justice Harlan's arguments and found unconvincing the rulings of the Supreme Court, it must be remembered that I am criticising only the weaker points of a few deci- sions of that great tribunal. This study was prepared partly at the Summer School of Columbia University, but principally in the Department of Political Science of the Johns Hopkins University. I wish to express my gratitude for suggestions made by Mr. A. M. Groves, a graduate student of this University, who read the manuscript before it went to press ; I owe to Professor T. R. Powell, of New York, my knowledge of many of the basic principles of constitutional law ; but the study was pre- pared under the direction of Dr. W. W. Willoughby, of the Johns Hopkins University, without whose aid its production would not have been possible. F. B. C. TABLE OF CASES Addyston Pipe and Steel Co. v. United States 97 (note) Anderson v. United States 97 (note) Antoni v. Greenhow 32, 46-47 Atchison, Topeka, and Santa Fe R. Co. v. Matthews 143-145 Backus V. Fort Street Union Depot Co 73-74 Bailey V. Alabama 126, 136-137, 161, 164-166, 170 Baldwin v. Franks 137-139 Baltimore and Ohio R. Co. v. United States 160 Baltimore and Ohio Southwestern R. Co. v. Voigt 191 Belknap v. Schild 32, 35, 37, S3, S4 Berea College v. Kentucky 126, 136-137 Bleistein v. Donaldson Lith. Co 182-183 Board of Liquidation v. McComb 24 Bowman v. Chicago and Northwestern R. Co 83-86 Boyd V. Nebraska, ex rel. Thayer ^^ Briggs V. Light-Boat 39 Canada Southern R. Co. v. Gebhard 55-57 Central Pacific R. Co. v. California 106-107 Chambers v. Baltimore and Ohio R. Co 18&-190 Civil Rights Cases 126-131, 196 Congress and Empire Spring Co. v. Knowlton iS3-i54 Cornell v. Coyne 110-112 Cunningham v. Macon and Brunswick R. Co 33-34 Davis V. Gray 22 Downes v. Bidwell 185 Dorr V. United States 188 Elk V. Wilkins 141-143 Fairbank v. United States 108-110 Ficklin v. Shelby County Taxing District 103-10S Fidelity Mutual Life Insurance v. Mettler 150-151 Fire Association of Philadelphia v. New York 145-148 Fisk V. Henarie I5S-IS6 Fitts v. McGhee 29, 31, 32, 35 Foster v. Kansas, ex rel. Morgan ^^ Freeland v. Williams 71 French v. Barber Asphalt Paving Co 80-81 Galveston, Harrisburg, and San Antonio R. Co. v. Texas .. 112-114 Geer v. Connecticut 119-120 Giles V. Harris 126, 134-13S, 168, 170-172 Gulf, Colorado, and Santa Fe R. Co. v. Ellis I44-I4S Hapgood v. Southern 32, 34 Hall V. Decuir 90 Hawii V. Mankichi 6s, 185-188, 197-198 Hawker v. New York 180-182 Hodges V. United States 126, 13S-136 Hooper v. California 114-117 Houghton V. Payne 198-1^ TABLE OF CASES Howard v. Illinois Central R. Co 121-122, iga Hurtado v. California 59. 61-65 International Postal Supply Co. v. Bruce 32, 36, S3i 55 Interstate Commerce Commission v. Alabama Mid. R. Co. 52, 124-125 Joint Traffic Association v. United States 97 (note) Kawananakoa v. Polyblank 40 Keith V. Clark 43 Kennard v. Louisiana, ex rel. Morgan 76 Leisy v. Hardin 86 (note) ■ Leloup V. Port of Mobile loS Linford v. Ellison 7&-79, 168-170 Lockner v. New York ig,i-igi2C Louisiana v. Jumel 17-25, 32, 34, 46 Louisiana v. Mayor, etc., of New Orleans 49, 50, 68-71, 206 Louisville, New Orleans and Texas R. Co. v. Miss. ..90-92, 126, 132 Macon Grocery Co. v. Atlantic Coast Line R. Co 159-161 Maxwell v. Dow 174-176 Montague and Co. v. Lowry 97 (note) Murray v. Land and Improvement Co 61 New England R. Co. v. Conroy 190-191 Northern Securities Co. v. United States 97-99 Norwood V. Baker 79-8o O'Neil V. Vermont 87 (note), I73-I74 Osborn v. United States 21, 23, 34 Parke, Davis and Co. v. Roberts 148-150 Parkersburg and Ohio River Transportation Co. v. Park- ersburg 100-103 Patriot, the 89 (note) Patterson v. Colorado, ex rel. Att'y Gen 176 Paul V. Virginia 143 Pirie v. Tvedt 157-158 Plessy V. Ferguson 126, 132-134 Pollock V. Farmers' Loan and Trust Co 177-180, 196-197 Rahrer, in re 86-87 Railroad Co. v. Ide 156 Regina v. Lords Com. of the Treas ig Rhodes v. Iowa 83, B7-89 Robbin v. Shelby County Taxing District 105 Robertson v. Baldwin 114, 117-119, I97 Schick V. United States 65-68 , Schillinger v. United States 53-54''^ Slaughter House Cases 174 Smith V. St. Louis and Southwestern R. Co 120-121 Standard Oil Co. v. United States 99, 193, 199, 200-202, 205-206 St. Louis and San Francisco R. Co. v. James 158-159 Stone V. Farmers' Loan and Trust Co 50-52 Stoutenburgh v. Hennick lOS Taylor v. Beckham 11, 61, 74-78 Texas and Pacific R. Co. v. Interstate Commerce Com 122-123 Thompson v. Allen County 166-168 Thompson v. Utah 65 (note) Tindal v. Wesley 32, 36 Tonawanda v. Lyon 82 (note) Tullock V. Mulvane 161-164 Trono v. United States 188 TABLE OF CASES Twining v. New Jersey 176, 184-185 United States v. American Tobacco Co 99, 193, 199 United States v. Clark 193-196, 205 United States v. E. C. Knight Co 92-97. I99 ■ United States v. Great Falls M'f'g. Co 54 United States v. Jung Ah Ling 137, 139-141 United States v. Lee 24, 36, 38, 41 United States v. Trans-Missouri Freight Assoc 97 (note) Walsh V. Preston 52 (note) Western Union Telegraph Co. v. Kansas 151-152 Wight V. Davidson 82 (note) Wilson V. Blackbird Creek Marsh Co 86 Wilson V. North Carolina TJ Young-, ex parte 17, 25-31, 36 THE CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN INTRODUCTION John Marshall Harlan was born on June i, 1833, in Boyle County, Kentucky. His father, the Honorable James Har- lan, was an active lawyer of that State, and christened his son for the judgeship, giving him the name John Marshall in honor of that highly respected formulator of the prin- ciples of our constitutional law. The subject of our study grew up at a time when the air was hot with abolition sen- timent, and in a State where opinion was sharply divided. Though his father was not an abolitionist, he was an eman- cipator, and some time before the war he set his slaves free. The young Harlan imbibed this spirit of emancipation, and when the test came he espoused the cause of freedom. He and his father fought valiantly to turn the tide of opinion in Kentucky against secession, and were influential in preventing that State from joining the Confederacy. When Kentucky refused to furnish its quota of soldiers to the Union, Harlan was one of those who volunteered to fight on the northern side. He organized a regiment of militia, and led them in battle against the South. He was thus, to start with, colonel of the Tenth Kentucky Infantry, but he rose rapidly in rank, and in 1863 was acting-com- mander of a brigade. At this time, however, the death of his father made it necessary, for family reasons, that he re- turn to civil life. At the time of his resignation from the army his name had just been sent by Mr. Lincoln to the Senate as a full brigadier-general, but his services in the army were ended. He remained loyal to the northern cause throughout his career, and many times asserted his disapproval . of the deprivation of the rights which the 9 10 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [4 1 6 negroes were supposed to have obtained by the new amend- ments to the Constitution of the United States. Mr. Harlan received his education at Centre College, Ken- tucky, where he received the degree of A.B. in 1850, and at Transylvania University, where he studied law. The degree of LL.D. was conferred on him by the following institutions : Bowdoin in 1883, Centre College and Princeton in 1884, and the University of Pennsylvania in 1900. From 1889 to his death in 191 1 he was professor of constitutional law at the George Washington University, in Washington, D. C. He married Miss Malvina F. Shanklin, of Evansville, In- diana, December 23, 1856, and had a long and happy mar- ried life. His three sons. Dr. Richard Davenport Harlan, the Honorable James S. Harlan, and Mr. John Maynard Harlan, occupy prominent positions in the service of the nation. The oldest. Dr. Richard Davenport Harlan, holds a high position as an educator, the second is a member ol the Interstate Commerce Commission^ and the youngest is an attorney-at-law in Chicago. Before and during his service as associate justice of the Supreme Court, Mr. Harlan held responsible appointments outside of his regular service as judge. He was twice can- didate for the governorship of Kentucky, and was attorney- general of that State from 1863 to 1867. His entrance into national affairs was marked by the part which he took in the Cincinnati Republican Convention of 1876, which nom- inated Mr. Hayes as Republican candidate for the presi- dency. In this convention he was leader of the forces for the nomination of General B. H. Bristow, a member of Grant's Cabinet ; but when Bristow's nomination became im- possible, his supporters united with others for the nomina- tion of Mr. Hayes. When Hayes was elected to the presi- dency, he wished to appoint a representative lawyer from Kentucky as one of his Cabinet and offered the attorney- generalship to Mr. Harlan, who, however, did not see his way clear to accept. Mr. Harlan's appointment by President Hayes upon the 417] INTRODUCTION II so-called Louisiana Commission was a notable incident in his career. The purpose of the commission was to aid in the settlement of an election dispute in Louisiana. This commission must of course be distinguished from the state Returning Board which had been appointed at an earlier date to examine election returns in that State. The Return- ing Board had given the state vote to Hayes in the national election, and had likewise turned the governorship of the State over to the Republican candidate. The Republicans wished to get the support of the national army to secure them in power, and appealed to Hayes to this end. To clear up the situation the Louisiana Commission was appointed. The members of the commission, being appointed by the President and reporting only to him, had no powers, but were to hear the complaints of both sides and to serve as a safety valve to the pent-up grievances. They soon found that the return of the federal army to the State was unwise. Owing to the fact that the property owners voluntarily sent in their taxes to the Democratic organization, its oppo- nents soon disbanded for lack of funds, and the situation settled itself. The commission was doubtless influential in helping to undo some of the crooked work of the Returning Board. It was an honor to have been upon a board, the majority of whose members were Republicans, which was honest enough to recommend that the Democratic govern- ment be upheld at a time when one would not have expected such a recommendation. Mr. Harlan's sense of honor must have helped greatly in maintaining the integrity of the commission. Mr. Harlan also served as one of the American arbi- trators on the Behring Sea Tribunal, which met in Paris in 1893 to settle the dispute between the United States and England over the Alaskan seal fisheries. An eyewitness said of his appearance on this occasion : " I can never forget a scene I once witnessed in Paris, when the Behring Sea Arbitration Tribunal was sitting there, with John Marshall Harlan of Kentucky, at one end of the court and John 12 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [4 1 8 Tyler Morgan of Alabama at the other. Both were then in the Indian Summer of their manhood — Harlan with his noble and matchless form, the God-gifted Morgan, with his beautiful face and head that sculptors and painters might have loved to copy. My heart swelled with pride as I looked upon those two great American citizens, who had been opposing generals in the Civil War, and fancied that I saw in them reproductions of Brutus and Cicero."^ Mr. Harlan was simple and childlike in his daily conduct, fond of home, and of his home people and relatives. He was deeply religious in his nature. He honored the Consti- tution of the United States, and the Bible seemed to be the only thing that he placed above it. " The Constitution and the Bible were the objects of his constant thought and con- sideration, and if the latter was to him always vox Dei, the former, vox populi, was no less so."^ He deeply loved his State as well as his nation. " I re- member when the case of Taylor v. Beckham was argued in this court. At that time intense feeling existed in Ken- tucky. It was indeed a period that tried men's souls as well as appealed to the sound judgment of the people of our State. During the argument the sympathies of Justice Harlan were so awakened that he shed tears."' Mr. Harlan was associate justice of the Supreme Court of the United States for nearly thirty-four years, from December lo, 1877, until his death on October 14^1911. ThoughTie~-wa«-appointed by President Hayes immediately after his return from service on the Louisiana Commission, there was nothing in that experience that would speak for political reward. Furthermore, his whole career shows that he would not have accepted an appointment merely for polit- ical reasons. His term of service was exceeded in length by only two ^ Remarks of Mr. Hannis Taylor in Proceedings of the Bar and Officers of the Supreme Court of the United States in Memory of John Marshall Harlan, Dec. 16, 191 1. P. 30. 2 Remarks of Attorney-General Wickersham, in ibid., p. 45. 3 Remarks of William Bradley, in ibid., p. 27. 419] INTRODUCTION 1 3 justices, — Marshall and Field, in each case by less than a year. His labors were not surpassed, however, by these men of longer service. Something more than seven hundred decisions wherein he spoke for the majority bear his name, and his dissenting and concurring opinions pass the hundred mark. While a justice he was more than a judge. His interest went further than a contemplation of the arguments bear- ing on the cases, and he thought deeply outside of questions of constitutional importance, although he was reluctant to express his opinion upon great issues likely to be brought be- fore the court. In a letter to a young friend, written August 12, 1911, only two months before he died, he made the fol- lowing comments in reference to the conditions under which new States should be admitted into the Union: "I hope that the President will put his feet down firmly upon the recall of judges in Arizona and New Mexico, while in ter- ritorial condition. It is one thing for these people, after becoming States, to amend their constitutions, and provide for the recall of judges. It is quite a different thing for Con- gress to give its sanction to the principle of the ' recall ' by admitting these Territories into the Union with constitutions providing for the recall of judges. No people, it seems to me, are fit to come into the Union as States who are willing to put the ' recall ' of judges into their fundamental law. Whether a particular Territory shall be admitted into the Union as a State is a matter of discretion with Congress. That discretion should be exercised so as to maintain sound principles that are recognized as such by Anglo-Saxon people. Upon the question whether the ' recall ' of judges is repub- lican in the constitutional sense, I express no opinion; for that question may come up for judicial determination. I only speak for the 'recall' as a matter of public policy."* This is in itself an interesting doctrine. All recognize certain things that a State may do which are not unconsti- tutional but which may not meet the approval of the other States. Though a State may do these things after it is ad- * Remarks of Blackburn Esterling, in ibid., p. 36. 2 14 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [42O mitted into the Union, it would not be wise for Congress to put itself on record as approving them by admitting new States with such provisions in their constitutions. It would be far better for the State to break its promise, so far as the nation is concerned, after it had been admitted into the Union, than it would be for Congress to sanction the ob- noxious provisions. As a hearer of arguments Justice Harlan was more than a scrutinizer of points made by lawyers; he sometimes sought to train the lawyer who argued before the court. The following story with regard to this trait is told by a lawyer : " Something like two years ago I was called here to argue a case in which a sovereign State was the complainant, and my associate was a talented young lawyer who was letter perfect in that case, but who had never before ap^ peared in this court. The matter was to be presented on a motion for which under the rules as they stood, an hour was allowed on each side, and I suggested that my associate should open case, intending that if he presented it satis- factorily I would leave him to occupy the entire time al- loted to us ; but he was so full of his case that he began the presentation of it in a way that would have required hours. I was growing a little nervous over the situation myself, but I hesitated to interrupt him, because I thought it might con- fuse him, and just as I was debating with myself what it was best to do, Judge Harlan called on him in a stern voice to ' come to your point.' My young friend, confused beyond description, managed to say that he was coming to it; but Judge Harlan replied that his time would be consumed be- fore he reached it, and that in the meantime the court would have no idea of the question he was presenting to it. It was a trying experience for a new member of the bar, and I felt it so keenly that I shared the young man's resentment. A few days afterwards I happened to meet Judge Harlan as he was coming to the Capitol, and told him bluntly that I regarded his rebuke of that young man as a little less than cruel. Instead of exhibiting an irritation, which would have been entirely permissible against a member of his bar who 42 1 ] INTRODUCTION 1 5 had presumed to criticise his conduct, he turned to me, and, smiling said : ' My dear Senator, you do not understand my purpose. I saw that the young man was embarrassed by his surroundings, and I desired to relieve him from embarrass- ment.' I told him that I thought he had chosen a curious way of producing such a result, and he advised me to watch that young man when he next appeared in this court. It so happened that a reargument of that very case was ordered, and when my associate and myself appeared here to argue it at the next term, I found Judge Harlan's remedy for a lawyer's embarrassment completely justified."' Few adverse criticisms have been made of Mr. Harlan as a judge. He was a militant justice, but his militancy was on the side of law. Even with the many dissents rendered by him there is no evidence of hard feeling on the part of his associates. He did not bear malice with his disagree- ment, but he was often very vehement in his dissents. His opinions and dissents often contained extraneous matter, that is, reference to circumstances which had no direct bearing upon the case. But these are easily passed over when one is looking for his argument. The presence of these digressions is more an evidence of his general in- terest in the public than it is of his lack of knowledge of the principles of legal argumentation. Some have claimed that Justice Harlan emphasized too greatly the letter of the law. Such a contention is based either on ignorance or on prejudice. One illustration will show this point. No one who so interpreted the eleventh amendment as to maintain that a suit against the ofificer of a State in his official capacity was not a suit against a State could have held to the strict letter of the law. When, by a logical and grammatical construction a law could be made to correct the evils intended to be remedied by it, he argued that this should be done. But if such an application meant an absolute change in the law, he held that this change should be left to the legislative power. The criticism that he stressed too emphatically the letter of the law arises from the fact that he did not believe in equivocation. 5 Remarks of Joseph W. Bailey, in ibid., pp. 21-22. CHAPTER I Suability of States The suability or non-suability of a State has been before the Supreme Court of the United States in numerous in- stances. It has arisen under various circumstances, and the court has given on this question many opinions which it is difficult to reconcile. It is a complicated question, and no attempt will be made to give an exposition of the whole matter. Interest centers around Justice Harlan and the views which he has held on the subject. He had a very decided opinion on this point, and he almost never failed to assert himself whenever the matter was before the court. Article i, section lo of the constitution of the United States places the following prohibition upon the States: " No State shall . . . pass any . . . law impairing the obli- gation of contracts " ; and the fourteenth amendment pro- vides that " no State shall . . . deprive any person of life, liberty or property, without due process of law." But the eleventh amendment expressly stipulates that the courts of the United States may not entertain a suit against a State. Suppose, therefore, a State takes property without due process of law for its own use or passes a law impairing the obligation of its own contracts, what action can the individ- ual take in order to receive the benefit of these stipulations ? Such a question, of course, opens up the whole problem as to what is to be termed a suit against a State, for if the law takes property without due process of law or impairs the obligation of contracts, the law is unconstitutional even though the State itself be a party to the proceedings. At the same time, if the action to prevent the enforcement of the law amounts to a suit against the State, it cannot be maintained. Therefore, the problem is almost that of an i6 423] SUABILITY OF STATES 1 7 irresistible force meeting an immovable body. Shall the immunity from compulsory judicial process be upheld, or shall the prohibitions relative to contracts and due process of law be enforced? In many cases one or the other but not both of these ends can be realized. It is clear that here there is abundant opportunity for difference of opinion according to which one of these constitutional mandates is maximized and which one minimized. As will be found, the court has sought to maintain a middle course, and in so doing has not always been consistent in the doctrines which it has declared. Discussion of Cases. — Justice Harlan's views with refer- ence to this subject appear especially in the dissents which he rendered in Louisiana v. Jumel, 107 U. S. 711, and Ex parte Young, 209 U. S. 123. The first, Louisiana v. Jumel, decided that a certain action against the treasurer of the State of Louisiana was a suit against the State and hence could not be entertained ; while the other, Ex parte Young, decided that a certain action against the attorney-general of Minnesota did not constitute a suit against a State and hence could be entertained by the court. In neither of these cases was the action on account of any private act of the person concerned, but because of the official acts of each. The fact that the latter decision allowed the suit and the former did not makes the cases typical; and the fact that Justice Harlan dissented from each affords an opportunity to deduce from them his exact opinion on this subject. The case of Louisiana v. Jumel was decided in 1882. The facts in the case were briefly these: The legislature of Louisiana provided in 1874 for an issue of bonds, for the purpose of consolidating and reducing the floating and bonded debt. The bonds were to be payable to the bearer forty years from January i, 1874, and to bear interest at the rate of seven per cent, payable the first of January of each year. The bonds were to be signed by the governor, the auditor, and the secretary of state, and the coupons by the auditor and the treasurer. The State levied a tax for 1 8 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [424 the purpose of meeting the above obhgations, and immedi- ately thereafter passed an amendment to the constitution making the bonds create a valid contract between the State and every holder of such bonds, which the State could in no wise impair. Certain persons held bonds to the amount of $20,000 and unpaid coupons, due January i, 1880, to the amount of $79,900. On the first day of January, 1880, a new constitution of Louisiana went into effect. A portion of that constitution aimed to alter the former provisions of 1874. It reduced the interest to be paid on the consolidated bonds from seven per cent to two, and further stipulated that coupons of said consolidated bonds falling due on the first day of January, 1880, should be remitted, and that the proceeds of the taxes which had been collected for the purpose of meet- ing these obligations, of which there were $300,000 in the treasury, should go to defray other expenses of the State. Holders who presented their bonds for payment were re- fused because of this action of the State, whereupon they contended that this action of the State impaired the obliga- tion of contracts. They therefore brought suit against the treasurer of the State to compel him to make payment ac- cording to the previous legislation of the State. The state treasurer entered the plea that such a suit was a suit against the State and as such was forbidden by the eleventh amend- ment to the Constitution of the United States. The circuit court of the United States pronounced this a valid plea, and upon appeal to the Supreme Court this decision was sus- tained. The grounds for this decision were these : It was evident that the State designed to make promises and pledges in such a manner that they would be protected by the Constitu- tion of the United States; and that the State, in adopting the debt ordinance of 1879, designed to stop further levy of the promised tax and to prevent the disbursing officer from using the revenue from previous levies to pay the interest falling due January i, 1880, as well as the principal and 42 S] SUABILITY OF STATES 1 9 interest maturing thereafter. If the State could be sued, there was little doubt that this later state action would be pronounced an impairment of the obligation of the State's contract. The question was whether the contract could be enforced, notwithstanding the provision in the new state constitution, by coercing the agents and officers of the State, whose authority to act had been withdrawn, without the State itself being made a party to the proceedings. By^e original statute these officers were directed to use the money in the treasury in one way; by the new constitution they were directed to use it in another way; by the statute they had to raise more money by taxation, but by the constitu- tion it was ordered that this should not be done. The offi- cers owed their duty to the State, and had no contract relations with the bondholders. They could be moved through the State, but not the State through them. In short, then, the officers had always to obey the will of the State, and if this will changed the action of the officers had to change accordingly. The first precedent cited by the Supreme Court was Reg. V. Lords Com. of the Treas., Law Rep. 7 Q. B. 387, in which the court of Queen's Bench of England refused to take cog- nizance of a case when an amount of money had been raised for a specific purpose and appropriated by Parliament for another purpose. In this case it was held that a suit en- tered against the Lords Commissioners of the Treasury was a suit against the sovereign and not valid. The Supreme Court of the United States claimed a similarity between the two cases in that the former was a suit against the com- missioners of the treasury of England, and the latter was against the state treasurer of Louisiana. As to this point. Justice Harlan in his dissent said : " It seems to me that case furnishes no support for the sugges- tion that these are suits against the State, simply because they are brought against its officers. It does not conflict with the proposition that the state Treasurer can be com- pelled to apply the proceeds of these taxes as stipulated in 20 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [426 the Statute and Constitution of 1874, which were his sole authority to receive them. Here is a statutable obligation upon him to pay the coupons as they matured. And to that is added the obligation imposed by that Constitution, which, in terms, declares that the proceeds of taxes collected under the Act of that year ' Shall be paid by the Treasurer of the State to the holders of said bonds, as the principal and in- terest of the same shall fall due,' without further legislative authority. These obligations remain upon that officer, un- less it be that the Debt Ordinance, although unconstitu- tional and void, has discharged them. Had Parliament, instead of the Act involved in the case cited, passed one directly imposing upon the defendants the duty of paying out of moneys appropriated for that purpose a certain class of claims, it is manifest that the court of Queen's Bench would have compelled them, by mandamus or other proc- ess, to perform that duty. In the case supposed, there would have been a statutable obligation which the court would not have permitted the defendants to evade on the pretext that they were officers of the Crown." Hereupon Justice Har- lan cites a case in which this very condition arose and in which the court issued such a mandamus, and shows further that the fact that the Constitution of the United States forbids that any State impair the obligation of contracts makes more powerful the statutory force ; and further that the difference in the nature of the sovereign in England from that of the sovereign here shows that little weight should be given to the English decision. In short, then. Justice Harlan's reply was this : The Eng- lish court did not entertain the suit because there was a statutable obligation upon them not to do so; the Ameri- can courts should have entertained the suit because there was a statutable obligation upon them to do so, — a statut- able obligation not altered because of the unconstitutional amendment which tried to relieve Louisiana of its duly contracted debts. The next case cited by the court for precedent is Os- 42/] SUABILITY OF STATES 21 born V. Bank of the United States, 9 Wheat. 