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 UNIVERSITY OF 
 
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 THE COLLECTION OF 
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"NiyERSITY OF N.C. AT CHAPEL HILL 
 
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ADDRESS TO THE LAW CLASS 
 
 AT THE 
 
 UNIVERSITY OF NORTH CAROLINA 
 
 31 JANUARY. 1919 
 
 By Chief Justice Walter Clakk. 
 
 I am always glad to meet young men. You represent the future. You 
 are not yet bound down by habits of thought and action which have 
 become second nature. The horizon of young men is all before them 
 and has no limit. You can truly say, 
 
 "No pent-up Utica contains our powers. 
 The whole boundless continent is ours." 
 
 It is always pleasant to return to Chapel Hill, but on this occasion it 
 is with feelings of unusual sadness, for you sit under the shadow of a 
 great affliction. The University has lost two of its most distinguished 
 and able sons — the loved and gifted President of this University, Edward 
 K. Graham, who did so much for its advancement and to place it in the 
 forefront of the great educational institutions of this country, and more 
 recently Dean M. H. Stacy, whom all men had picked out for his suc- 
 cessor and who was on the eve of election when he met his untimely death. 
 At the recent Centennial of the Supreme Court in Raleigh one able 
 speaker portrayed the great changes which have been made in law and 
 procedure in the last hundred years, and another foretold some of the 
 changes which might occur in the next one hundred. I shall not attempt 
 to repeat what they so well said. There is left the law as it now is, but 
 as that is being told you daily by your teachers much better than I can 
 tell you, and more at length, I must keep off that ground. I can conceive 
 of nothing left open to me except to say somewhat of the law as it ought 
 to be. 
 
 The demand of the age is for efficienci/ in every line of business. It 
 
 is not undue criticism to say that no business in this country is run 
 
 with less efficiency than the administration of the law and the courts. 
 
 No other business known to man could survive the inefficiency that ia 
 
 shown in that department of life. I will not say of "activity" because 
 
 it is not active. Yet there is no profession which attracts a larger per 
 
 i~ cent of the talent of the country than the law. Young men go into the 
 
 f) profession eager, hopeful, expectant of reforms in practice, in procedure 
 
 ^ and in substantive law. Some of them may preserve that attitude even 
 
 O 
 
until they get upon tlie Bench. But sooner or later the routine is too 
 powerful for most. The habit of consulting precedents and yielding 
 obedience to the thoughts of dead men as embodied in the decisions of 
 the priests and laymen, who as judges created the "common law," is too 
 strong, and the habit of delay and postponement becomes a part of their 
 existence. After they enter the profession some undergo the same meta- 
 morphosis as the sisters of Phsethon or Daphne, so vividly described by 
 Ovid, and become rooted in the debris of the past and immobile; but, 
 unlike Daphne, they are not changed into laureL 
 
 THE EXECUTIVE AND JUDICIAL VETO 
 
 The President of Harvard College in a recent work truthfully declared 
 that in this country public opinion and the will of the people are slower 
 in gaining control than any other country in the world. This may seem 
 strange to you, but the fact is that our Constitution is now the oldest 
 upon the planet. In this country almost alone the Executive still has a 
 veto, which was given lest the Senate and House might not prove safe 
 and sane. In all the States of this Union, except North Carolina, the 
 State constitution has put the same bridle in the hands of the Governor. 
 In England, the formality of the sovereign "approving" the acts of 
 Parliament is retained, but it is only a formality, for no executive in 
 that country since 1707 has dared to veto an act of Parliament. In the 
 other constitutions of the world, with few if any exceptions, the execu- 
 tive or sovereign is denied any veto upon the expression of the will of 
 the people through its lawmaking body. In this country we have gone 
 further by allowing also the assumption by the other coordinate depart- 
 ment of the government, the judicial, of the power to veto the action of 
 the representatives chosen by the people to formulate their will into law. 
 This power is not conferred by any provision in the Constitution of the 
 United States or of any State, and it is utterly unknown in the history 
 of all other countries. The U. S. Supreme Court took this power to 
 itself in Mathury v. Madison in 1803, and all the State Supreme courts 
 have followed suit. 
 
 At Eome, the privileged classes when afraid to directly oppose meas- 
 ures in the popular interest had resort to the system of Augurs. When 
 an assembly was about to be held in the Campus Martins at which the 
 vote was likely to be hostile, these augurs, always selected by the patri- 
 cians, would adjourn the meeting uj)on the ground that the augurs de- 
 clared it was not an "auspicious" day, or that the sacred chickens kept 
 by the priests were ofi their feed, or the entrails of the sacrificial victim 
 showed that it was unsafe to proceed, or that the flight of birds betokened 
 danger, or some other similar device was resorted to. Cicero said that 
 he did not see how an augur could pass another without laughing in his 
 face. These devices of statecraft used by the Romans to control the 
 masses in the interest of the classes without a conflict are in nowise 
 superior to the action of the judicial augurs who always find any act of 
 
Congress or of a State Legislature "unconstitutional" if it conflicts with 
 their ])reconceived opinions. The judicial veto must exist "by divine 
 right," like that claimed hv kings of old, for it has no visible authority 
 and rests upon the "inqierturbable ])erpendieularity of assertion" only. 
 In addition to the double check-rein upon legislation of the veto given 
 the Executive by the Constitution, and the veto assumed by the courts 
 without any constitutional provision, we have the arrangement by which 
 members of Congress (in ordinary course) do not meet until thirteen 
 months after they are elected. The result is that the popular impulse 
 which chose Representatives and Senators has then lost its force and the 
 Special Interests have had thirteen months to change the views of those 
 elected. Besides, the Congress that is repudiated at the polls has four 
 full months to enact their measures before their mandate expires on the 
 4th March following. Every effort to change this anomaly has been 
 defeated at Washington. The great vested interests and corporations 
 have never been willing to release this advantage. In other countries, 
 as under our State Constitution, the terms of the new members begin 
 on the day of their election. 
 
 DISSENTING OPINIONS 
 
 The Interests have always been busy in the effort to create a sentiment 
 against dissenting opinions. A dissenting opinion is an appeal