738. The argument of the majority opinion is that there was a great difference between this case and the Louisiana case. In the Osborn case "the object was to prevent money which had been unlawfully taken out of the bank by the officers of the State from getting into the Treasury. . . . Thus the money seized was kept out of the Treasury, because if it got in, it would be irretrievably lost to the bank, since the State could not be sued to recover it back. No one pretended that if the money had been actually paid into the Treasury, and had become mixed with the other money there, it could have been got back from the State by a suit against the officers. They would have been individually liable for the unlawful seizure and conversion, but the recovery would be against them individually for the wrongs they had per- sonally done, and could have no effect on the money which was held by the State. Certainly no one would ever sup- pose that by a proceeding against the officers alone, they could be held as trustees for the bank, and required to set apart from the moneys in the Treasury an amount equal to that which had been improperly put there, and hold it for the discharge of the liability which the State incurred by reason of the unlawful exaction." Justice Harlan in his comment on this reasoning said: " The latter was a suit to recover moneys, which officers of the State of Ohio, in conformity with its statutes, had illegally taken from a bank of the United States. The suit being against the officers of the State, the objection was taken that it could not be sustained without the State itself being a party; that the State could not be sued; conse- quently, it was argued, the relief prayed (the restoration of the money) could not be granted. But to that objection the court, speaking by Chief Justice Marshall, . . . said : ' If the State of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sus- 22 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [428 tained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties; but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong, which they would afford against him could his principal be joined in the suit.' " Justice Harlan noted that this decision had never been questioned before : " It seems to establish, upon grounds which cannot well be shaken, that a suit against state offi- cers, to prevent a threatened wrong to the injury of the citizen, is not necessarily a suit against the State within the meaning of the nth Amendment of the Constitution." Thus it appears that the argument on the part of the court was purely technical — it was rather in words than in mean- ing — and was, as Justice Harlan makes clear, a departure from what the court had previously maintained. Davis V. Gray, i6 Wall. 203, is next mentioned by the court as affording grounds for its decision : In a land grant the receiver of a railroad "obtained an injunction against the Governor and Commissioner of the Land-Office of Texas to restrain them from incumbering, by patents to others, lands which had been contracted to the railroad company. . . . The specific tracts of land in dispute were, by the contract which had been made, segregated from the public domain and set apart for the company. The case rests on the same principle it would if patents had been actually issued to the company, and the State, through its officers, was attempting to place a cloud on the title by granting subsequent patents to others." Justice Harlan recognized that a full statement of the 429] SUABILITY OF STATES 23 point at issue is sufficient to make the citation argue against the conclusion of the court. He says : " In that case it appears that the State of Texas made a grant of lands to a railroad company, upon the basis of which bonds were issued known as land-grant mortgage bonds. They were sold in large numbers in this country and Europe. Sub- sequently the State, by provisions of its statutes and Con- stitution, attempted to repudiate and nullify its contract; and, in pursuance thereof, its officers proposed to issue patents to others for a part of the lands embraced in this grant. Thereupon a suit in equity was instituted in the Circuit Court of the United States against the Governor and the Commissioner of the General Land-Office of Texas, to prevent them from issuing patents for the lands or any part of them. The State was, of course, not made a party on the record. The bill was demurred to upon the ground that she could not be sued, and that the suit, being against her officers, was one, within the meaning of the Constitu- tion, against her. The demurrer was overruled, and the relief asked was given." He further explained that Justice Swayne, in rendering this decision, stated the following principles as having been announced in Osborn v. Bank of the United States: " i. A Circuit Court of the United States, in a proper case in equity, may enjoin a state officer from executing a state law in conflict with the Constitution, or a statute of the United States, when such execution will violate the rights of the complainant. 2. Where the State is concerned, the State should be made a party, if it can be done. That it can- not be done, is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record. 3. In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the State a party, although her laws prompt his action and the State stands behind him as the real party in interest. ... It was in conformity with those doctrines that the relief asked was given." 24 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [43O Two other cases were referred to in the argument for the court, namely, Board of Liquidation v. McComb, 92 U. S- 531, which arose under the same act as the case now under consideration, and United States v. Lee, 106 U. S. 196. It is hardly necessary to discuss these cases further, for the same sort of distinction was made by the court, and equally conclusive replies were made by Justice Harlan. Both were suits entertained against officers, the former against an officer of Louisiana, and the latter against offi- cers of the United States. In both the officers were sued in their official capacity and the decisions were rendered against them. In closing his dissent. Justice Harlan said : " My own conclusions are: That the officers of Louisiana cannot rightfully execute provisions of its constitution which con- flict with the supreme law of the land, and the courts of the Union should not permit them to do so ; " That but for the adoption of the unconstitutional Debt Ordinance of 1879, and whether the suits were in a state court or in the Circuit Court of the United States, these state officers would have been restrained by injunction from diverting the funds collected to meet the interest on the consolidated bonds, and would have been compelled, by mandamtis, to perform the purely ministerial duties en- joined by the Statute and Constitution of 1874;. "That if, by existing laws, the Circuit Court of the United States has no power to issue such writs, still, upon the removal of the mandamus suit from the state court, the former had power to do what the state court could legally have done had there been no removal; viz.: make peremptory the alternative mandamus granted at the begin- ning of the suit by the inferior state court; " That the Debt Ordinance being void because in con- flict with the Constitution of the United States, furnishes no reason whatever, least of all in the courts of the Union, why the relief asked should not be granted by any court of proper jurisdiction as to parties ; 43 1] SUABILITY OF STATES 25 "That to refuse relief because of the command of a State to its officer to do that which is forbidden, and refrain from doing that which is enjoined, by the supreme law of the land; or to give effect, for any purpose, in the courts of the Union, to the orders of the supreme political power of a State, made in defiance of the Constitution of the United States, is, practically, to announce that, so far as judicial action is concerned, a State may, by nullifying pro- visions in its fundamental law, destroy rights of contract, the obligation of which the Constitution declares shall not be impaired by any state law. To such a doctrine, I can never give my assent." ..„_ In Ex parte Young, 209 U. S. 123, there appears to be the same sort of contention as that which arose in Louisiana v. Jumel. In this case, however, the court decided that an injunction against the attorney-general of the State of Min- nesota issued by the circuit court of the United States to prevent his putting into effect certain laws would hold, in spite of the plea that such an action was against the State of Minnesota. The case arose after a number of decisions along the same line as Louisiana v. Jumel, in all of which Justice Harlan consistently asserted the doctrine which he had just announced. A statement at the beginning of his dissent in the Young case might seem to indicate that he had given up the theory which he had so tenaciously held, but as his argument is examined more deeply this is found not to be true. His doctrine is essentially the same, and this case had made him alter only slightly one phase of it. This point will be explained later. The words are as follows: "Al- though the history of this litigation is set forth in the opinion of the court, I deem it appropriate to restate the principal facts of the case in direct connection with my examination of the question upon which the decision turns. . . . That examination, I may say at the outset, is entered upon with no little embarrassment, in view of the fact that the views expressed by me are not shared by my brethren. 26 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [432 I may also frankly admit embarrassment arising from cer- tain views stated in dissenting opinions heretofore deliv- ered by me which did not, at the time, meet the approval of my brethren, and which I do not now myself entertain. What I shall say in this opinion will be in substantial accord with what the court has heretofore decided, while the opin- ion of the court departs, as I think, from principles pre- viously announced by it upon full consideration. I propose to adhere to former decisions of the court, whatever may have been once my opinion as to certain aspects of this general question." When his arguments are examined more closely it is found that the " certain views stated in dissenting opinions heretofore delivered by me . . . which I do not now my- self entertain " refer only incidentally to his general doc- trine as to the suability of a State, for, as will be seen, his real opinion on this question comes out more clearly in this dissent than in any of the others. Upon examination, the case of Ex parte Young is found to be a very difficult one. It was an action brought in the circuit court of the United States by a railrqad_company to prevent the State of Minnesota from enforcing certain laws j which the company claimed were confiscatory and hence de- I prived them of j)roperty without due process„of law. The acts were so stringent jn their nature as to make it almost impossible Jor the company to have their case, tried in, any court to test the validity thereof. For this reason the com- plainants^^ alleged that the above-mentioned ordSTs and._acts deprived them of the equalprotection of the laws, arid also deprived' them of their., property without due process -of law, and hence were unconstitutional and void. The acts were very stringent because of the following characteristics : In the first place, it was practically impossible to have their constitutionality tested because of the severe penalties im- posed if the Supreme Court should pronounce them con- stitutional. They could get no officer or employee of the railroad company to take the risk. In the second place, the 433] SUABILITY OF STATES 2/ fines for breaking the laws were so great as almost to put the company out of business before the Supreme Court could pass on it. About the only recburse that the railroad had was to get the United States circuit court to issue an injunction forbidding the state attorney-general to put these laws into operation. This was done ; and the Supreme Court sustained the writ. With the issue clearly understood, the nature of the ar- guments of the court and of Justice Harlan's dissent can be examined. The question, of course, for the court to de- cide was whether such an injunction constituted a suit against the State within the meaning of the eleventh amend- ment to the Constitution, as was contended by the attorney- general of the State. Justice Peckham, speaking for the court, in his prelim- inary remarks said : " We have, therefore, upon this record, the case of an unconstitutional act of the state legislature and an intention by the attorney-general of the state to endeavor to enforce its provisions, to the injury of the com- pany, in compelling it, at great expense, to defend legal proceedings of a complicated and upusual character, and involving questions of vast importance to all employees and officers of the company, as well as to the company itself. The question that arises is whether there is a remedy that the parties interested may resort to, by going into a Federal court of equity, in a case involving a violation of the Fed- eral Constitution, and obtaining a judicial investigation of the problem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and, if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings." Many cases are cited which have involved the question of the suability of States, but the line of sequence attempted to be established by these cita- tions is difficult to follow. Justice Harlan said: "If a-sujlbe coiiy"?acedin_ a state court, and involves a right secured by the Federal Constitu- 28 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [434 tion, the way is open -under-our incomparable judicial sys- tem to protect that right, first, by the judgmentjofjhe state court, and ultimately by the judgment of this^ court, upon writ of. error. But such right cannot be protected by_ means of a suit which, at the outset, is directly or in legal effect, one against the state \yhosej,ction is alleged to_ be illegal. That mode of redress is absolutely forbidden by the iith Amend- ment, and cannot be made legal by mere construction, or^^by any consideration of the consequences that may follow from the operation of the statute. Parties cannot, in any case, obtain redress by a suit against the state. Such has been the uniform- ruling- in this court, and it is most unfortunate that it is now dec-la-red to be competent for a Federal circuit court, by exerting its authority- over the chief law officer of the state,_without the consent of the state, to exclude the state, Jn its sovereign capacity, from its own courts when seeking to have the ruling of those courts as to its powers under its own statutes. Surely, the right of a state to in- voke the jurisdiction of its own courts is not less than the right of individuals to invoke the jurisdiction of a Federal court. J The preservation of the dignity and sovereignty of the states,_witliinjthe_Hmits of their "constituHonal powers~"is of jthejaatimportance, and vital. to the preservation of our systein £f government. The courts should not permit them- selves to_be_ilriven..l!y.. the hardships, real . or supposed, of particular cases, Jo.accomplisli- xesultSy -e^tea if. they.be, just results, in .a. mQd£^ri3ddden-JD.3L,the_f undamentaLJaw/' Referring to In re Ayers, 123 U. S. 443, a case in which a suit against the attorney-general of the State of Virginia had been pronounced a suit against the State and hence void, Justice Harlan, apparently to show how far the present de- cision was inconsistent with others, made the following re- marks: "The proceeding against the attorney-general of Virginia had for its object to compel, by indirection, the per- formance of the contract which that commonwealth was al- leged to have made with bondholders, — such performance, on the part of the State, to be effected by means of orders 43 S] SUABILITY OF STATES 29 in a Federal circuit court directly controlling the official ac- tion of that officer. The proceedings in the . . . suit against the attorney-general of Minnesota had for its object, by means of orders in a Federal circuit court, directed to that officer, to control the action of that state in reference to the enforcement of certain statutes by judicial proceedings commenced in its own courts. The relief sought in each case was to control the state by controlling the conduct of its law officer, against its will. I cannot conceive how the pro- ceeding against the attorney-general of Virginia could be deemed a suit against that state, and yet the proceeding against the attorney-general of Minnesota is not to be deemed a suit against Minnesota, when the object and effect of the latter proceeding was, beyond all question, to shut that state entirely out of its own courts, and prevent it, through its law officer, from invoking their jurisdiction in a special matter of public concern, involving official duty, about which the state desired to know the views of its own judiciary. In my opinion the decision in the Ayers case determines this case for the petitioners." As Justice Harlan had dissented from the Ayers case, it would appear from the above that he is pleading with the court at least to stand by something. Since the concern in this case is not so much with Justice Harlan's replies to arguments given by the court as with his opinion definitely stated, it will be well to note his quotation from Fitts v. McGhee, 172 U. S. 516, in which case he had written the opinion : " * In support of the contention that the present suit is not one against the state, reference was inade by counsel to several cases. . . . Upon examination it will be found that the defendants in each of those cases were officers of the state, specially charged with the execution of a state enactment alleged to be unconstitutional, but under the authority of which, it was averred, they were commit- ting or were about to commit some specific wrong or tres- pass to the injury of the plaintiff's rights. There is a wide dif- ference between a suit against individuals holding official positions under a state, to prevent them, under the sanction 30 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [436 of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a state merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the state. In the present case, as we have said, neither of the state officers named held any special relation to the par- ticular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the state, a case could be made for the purpose of testing the constitutionality of the statute by an injunction suit brought against them, then the consti- tutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney-gen- eral, based upon the theory that the former as the executive of the state was, in a general sense, charged with the execu- tion of all its laws, and the latter, as attorney-general, might represent the state in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the states of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong. Under the view we take of the question, the citizen is not without ef- fective remedy, when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land ; for, whatever the form of proceeding against him, he can make his defense upon the ground that the statute is unconstitutional and void. And that question can be ulti- mately brought to this court for final determination.' . . . The Fitts case is not overruled, but is, I fear, frittered away or put out of sight by unwarranted distinctions." The fact that Justice Harlan in this dissent quoted ap- 437] SUABILITY OF STATES 3 1 provingly from Fitts v. McGhee the opinion as to what should be regarded as the law relating to suits against state officers shows that his embarrassment at the change of view which he had undergone did not mean that he had entirely given up his theory. It rather indicates that he had formed more clearly within his own mind exactly what was his doc- trine. The case of Ex parte Young had brought one phase of the subject before him which apparently he had not fully appreciated till then, that is, the possibility that a citizen, by means of an injunction issued by a circuit court of the United States, could stay the action of the State in the en- forcement of its laws. To that extent, then, he seems to have changed his mind, but no further. The above quota- tion puts as clearly as can be put Justice Harlan's opinion of the extent to which the interpretation of the eleventh amendment should go. In brief, it might be stated as fol- lows: Everything that might arise in a judicial way that would involve an officer in his public capacity ought not to be deemed a suit against the State, and hence invalid. And if an officer of the State should be called into court because of a definite act on his part, so long as the averment was made that he was acting under an unconstitutional statute he should be made to answer. His objection to the deci- sion in Ex parte Young seems to be twofold, however. The first objection was that the officer was proceeded against under an averment that the general provisions of the statute were unconstitutional rather than for a definite act on his part under a statute the constitutionality of which was challenged. In the second place, he objected because by such action the circuit court was blocking the legal proc- esses of the State. Through this means the court had given to the individual the power to halt the action of the State, and had therefore in essence violated the Constitution of the United States in abridging the powers duly allowed to the States by that instrument. These two cases show clearly Justice Harlan's opinion as to what should be the interpretation of the phrase " suits 32 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [438 against States." It remains, however, to be seen, by means of a brief comment on other dissents and opinions rendered by him on this subject, how consistently he held to this principle. The decision of Louisiana v. Jumel was given in 1882. At that time Justice Harlan had been on the bench only five years. This case marks the first departure of the court from what seemed to be a well-established precedent as to the meaning of the eleventh amendment. Usually Justice Harlan was not very careful to avoid extraneous matter in his dissents, but in this case it was not so. Probably no other of his dissents surpasses this one in clear and concise reasoning. From this point on to the case of Ex parte Young will be traced his opinions and dissents in the more important cases which have included that question. The most important cases are: Antoni v. Greenhow, 107 U. S. 769; Cunningham v. Macon and Brunswick R. Co., 109 U. S. 446; Hapgood V. Southern, 117 U. S. 52; In re Ayers, 123 U. S. 443; Belknap v. Schild, 161 U. S. 10; Fitts v. McGhee, 172 U. S. 516; Tindal v. Wesley, 167 U. S. 204; International Postal Supply Co. v. Bruce, 194 U. S. 601. In the case of Antoni v. Greenhow the vexed question of the suability of States came up only incidentally. This case was decided next after Louisiana v. Jumel, and in- volved a similar situation. In 1871 Virginia passed a law making the interest coupons of a bond issue receivable at and after maturity for all taxes, debts, dues, and demands of the State. Later the General Assembly passed another act prohibiting the officers in charge of the collection of taxes from receiving in payment anything else than gold, coin, and so on. Subsequent to the passage of this act mak- ing it unlawful to accept such coupons for taxes one An- drew Antoni attempted to pay taxes with interest coupons. Upon the refusal of the officer to accept them, Antoni took the matter into court. The question was taken to the Su- preme Court of the United States by writ of error on the ground that this subsequent legislation was an impairment 439] SUABILITY OF STATES 33 of the obligation of contracts. By nice distinctions it was decided that such action on the part of the State did not impair the obligation of contracts, and the question of suabil- ity was put aside as not being of necessity decided in this case. I Justice Harlan, still warm from his dissent in the Louisi- ana case, made the following remark : " It^hould.ifij:emsin- bered that the court places its decision upon the ground that the ch ange in the ferriedv has no f. TrTl egaj_gffec:t7 i mp air ed_ t he obligation of the contra ct, an d not upon the grou nd -that-this-suitiSyJiMthin the mea ning of the Federal Constitu- tiniiij a. p^iit a gainst -tbe-State. Nor could it Jbe placed upon the_lattaL-.gxauad_miiLQllt_sverturning the settkd.xLQCtEine&— of this-xckurt. ... It is_a..case.irL which,,..a„plain official duty, requiring n^o^exerds£_of djs_cretionjj^iLh& and wherg^erfoxmance^-in- the mode- -st'ipwlated-by" the con- tract is refused/' Cunningham v. Macon and Brunswick R. Co. brings up again the interpretation of the eleventh amendment. The facts in this case were as follows: The State of Georgia endorsed the bonds of a railroad company, taking a lien upon the railroad as security. The company failing to pay interest upon endorsed bonds, the governor of the State took possession of the road, and put it into the hands of a receiver, who made sale of it to the State. The State took possession of it, and took up the endorsed bonds, substitut- ing the bonds of the State in their place. The holders of the mortgage bonds issued by the railroad company subse- quently to those endorsed by the State, but before the de- fault in payment of interest, filed a bill in equity to foreclose their own mortgage and set aside the said sale and to be let in as a prior in lien, for other relief affecting the property, and set forth the above facts and made the governor and the treasurer of the State parties. Those officers demurred, and it was held that the State was so much interested in the property that relief could not be granted without making it a party, and that the court was without jurisdiction. 34 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [44O The argument of the court was very similar to that in Louisiana v. Jumel. Without going into the content of Justice Harlan's dissent, his opinion may be summarized as follows : In deciding the case the court had overlooked cer- tain vital points which would have proved that the State was not legally in possession of the property. Hence the suit against the officers of the State should have been enter- tained to establish this fact, and to put the property into the hands of the legal owners. The court in this case seemed to say that the mere plea of possession in the name of the State exempts from suit, whereas Justice Harlan desired that the legal status of this possession be established and that this be done by entertaining a suit against the officers of the State. In Hapgood v. Southern, another case involving the issue of bonds, the same question was to be answered as in Louisi- ana V. Jumel. Justice Harlan admitted that this case was governed by that decision, but denied again the rightfulness of it. Since the case of In re Ayers has been referred to and sufficiently explained, it is unnecessary to go further into its details. In his dissent from this case Justice Harlan quoted approvingly a precedent cited in United States v. Lee from Osborn v. Bank of United States as follows : " Where the State is concerned, the State should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record. In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as a real party in interest. A State can be made a party only by shaping the bill ex- pressly with that view, as where individuals or corporations are intended to be put in that relation to the case." In the following quotation from Justice Harlan's dissent 44 1 ] SUABILITY OF STATES 35 from Belknap v. Schild is found a good illustration of his vehemence when he opposed vigorously the decision of the court : " If the United States may appropriate to public use the invention of a patentee, without his consent, and without liability to suit, as upon implied contract, for the value of the use of such invention ; if, as the court holds, a public officer acting only in the interest of the public is not indi- vidually liable for gains, profits, and advantages that may accrue to the United States from such use ; and if the officer who thus violates the rights of the patentee cannot be re- strained by injunction, — ^then the government may well be regarded as organized robbery so far as the rights of paten- tees are concerned." It had been decided by the court that in a suit in equity brought by the patentee of an improvement in caisson gates against officers of the United States, who were using in their official capacity at a dry dock in a navy yard a caisson gate made and used by the United States in infringement of his patent, the plaintiff is not entitled to an injunction. Nor can he recover profits if the only profit proved is a sav- ing to the United States in the cost of the gate. The case of Fitts v. McGhee, in which the decision was rendered by Justice Harlan himself, gave an excellent oppor- tunity for him to express by way of dictum what he seemed so much to desire should become law. The question was tb^ va1idity_ j}f a statute of A j n h n mn ^vh i^ h f fitnHi'rhH n maximum rate of tolls for a bridge across the Ten nessee River. JThe owners of jJie-bridge-e-kiined-tterir-sincE-thTS — rate did not allow themr easonable compensation it took their property without due process of law. The United - States circuit court took cognizance^oT'the case, held that the act was~~miconstit utional, and issued a n injunctio n agaTnsT'the~^Se^31- the -State to prevent JJiejH— from arresting, the bridge officials. It was taken to the Supreme Court on the plea that such an injunction was a suit against the State within the meaning of the eleventh amendment. 36 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [442 ;! The decision was rendered, however, on the jurisdiction of ;' the circuit court. Its decision was reversed on the ground ,' that it had taken jurisdiction over something which should have been settled in the state courts and appealed, if neces- ; sary, by writ of error to the United States Supreme Court. *^In this case, however, is found the first clear statement of Justice Harlan's real opinion as to what should be the law regarding suits against ofificers of a State. It was quoted in- his dissent from Ex parte Young and noted above, namely, that suits against officers, though for acts done in their official capacity, should be entertained if a definite damage had been averred under the statute supposed to be unconstitutional. In Tindal v. Wesley Justice Harlan was also called upon to deliver the opinion of the court. This case was to test the legality of the title to certain land held in South Carolina in the name of the State. The_defendants, officers of the-SiatCj^seem to have got possession of it^by paying for it with a kind of paper issue which-was-practicallylwortMess. The possession of the land by the State of South Carolina corresponded very significantly to the possession^TheTlee estate by the United States, in that the "rightful owners had not been duly paid for their property. In J:his,jcas£Ljustice Harlan extended to the States the principle-set forth. in the Lee case. He referred largely to the latter decision. In the case of Tindal v. Wesley is seen a comparatively recent decision in which a suit against officers of a State in their official capacity was entertained and decided against them. The next and last case in this connection is that of the International Postal Supply Co. v. Bruce. The decision in this case was brief and concise, but the dissent was lengthy. Justice Holmes rendered the decision. Justice Harlan dis- sented. His dissent held the same contention, but it showed some new features. He said at the outset: "The United States is not here sued, although, as in United States v. Lee, it may be incidentally affected by the result. No decree is asked against it. The suit is against Dwight H. Bruce, who 443] SUABILITY OF STATES 37 is proceeding in violation of the plaintiff's right of property, and denies the power of any court to interfere .with-Jbtiin, solely upon the ground that what he is doing is, under, the order and^sanctionjof the Postoffice Department. He is,, so to speak, in the possession of, and wrongfully using, the plaintiff's patented invention, and denies the right of any court, by its mandatory order, to prevent him from continu- ing in his lawless invasion of a right granted by the Con- stitution and laws of the United States." This suit was brought against the postmaster by the owner of letters patent on a machine for canceling and postmarking. Its purpose was to restrain this postmaster from using such infringing machines, which had been hired from the manufacturer by the Postoffice Department for a term not yet expired. The gist of the argument for the court appears in the following sentences : " In the case at bar the United States is not the owner of the machines, it is true, but it is a lessee in possession, for a term which has not expired. It has a property, — a right in rem, — in the machines, which, though less extensive than absolute owner- ship, has the same incident of a right to use them while it lasts. This right cannot be interfered with behind its back ; and, as it cannot be made a party, this suit, like that of Belknap v. Schild, must fail. The answer to the question certified must be ' No.' Whether or not a renewal of the lease could be enjoined is not before us." It appears, then, that it was not the fact that the decision was against the patentee which aroused Justice Harlan's ire, but it was the precedent which the peculiar wording of the decision seemed to set. He could not justify in his mind the infringement on the part of the United States of a patentee's rights. It was this precedent which he was citing when he said: "I am of opinion that every officer of the government, however high his position, may be pre- vented by injunction, operating directly upon him, from illegally injuring or destroying the property rights of the 38 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [444 citizen ; and this relief should more readily be given when the government itself cannot be made a party of record." Yet the decision seems to hold that the government may use patented articles regardless of the rights of the patentee, because of the fact that there is no way to stay the action of the government by enjoining the officer. It must be added that by an act of 1910 Congress has provided that such persons may appeal to the court of claims and get compensation. But this provision, of course, does not give full reHef because it is necessary that a large amount of money be involved in order to get a case into that court. Nevertheless the government, if not the court, has to that extent come to accept Justice Harlan's doctrine. Justice Harlan's Doctrine of Suability. — There seem to be mainly three grounds upon which an attempt is made to justify the theory of non-suability. The strongest has been aptly stated by Justice Miller in United States v. Lee : " It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself in those courts." This principle is given the most prominent place in a discussion of the develop- ment of the theory of non-suabihty of States in the United States.^ But it seems that this contention may be open to some objections, at least from Justice Harlan's standpoint. In fact, it may even be questioned whether this contention in essence conflicts with his theory of suability. To answer that necessitates a clear analysis of the meaning of terms. What is meant when it is said that the courts are the crea- tion of the supreme power ? What is meant by the supreme power? These questions, of course, have been discussed fully by students of political science generally. The con- ^ K. Singewald, " The Doctrine of Non-suability of the State in the United States/' in Johns Hopkins Studies, series xxviii, no. 3, p. 10. 445] SUABILITY OF STATES 39 sensus of opinion seems to be that this supreme power is the will of the people. This will is usually expressed in a convention which forms a constitution, and this constitu- tion gives the courts their jurisdiction, or at least outlines the position which they are to occupy in the government. Does, then, a suit against an officer in his official capacity necessarily imply the bringing of this supreme power before a court for trial? The supreme power is the constitution. This constitution allows the legislature to make laws along certain lines. It also allows the courts to interpret these laws and to determine whether the laws made are along the line of the constitution. Why, then, should not the court, which is duly designated as the final arbiter of the constitu- tionality of laws, summon officers of the State and cause them to show that any law that involves the functionaries of the State is in accordance with the constitution? Why should it not make them justify their actions ? Why should it be considered legal for the State to allow its officers to act in a way as regards itself and the citizens of the State that would be pronounced wrong as regards the citizens in their relations to each other? How are we going to know that such an act is in accordance with the will of the State unless it can be proved? In other words, how can we say that such an action is in reality an expression of the will of that supreme power until all of the organs of the supreme power, designated by it to have a say in the matter, have either tacitly or expressly given their assent? The second contention was voiced by Justice Gray in Briggs V. Light-Boat, ii Allen 157, as follows : "The broader reason is that it would be inconsistent with the very idea of supreme executive power, and would endanger the per- formance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and 40 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [446 means of carrying on his goverhment in war and in peace, and the money in his treasury."^ This assertion means that shutting out a whole cIe^ss of cases would necessarily reduce the number of suits to be tried. But it also means a little more than that. It means that there would be shut out a particularly disturbing class, one that might make the government falter in the perform- ance of its duties. But is this assumption valid? The answer must be that it is not. As the cases discussed have shown, the court has not succeeded sufficiently well in defin- ing that class of cases to shut it out. As a matter of fact, it has aggravated the situation by allowing certain suits against officers in their official capacity, while refusing relief to others with an equally good claim to be heard. This uncertainty in the law has tended to increase the number of unconstitutional statutes passed. With this increase and with the uncertainty of the law has come the tendency to bring additional suits, and the situation has been made worse. If it were recognized once for all that officers may be sued, this tendency toward the passage of unconstitu- tional legislation would naturally be checked, and thus the number of suits testing this legislation would tend to lessen. An additional very logical objection is made by Justice Holmes in Kawananakoa v. Polyblank, 205 U. S. 349: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and prac- tical ground that there can be no legal right as against the authority that makes the law on which the right depends." This objection sounds convincing, but a careful examina- tion may reveal faulty premises. There is little reason why there could not be legal action against officers of States. In fact, it is practiced to no small extent on the continent of Europe. The one thing for which our nation stands is the submission of everybody to law. Why then should it be legal for officers of the government to commit acts in behalf of the state which are recognized as wrong for 2 Singewald, p. 10. 447] SUABILITY OF STATES 4 1 individuals? Does not the fact that the supreme power has said that certain things are wrong between man and man imply that those things are wrong between the govern- ment and the citizens? Moreover, concerning the ability of the court to enforce its decree upon the officers in question, it is only necessary to say that decrees seldom need to be enforced by com- pulsion, — except those of a criminal nature, and these are not in question here. A case would hardly rise which would require violence in enforcement, involving the in- terpretation of the Constitution. But even if it did, it is certain that no court would be foolish enough to entertain a suit against an ofiEcer whose consent was needed to enforce its decree. There will usually be a way around this, and there is ho reason why the court should not go as far as it can in this regard, instead of pronouncing, at every little pretense, that an action against an officer is a suit against the State. Such an interpretation would almost certainly center public opinion more strongly upon the Constitution, and would tend to purify the fundamental law. The case of United States v. Lee seems to be a wise decision and to establish a worthy precedent. A further objection might also be urged, namely, that such a doctrine as that for which Justice Harlan stood might intimidate officers. If this doctrine were recognized as constitutional, they might hesitate to enforce the laws for fear that the laws might be declared unconstitutional. This objection could hardly hold, for two reasons: In the first place, the officers would certainly not be individually responsible for acts done at the direction of the State. Since, then, their personal responsibility would be no greater, their refusal to obey would be useless. In the second place, the court can by mandamus force an officer to perform ministerial functions. ^ Viewing the subject in the light of the above reasons, there appear to be no grounds for real objection to Justice 42 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [448 Harlan's contention that a suit against an officer to prevent him from enforcing against an individual a definite pro- vision of a law should be maintained in all cases in order to test the constitutionality of the law under which the action is taken. As a result of such an interpretation of the eleventh amendment the number of cases which would arise on account of the uncertainty of the law would almost certainly be lessened, as there would be less danger that a State would try to cover unconstitutional legislation under the plea of the non-suability of States. There is little reason why a State should allow its officers to commit acts which are considered wrong for its citizens to commit. CHAPTER II Impairment of the Obligation of Contracts Since the question of the suability of States is so closely related to that of the obligation of contracts, it is natural that this subject should be considered next. Some of this discussion will be derived from cases which have been alluded to in the previous chapter, but whereas in that chapter the concern was with the suability phase, it is now with the contract phase. The Constitution of the United States has two clauses" which might prohibit a State from impairing the obligation of contracts. The first is the express provision, in article i, section lo, that no State shall pass any " law impairing the obligation of contracts " ; the second provision is that por- tion of the fourteenth amendment which reads that no State shall deprive " any person of life, liberty or property, with- out due process of law." Either of these stipulations might have the meaning desired, but since there is the express prohibition in the original draft of the Constitution, the second has, of course, no great importance here. The Relation of a State to its Contracts. — This question has already been somewhat discussed in the consideration of the suability of States. It will now be developed more fully. The Supreme Court hag, dpridpd that t he acts o f the States during the Civil War should, for the most part, be valia,-:except' in so far_as they weFe directly Tin. aid of the rebelHon. Whereas the court has tried to make this ruling as extensive as possible, Justice Harlan has, at times, stood for a somewhat narrower doctrine. The case of Keith v. Clark, 97 U. S. 454, illustrates this point. Here the court decided that notes issued by the Bank of Tennessee in the 43 44 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [45O year 1861, after the outbreak of the Civil War, should be received in payment of taxes. The facts of the case were these: In 1838 the State had stipulated in the charter of the bank that the notes of the bank should be received in payment of taxes. Subsequent to the war a man tendered forty dollars of these notes, issued during the war while the State was a member of the Confederacy. The question, therefore, was, did the refusal of ,the^ tax-collector, on authority of ^a state act, to accept the notes oiJheJBaiik^pf Tennessee issued while the State was in xehellioBu^onsti- tutean.impairjiiient of the obligation of ,GontraGts.;_or, better, was the act which authorized that refusal an impairment of the obligation of contracts, since, the State had, .wlien the bank was chartered, agreed to accept its notes for .taxes ? The court said that such a statute did not impair the obliga- tion of contracts, and that the notes should have been accepted for taxes. The reasons for the holding of the court were three : First, the State of Tennegseejhad never legally been out of the Union, and hencejts acts during the war had to.be reckoned with. Second, in spite of the fact that the States had so far succeeded in separatTrig themselves from the Union as to establish usurping governments, yet even those govern- ments could not be entirely overlooked; their acts should be accepted as far as could be done. A contrary doctrine, it was claimed, would be opposed to thepoWei-s inherent in every organized society. Third, since the record did not show that the notes had been issued in aid of rebellion, they ought to be considered as not having been issued for that purpose. The ground upon which. Justice Harlan rested his dissent was that the duly recognized State was not legally bound to accept acts which had been passed under usurping ajiAority. Since the notes issued at this time were of little value, there was no reason for declaring the particular act invalid which forbade the acceptance of the notes. " They were/' he said, " the obligations of an institution controlled 45 1] IMPAIRMENT OF OBLIGATION OF CONTRACTS 45 and managed by a revolutionary usurping State Govern- ment, in its name, for its benefit, and to prevent the restora- tion of the lawful government. It was the revolutionary government which undertook to withdraw the State of Tennessee from its allegiance to the Federal Government and make it one of the Confederate States. When, there- fore, the people of Tennessee, who recognized the authority of the United States, assembled in delegate convention, in January, 1865, it was quite natural and, in my judgment, not in violation of the Federal Constitution" for them to declare invalid bonds, notes, and so on, issued under the usurping government. " There is some difficulty in defining precisely what Acts of the usurping State Government the restored State Gov- ernment should have recognized as valid and binding. It may be true that there were some of them which should, upon grounds of public policy, have been recognized by the lawful government as valid and binding. It may be that the courts, in absence of any declaration to the contrary by the lawful government, should recognize certain Acts of the revolutionary government as prima facie valid. But I am unwilling to give my assent to the doctrine that the Con- stitution of the United States imposed upon the lawful Government of Tennessee an obligation, which this court must enforce, to cripple its own revenue, by receiving for its taxes bank-notes issued and used, under the authority of the usurping government, for the double purpose of maintaining itself and defeating the restoration of the law- ful government in its proper relations in the Union." Hence, though Justice Harlan would have recognized certain of the acts of the revolutionary governments as valid, he would have drawn a much stricter line than did the court. Above all, he would not have recognized the validity of acts which the reinstated government had at- tempted to make invalid, at least to such an extent as to make the government take depreciated money for taxes, for this in itself would have meant that the usurping govern- 46 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [452 merit, even after the war, was working toward the weaken- ing of the recognized legal government. He would have been less liberal in this regard, and would not have counter- acted legislation which enabled the State to obtain valid money for its taxes, when there was sufficient reason for declaring constitutional the act which imposed this re- quirement. I Though the courts have been careful not to uphold laws 'impairing the obligation of contracts among individuals, they have not been so particular to see that a State should mot impair its own contracts. As has been seen, they have lusually succeeded in getting out of this situation by assert- ing the suits to be against the States. As was brought out in thirst chapter, the case of Louisiana v. Jumel, 107 U. S. 711, well illustrated this point. Here no one questioned the fact that an amendment to the state constitution had im- paired the obligation of contracts. The only question was whether any remedy at law could be found whereby this impairment could be thwarted. The court decided that since a suit could not be entertained against officers of a State in their official capacity, there was no remedy. As was pointed out, however, the courts have been irresolute in holding to this doctrine, while Justice Harlan was very resolute in opposing it. According to him, the contract of a State was even more sacred than that of a person, and the plea that the suit was against the State should not permit a State to violate the contract clause. As he argued in his dissent from Louisiana v. Jumel, he has argued even more vigorously in other cases. The case of Antoni v. Greenhow, 107 U. S. 769, illustrates this, and is Fypical of the success of a State in repudiating its debt through indirect methods. In 1871 Virginia passed a law providing for a bond issue in order to float her public debt. In this act it was provided, among other things, that the interest coupons of the bonds should be receivable for taxes, and that if the collector should refuse to accept them in payment of taxes he could be forced by mandamus to do 453] IMPAIRMENT OF OBLIGATION OF CONTRACTS 47 SO. In 1882 an act was passed which purported to counter- act an accumulation of fraudulent coupons. It provided that no coupons should be accepted for taxes, and that all taxes must be paid in currency. If anyone, however, should tender interest coupons, they could be received and the ques- tion as to their genuineness be submitted to a jury. If they were held to be genuine, the money paid would be refunded. The question, then, was whether this act of 1882 impaired the obligation of contracts, and whether it was therefore unconstitutional. The court said no. "^n Inng a-g_tbe- coupons were still receiva ble for taxes the ob ligation was not impaired, an d the meth od of receiv ing them w as imma- terial. Ig-short... the change in remedv for non-acce ptance from mandamus to jury^Jxial, did not mean an impairment of the obligation of contracts. This d^ision_did^ not .naeeL with the approval of Justice Harlan. He contended that a change in remedy which hn- posed new and burdensome conditions _ upon the coupon holders to such an extent as to make the coupons in fact_ valueless in their hands was necessarily an impairment of the obligation which they evidenced. The former act ha.d made the coupons receivable for taxes, and had arranged for their acceptance to be enforced; the second act had granted that the coupons were receivable, but had made it impossible for the holders to have them accepted without going to greater expense than the value of the coupons. In answer to the argument that counterfeit coupons might be presented, he said that if the collector did not know cer- tain coupons to be valid there were sufficient means of veri- fication. All that the tax collector had to do was to refuse them, and when the holder applied for a mandamus to force their acceptance there was opportunity to have the coupons tested. The act of 1882, therefore, was neither expedient nor constitutional, and could not obtain his assent. Following upon Antoni v. Greenhow was the case of Ex parte Ayers, 123 U. S. 443. The State of Virginia had 48 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [454 found it necessary to pass even more stringent laws to pre- vent the taxpayers from forcing their claims. An English brokerage establishment had bought $100,000 virorth of those coupons, in London, buying them for about $30,000, for the purpose of selling them to the taxpayers of Virginia, of course at an increase upon cost, but at a price below face value. To meet this move, the State, by statute, established additional restrictions to be complied with before the coupons could be accepted for taxes, — acts passed, of course, under the guise of means to detect counterfeit coupons. There were two chief characteristics of these laws: First, in order to make the coupon receivable the one who owned it had to be able to present the original bond from which it was cut; secondly, no expert evidence was allowed in the court to verify the coupons, that is, no attorney could be employed. Thus by the various acts in question the State had forced the taxpayers " into a lawsuit in her own courts, in which she has taken effectual precaution beforehand to make it impossible they can win." Such legislation the plaintiffs contended to be an impairment of the obligation of the State's contracts. Pressed to the wall by this contention, the officers of the State pleaded that the suit against them was a suit against the State and hence could not be main- tained. This the United States Supreme Court held to be the case. Justice Harlan, of course, did not approve this decision any more than he had approved that of Antoni v. Greenhow. He said: "The commonwealth of Virginia has no more authority to enact statutes impairing the obligation of her contracts than statutes impairing the obligation of contracts exclusively between individuals. ... A statute which is void, as impairing the obligation of the State's contract, af- fords no justification to anyone, and confers no authority. If an officer proposes to enforce such a statute against a party, the obligation of whose contract is sought to be im- paired, the latter, in my judgment, may proceed, by suit, against such officer, and thereby obtain protection in his 455] IMPAIRMENT OF OBLIGATION OF CONTRACTS 49 rights of contract, as against the proposed action of that officer. A contrary view enables the State to use her im- munity from suit to effect what the Constitution of the United States forbids her from doing; namely, to enact statutes impairing the obligation of contracts." Another case wherein Justice Harlan differed from the court in its interpretation of the contract clause in the Constitution of the United States is that of Louisiana V. Mayor, etc., of New Orleans, 109 U. S. 285. This case was long and much involved. It will be treated again under due process of law, but the matter of contract was discussed by both Justice Harlan and the court. The State of Louisiana had passed a law making the county or town in which property had been destroyed by mob violence responsible for the value of such property de- stroyed. The State had by a later statute forbidden cities to levy taxes above a certain percentage. Private property of a considerable amount had been destroyed in New Or- leans by mob violence. The party whose property had been destroyed brought suit against the city of New Orleans for the value of the property destroyed, and obtained judg- ment for the amount. The city refused to pay the judg- ment, asserting that within the bounds of the percentage al- lowed under the subsequent statute of the State she had col- lected all the money collectable and had no funds with which to pay the judgment. The question was, did the sub- sequent law of Louisiana, which held the city within certain limits in making assessments, amount to an impairment of the obligation of contracts, in that it deprived citizens of what had been guaranteed to them by the previous law? The court said that it did not, but Justice Harlan said that it did. His contention, however, was more vigorous on the point of due process of law than on that of contract, although the court dwelt mainly upon the contract feature. It must be admitted that this would have been a rather far- fetched interpretation of the word contract. But here, as in the above cases. Justice Harlan seemed to feel that the 50 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [456 city was, by means of a technicality, slipping out of an ob- ligation imposed upon it by the State. This sort of dis- honesty always aroused his indignation. Of the general ability of a State to impair conti;act clauses in charters seemingly permanent in their scope there is one very interesting case, Stone v. Farmers' Loan and Trust Co., 116 U. S. 307. It was brought from the United States circuit court for the southern district of Mississippi in order to test the validity of a state statute establishing a railroad commission to examine and pass upon tariffs and other rail- road regulations. In chartering the railroad company the State of Mississippi embodied the following stipulation in its charter: "That the president and directors be and they are hereby authorized to adopt and establish such a tariflf of charges for the transportation of persons and property as they may think proper, and the same to alter and change at pleasure." The contention of the railroad company was that the statute establishing a commission to regulate the tariffs was an impairment of the obligation of contracts in that it took from the company the power granted in the orig- inal charter to fix its own rates. The import of the decision amounted to this: The fact that the railroad company had been granted the right to fix rates did not imply that the State might not also exercise that power. Since the State was not forbidden by the con- tract to fix rates, the establishment of a commission for that purpose did not impair the obligation of contracts. It implied that though the company might fix any rate it pleased, the commission could also do so, and that the latter rate was the only one that could be enforced in the courts. Justice Harlan thought diflferently. He contended that the statute in question did constitute an impairment of the obligation of contracts and was void. He held, however, that the railroad company could not establish any rate it pleased to establish, but that rates established by the rail- road company should hold unless declared unreasonable by 457] IMPAIRMENT OF OBLIGATION OF CONTRACTS $1 some competent court. He said: "I am of opinion that this statute impairs the obligation of the contract which the State made with these companies, in this : that it takes from each of them the power conferred by its charter, of fixing and regulating rates for transportation within the limit of reasonableness; and confers upon a commission authority to establish, from time to time, such rates as will give a fair and just return on the value of such railroad, its appur- tenances and equipments, and as experience and business operations may show to be just. In short, the companies are placed by the statute in the same condition they would occupy if their charter had not conferred upon them the power to fix and regulate rates for transportation. The whole subject of transportation rates is thus remitted to the judgment of commissioners who have no pecuniary interest whatever in the management of these vast properties, and who, if they had any such interest, would be disqualified under the statute from serving ; and who are required to fix rates, according to the value of the property, without any reference to what it originally cost or what it had cost tt maintain it in fit condition for public use. . . . " In expressing the foregoing views I would not be under- stood as denying the power of the State to establish a Rail- road Commission, or to enforce regulations (not inconsistent with the essential charter rights of the companies) in ref- erence to the general conduct of their merely local business. My only purpose is to express the conviction that each of these companies has a contract with the State, whereby it is exempted from absolute legislative control as to rates, and under which it may, through its directors, from time to time, within the limit of reasonableness, establish such rates of toll for the transportation of persons and property as they deem proper ; such rates to be respected by the courts and by the public, unless they are shown affirmatively to be unreasonable." Justice Harlan's contention in this case is not incon- sistent, as may be thought, with some of his later dissents 52 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [458 regarding the power of the Interstate Commerce CommisT sion. He impliedly recognized here that the State may es- tablish a commission of this kind without unconstitutional delegation of the legislative power, an assertion which he made more vigorously in his dissent from Interstate Com- merce Commission v. Alabama Midland R. Co., i68 U. S. 144. Neither was his doctrine as inexpedient as might be thought. He wished to have the State keep its word, and at the same time give the railroads to understand that their rates must be in accordance with reason. Yet it must be admitted that from the point of view of facility in the regu- lation of railroad rates the decision of the court was wiser.^ From the cases discussed may be deduced Justice Harlan's doctrine regarding the relation of a State to its own con- tract. It was merely this : that a State could, constitution- ally, no more impair its own contracts than it could impair any other contracts ; and that necessary proceedings should have been taken to prevent the States from impairing their own contracts. Relation of the National Government to its Contracts. — As is well known, there is no constitutional limitation di- rectly forbidding the United States to pass laws impairing the obligation of contracts. Though the national govern- ment has not been very careful not to impair the obligation of contracts, yet, when suits have been brought on this ques- tion, the court has argued that the action was not an impair- ment. Justice Harlan held that, though there was no express statement to that effect in the Constitution, the stipulations ^ With regard to land grants there is one case, and in that the difference was rather technical, involving the interpretation of the meaning of the terms of the contract. This was the case of Walsh V. Preston, 109 U. S. 297. The court decided that if a State grants land on contract, and if within good time the party to whom the land was granted cannot show that he has complied with the con- tract, the land is subject to regrantal. Justice Harlan differed from the court in that he contended that the party to whom the land was granted had given sufficient evidence of having complied with his part of the contract, and that the State had impaired the obligation of its contract in regranting any part of the land. 459] IMPAIRMENT OF OBLIGATION OF CONTRACTS 53 that property should not be taken without due process of law, and particularly that private property should not be taken without just compensation, implied that the obligation of contracts could not be impaired. This question came up particularly in the cases involving the rights of paten- tees. There are three cases of special interest : Schillinger V. United States, 155 U. S. 163; Belknap v. Schild, 161 U. S. 10; and International Postal Supply Co. v. Bruce, 194 U. S. 601. These have been alluded to in the preceding chap- ter, but may be considered here in their relation to contracts. The first of these cases came before the Supreme Court on the plea that a paving company, employed by the gov- ernment at Washington, had used a patented process in employing tarred paper to keep cement blocks apart, and had thus impaired an implied contract right of the patentee to the exclusive use of his patented invention. The court decided that this use did not constitute an impairment of the obligation of contracts arid that it was not a contract re- lation, but that the injury alleged was in the nature of a tort, and no action could be had against the United States for it. " So not only does the petition count upon a tort, but also the findings show a tort. That is the essential fact underlying the transaction and upon which rests every pre- tense of a right to recover. There was no suggestion of a waiver of the tort or a pretence of any implied contract until after the decision of the Court of Claims that it had no jurisdiction over an action to recover for the tort." Justice Harlan, however, thought otherwise. With him, the United States government, in granting patents, formed contracts which it could not impair any more than could a state impair the obligation of its contracts. Some quota- tions will illustrate this point. " It may,therefore,be regarded as settled that the government may be sued in the Court of Claims, as upon implied contract, not only for the value of specific property taken for public use by an officer acting under the authority of the government, even if the taking was originally without the consent of the owner and without 54 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [46O legal proceedings for condemnation, but for the value of the use of a patented invention when such use was with the con- sent of the patentee. . . . " If Schillinger's patent was valid, then the government is bound by an obligation of the highest character to com- pensate him for the use of his invention, and its use by the government cannot be said to arise out of mere tort, at least when its representative did not himself dispute, nor assume to decide, the validity of the patent. If the Act of Congress under which the architect proceeded had, in express terms, directed him to use Schillinger's invention in any pavement laid down in the public grounds, then such use, according to the decision in United States v. Great Falls Mfg. Co., would have made a case of implied contract based on the constitutional obligation to make just compensation for private property taken for public use. But such a case is not distinguishable, in principle, from the present one, where the architect, proceeding under a general authority to ex- pend the public money according to specified plans, uses or knowingly permits to be used a particular patented in- vention, not disputing the rights of the patentee, but leav- ing the question of the validity of the patent, and the conse- quent liability of the government for its use, to judicial de- termination." The case of Belknap v. Schild was sufficiently explained in the chapter on suability of States. In his dissent from this case Justice Harlan reiterated his arguments in Schil- linger v. United States, but somewhat more vehemently: "If the United States may appropriate to public use the invention of a patentee, without his consent, and without liability to suit, as upon implied contract, for the value of the use of such invention; if, as the court holds, a public officer acting only in the interest of the public is not indi- vidually liable for gains, profits, and advantages that may accrue to the United States from such use ; and if the officer who thus violates the rights of the patentee cannot be re- strained by injunction, — ^then the government may well be 461] IMPAIRMENT OF OBLIGATION OF CONTRACTS 55 regarded as organized robbery so far as the rights of paten- tees are concerned." The details of the case of the International Postal Supply Co. V. Bruce have also been sufficiently explained. Here Justice Harlan, more vigorously than ever, reasserted the convictions expressed in the former dissents: "It is now adjudged that, although a postmaster may be confessedly proceeding in direct violation of the legal rights of the pat- entee, the court cannot, by any direct process, stop him in his destruction of the patentee's right of property. Under the present decision, the PostofiSce Department not only may use, without compensation, the particular postmarking machines in question here, but it can lease others, and con- tinue its violation of the patentee's rights at its discretion, thereby making the exclusive use granted by the patent of no value whatever." Froin_these-©pinions-tt-isseen~thatT though there is no express prohibitio n upon the United States forbidding the impairment of the obligation of contracts, yet, according to Justice Harlan's doctrin e, Llie -profaifaitions- as to taking pri- vate property without Just compens atio n and without due process of law would have worked to that end. But his doctrine did not prevail, and_asjthejiecisi5ns„no-\v stand, the United States may impai r the obH gatiqn of what in sub- stance would appear to be contracts. The Relation of a Foreign Government to Contracts. — Justice Harlan held also that a foreign government could not pass laws which the United States need recognize by in- ternational comity. This theory is brought out in his dis- sent in Canada Southern R. Co. v. Gebhard, 109 U. S. 527. A railroad company chartered in Canada had, in 1871, made a bond issue which was to pay seven per cent interest, to be collected in New York, the bonds to mature in 1906. In 1873 the company found it impossible to pay the interest on the coupons, and made a new issue of bonds, stipulating that the principal and interest should be paid within a short time, also in New York, thus making possible the payment 56 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [462 of interest on the coupons of the former issue. Upon the maturity of the second bond issue the company was unable to meet its obligations. To remedy the situation the Par- liament of Canada passed a statute providing for the sur- render of the old bonds, bearing seven per cent interest, and the substitution of other bonds, maturing at a later date, and bearing a less rate of interest. The case was fought out in the United States circuit court, where the decision was that such a statute was an impairment of the obligation of contracts, and a judgment was issued against the railroad company. Upon appeal to the Supreme Court, the deci- sion of the lower court was reversed. The reasons for the decree of the court were these : In the first place, the statute of Canada was in the nature of bankruptcy or foreclosure proceedings, and was not different in purpose from similar proceedings here; and, in the second place, international comity made it necessary that the United States recognize the validity of the act of the Canadian Parliament. Neither of these contentions met with Justice Harlan's ap- proval. He claimed that the proceeding was significantly different from bankruptcy or foreclosure proceedings in that the creditors had not been allowed their day in court. " It is unlike a composition in bankruptcy in this : that whereas a composition is never had except upon notice, so that credi- tors may have their day in court, with opportunity to show that the proposed composition should not be made, here, no such opportunity was given to the holders of this company's bonds, in any court or other tribunal, to show that the ar- rangement which the Canadian Parliament sanctioned ought not, in justice, to be made; but the arrangement was, by legislative enactment, made absolutely binding upon every bondholder and stockholder, even those who are citizens of other countries." To the second contention he objected that it was not fair to allow Canada to deny to American citizens what the American government could deny neither to them nor to citizens of Canada. " In this country, no State can 463] IMPAIRMENT OF OBLIGATION OF CONTRACTS 57 pass any law impairing the obligation of contracts; the Constitution of the United States forbids such legislation. And the principle is founded in justice, independently of this constitutional provision. ... A citizen of Canada, or ever a railway corporation of that Dominion, could have the benefit, in our courts, of the constitutional inhibition upon state laws impairing the obligation of contracts." The conclusion is as follows: "As I do not think that a foreign railway corporation is entitled, upon principles oi international comity, to have the benefit, in our courts — ^tc the prejudice of our own people and in violation of theii contract and property rights — of a foreign statute which could not be sustained had it been enacted by Congress oi by any one of the United States, with reference to the ne- gotiable securities of an American railway corporation ; anc as I do not agree that an American court should accord to i foreign railway corporation the privilege of repudiating its contract obligations to American citizens, when it must den} any such privilege, under like circumstances, to our owi railway corporations, I dissent from the opinion and judg ment of the court." It is seen, therefore, that according to Justice. Harlan'i doctrine the United States need not recognize that a f oreigi government has any more right to pass laws impairing thi obligation of contracts of American citizens than has th( home government. To sum up Justice Harlan's doctrine of the obligation o contracts: He believed that the enforcement of valid con tracts was a right to which all people were entitled and tha the right lay deeper than any express command or limitation being founded in abstract justice. Holding this view, h would not give his assent to any state law that impairec the obligation of contracts, and he thought that the neces sary proceedings should always have been taken to preven any impairment of state contracts, whether in regard to th( State's own contracts or those of private citizens. More over, he contended with equal vigor that there was just a; 58 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [464 sacred a duty on the part of the United States not to im- pair in any way the obligation of legal contracts. Further- more, he thought that the courts of the United States should always pronounce against the recognition of the right of any foreign government to impair contracts of the citizens of the United States, in the same way in which they would or should oppose such impairment here. CHAPTER III Due Process of Law Just as it is practically impossible to get an exact and final definition of the expression "due process of law" to fit the general study of constitutional law, so it is difficult to state positively what any one person has conceived it to be. Justice Harlan has in several places set forth decided opinions as to this conception. As he was inclined to be strongly nationalistic in his tendencies, one would suppose that he would have wanted to give it a broader interpreta- tion than the court as a whole has found it fitting to do. This, however, is not entirely true. In some respects he did wish to make the meaning broader than the court had decided, but in the majority of cases his view was a more limited one. Before taking up the various instances in which he has dififered from the court and in which his decided convic- tions on this subject will be in the foreground, some quo- tations illustrative of his general doctrine will be given. In his dissent from Hurtado v. California, no U. S. 516, he gives the following quotation from a former decision^ as expressing his opinion: "The Constitution contains no de- scription of those processes which it was intended to allow or forbid. It does not even declare what principles are to ■be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so con- strued as to leave Congress free to make any process ' due process of law ' by its mere will. To what principles are 1 Murray v. Land and Improvement Co., 18 How. 272. 59 6o CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [466 we to resort to ascertain whether this process enacted by Congress is due process? To this the answer must be twofold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and stat- ute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." According to this opinion, to ascertain whether any legis- lation or any governmental act of any kind is contrary to the prohibition in the Constitution as to due process of law, two questions must be asked : First, is there any other pro- vision in the Constitution which forbids it? If so, it is, of course, not due process of law. Secondly, do the customs and practices of English law forbid? If so, it is not due process. Though the first criterion is definite, the second may give rise to much dispute. According to Justice Har- lan, however, these criteria furnish safe guides in ascer- taining whether any act is constitutional within the meaning of that clause of the fourteenth amendment. A quotation from Justice Harlan's dissent in the Hurtado case will show his position : " ' Due process of law,' within the meaning of the national constitution, does not import one thing with reference to the powers of the States, and another with reference to the powers of the general gov- ernment. If particular proceedings conducted under the authority of the general government, and involving life, are prohibited, because not constituting that due process of law required by the 5th Amendment of the Constitution of the United States, similar proceedings, conducted under the authority of a State, must be deemed illegal as not being due process of law within the meaning of the 14th Amend- ment." As will be shown presently, the court has not held to this view. But it is a strange sort of interpretation, according to Justice Harlan, which explains due process 467] DUE PROCESS OF LAW 6 1 differently for two different spheres of government under tlie same constitution. Another quotation, from Justice Harlan's dissent from Taylor v. Beckham, 178 U. S. 548, will be appropriate here : " The liberty of which the 14th Amendment forbids a state from depriving anyone without due process of law is some- thing more than freedom from the enslavement of the body or from physical restraint. In my judgment the words 'life, liberty, or property' in the 14th Amendment should be interpreted as embracing every right that may be brought within judicial cognizance, and therefore no right of that kind can be taken in violation of ' due process of law.' " Life and Liberty. — The question of deprivation of life or liberty without due process of law involves mainly the mat- ter of criminal procedure. In fact, Justice Harlan's doc- trine appears most clearly in his dissents from cases involv- ing trial by jury, — cases in which trial by jury has been limited. The first and chief case on this subject was that of Hurtado v. California, no U. S. 516. This case involved an indictment without grand jury of a person who was accused of murder. The case was taken to the Supmere Court of the United States, on the ground that the statute of California which allowed such a procedure was unconstitutional in that it deprived the criminal of his life without due process of law. The question for the court to decide, then, was whether denial of indictment by grand jury constituted a denial of due process of law. The decision in this case was delivered by Justice Mat- thews, and his arguments may be summarized as follows; (i) Referring to the test for due process of law as given in Murray v. Land and Improvement Co., quoted above, he said that this is not the only test for due process of law. " This, it is argued, furnishes an indispensable test of what constitutes ' due process of law ' ; that any proceeding other- wise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, can- not be regarded as due process of law. 5 62 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [468 " But this inference is unwarranted. The real syllabus of the passage quoted is, that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country ; but it by no means follows, that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. . . . But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unohange- ableness attributed to the laws of the Medes and Persians." This declaration is reenforced with the statement that such a principle might require trial by ordeal. (2) Since the words " due process of law " were used in the fifth amend- ment in connection with the constitutional guarantee of trial by jury, and in the fourteenth without this guarantee, it may be taken that this omission gives room for allowing the States to abandon jury trials. " If in the adoption of that Amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the States, it would have embodied, as did the 5th Amendment, express dec- larations to that effect. Due process of law in the latter refers to that law of the land, which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the 14th Amendment, by parity of reason, it refers to that law of the land in each State, which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure." 469] DUE PROCESS OF LAW 63 It is seen that the contention of the court was that the institution in cases of felonies of a procedure other than jury trial did not abridge a right guaranteed by the Consti- tution because, in the first place, due process of law might mean more than had been previously recognized as proper procedure, otherwise progress in criminal procedure would be thwarted. In the second place, since the provision re- garding due process of law as given in the fourteenth amendment was inserted without a special stipulation re- garding jury trial, it could not be taken to mean that trial by jury was necessary. Then follows this definition of due process of law : " It follows, that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legis- lative power, in furtherance of the general public good, which regards and preserves these principles of /liberty and justice, must be held to be due process of law." These contentions did not meet Justice Harlan's approval. In answer to the first argument of the court he showed that usage and custom both in England and in the United States required that criminal cases be tried only by a jury. In addition to the fact that this requirement had been made in the Constitution of the United States, it had been made in the constitution of practically every State. A custom which had received such sanction was not to be lightly brushed aside as a relic of barbarism. In other words,, it was so predominant a characteristic as to require a consti- tutional amendment before it could be done away with anywhere in the United States. In answer to the second contention of the court the fol- lowing argument was made by Justice Harlan: "This line of argument, it seems to me, would lead to results which are inconsistent with the vital principles of republican gov- ernment. If the presence in the 5th Amendment of a spe- cific provision for grand juries in capital cases, alongside the provision for due process of law in proceedings involv- ing life, liberty or property, is held to prove that due process 64 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [47O of law did not, in the judgment of the framers of the Con- stitution, necessarily require a grand jury in capital cases, inexorable logic would require it to be, likewise, held that the right not to be put twice in jeopardy of life and limb for the same ofjfense, nor compelled in a criminal case to testify against one's self (rights and immunities also spe- cifically recognized in the 5th Amendment) were not pro- tected by that due process of law required by the settled usages and proceedings existing under the common and statute law of England at the settlement of this country. More than that, other Amendments of the Constitution pro- posed at the same time, expressly recognize the right of persons to just compensation for private property taken for public use; their right, when accused of crime, to be in- formed of the nature and cause of the accusation against them, and to a speedy and public trial, by an impartial jury of the State and district wherein the crime was committed ; to be confronted by the witnesses against them;, and to have compulsory process for obtaining witnesses in their favor. ... If the argument of my brethren be sound, those rights (although universally recognized at the establish- ment of our institutions as secured by that due process of law which for centuries had been the foundation of Anglo- Saxon liberty) were not deemed by our fathers as essential in the due process of law prescribed by our Constitution; because — such seems to be the argument — had they been regarded as involved in due process of law, they would not have been specifically and expressly provided for, but left to the protection given by the general clause forbidding the deprivation of life, liberty or property without due process of law. . . . " So that the court, in this case, while conceding that the requirement of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect, that an immunity or right, recognized at the common law to be essential to personal security, jealously guarded by our National Constitution against violation by any tribunal or 47 1] DUE PROCESS OF LAW 6$ body exercising authority under the General Government, and expressly or impliedly recognized, when the 14th Amendment was adopted, in the Bill of Rights or Consti- tution of every State in the Union, is yet, not a funda- mental principle in governments established, as those of the States of the Union are, to secure to the citizen liberty and justice and, therefore, is not involved in that due process of law required in proceedings conducted under the sanc- tion of a State."^ The case of Hurtado v. CaHfornia seems to be the most significant case in which there is an answer to the question as to the relation of due process of law to trial by jury. There is no express constitutional stipulation that a State shall not deprive persons of the right of trial by jury; hence, if a State does enact a law which denies this right to its citizens, the only constitutional stipulation under which the law may be tested by the Supreme Court of the United States is that in the fourteenth amendment which says that life, liberty, or property shall not be denied by a State to any person without due process of law. When the question as to the denial of the right of trial by jury has been contested under the laws of the United States proper, the plaintififs have preferred to bring up the cases under the express limitation upon the United States that jury trial shall not be denied. The cases of Hawaii v. Mankichi, 190 U. S. 197, and Schick v. United States, 195 U. S. 65, are typical cases in this connection. The first will be discussed under the topic of judicial legislation^ and in the comments upon the In- sular Cases,* and may be omitted here. Although the case of Schick V. United States cannot be said to bear directly upon the question of due process of law, it can best be dis- cussed here as illustrative of Justice Harlan's belief that 2 See Thompson v. Utah, 170 U. S. 343, where Justice Harlan in rendering the majority opinion stated that criminal procedure must be by jury trial in all territories of the United States. 3 See pages 197-198. * See pages 185-188. 66 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [472 trial by jury is a fundamental doctrine, and one not to be dealt with lightly, as the court has at times showed a tend- ency to do. The question to be settled in this case was whether a man accused of crime could waive trial by jury. The plaintififs in error had been prosecuted after a trial by information in a district court of the United States for violation of a national law which required that oleomargarine should be stamped in a certain way. The court held that since the fine could not exceed fifty dollars, this was a petty offense, and hence was not meant to be included within the third article, which states that " the trial of all crimes, except in cases of impeachment, shall be by jury." The argument was (i) that the clause did not necessarily embrace offenses like this one. In support of this assertion the court went into the history of the clause. The fact that the constitutional convention had changed the phrase " crim- inal procedure " to the word " crimes " argued in the mind of the court that the word crimes was meant to embrace only those of deeper significance. (2) If a man guilty of murder may, by pleading guilty and throwing himself upon the mercy of the court, do away with trial by jury, why could not one informed against for a petty offense waive the trial by jury? In dissenting in this case Justice Harlan showed that the whole wording of the act went to show that all crimes were meant to be included within its scope, and that history did not bear out any other interpretation of the requirement in the Constitution that trial by jury should be always upheld. Since, therefore, every consideration went to show that the charge in question was a crime within the meaning of both the statute and the Constitution, the only legal mode of procedure was that of trial by jury. He thereupon pro- ceeded to examine the bearing of history on that particular case, and found that nothing in the practices of English law justified the trial of such a case in any other way. His answer to the contention of the court that the plain- 473] DUE PROCESS OF LAW 67 tiflf had a right to waive trial by jury is well worth quoting: " In this connection we are confronted with the broad state- ment, found in some adjudged cases as well as in elemen- tary treatises, to the effect that a person is entitled to waive any constitutional right, of whatever nature, that he pos- sesses, and thereby preclude himself from invoking the authority of the Constitution for the protection or enforce- ment of that right. It is suggested that even when charged with murder he may plead guilty, and that the court there- upon, without the intervention of a jury, may pronounce such judgment as the law permits or authorizes. And it is confidently asked by those who make that suggestion. Why may not one charged with a misdemeanor, and pleading not guilty, waive a jury altogether, and consent to be tried by the court ? This argument will not stand the test of reason. It proceeds upon the ground that jurisdiction to try a crim- inal case may be given by consent of the accused and the prosecutor. But such consent could have no legal efificacy. Undoubtedly one accused of murder may plead guilty. But in doing so he renders a trial unnecessary. The Constitu- tion does not prohibit an accused from pleading guilty. His right to do so was recognized long before the adoption of that instrument; and it was never supposed that such a plea impaired the force of the requirement that a trial for crime, under a plea of not guilty, shall be by jury. It is not to be assumed that the Constitution intended, when pre- serving the right of trial by jury, to change any essential rule of criminal practice established at the common law, before the adoption of the instrument. When the accused pleads guilty before a lawful tribunal he admits every ma- terial fact well averred in the indictment or information, and there is no issue to be tried ; no facts are to be found ; no trial occurs. After such a plea nothing remains to be done except that the court shall pronounce judgment upon the facts voluntarily confessed by the accused. What the Con- stitution requires is that the trial of a crime shall be by jury. If the accused pleads not guilty, there must, of necessity, 68 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [474 be a trial ; for by that plea he puts ' himself on his country, which country the jury are'; he contests, by that plea, every fact necessary to establish his guilt; he is presumed to be innocent ; nothing is confessed ; and the facts neces- sary to show guilt must be judicially ascertained, in the mode prescribed by law, before any judgment can be rendered." Justice Harlan's answer to the contention of the court that a man may waive trial by jury is based upon the fact that he had not /pleaded guilty. If he has pleaded guilty, of course, as Justice Harlan said, there will be no need for trial; the case is determined, and the only thing that re- mains to be done is to administer the penalty. In other words, the jury is to determine whether a man is guilty or innocent, when he pleads not guilty. This is the only method allowed by the Constitution. Justice Harlan's con- stitutional doctrine is that the only process of law by which a man may be deprived of his life or liberty is by complete jury trial, according to the customary meaning; and so long as the Constitution reads as it does, there is no other recourse, either for the government or for the accused. \l Property. — The court has in many cases been called on to determine what is and what is not property, and has pro- nounced some things not to be property which Justice Har- lan thought ought to be considered such; but it cannot be said that it has declared anything to be property which he thought ought not to be so considered. There are several interesting cases bearing on this point. The case of Loui- siana V. Mayor, etc., of New Orleans, 109 U. S. 285, was an early one in Justice Harlan's experience. The case involved a statute of Louisiana which made the locality in which mob violence had been the cause of de- struction of property responsible for such destruction. The case has been explained in the chapter on the obligation of contracts.^ A judgment having been secured against the city of New Orleans for property destroyed, the city re- 5 See page 49. 475] DUE PROCESS OF LAW 69 fused to make payment, on the ground that there were insufficient funds in the treasury, and that it was impossible, under the statute of Louisiana which hmited the amount of assessment, to collect taxes to meet this obligation. The question was, did this later statute, which prohibited an assessment beyond a certain percentage, deprive the person who held the judgment of his property without due process of law? The court, speaking through Justice Field, did not answer this question exactly in the negative, but gave an answer which amounted to the same thing. The discussion by the court of this point is very brief. Justice Harlan, however, in his dissent dwells on it at length. The court spoke as follows : " Conceding that the judgments, though founded upon claims to indemnity for unlawful acts of mobs or riotous assemblages, are property in the sense that they are capable of ownership and may have a pecuniary value, the relators cannot be said to be de- prived of them so long as they continue an existing liability against the city. Although the present limitation of the taxing power of the city may prevent the receipt of suffi- cient funds to pay the judgment, the Legislature of the State may, upon proper appeal, make other provisions for their satisfaction. The judgment may also perhaps be used by the relators or their assignees as offsets to demands of the city; at least it is possible that they may be available in various ways. Be this as it may, the relators have no such vested^ rjght in Jhe_ taxing power of the city as to render its diminution by the State, to a degree„aJ6E.ecting the present cqlleCttoff-afiiiEir judgments, a deprivation of their property in t^he_sense^f the constitutional prohibition. A party cannot be said Jo be deprived of his property in a judgment because at the time he is unable, to collect it." This gives in full the bearing of the opinion upon the point of due process of law. The rnain part of the opinion is devoted to showing that the statute in question did not impair the obligation of contracts. The question of due process, which Justice Harlan thought ought to have de- / "JO CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [476 termined the case for the plaintiffs, was therefore slurred over. It is seen that the argument was not that the judg- ments were not property, but that they were not property in the sense that their immediate collection could be forced. The contention of the court on this point did not suit Justice Harlan. He knew that there were ulterior motives behind the plea of the city that there was no money in its treasury to meet these obligations. To him these judgments constituted a just debt which ought to be paid. He therefore undertook to prove that judgments are property, and that the statute was unconstitutional in that it deprived the owner of their enforcement. " Its value as property _de- pends in every legal sense upon the remedies which the law gives to enforce its collection. To withhold from the citi- zen who has a judgment for money, the judicial. means of enforcing its collection; or, what is, in effect, the same thing, to withdraw from the judgment debtor, a municipal corporation, the authority to levy taxes for its payment, is to destroy, the value, of Jhe judj^nient as prope;rty. . -- • If the, property of the citizen is 'taken,' within the meaning of the Constitution, when its value is destroyed or permanently impaired through the act of the government, or by the acts of others under the sanction or authority of the govern- ment, it would seem that the citizen holding a judgment for money against_a,Jiiunicipal corporation — v^jhidi-jlldg- ment is capable of enforcement by judicial proceedings at the time of its rendition — is deprived of his. proper^' wifh- 0UL.4H.?- proces_s of law, if the. State, by a. subsequent^ law, S2_i:educes the rate of laxation as to make it impossible for- the corporation to- satisfy such judgment. Since the value of the judgment, as property, depends necessarily upon the remedies given for its enforcement, the" with- drawal of all remedies for its enforcement, and compelling the owner to rely exclusively upon the generosity of the judgment debtor, is, I submit, to deprive the owner of_his property." In reply to the contention of the court that the judg- 477] DUE PROCESS OF LAW 7 1 ments were still existing liabilities againat. the- city, Justice Harlan said : " My answe r is. th at such liability_im ihe-^part of the city is of no consequence^ unless, when payment is refused, it can be enforced by legal proceedings." Another case which involved a somewhat similar con- sideration came up from West Virginia. It was the case of Freeland_ v\ William s. 131 U. S. 405, and was a_ ciuestion^ of^ trespass which took place during the Civil W ar. Free- land while a soldier had taken cattle from Williams. Wil- liams sued Freeland and received judgment. After this proceeding, a new constitution went into effect for West Virginia, a section of which relieved persons of such debts incurred during the Civil War. One of the questions ^yas, did thatsection of the constitution of West Virginia wjiich_ made it imposs ible for Williams to collect the money on his judgment take property without due process of law ? The courtj^ speaking through Justice Mijler, sa id that it did not . J ustice Harlan i n his dissen t said that it did. In giving the reasons for its decision, the court spoke as follows : " Was it competent for that convention to establish a rule of law which is now the recognized rule of this court, and perhaps of all the courts of the United States, which is commended by the highest authorities, and which is emi- nently adapted to the purpose of quieting strife and securing repose after the turmoils of a civil war, although the prin- ciple asserted was in opposition to that held by the supreme court of appeals of the State? That this principle would govern all cases where the act for which the party was sued occurred after its establishment does not admit of question. That it was the law of the country before its adoption by the State constitution there is as little doubt. Shall it_be held to be incapable of enforcement and for- bidden by the Constitution of the United States because it is made to cover jiidgments already rendered in violation of the principle asserted? The Constitution of the State remedies the defects of the proceeding by bill in chancery ; it creates no new process of law ; it makes that which always r / 72 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [478 has been due process of law efficient by removing objections and obstructions to its operation. It simply declares that a judgment for a wrong or tort, which in itseltwaB-«rroneous, is a voidable- judgment, and may be voided, if it can be brought -within due process of law already existingi_and shall by this means be inquired into, and if it is agai nst righ t, ju sti ce,"" and Jaw, shall be no longer in force, and_the4udg» mgat..£laintiff shall be forever enjoined from putting it into execution." Thus it is seen that the argiamenToFtEF court ainouh ls to saying that it is no t unconstitutional for a Sta te so to amend its constitution as to take property a s long as the^means through which that property is. taken ar&-not..in_ conflict with a process of law which has become widely recognized as due process of Jaw. Justice Harlan could not accept that doctrine. In his dissent is found the following opinion: "if the taking, of cattle was illegal, the right to recover from the wrong-doer their-reascttiable value was an absolute one, of which the owner could not be deprived by a legislative enactment of the State, or by an amendment of its Constitution. The_ judgmCTit-obtained_ by Freeland^ was an adjudication that the taking was ille gal. He acquired by that judgment a vested right to have and demand the amount named_in_it, as well as the benefit of such rOTfi.dies_as.the law^gav-e-fer the, .en.fx>rcement_af_pei:sonaL judgments for money. The judgment was, therefore, property of which _the State could not deprive-him, except by due process of law.. And a con- stitutional provision, subsequently enacted, declaring that the defendant's property should not be seized or sold under final process, on .such- judgment, is not due process. of4aJ'v. I cannot agree that a State may, by amendm ent of its fuod a- jpental law, prevent a citizen from reco vering the yp^'"* pf p roperty, of which., acc o rding to the final 4udgmeat-.o£Jts own courts , he has been illegally deprived by a mere-tr-es- paasfir, — That would be sheer spoliation under the forms of law. If Jhe amendment in question had, in terms, given the defendant a right to a new trial, of the action of trespass 479] DUE PROCESS OF LAW 73 in the same court, after the time had passed, within which, according to the settled modes of -procedure, he could, of right, apply for a new trial, it would have accomplished, in respect to the judgment against him, precisely what, in effect, has been held by this court to be consistent with the Fourteenth Amendment. . . . "The only possible ground upon which the judgment below can be sustained, consistently with the law of the land, is to hold that no court of any State had any juris- diction in the year 1867, even with the parties before it, to inquire, in any action of trespass, whether an alleged taking of the private property of a citizen was a mere trespass, or was an act of war upon the part of the defendant, a Con- federate soldier, and to give judgment according to the result of that inquiry." Fro m the above cases it may be deduced that Justi ce Harlan considered a judgment as property within the meaning of th e "Constitution of the U nited Stat"ei7i Hd~Ti eH that a ny acti on taken bjy the State to render ineffe ctive th e collection of such judgment amount^ to the taking of property: without due process ofjlaw. It is frue_that jthe co urt did not hold that a judgm ent was not property, but it did^ol d that jthe action on the part jof^the ^tate did not amount to the taking of property without due process of Jaw. Since. HoweveT: th e action of the.S tate destrnyjad-the valu e of the judgmgit-in the-hands oi. the-owner, Tugtice Harlan contended that property ha.d been_takgn. No_dDubL the court femKaTa~certain conclusiqn^had to be reached, and that it was merely a matter of making the decision appear constitutional, or rather of seeming to justify an act as constitutional. Justice Harlan did not hold with such reasoning; with him the Constitution was too sacred for such twisting. The decision of the court may have been wise, but a contrary decision could certainly have done little to stir up any additional animosity. The case of Backus v. Fort Street Union Depot Co., 169 U. S. 557, involved a somewhat complicated question of r ^4 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [480 procedur e. The cont entio n between the cotii±-aad_Justice IlarlaiiT" however, was on the definite point of: taking property without due process^ of law. TKe"cars"e~catne up from the supreine'^ourt_o|_^i_chigan. The plea had been made that in a jury trial to determine whaJt_should btjust compensation for property condemned for public use^^ just compensation had nqf ~been_giyen because tbe^ judge had iiqtjgroperly charged the jury. The CDndfimnation was oF a -factatjusite, and the plain- tiffs claimed that they should have had, in addition to the value of the property taken, the profits which they lost by changing the location of their factory, that is, during the time consumed by this change. The court said that the finding of the jury was due process of law, and that hence no property was unduly taken. No particular argument needs to be noticed. The^cgurt said that it was due process, and Justice Harlan saidthat it was^jiQt. He co5clu3^~as follows : " Without referring to other matters, discussed at the bar and in the elaborate brief of counsel, I place my dissent from the opinion and judgment of the court upon the ground thatj;hetria,l. court committed error in its charge to the jury as to the principles which should guide them in determining the just compensa- tion to which the plantiffs in error were entitled." There was little question that the plaintiffs had not received full compensation for their property rights, and Justice Harlan doubtless appreciated that fact. One of the most interesting and hotly contested cases that ever came up to the Supreme Court for determination of the meaning of property in connection with its seizure with- out due process of law was that of Ta.5dQiiVj_^Beckham, 178 U. S. 548. This case came up from the Supreme Court of Kent ucky , and involved the question of the election of the governor of that State. THFfacts lii the case werenbTiefly as followsTTaylor and Marshall were the Republican candi- dates for the governorship and lieutenant-governorship re- spectively of Kentucky. Goebel and Beckham were the 48 I J DUE PROCESS OF LAW 75 Democratic candidates. According to the election returns, Taylor and Marshall, the Republican candidates, were elected. The Democratic candidates filed a protest and pro- ceeded to contest the election. According to the constitu- tion of the State, the method of settling a contested election is to select by lot a number of men from each house of the General Assembly, who are to investigate the election and report as to who was elected. This was done, and when the committee returned its decision, it was in favor of the Democrats. Soon thereafter Goebel was shot, supposedly by Taylor, or at his instigation. The fight was nevertheless continued by the candidate for the lieutenant-governor- ship, Beckham. The committee to investigate the election decided, seemingly without any formal investigation, that Goebel and Beckham had received the majority of the votes cast and were elected. But Taylor would not surrender the office to Beckham, whereupon the latter took the case into the state supreme court. There the decision was rendered in favor of Beckham. Taylor j:hen.cai;ried, his appeal to the Supreme Court of the United States, claiming that the ac- tioiTot the legislature is not making a fair investigation' of the election returns, and of the supreme court of the State in rendering its decision against him, had deprived him of his property without due process of law. In con- nection with this claim was also set up the plea'thar'the summary fashion in which the investigating committee had arrived at its decision amounted to a denial of the republican form of government. Justice Harlan did not dwell on that point as much as on the question of due process of law. The court-di smissed the ca se for want of jurisdictioiujapon the ground Aat a jpublic_^Qfficejs.jnLOt^prop£rtyL within the meaning^ of the Constitution, and that the wAPie_ question was political. Justice.Harlan thought tba±- the xour.t- aught to have taken jurisdiction ajid d&daEgd.to whom the^fficebelorigfid. _He^ thought that jthe right to an officejwas,^^^ ship of which could not be interfered with without due 76 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [482 process of law. He said: "The- majority of this court decide that an office held under the authority of, a State cannot in any case be deemed property within the meaning of the 14th Amendment, and hence, it is now adjudged, the action of a state legislature or state tribunal depriving one of a state office — ^under whatever circumstances or by whatever mode the result is accomplished — cannot be re- garded as inconsistent with the Constitution of the United States. Upon that ground the court declines to take juris- diction of this writ of error. If the court had dismissed the writ, or affirmed the judgment upon the ground that there had been no violation of the principles constituting due process of law, its action would not have been followed by the evil results which, I think, must inevitably follow from the decision now rendered." ' From this it appears that Justice Harlan did not base his objection to the decision so much upon the assertion that in this particular case one had been deprived of property without due process of law, as upon the assertion of the court that public office cannot under any circumstances be considered property. It is clear, however, that he thought a proper investigation of this case would have found that the one who held office was not the one who had received the majority of the votes. It might have been difficult for the court to find that there was not deprivation without due process of law if public office had been declared to be prop- erty, yet if it were property the question should have been answered. Justice Harlan furthermore challenged the assertion that precedent gave no grounds for determining whether a man had been deprived of his office without due process of law. He found by an examination of former decisions that whenever the dispute had been between individuals, public office had been considered a property right, whereas when the dispute was between the individual and the State, it had not been considered a property right. In the case of Kennard v. Louisiana, ex. rel. .Morgan, 92 U. S. 480, he 483] BUE PROCESS OF LAW TJ found that the court had determined- this very point. The clainaJiad been advanced in that case that the State, through her judiciary, had deprived Kennard of his office without due process of law. But the court took jurisdiction of the case and affirmed the judgment of the supreme court of Louisiana upon the ground that the requirement in the fourteenth amendment of due process of law had not been violated. With this case as a precedent, the court refused to dismiss the case of Foster v. Kansas, ex rel. Johnston, III U. S. 201, where the sole issue was as to the right of Foster to hold the office of county attorney. In the case of Boyd V. Nebraska, ex rel. Thayer, 143 U. S. 135, the court had removed Boyd from office as governor of Ne- braska and put Thayer in his place. In the case of Wilson V. North Carolina, 169 U. S. 586, the court had again de- clared that under justifying circumstances it would investi- gate and determine who was rightly entitled to hold office. From these cases it is seen that the court was not without significant precedent to answer the question asked. Justicejlarlan, after reviewing these cases, said_[_"_When„ the Fou,rteenth Amendment forbade any State from depriv- ing any person of life, liberty, or property without due procejs^of law, I had supposed that the intention^of the people of the United. States-was to prevent the deprivation o£. any legal right in yiolation^ofjiie -fundamental .guarantees^ inhering in due process of law. The prohibitions of that Amendment, as we have often said, apply to all theJnstru- mentalities of the state, to its legislative, executive,,, and judicia,l authorities; and therefore it, has .j3gcciJD3fi.,A..S.ettled doctrine in the^constitutional iurigprudence of this country that ' whoever by virtue of public position, ynder .,a._,§.tate goyernment.. deprives another of property, life, or liberty without due process of law . . . violates _ the _constitj4tional inhibition ; and as he acts in the name and for the state, and is clothed with the state's power, his act- is that of the state. This must be so, or [as we have often said] the constitutional prohibition has no meaning.'" 78 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [484 These quotations show sufficiently well the grounds upon which Justice Harlan based his arguments. He evidently- felt that with an impartial tribunal such as he conceived it the duty of the court to be, one that would shut out all other considerations and decide each particular case by an honest application of reason to law, such an explanation of the due process clause would have been a healthful interpre- tation of the Constitution, for it might serve to counteract much trickery in state elections. The difference between what Justice Harl an conceived to be due process Qf__lawjwith._regard_to_ the taxation_of property and the opinion whichjias_l3e£a„g.stablished byjhe decisJOTS q£ the court s.eeiiis_tD-Jia5ie»i:e3aibied_a£8and the sipgle poin t of special .assessnients. In a series of cases involving this question Justice Harlan has held consistently to one— dodxiiie, and he has characteristically asserted it whenever the question has come before the court. Before discussing the cases involving the principle of special assessment, a brief consideration may be advisable of the case of Linford v. Ellison, 155 U. S. 503, in which Justice Harlan was apparently in favor of a tax which contained an element of the injustice imputed to the special assessments as interpreted by the Supreme Court. In this case the court dismissed a suit against the city of Kaysville, in the Territory of Utah, because the amount of money involved did not give jurisdiction. The dispute arose out of the sale of a wagon belonging to a farmer living away from the settled portioiis of the city, to obtain the sum of fifty dollars due under the tax levied by the city. The sale of the wagon was effected by James H. Linford, Jr., the tax collector, and the suit was instituted against him by Ephraim P. Ellison, whose wagon had been sold, under the plea that since his property was too far removed from the city to receive any benefit from being within the corporate limits, the city tax upon his land took property without due process of law. The territorial court sustained his plea. V 485] DUE PROCESS OF LAW 79 and refunded to Ellison the fifty dollars. The case was appealed to the Supreme Court of the United States by the tax collector for a determination of the question whether the tax took property without due process of law. The court dismissed the case, asserting that since the amount involved was less than five thousand dollars it did not have juris- diction. Justice H arlan, however, dissented fronithg,. opinion. He asserted, very ernpiaHSniEihat Jiie.„SuEreme Court was -.called- uporuto-xeview an act of .a .subordinate_ gQ3femmentaL_authonty-w.hich-4iad been accused- of -taking- property without due process of law,-aml-that.£ven if the amount. in_ dispute-did not reach the sum of. five thousand dollars it was nevertheless a question for„. the. court- to answer. In this connection he said : " It isLjiot-disputed- thatthe plainttffi-V- laads-are within.the. limits_of--Kaysv^ille,-as-de- fined bx the act of jthejterjitorial Jfigislature. It is conceded that-the-5eizure of the plaintiff's. wagon for the taxes on his lands was_ legal, if the statute of the territory was con- stitutional so far as it authorized taxes to -be-imposed- on such lands vvithjn the-^efined limits^jof Kaysville, as were agricultural Jands, namely, lands outside of the platted-part - of- -the city, whigk-did not jrecdss. the^Jienefila-of , th€ city government. I submit that there is no disputed question in the case, except that which involves the constitutional power of the territorial legislature, acting under the United States, to authorize the imposition of taxes for city purposes on lands situated as are those of the plaintifif. The facts were agreed and it is apparent that the parties intended to raise no question except as to the validity of the authority exer- cised by the territorial legislature in empowering the city of Kaysville to tax the lands here in question." The case of Norwood v. Baker, 172 U. S. 269, in which Justice Harlan rendered the opinion of the court, c ontains the essence of his doctrine on the poi nt of specia l assegs- mentr~THs""case involved an, .unusually £xpanded_-hurden upon an individualy-and, as Justice Harlan contended, was / 80 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [486 an instance of what m ig ht be continually occurring, thou gh to a less deg;ree, when th £ attempt is not made to fix by the benefit received the proportion of special assessment that persons affected should pay. Here the p roperty condemne d was a strip of land belonging to a Mrs. Baker. The com- pensation made f oF'tEe piece of land was $2000. The special assessment upon the owner amounted to $2218.58. Thus the owner was given less for her land than she had to pay as a special assessment; in other words, the city was charging her $218.58 for taking her land. JThis the court, speaking- throug-h Justice Harlan, held to be taking prop- erty withQUt_iiu£...process of _law. "In "bur judgoilnEIthe exaction from the owner of private property_for_jthe„c.ost of public improvement in substantial excess ^f__t.hfi-sp£cial benefit accruing -to him is, to the extent of such excess, a taking ... of private property for public use without com- pensation. We say 'substantial excess,' becau§g__,exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment." It is thus seen that Justice Harlan did not desire the impossible, — an exact apportionment of the assessment according to the benefits to be derived, but at least an attempt at justice. As has been noted, this decision put an aspect of uncer- tainty upon the law, for prior to this time the so-called frontage rule had been the method of special assessment. When the case of French v. Barber Asphalt Paving Co., 181 U. S. 324, came before the court, the decision of Nor- wood V. Baker was apparently overturned. The later case came, by writ of error, from the supreme court of Mis- souri. Improvements had been made by the Barber Asphalt Paving Company on a certain avenue in Kansas City, Mis- souri. A special taxjiad been_assess€d-uponr4;4ie"Owiiers of lots abutting_pn this avenue, to help ^ay for the^ew_ pave- ments. To this endTiais had been taken upon -those-lots to 487] DUE PROCESS OF LAW 8 1 secure"-tbe--tax,— Xhe-pasdng-company- institated'^ "surffo enforce^ these liens so as to receive payment for_the_!ffiQrk- done^yjhem. The state supreme court decided in favor of the company^ Thereupon an appeal was t aken to the Supr eme Court by Frenc h and others, owners of abutting lotj^jadio asserted that such a ta x amount ed-to- tho takin g of property without due process of law. . T he Suprem e Court affirmed the decision of the state court, and thus reasserted t^SalLdJ^IoOBilliontageTule! In dissenting from this opinion Justice Harl an re asserted the doctrine laid j[Qsaiin_N©*=w0od v. Baker,_andjcriticized the court for jiqL following the precedent set by that case. He furthermore accused the jcourt of_yagueness as to what consideration should guide it thereafter in deciding whether or not a special assessment amounts to the taking of prop- erty without due process of law. H£-£Qntend£d-inofe-vifOT=-- ously than ever that no..sB £cial assessment made~wifchout~ i nquiry as to the benefi ts to be received by the_ia4ividual through^he improvement should be upheld. In conclud- ing he said: "In my opinionjthe judgment Jnjthe..pi:es.eiit case should be reversed upon the ground that, the assessment- iri_g[llgstionwas made_ under a statutory j:MJ,f,jgxcliiding-aU in(juiry as to special bpnefits and requiring the progertx. a,butting on -tbkaxienue in question to meet the entire cost of ^ paving it, even if such cost was in substantial excess of the special benefits, accruing to it ; leaving Kansas City to obtain authority to make a new assessment upon the abutting prop- erty for so much of the cost of paving as may be found upon due inquiry to be not in excess of the special benefits accruing to such property." It may be judged from the above cases thatjusjice- Harlan's constitutional doctrine as to the relation between special taxation and~3ue"proceis of law is that any special tax levied is unconstitutional if it does not at least purport to'give to the person upon whom it is imposed a. JSeiieEt equivHeSioISEe-amount paid.- In other words, he believed that the doctrine promulgated in Norwood v. Baker should -^y 82 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [488 always hold. The exact diflference between, this doctrine and that of the court needs to be noted. ThS-coart-looked - only to th e neighborh ood upon which the asses^ngntJiad been madCj^and tried toTnalce sure that the assessment would not ^greatfiE-than thebenefits to l5e^efived Igj-that-seetion as a section. Justice Harlan wished to look deeper and ascertain whether the individuals who had to pay the money would stand a reasonable chance of getting value received. The illogicality of the court's decree is evident. Under such law it is possible that some will pay for benefits enjoyed only by others. That, however, is the law, and it seems to have been established because of ease of application.® In concluding this review of Justice Harlan's opinions re- garding due process of law, it is seen that he was violently opposed to any alteration of the time-honored jury system ; that he believed that public office should be considered property, of which one could not be deprived without due process of law; and that in levying special assessments attempt should always be made to find out whether the individual is likely to be benefited to the amount of the assessment levied. On each of these points he differed from the court, and stood by these principles to the last. ^ See also Wight v. Davidson, 181 U. S. 374, and Tonawanda v. Lyon, 181 U. S. 389, for similar dissents by Justice Harlan. CHAPTER IV Interstate and Foreign Commerce Liquor Legislation. — The question of interstate and for- eign commerce is probably the most involved one in consti- tutional law. Its difficulty is lessened in the present in- stance by reason of the fact that it v/ill not be necessary to review it in all its aspects. On the questions here involved Justice Harlan held, in certain respects, as decided views as on any other subject. With reference to state liquor l egis- lation there^ are two marlced dissents, jvhich,_though ,tbey are now mamly of historic value, will be of interest in show- ing hisjnsiglit. into what was to come. The two cases are Bowman v. Chicago and Northwestern R. Co., 125 U. S. 465, and Rhodes v. Iowa, 170 U. S. 412./ In the former case there is called into question a statute of the State of Iowa which attempted to forbid the trans- portation of spirituous liquors into that State. The case came up in a suit for damages against the railroad company for refusing because of the Iowa law to accept a shipment of beer from Chicago consigned to a place in Iowa. The court held, in accordance with the plea of the liquor dealers, that the statute in question was unconstitutional, for the fol- lowing reasons : First, it was a burden on interstate com- merce in that it impeded the free interchange of goods be- tween Illinois and Iowa. " In the present case, the defend- ant is sued as a common carrier in the State of Illinois, and the breach of duty alleged against it is a violation of the law of that State in refusing to receive and transport goods which, as a common carrier, by that law, it was bound to accept and carry. It interposes as a defense a law of the State of Iowa, which forbids the delivery of such goods within that State. Has the law of Iowa any extraterritorial force which does not belong to the law of the State of II- 83 84 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [49O linois? If the law of Iowa forbids the delivery, and the law of Illinois requires the transportation, which of the two shall prevail ? How can the former make void the latter ? " Second, the Constitution does not leave it to the States to say what shall or shall not be suitable articles of commerce. To hold otherwise would be to assert that "it has left to each State, according to its own caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured or sold in any State and sought to be intro- duced as an article of commerce into any other." Third, the Iowa law was not a legitimate exercise of the police power. " It is not one of those local regulations designed to aid and facilitate commerce ; it is not an inspection law to secure the due quality and measure of a commodity ; it is not a law to regulate or restrict the sale of an article deemed injurious to the health and morals of the community ; it is not a regu- lation confined to the purely internal and domestic commerce of the State ; it is not a restriction which only operates upon property after it has become mingled with and forms part of the mass of the property within the State. It is, on the other hand, a regulation directly affecting interstate com- merce in an essential and vital point. . . . The right to pro- hibit sales, so far as conceded to the States, arises only after the act of transportation has terminated, because the sales which the State may forbid are of things within its jurisdic- tion." The above outline gives the attitude of the court in this case. The following quotation will indicate the position which Justice Harlan assumed: ^The_fundamen'ta-1— ques- tion, therefore, is vvhether Iowa may lawfully restrict the bringing oX intoxicating liquors from o'therTStates into her limits, by any person of carrier for another person or cor- poration, except such as are consigned to persons authorized by her laws to buy and sell themJor the, spjecia}_ purposes indicated. In considering this question, we are not Jeft to conjecture as to the motives prompting the enactment of these statutes ; for it is conceded that the prohibition upon 49lJ INTERSTATE AND FOREIGN COMMERCE 85 common carriers bringing intoxicating liquors from other States, except under the foregoing conditions,jvvas_adopted as subservient to the general design of protecting the health and morals and the ^eace'¥ria"go65jor3er' of The_£^gle_oif_ Iow.a against _.the. physical and mo ral evils re sultin g froni the unrestricted manufacture or sale of intoxicating liquors." Justice Harlan's- ajaiaiment rests-Jipo-n-tiie-assectioa-*kat- liquors are inherentlv_tiot s uitabl" flr^irye^^ nf ■cojaajwrn-e " It ~ig~gdmitted~t hat a State may jgreyent the introduction.,- within her lirnits,_of_ rags or other goods infected_with diseasCj^or of ^attle-or meat or other.^irQyisioixs-whichrf'rom their con-ditiiafl^'a.re urifit for .huina*i«use or consumptJoa^-be' cause, it4«-said,"glli'ch aEtxeles^are- not merchantable ojJ.egiti>— rriate„,subj-e.cts*.of™±Eade--attdr-€0maiefG€. But suppose the people of a State believe, upon reasonable grounds, that the general use of intoxicating liquors is dangerous to the pub- lic peace, the public health and the public morals; what authority has Congress or the judiciary to review their judg- ment upon that subject, and compel them to submit to a con- dition of things which they regard as destructive of their happiness and the peace and good order of society? If, consistently with the Constitution of the United States, a State can protect her sound cattle . . . she ought not to be deemed disloyal to that Constitution when she seeks by similar legislation to protect her people and their homes against the introduction of articles which are, in good faith, and not unreasonably, regarded by her citizens as 'laden with infection ' more dangerous to the public than diseased cattle, or than rags containing the germs of disease." The^^next argument presented by Justice. Harlajo..-was -that th^framers^ of the Constitution „could not havejntgnded^r- whether Congress had or had^ not chosen to act Jipoa- this subject--^" to withhoid from a State authority to prevent the introduction jnto .hfitlmidst of "articles^ or commodities, the nianufacture_of which^ WJMo. her Hmit_s,^ she coj^iprohiWt^ without impairing Jhe,^ constitutional rights of her_ own people: r: . Even the constitutional prohibition upon jaws 86 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [492 impairing the obligation of contracts does not restrict the power of the State to protect the health, the morals, or the safety of the community, as the one or the other may be in- volved in the execution of such contracts." In further sub- sta^tiatton-o-f— t-he-eonrt-en-tiott-'that--tbe-p olice pow e r"naf --ihe^ .c;tatp allowpd t-h£-S.1^44^tft-fegq4ate -almost anything that l^ d to do__with^4mblic health-attd-morals-hfLxitF.d. the case gf Wilson V. Blackbird Creek Marsh Co., 2 Pet. 245. Other- cases are cited which bear on this point. " The_reseni£d po wen.Qf-the_S±ate&-to ^uard -4heJaeallh,-Jiioials_aiuLaaff ty of-t-heir-peepleis-HioFe vital -to the existence, of ,s O-cietv than their-p0wer4n respect.ta.fccade..and^^G0m»i€.r"€e-ha¥i«g-jiCLpas- sibk-omnection. with those subjects." It is difficult to overemphasize the importance of the case of Bowman v. Chicago and Northwestern R. Co. in its rela- tion to the bearing of liquor legislation of the States upon interstate commerce. This was the first time that such legislation was contested before the Supreme Court. Here, as Justice Harlan showed, the court had plenty of author- ity to declare such legislation constitutional. As a matter of fact^the-coart-ha^to-go-outTjft ts way to doclaro - t be-law UHcenst-itutioaat Here once and for all the relation be- tween liquor legislation and interstate commerce could have been settled by declaring spirituous liquors unfit articles of commerce, of such a kind as ought not to be forced upon the States against their wills. If the decision, therefore, had been made according to Justice Harlan's doctrine, the whole history of this matter would have been changed. There would have been no need for the Wilson Bill, or for the Webb-Kenyon Act which puts into the hands of the States exactly the power that an affirmative decision in this case would have done. The tangle which has resulted iji^ould have been avoided.^ > To ftdtow out the progress of the doctrine 'Of the Su- preme Court relating to the traffic in intoxicating liquors the case of In re Rahrer, 140 U. S. 54S,_must-«e3£t-be con- ^ Note the case of Leisy v. Hardin, 135 U. S. 100, where Justice Harlan concurred in a dissent upon similar grounds. 493] INTERSTATE AND FOREIGN COMMERCE 87 sidered. This case involved-tlie- constitutionality oL a ^tafc ute' of Congress which tried toun6atii£^,:wisdu&L^jaxi£Jx^ the'Bbwnran~ca a.e..^ This ac LJ^noaa i as theJW ilso a Act, pro - vided that " upon arrival " of the liquor i n any State or ter^ ritory ~if should bec5me~subjec t to the laws there. This law was declared constitutional, and seemed to be the remedy for the situa tion. Justice Harlan dissented-^rom±hel5as,Qnmg of the^ courtJtmLagreed with thg,.deCT££. Since no opinion is stated by him it cannot be known upon what ground he differed from the court. It is sufficient to say that in this case a law was declared constitutional which seemed to give the States full power to control the liquor traffic, and that Mr. Harlan agreed that it was constitutional. When, however, a case came up under the Wilson Act, the interpretation which the court gave to the phrase "upon arrival in a State " overthrew the force of the act. In this case, though Justice Harlan did not submit a separate dis- senting opinion, he concurred in one given by Justice Gray.'' This case, EJaQde§_Vi_lQiKa, 170 U. S. 412, arose because of the fact that an officer of the State of Iowa, acting under authority of a state law, had seized and destroyed at the border of the State a shipment of liquor from Illinois. The statute in question was almost identically the same as the one which had been declared unconstitutional in the Bowman case, and the main point to be decided was whether the subsequent act of Congress had made it constitutional for States to pass laws like the one in question. Had Con- gress acted so as to remove the barrier of interstate com- merce from the States in their attempts to pass laws for- bidding the sale of liquor within their borders ? The court held that the statute of the State of Iowa was constitutional, but in order to do so found it necessary so to interpret the Wilson Act that laws passed by the States under its operation were ineffective in driving out the liquor business. The Wilson Act had stipulated that liquor should 2 It must be noted that the case of O'Neil v. Vermont, 144 U. _S. 323, would have involved this same point had the court taken juris- diction. In that case Justice Harlan delivered a stinging dissent because of the refusal of the court to determine the case. 88 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [ become subject to state law " upon arrival in a State," the court so interpreted this phrase that the goods c( proceed to their destination without interruption. "C after their coming into the State and the consummatioi their shipment " did the goods become subject to the 1 of the State. " The words ' shall upon arrival in such s or territory be subject to the operation and efifect of laws of such state or territory ' in one sense might be 1 to mean arrival at the state line. But to so interpret tl would necessitate isolating these words from the entire ( text of the act, and would compel a construction destruc of other provisions contained therein. But this would vie the fundamental rule requiring that a law be construed whole, and not by distorting or magnifying a partic word found in it. It is clearly contemplated that the vi ' arrival ' signified that the goods should actually come the State, since it is provided that ' all fermented, distil or other intoxicating liquors or liquids transported inl state or territory,' and this is further accentuated by other provision, ' or remaining therein for use, consumpt sale, or storage therein.' " "This language .makes_it_imBossiys_in--xeasoa—ta.J that the Taw Inteiiaed- that "tire- word ' arrival-— sht mean at the state line, -since it presupposes_the comin| the goods into JJi£_^ate_-fcu:-l-us€y-CQnsumption, .sale, storage.' " It is easy to see thrnarafS~ofT;he argument. BjiSd ing in the use oL.the.".suhtle. signification of words and niceties of verbal distinction" which they con3emn_as furnishing a safe guide, the judges came, to their conclus But-it-must be added that this "was done under the assu tionjaj!- the, court that .unless-such a meaning were atta( toJlie_word " arrival " the act would not have heeiojCQl — tutienals — Natural^ the dissenting opinion centered its arguti in th&-wor-d"" arrival." It contended that no such disto meaning needed to be attachedtS that Word' in orde 49S] INTERSTATE AND FOREIGN COMMERCE 89 allow -tlie Wilsnn Art fn stanH It-ass erted and reinforced the assertion that liquor legislation was a legitimate subject for the police jpowerof "the State. That being true, there was little question thaF the"act~of Congress was constitu- tional under the broader interpretation of the word "ar- rival," which was quoted as follows from Chief Justice Marshall : " ' To arrive ' is a neuter verb, which when ap- plied to an object moving from place to place designates the fact of ' coming to ' or ' reaching ' one place from another, or coming to or reaching a place by travelling or moving towards it. If the place be designated, then the object which reaches a place has arrived at it. A person who is coming to Richmond has arrived when he enters the city. But it is not necessary to the correctness of this term, that the place at which the traveller arrives should be his ultimate destina-. tion, or the end of his journey. A person going from Rich- mond to Norfolk by water arrives within Hampton Roads when he reaches that place; or if he diverges from that direct course he arrives in Petersburg when he enters that town. That is, I believe, the universal understanding of the term."^ As is of course known, there has been another act of Congress which in its meaning amounts to making it unlaw- ful for any fermented liquors to be carried into any place where the people have voted it out. The violations of this act the States are left to punish as violations of their laws. It seems to be generally accepted that this act will be de- clared constitutional. The situation is now just about as it would have been had the Bowman case been decided accord- ing to Justice Harlan's doctrine. Spirituous Uquors have practically been declared an article that a State, if it pleases to do so, may designate as unfit to be carried within its borders. Race. — ^Justice Harlan's attitude regarding legislation as to race distinctions in interstate commerce may readily be guessed. The question seems to have come up only as re- 3 The Patriot, I Brock. 407. go CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [491 gards the Jim Crow laws. There are two cases which ar strongly in opposition to each other. In the one. Hall ■v Decuir, 95 U. S. 485, the Supreme Court declared uncon stitutional a statute of Louisiana which forbade the separa tion of races on steamboats, as being a burden placed by ; State upon interstate commerce; and in the other, Louis ville, N. O. and T. R. Co. v. Mississippi, 133 U. S. 587, i declared valid a law of Mississippi which required that th^ races be separated on the trains as not being a burden im posed by the State upon interstate commerce. A full dis cussion of the latter case will be sufficient to give the impor of both. From the first decision Justice Harlan did no dissent, but from the other he did. The case came by wri of error to the Supreme Court of Mississippi to pass upoi the constitutionality of 3. statute of that State which requirec separate coaches for colored people. The railroad com- pany violated that law in refusing to furnish separate ac- commodations, and argued that the statute was unconstitu- tional in that it amounted to a regulation of interstate com- merce. In rendering the decision, the court, speaking through Justice Brewer, asserted that the statute affected commerce only within the State, and was therefore within the powei of the State to pass. The main contention between Justice Harlan and the court was as to the precedent set by Hall v Decuir. Justice Brewer attempted to explain away thai case as follows : " So the decision was by its terms caref uUj Hmited to those cases in which the law practically interfered with interstate commerce. Obviously whether interstate passengers of one race should, in any portion of their jour- ney, be compelled to share their cabin accommodation with colored passengers, was a question of interstate commerce, and to be determined by Congress alone. In this case the supreme court of Mississippi held that the statute applied solely to commerce within the State ; and that construction, being the construction of the Statute of the State by the highest court, must be conclusive here. If it be a matter 497] INTERSTATE AND FOREIGN COMMERCE 9 1 respecting wholly commerce within the State, and not in- terfering with commerce between the States, then obviously there is no violation of the commerce clause of the Federal Constitution." The two cases seem to admit tacitly that the Supreme Court of the United States will hold statutes dis- criminating against colored persons constitutional if the state courts will uphold them, but they do not seem to say that the court will declare statutes of the same nature un- constitutional if declared unconstitutional by the state courts. This doctrine did not meet with Justice Harlan's approval. Commenting on the differentiation made by the court, he said : " In its application to passengers on vessels engaged in interstate commerce, the Louisiana enactment forbade the separation of the white and black races while such ves- sels were within the limits of that State. The Mississippi statute, in its application to passengers on railroad trains employed in interstate commerce, requires such separation of races, while the trains are within that State. I am un- able to perceive how the former is a regulation of interstate commerce and the latter is not. It is difficult to understand how a State enactment requiring the separation of the white and black races on interstate carriers of passengers, is a regulation of commerce among the States, while a similar enactment forbidding such separation is not a regulation of that character." In other words. Justice Harlan said that the ruling of the state courts on the matter did not have weight. It was for the United States Supreme Court to say, and if they had said that one thing was interstate com- merce, that thing was interstate commerce, even if the state court said that it was not. This gives in sufificient fulness the nature of the above decisions and dissent. These seem to be the only cases in which there were decisions by the Supreme Court on the question of separation of races on interstate carriers. The dissent from Louisville, N. O. and T. R. Co. v. Missis- sippi seems to be the only assertion made by Justice Harlan 92 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [49! regarding the bearing of such laws upon interstate com merce, but it can be readily seen that if he had had his wa; the Jim Crow laws would have been brushed aside. Tks^he^t^MoiiuAnti-Tvust-Lcm. — In thjs su bject are fou n( Jujt,i;5e::Si5Eft5^Soit-T^fOTcnis--dT^ It was due to thi fact that these cases were so much in the public eye tha Justice Harlan became so prominently known as a dissenter Though it is true that he gave more dissenting opinions ii the earlier part of his life than he did in the later, yet hi; earlier dissents seem not to have attracted so much atten tion, probably because the subjects were less conspicuous It may be asserted, therefore, that from_theE. C. Knigh cas£^«4us-death-Justice_Har.laH- w-as-mar-e-prormn entlv^ e f ore-the-pubUe-thaiuat any previous time, -aad-degervedl] sOj.bficauseJais jlisseiits.. were -greater- and rang mgretrulj of .the_demQa:atie- spirit: The first case arising under the anti-trust act of-iSgo wai that of United Sta tes v. E. C. K nightXo., 156 U. S. i Though thls^case is hardly any longer citable for precedent it will be interesting to follow out the change of opinion or this subject on the part of the Supreme Court. The cas( came into the Supreme Court under the following circum stances : A corporation, chartered under the laws of Penn sylvania, had been arraigned before the United States cir cuit court of appeals for the third circuit for having violatec the act of 1890, in that it had resorted to an unlawful re straint of trade in violation of the statute of the Unite( States forbidding all monopoly in restraint of trade. Th( suit, therefore, was against the various companies whicl had conspired to form the American Sugar Refining Com pany. The circuit court of appeals decided in favor of th( corporation, and the Supreme Court affirmed its decision The following is a synopsis of the decision of the Suprem< Court : First, referring to a definition of the word " monop oly " mentioned by the counsel for the United States as be ing applicable in English law, the following comment wai made : " But the monopoly and restraint denounced by th( 499] INTERSTATE AND FOREIGN COMMERCE 93 act are the monopoly and restraint of interstate and inter- national trade or commerce, while the conclusion to be as- sumed on this record is that the result of the transaction complained of was the creation of a monopoly in the manu- facture of a necessary of life. " In the view which we take of the case, we need not discuss whether because the tentacles which drew the out- lying refineries into the dominant corporation were sep- arately put out, therefore there was no combination to monopolize; or, because, according to political economists, aggregations of capital may reduce prices, therefore the objection to concentration of power is relieved; or, because others were theoretically left free to go into the business of refining sugar, and the original stockholders of the Phila- delphia refineries after becoming stockholders of the Amer- ican Company might go into competition with themselves, or, parting with that stock, might set up again for themselves, therefore no objectionable restraint was imposed." Second, the control of this matter was to be exercised by the States: "It is vital that the independence of the com- mercial power and of the police power, and the delimitation between them, however sometimes perplexing, should al- ways be recognized and observed, for while the one fur- nishes the strongest bond of union, the other is essential to the preservation of the autonomy of the states as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality. " It will be perceived how far reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the general government whenever interstate or international commerce may be ultimately affected." Again : " It is true that the bill alleged that the products of these re- fineries were sold and distributed among the several states, and that all the companies were engaged in trade or com- 94 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [ merce with the several states and with foreign nations ; this was no more than to say that trade and commerce ser manufacture to fulfill its function." Thus the argument of the court was plac ed exg ressly^ two grounds, in the first place, that -tfieoretiGaily- there i not a monopoly. Even though the syndicate did -©mbr all-the-sugar-reflmri'g"c6ffipanies in the country., -that was reason^ whjr others might not develop in tha, future. In- secoad-place, in order to preserve the police power_of_ States it. was..^yisable to leave such matters in their-har justice Harlan's dissent may be quoted at length. " I be true that a combination of corporations or individu may, so far as the power of Congress is concerned, subj interstate trade, in any of its stages, ..to unlawful restraii the conclusion is inevitable that the Constitution has fai to accomplish one priaiary object of the Union, which y to p^ce commerce among. jJie,staies-Xinder the control of common^overnment of_all the people, and.-thereby reli( Qr_j)rotect it against burdens or restrictions imposed, whatever authority, for the benefit, of particular lo.calit oi:-speciaHnterests." In answer to the question as to what is an unlawful straint of trade he said: "A general restraint of trade 1 often resulted from combinations formed for the purp( of controlling prices by destroying the opportunity of buy and sellers to deal with each other upon the basis of fj open, free competition. Combinations of this charac have frequently been the subject of judicial scrutiny, a have always been condemned as illegal because of th necessary tendency to restrain trade. Such combinatic are against common right and are crimes against the publi In reference to the inapplicability of the state power this question he spoke as follows : " There is a trade amc the several states which is distinct from that carried within the territorial limits of a state. The regulation a control of the former is committed by the national Consti tion to Congress. Commerce among the states, as this coi SOl] INTERSTATE AND FOREIGN COMMERCE 95 has declared, is a unit, and in respect of that commerce this is one country, and we are one people. It may be regulated by rules applicable to every part of the United States, and state lines and state jurisdiction cannot interfere with the enforcement of such rules. The jurisdiction of the general government extends over every foot of territory within the United States. Under the power with which it is invested. Congress may remove unlawful obstructions, of whatever kind, to the free course of trade among the states. In so doing it would not interfere with the 'autonomy of the States,' because the power thus to protect interstat e_com- me]:ce..,is_expressly give n by the people of all the states. Interstate intercourse, trade, "and traffic is absoIu&ly--ff^, except assuch intocburs^e~ina3rbe incidentally or indirectly affectedJj.yLthe exercise by the state of their reserved police .^QW-fira.'!-- A further comment upon the inconsistency of the view of the court is expressed in these words : " Undue restrictions or burdens upon the purchasing of goods, in the market for sale, to be transported to other states, cannot be imposed even by a state without violating the freedom of commer- cial intercourse guaranteed by the Constitution. But if a state within whose limits the business of refining sugar is exclusively carried on may not constitutionally impose bur- dens upon purchases of sugar to be transported to other states, how comes it that combinations of corporations or individuals, within the same state, may not be prevented by the national government from putting unlawful restraints upon the purchasing of that article to be carried from the state in which such purchases are made? If the national power is competent to repress state action in restraint of interstate trade as it may be involved in purchases of refined sugar to be transported from one state to another state, surely it ought to be deemed sufficient to prevent unlawful restraints attempted to be imposed by combinations of cor- porations or individuals upon those identical purchases; otherwise, illegal combinations of corporations or individiials_ 96 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [j may — so far as national ppjger- and inte . r s tate cnmm erce concerned — do, with imp-unity, what' n(rs!atrcan do." Thus it is seen that, according to Justiee-HarfetrV inl pretation of the opinion of the court, the-eourt-liad-deda: to be within the jurisdiction o£the SMe thatjwhidi^J decision^ had .more power iJbian,the_StatesjhMnseb;eshac One other quotation will help to substantiate the doctr set forth by Justice Harlan. He said: "After the fui: consideration I have been able to bestow upon this : portant question, I find it im possible to refuse my _assenl this p roposition: Whatpvpr -a-state_ may do to prol ecL conipljEtel y iuLeiiui 't raffic— or— trade-agatnst unlawful straintS7-the^enera"l""g?5vefnment is eniptiwer€dr4o do f or protection of the people of all the states — for this purp Giie people — ^against unlawful restraints imposed upon int state traffic or trade in articles that are to enter into cc merce among the several states. If, as already shown state may prevent or suppress a combination, the effect which is to subject its domestic trade to the restraints nee sarily arising from their obtaining the absolute control the sale of a particular article in general use by the cc munity, there ought to be no hesitation in allowing to O gress the right to suppress a similar combination that i poses a like unlawful restraint upon interstate trade £ traffic in that article. While the states retain, because tl have never surrendered, full control of their complete ternal traffic, it was not intended by the framers of Constitution that any part of interstate commerce sho be excluded from the control of Congress." His doctrine might be summarized by saying that si: the States were not allowed any control over interst commerce, and since the regulation of corporations in tl interstate relations constituted regulation of interstate cc merce, or rather of a part of interstate commerce, power expressly belonged to the national government, will be seen, this later through the effort of Justice Har became the doctrine of the court. By that time much n 503] INTERSTATE AND FOREIGN COMMERCE 97 chief had been done, and the court had lostjht. opportunity of cutting at the root of the growing evil. In the case just discussed, Justice Harlan stood alone against the other members of the court. The next time he is found taking an active part in a decision on this point is in the case of the Northern Securities Co. v. United States, 193 U. S. 197. In several cases prior to that, however, the question had come up, but in not quite so aggravated a form. From only one of those cases did Justice Harlan dissent, and then with no opinion stated.* In the case of the Northern Securities Co. v. United States Justice Harlan asserted, mainly in an affirmative way, the principles which he had developed in his dissent from the E. C. Knight case. The discussion is somewhat long, but much of the space is taken up in answering some of the arguments presented by the attorneys for the corporation, which answers are of no especial concern here. Quota- tions from this opinion will show how it served to over- throw the condemnable doctrine promulgated in the E. C. Knight case. The Northern Securities case was very similar to the E. C. Knight case, the main difference being that the monopo- lization was of railroads instead of sugar. The suit, there- fore, was against several railroad companies which had arranged to put a stop to competition in the north and north- western sections of the United States by controlling under one head practically all of the railroads in the north and northwestern part of the United States. The question to be determined was whether such a combination amounted to a restraint of trade forbidden by the act of 1890, and whether the United States had the power to command these corporations to refrain from their proposed combination. The decision had been rendered against the Northern Se- *U. S. V. Trans-Missouri Freight Assoc, 166 U. S. 290; U. S. v. Joint Traffic Assoc, 171 U. S. 505; Hopkins v. U. S., 171 U. S. 578; Addyston Pipe and Steel Co. v. U. S., 175 U. S. 211; Montague and Company v. Lowry, 193 U. S. 38; Anderson v. U. S., 171 U. S. 604 (combination legal, Justice Harlan dissented). 98 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [$04 curities Company in the circuit court of the United States for the district of Minnesota, and this decision was aiifirmed by the Supreme Court, speaking through Justice Harlan. The following quotation gives the general import of the majority opinion: "The mere existence of such a combina- tion, and the power acquired by the holding company as its trustee, constitute a menace to, and a restraint upon, that freedom of commerce which Congress intended to recog- nize and protect, and which the public is entitled to have protected. If such combination be not destroyed, all the advantages that would naturally come to the public under operation of the general laws of competition, as between the Great Northern and Northern Pacific Railway Com- panies,'* will be lost, and the entire commerce of the im- mense territory in the northern part of the United States between the Great Lakes and the Pacific at Puget sound will be at the mercy of a single holding corporation, organ- ized in a State distant from the people of that territory." In answer to the contention that an affirmative decree in this case would make ownership of stock in a state railroad corporation a matter of interstate commerce, if that rail- road were engaged in interstate traffic, the following reply is given : " Such statements as to issues in this case are, we think, wholly unwarranted, and are very wide of the mark; it is setting up mere men of straw to be easily stricken down. We do not understand that the govern- ment makes any such contentions or takes any such posi- tions as those statements imply. It does not contend that Congress may control the mere acquisition or the mere ownership of stock in a State corporation engaged in inter- state commerce. Nor does it contend that Congress can control the organization of state corporations authorized by their charters to engage in interstate and international commerce. But it does contend that Congress may protect the freedom of interstate commerce by any means that are appropriate and that are lawful, and not prohibited by the Constitution. It does contend that no state corporation can 505] INTERSTATE AND FOREIGN COMMERCE 99 stand in the way of the enforcement of the national will, legally expressed." Another very telling blow at the contention that this doc- trine would be a detriment to state autonomy is this : " If a state may strike down combinations that restrain its do- mestic commerce by destroying free competition among those engaged in such commerce, what power, except that of Congress, is competent to protect the freedom of inter- state and international commerce when assailed by a com- bination that restrains such commerce by stifling compe- tition among those engaged in it? . . . The argument in behalf of the defendants necessarily leads to such results, and places Congress, although invested by the people of the United States with full authority to regulate interstate and international commerce, in a condition of helplessness, so far as the protection of the public against such combination is concerned." As is seen, even by the few quotations given, the de- cision in this case was a great one. Its arguments were convincing, its spirit showed a largeness of soul not often found among judges, and it sets a precedent that needed to be set much earlier. From that time on, therefore, the monstrous, soulless corporations have had over them the strongest power that this government affords. And, as has been seen, our thanks are largely due Justice Harlan for this evidently correct interpretation of the Constitution, for any other would simply have said that our constitution contained a grave flaw. Of course the situation could have been met with a constitutional amendment, but only after much more mischief had been done. The two cases which have caused so much comment of late do not bear upon the present subject. They are the cases of the Standard Oil Co. v. United States, 221 U. S. i, and the United States v. American Tobacco Co., 221 U. S. 106. Although Justice Harlan concurred in the conclu- sions arrived at in these cases, he dissented from the action of the court in reading the word " unreasonable " into the lOO CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [506 s Act of 1890. With him that was judicial legislation These cases will, therefore, be discussed under that topic. From the cases given it seems possible to gain a suffi- ciently clear conception of Justice Harlan's doctrine con- cerning the so-called Sherman Anti-Trust Act. Though the court has not in all respects accepted his interpretation, it has practically done so. The weight of his influence on this point has probably been more significant than upon any other burning question. Amidst the wild political dis- cussions he did not lose his balance, but always held closely to the interpretation of both the Constitution and an act of Congress, and on this subject, at least, demonstrated that the wisest thing for the court to do is to interpret and apply laws, not to change them. If Justice Harlan's doc- trine had from the first predominated, the so-called twilight zone would have been much less in evidence. Taxation. — According to the recognized law, any owner, whether individual or State, may impose a charge for the use of a wharf. This charge, however, cannot be too high, and must be levied with a view to keeping up the wharf, otherwise it becomes a burden upon interstate commerce and hence unconstitutional. This distinction sometimes gives rise to very fine differentiations in order to ascertain what is simply a wharfage charge, and what amounts to a duty of tonnage or poundage. There seems to be only one case in which Justice Harlan was at variance with the court on this question. This was the case of Parkersburg and Ohio River Transportation Co. V. Parkersburg, 107 U. S. 691. The city of Parkers- burg, West Virginia, levied under the guise of wharfage a tax upon vessels according to their capacity and the quanti- ties of freight loaded or Unloaded. The Parkersburg and Ohio River Transportation Company entered suit in the circuit court of the United States for that district, on the plea that the levy amounted to a duty of tonnage and that it was a restriction upon interstate commerce. The circuit ^ Pages 199-202. ■'■>.y '■. X (s( * 507] INTERSTATE AND FOREIGN COMMERCE , paymaster in the northern army during the Civil War, med that he had been robbed of the sum of $15,978.87. i questions at issue were whether Clark could be allowed testify in his own behalf as to the amount stolen, and jther he was excluded from the court of claims anyway luse he had waited too long to bring suit, 'he first point made by the counsel for the United States, lely, that the plaintiff could not be allowed to testify in own behalf, was easily overruled by asserting that though 193 194 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [60C the claiiric^nt's testimony could not be accepted as valid tes- timony, " it may be proper as corroborative " of the alleged amount. The other contention on the part of the counsel for the government was as easily disposed of by asserting that the right of the claimant did not accrue until the ac- counting officers had held him liable for the sum lost. By this interpretation the suit was brought within the time al- lowed. Justice Harlan approved of neither of these rulings. He thought that the judgment of the court of claims should have been reversed, with an order that the case be dismissed. Referring to the first point, he said : " In all ' Courts of the United States ' parties may testify, but in the Court of Claims no plaintiff can testify against the United States in support of his claim or right. So reads the statute; and it is, I submit, the duty of this court to obey it, leaving to Congress to make such changes in the rules of evidence in the Court of Claims as its views of public policy may sug- gest. It may be unfortunate for Clark if he be denied an opportunity to testify as to the amount of his loss; but, as said by Lord Campbell, Ch. J., ' It is the duty of all courts of justice to take care, for the general good of the com- munity, that hard cases do not make bad law.' " He said further : " With entire respect for the opinion of my breth- ren, I submit that the construction which the court places upon the Act of June 25, 1868, seems to fall very little short of judicial legislation." He referred to the second point in the following words : " Clark, in order to obtain relief from responsibility on ac- count of the alleged robbery, was required to present to the proper accounting officers a decree of the Court of Claims, directing that he should receive credit for the amount taken from him by robbery. It was not, therefore, a misuse of words for Congress to describe a demand for relief under the Act of 1866 as a 'claim.' If a 'claim-,' it was clearly barred by the Act of 1863, unless it be true as suggested in the opinion of the court that the claim did not accrue 6oi] JUDICIAL LEGISLATION 1 95 until the credit which Clark had given himself in his report of the robbery was rejected at the Treasury in 1871 ; but, unquestionably, his crediting himself with the amount taken from him by the robbery was an unauthorized act. The accounting officers could not, except in pursuance of a decree of the Court of Claims, lawfully allow such a credit ; and their failure to promptly disallow it did not give Clark any additional right, nor deprive the Government of any right which it possessed. Neither his nor their action could suspend the running of the Statute of Limitations. His claim, therefore, accrued immediately upon the passage of the Act of May 9, 1866. Not having been asserted by suit within six years from that date, it was barred." It has not been thought necessary to explain the meaning of the various acts referred to which established and laid down rules for the conduct of trials in the court of claims. It is sufiSciently evident that the stipulation was made that the claim had to be set up within six years after it accrued, and that the court quibbled over what is meant by a claim in order to prevent that stipulation from debarring the suit. It is also evident that Justice Harlan thought that the quibble of the court was unjustified. This case is typical as illustrating Justice Harlan's con- ception of the position which the court should occupy in our government. If any case could have arisen which would have called for the sacrifice of his conviction on this subject, this case certainly would have had that effect. He himself had been a commander in the northern army. Here was a paymaster of that army, from whom fifteen thousand dollars had been stolen, but so far as a proper interpretation of the law went, he had to lose that amount. If anything would have aroused Justice Harlan's sympathy this loss on the part of a fellow soldier should certainly have done so, and it doubtless did. But he recognized the necessity of having the court interpret the law for the general good of the nation. His conviction as to the integrity of the law was a higher conviction than that one unfortunate man should 196 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [602 not suffer. The case, however, does not argue that he put the letter of the law above the spirit of it. Other cases where a possible interpretation would allow the individual to be benefited show the reverse as to his manner of ap- proaching a decision. But since the letter and the spirit both in this case called for a different interpretation, he held that it should have been interpreted differently. In following out the course of Justice Harlan's utterances on this matter, brief references only will be necessary in most cases. ^ It was found that in the Civil Rights Cases, 109 U. S. 3, he thought that the court had no right to de- clare what was appropriate legislation for the enforcement of the thirteenth and fourteenth amendments. He said: " Under given circumstances, that which the court char- acterizes as corrective legislation might be deemed by Con- gress as appropriate legislation and entirely sufficient. Under other circumstances primary direct legislation may be required. But it is for Congress, not the judiciary, to say that legislation is appropriate; that is, best adapted to the end to be attained. The judiciary may not with safety to our institutions enter the domain of legislative discretion, and dictate the means which Congress shall employ in the exercise of its granted powers. That would be sheer usurpation of the functions of a co-ordinate department, which, if often repeated, would work a radical change in our system." In Pollock V. Farmers' Loan and Trust Co., 158 U. S. 601, Justice Harlan spoke as follows : " It was said in argu- ment that the passage of the statute imposing this income tax was an assault by the poor upon the rich, and by much eloquent speech this court has been urged to stand in the breach for the protection of the just rights of property against the advancing hosts of Socialism. With the policy of legislation of this character, the court has nothing to do. That is for the legislative branch of the government. It is for Congress to determine whether the necessities of the government are to be met, or the interests of the people sub- 603] JUDICIAL LEGISLATION 1 9/ served, by the taxation of incomes. With that determina- tion, so far as it rests upon grounds of expediency or public policy, the courts can have no rightful concern. The safety and permanency of our institutions demand that each de- partment of government shall keep within its legitimate sphere as defined by the supreme law of the land. We deal here only with questions of law." In Robertson v. Baldwin, 165 U. S. 275, a similar utter- ance is found : " It will not do to say that by ' immemorial usage' seamen could be held in a condition of involuntary servitude, without having been convicted of crime. The people of the United States, by an amendment to their fundamental law, have solemnly decreed that ' except as a punishment for crime, whereof the party shall have been duly convicted,' involuntary servitude shall not exist in any form in this country. The adding of another exception by interpretation simply, and without amending the Con- stitution, is, I submit, judicial legislation. It is a very serious matter when a judicial tribunal, by the construction of an act of Congress, defeats the expressed will of the legislative branch of government. It is a still more serious matter when the clear reading of a constitutional provision relating to the liberty of a man is departed from in defer^ ence to what is called usage which has existed, for the most part, under monarchical and despotic governments." As was seen in Hawaii v. Mankichi, 190 U. S. 197, Justice Harlan accused the court of so interpreting an act of Con- gress that it amounted to the passage by that body of an act which it could not constitutionally pass, and gave a meaning to it which Congress clearly did not intend that it should have. He said: "The opinion of the court contains observations to the effect that some persons, heretofore convicted of crime in the Hawaiian courts, will escape punishment if the joint resolution of 1898 is so interpreted as to make Congress mean what, it is conceded, the words ' contrary to the Constitution of the United States' naturally import. In the eye of the law that is of no consequence. 1 98 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [604 The cases cited by the court fall far short of sustaining the proposition that the court may reject the plain, obvious tneaning of the words of the statute in order to remedy what it deems an omission by Congress. The consequences of a particular construction may be taken into account only when the words to be construed are ambiguous." In the case of Houghton v. Payne, 194 U. S. 88, there is a characteristic dissent by Justice Harlan. Houghton, Mifflin and Company, publishers of the Riverside Litera- ture Series, thought that they were treated wrongly in having these publications termed third-class matter, because, in spite of the fact that each volume was complete in itself, the volumes were issued periodically. For sixteen years the post-office department had interpreted the portion of the statute of Congress bearing on this point to mean that the Riverside Series were periodicals instead of books. Several attempts had been made to get Congress to amend the statute, but all had failed. Postmaster-General Payne, how- ever, deliberately classed the Riverside Series as third-class matter, and the rate was changed accordingly. The pub- lishers brought suit to have the action of Payne pronounced invalid. This the lower court refused to do, and upon appeal to the United States Supreme Court the decision below was sustained. The court reasoned as follows: " While it might well happen that by reason of the relative unimportance of the question when originally raised a too liberal construction might have been given to the word periodical, we cannot think that if this question had been raised for the first time after second class mail matter had obtained its present proportions, a like construction would have been given. Some considerations in connection with the revocation of these certificates may properly be accorded to the great expense occasioned by this interpretation, and the discrimination in favor of certain publishers and against others, to which allusion has already been made. We regard publications of the Riverside Literature Series as too clearly within the denomination of books to justify us in approving 60S] JUDICIAL LEGISLATION 1 99 a classification of them as periodicals, notwithstanding the length of time such classification obtained." Justice Harlan, with whom concurred the Chief Justice, thought that the court exceeded its power in this case and did what amounted to amending an act of Congress. His language on this point is as follows : " In our judgment, the appellants properly construe the statute. We think it obviously means just what the Department held it to mean for more than sixteen years. But the very utmost that the government can claim is that the statute in question is doubtful in meaning and scope. The rule in such a case is not to disturb the long continued practice of the Depart- ment in its execution of a statute, leaving to Congress to change it when public interests require that to be done. But the Department, after being informed repeatedly by Con- gress that the change asked by Postmasters General would not be made, concluded to effect the change by a mere order that would make the statute mean what the practice of sixteen years, and the repeated action of Congress had prac- tically said it did not mean and was never intended to mean. This is a mode of amending and making laws that ought not to be encouraged or approved." This dissent was typical of Justice Harlan. He thought that it was improper thus to burden a publication that put the best literature so cheaply into the hands of the people when there were suffi- cient constitutional grounds for not doing so. In the cases of the Standard Oil Company v. United States, 221 U. S. i, and United States v. American Tobacco Co., 221 U. S. 106, much of the action of the court was not necessary for the decision of the case. Instead of doing the simple thing, the court went out of its way to show that a combination was unreasonable when it could have merely pronounced it in restraint of trade. When we read Justice Harlan's dissenting opinion from the case of United States v. E. C. Knight Co., 156 U. S. i, and note how many times he uses the words " unreasonable " and " undue " as modifiers of the phrase " restraint of trade," 200 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [6o6 we wonder why he objected to the use of the words in the Standard Oil decision. On deeper inspection, the reason for this objection becomes evident. If the court had simply said that the restraint was an " unreasonable " restraint of trade without affirmative comment upon the necessity of the word being in the statute, it is doubtful whether Justice Hai-lan would have dissented at all. It was the manner in which the word was employed that he disliked. The word was added after considerable weighing of the wording of the statute and lengthy investigation into the meaning and methods of regulating monopolies. And it must be further noted that Congress had long remained silent after a dis- senting opinion of the same judge had suggested that the word be supplied. This fact argued to Justice Harlan's mind that Congress meant that the word should not be supplied. The following quotation will show the court's argument in the Standard Oil case: "And as the contracts or acts embraced in the provision were not expressly defined, since the enumeration addressed itself simply to classes of acts, those classes being broad enough to embrace every con- ceivable contract or combination which could be made concerning trade or commerce or the subjects of such com- merce, and thus caused any act done by any of the enu- merated methods anywhere in the whole field of human activity to be illegal if in restraint of trade, it inevitably fol- lows that the provision necessarily called for the exercise of judgment which required that some standard should be resorted to for the purpose of determining whether the pro- hibition contained in the statute had or had not in any given case been violated. Thus not specifying, but indubitably contemplating and requiring a standard, it follows that it was intended that the standard of reason which had been applied at the common law and in this country in dealing with subjects of the character embraced by the statute was intended to be the measure used for the purpose of deter- mining whether, in a given case, a particular act had or had 607] JUDICIAL LEGISLATION 20I not brought about the wrong against which the statute provided." As has been seen, Justice Harlan in his dissent in the Standard Oil case first condemned the court for dwelling at length on a point which did not need to be dwelt on in order to decide the case. He then entered upon some gen- eralizations as to the evil effects to be expected by such action on the part of the court. He said: "I said at the outset that the action of the court in this case might well alarm thoughtful men who revered the Constitution. I meant by this that many things are intimated and said in the court's opinion which will not be regarded otherwise than as sanc- tioning an invasion by the judiciary of the constitutional domain of Congress, — an attempt by interpretation to soften or modify what some regard as a harsh public policy. This court, let me repeat, solemnly adjudged many years ago that it could not, except by 'judicial legislation,' read words into the anti-trust act not put there by Congress, and which, being inserted, gives it a meaning which the words of the act, as passed, if properly interpreted, would not justify. The court has decided that it could not thus change a pub- lic policy formulated and declared by Congress; that Con- gress has paramount authority to regulate interstate com- merce, and that it alone can change a policy once inaugu- rated by legislation. The courts have nothing to do with the wisdom or policy of an act of Congress. Their duty is to ascertain the will of Congress, and if the statute embody- ing the expression of that will is constitutional, the courts must respect it. They have no function to declare a public policy, nor to amend legislative enactments." The following assertions may almost be looked upon as parting words from a great judge to his country. "After many years of public service at the national capital, and after a somewhat close observation of the conduct of pub- lic affairs, I am impelled to say that there is abroad in our land a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone 202 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [6o8 of judicial construction. As a public policy has been de- clared by the legislative department in respect of interstate commerce, over which Congress has entire control, under the Constitution, all concerned must patiently submit to what has been lawfully done, until the people of the United States — the source of all national power — shall, in their own time, upon reflection and through the legislative department of the government, require a change of that policy. . . . The supreme law of the land, which is binding alike upon all, — upon Presidents, Congresses, the courts and the people, — gives to Congress, and to Congress alone, authority to reg- ulate interstate commerce, and when Congress forbids any restraint of such commerce, in any form, all must obey its mandate. To overreach the action of Congress merely by judicial construction, that is, by indirection, is a blow at the integrity of our governmental system, and in the end will prove most dangerous to all." Justice Harlan's Idea of the Position of the Court. — Since the position of judges in the interpretation of laws gives rise to so much discussion, it is well to consider this whole question. An attempt will be made to ascertain how far Justice Harlan's doctrine on this matter came from the po- sition which it is evident that judges ought to occupy. There is much uncertainty on this point in the mind of the public. A person will condemn the court today for not reading into the law a meaning which he desires to see there, and to- morrow he will condemn it more severely for reading into the law a meaning which he did not want to see there. How far, therefore, if at all, should the judges try to meet this public approval or disapproval? Thus is opened up the whole question of judicial legislation. There are practically two arguments presented, and both are presented on either side of the question. The first, stated affirmatively, is that the very act of interpretation itself implies judicial legislation ; stated negatively, it is that interpretation, properly speaking, does not imply judicial legislation. The second argument is that the failure of the 609] JUDICIAL LEGISLATION 203 court at times to legislate judicially gives rise to adverse criticism and weakens the power of the court. But this same argument is presented on the other side, with a like comment that a continued exercise of judicial legislation may in time even destroy the power of the courts. These conceptions cover practically the whole field. The word interpret used in a legal sense has two mean- ings : first, " the setting forth of a fixed or certain mean- ing, discoverable by a purely intellectual process"; and secondly, the setting forth " of a meaning which is indeter- minate or uncertain."^ The former is called analytical in- terpretation, and the latter selective interpretation. Ac- cording to those who uphold judicial legislation, the latter is of far greater importance. It arises when the courts are called upon to decide the bearing of the law upon cases which the legislative did not have in mind when the law was passed. "The fact is that the difficulties of so-called inter- pretation arise when the Legislature has had no meaning at all; when the question which is raised on the statute never occurred to it ; when what the judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present."^ Thus the necessity of judicial legislation arises. When unforeseen circumstances come up, and when there is a law in existence which the courts can stretch to apply to such cases, they do it. This is known as selective interpretation, and amounts, in the long run, to judicial legislation, for in the course of time the law may become so much changed that by reading the statute in the light of existing circum- stances the original purpose of the law is changed. Some persons who have observed this necessity have con- cluded that since the court changes laws it in fact legislates, and it should be frankly admitted that it is the body that 1 Editorial, " Genuine and Spurious Interpretation," in the Green Bag, vol. XXV, p. 505. 2 J. C. Gray, The Nature and Sources of the Law, Sec. 370. 204 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [6lO makes laws. Without going deeply into this matter, the simple assertion will suffice that an open assumption on the part of the courts that they may, when they find it neces- sary, make laws to suit their purposes would be a danger- ous enlargement of the power of the courts. The fact that the judges must argue that what they are doing is not legislating, but only applying laws already made, keeps them from extending their power over any sphere that undoubt- edly belongs to the legislature. On the other hand, when the assertion is made that inter- pretation properly speaking does not imply judicial legisla- tion, one has in mind especially analytical interpretation — z discovery of the meaning of the law by purely intellectual processes. Strictly speaking, those holding to this theory believe that the law can be made in advance of every case to be determined. All that the courts need to do is to find out the facts in the case and say what the law directs for that case. Their judgment is to be mechanical, and judges are merely experts applying legal formulas to cases, and lose sight of all other considerations. But this is not the conception that modern jurisconsults hold when they assert that interpretation should not mean judicial legislation. They recognize the fact of legal fictions and the necessity of judge-made law through slow processes, but they oppose any quick and intentional change in a statute on the part of the court. In other words, they do not hold that judges should openly and avowedly perform judicial legislation, or that they should underhandedly argue that what is clearly judicial legislation is within the mean- ing of the statute. They do not object to the slowly evolv- ing judge-made law, developed from necessity. The latter is finding law to meet exigencies, the former is changing the law to suit the convenience of the judge. With them, finding the law is indicative of a great judge, but changing the law is indicative of arrogance. To which of these classes did Justice Harlan belong? At the outset it must be admitted that there is no evidence 6ll] JUDICIAL LEGISLATION 20S that he thought deeply of judicial legislation as a legal con- cept. His assertions were spontaneous, and if they show him to belong to the class of great judges, it will be all the more in his favor. It will class him as an unconscious artist in that regard. Reference will need to be made chiefly to the first and last cases studied under the head of judicial legislation. Did the case of United States v. Clark show him to be a great or an inferior judge? No doubt Clark might have suffered hardship had the case been decided according to Justice Harlan's view. But was that hardship one that the judges could properly have remedied? The meaning of the statute was clear. It was evident that if the law applied, Clark's claim would not have been absolved. But since the law on its face was written to exclude such a case, and since it was impossible so to read the statute that it would except him, the law should have been upheld. Congress could have remedied such a situation. There was no excuse for the failure of the court to see in the statute what was really there. And to say the least, this case does not show Justice Harlan to be an inferior judge. It shows loyalty to the Constitution and the firmness necessary in the upholding of the steadiness of the law. Many exceptions of this nature would make the law weak-kneed. The case of United States v. Clark, however, is rather an exceptional one. There is only one other case,^ as far as I know, where Justice Harlan opposed leniency to the indi- vidual. When it was possible for him to argue that the law allowed relief from hardship, he held to that interpre- tation. As has been pointed out in various places through- out this study, he practically always endeavored to relieve the suffering individual, but his sense of truth kept him from saying that a law was not what it clearly was. But in the case of the Standard Oil Company v. United States there were none of those exigencies which demanded judi- cial leniency. Certainly the Standard Oil Company needed 3 United States v. Jung Ah Lung, 124 U. S. 621. 206 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN [6X2 no such protecting care. If there was any real exigency, it was that condition which the phrase "restraint of trade" described. The public feeling which the legislators were seeking to put into law was prompted by the hardship brought upon individuals by the monopolies. If there were any exigencies that demanded leniency they were certainly not on the part of the Standard Oil Company. Justice Harlan did not stand for the strict letter of the law; he stood for legality. In the case of Louisiana v. Mayor, etc., of New Orleans he showed this by desiring that a judgment against the city be termed a contract. Strict letter said that it was not a contract, but legality said that the city was liable to the plaintiff. This case is typical of many. If the law could be found to cover the case, he believed in deciding that way. But if a law could be found which was expressly different from what the judges wanted it to be, he contended that the latter should hold exactly as it was meant. He believed that Congress should supply the laws, and that the courts should interpret them, and he used interpretation in the liberal sense. He did not wish to stop legal fictions, but he did wish to see judges impartial. The second argument proposed need not be discussed, except to say that mere criticism of a judicial decision seemed not to be of great concern to Justice Harlan. With him the criticism for bad law had to be thrown on the legislators. Since words have meanings, and since legis- lators have the power of using words and sentences in their proper relation, he thought that legislators could make laws to fit certain circumstances. If a circumstance arose to which the law applied, it was the duty of the court to apply and enforce the law as the legislators had made it. It must be remembered that the best way to get rid of a bad law is to have it enforced by the courts. Since that is true. Justice Harlan's doctrine that a law should be enforced exactly as the legislators meant it to be enforced is a sound one. INDEX American Sugar Refining Com- pany, 92. American Tobacco Company, 99. Amount in dispute, — relation to jurisdiction of courts, 168- 172. Bailey, Joseph W., 15 (note). Beckham, candidate for Lieut. Gov. of Ky., 74, 7S. Behrmg Sea Tribunal, 11. Berea College, Kentucky, 126, 136-137. Bowdoin College, 10. Bradley, William, 12 (note). Brewer, Justice, 90. Bristow, General B. H., 10. Brown, Justice, 117, 185. Centre College, Kentucky, 10. Chinese, discrimination against, 137-141- Cincinnati, Republican conven- tion at, 10. Contracts, — freedom of in inter- state commerce, 114-121. Contracts, — relation of foreign governments to, SS-58. Contracts, — relation of national government to, 52-55. Contracts, — relation of state gov- ernments to, 43-52. Copyrights, 182-183. Corporations, — as citizens, 143. Corporations, — taxation of, 145- 152. Corporations, — under equal pro- tection of laws, 142-152. Direct taxes, 176-180. Drummers, taxation of, 103- 105. Due Process of Law, — definition of, 59-61. Due Process of Law, — relation to life and liberty, 61-68. Due Process of Law, — relation to property, 68-82. Employers' Liability, 121-122. Equity competence, 166-168. Esterling, Blackburn, 13 (note). Exports, taxation of, 107-112. Ex post facto laws, 180-182. Federal immunity, 161-166. Field, Justice, 13, 69, 140, 173. Fourteenth Amendment, — bear- ing upon first eight, 173-176. Franchises, — taxation of, 106- 107. Fuller, Justice, 113, 185. George Washington University, 10. Goebel, — candidate for govern- orship of Kentucky, 74, 75. Gray, Justice, 39, 87, 108. Gray's Nature and Sources of the Law, 203 (note). Greenbag, 203 (note). Gross railroad receipts, — taxa- tion of, 112-114. Harlan, the Hon. James S., 10. Harlan, Mr. John Maynard, 10. Harlan, Dr. R. D., 10. Hayes, R. B. — appoints Justice Harlan to Supreme Court, 12. Hayes, R. B. — Republican nom- inee of Cincinnati Conven- tion, 10. Holmes, Justice, 40, 112, 122, 164, 170, 183. Houghton, Mifilin and Co., 198. Indians, — discrimination against, 141-143. Infantry, Tenth Kentucky, 9. Insular Cases, 185-188. Interstate comity, 188-190. Interstate Commerce Commis- sion, beginning of, 122-125. Jim crow laws, 89-92, 126, 132- 134. 207 208 INDEX [614 Johns Hopkins Studies, 38 (note). Johnson and Higgins, brokers, 114. Jury trials, 61-68. Knight, E. C. Co., 92. Labor legislation, igo-192. Lamar, Justice, 140. Liquor legislation, 83-89. Louisiana Commission, 11, 12. Marshall, candidate for Lieut. Gov. of Ky., 74-75. Marshall, Justice, 9, 13, 21, 89. Matthews, Justice, 61. McKenna, Justice, 108, 113, 115, 122, 185. Miller, Justice, 38, 71. Moody, Justice, 122. Morgan, John Tyler, 12. Negroes, discrimination against, 89-92, 126-137. Northern Securities Company, 97- Parkersburg and Ohio River Transportation Company, 100. Peckham, Justice, 27, 174. Peddlers, taxation of, 103-10S. Race, — relation to equal protec- tion of laws, 126-143. Race, — relation to interstate commerce, 89-92. Recall of judges, 13. Removal of suits to federal courts, 153-161. Returning Board of Louisiana, II. Riverside Literature, 198. Self-incrimination, 184-185. Shanklin, Miss Malvina F., 10. Sherman Anti-Trust Law, 92- 100. Singewald, K., 38 (note). Standard Oil Company, 99. Taylor, candidate for Gov. of Ky., 74, 75. Taylor, Hannis, 12 (note). Taxation and interstate com- merce, 100-114. Tonnage and Poundage, 100- 103. Transylvania, University, 10. Troy, Alabama, 124. University of Pennsylvania, 10. Webb-Kenyon Act, 86, 89. White, Justice, 108, 113, 115, 120, 122, 161, 185. 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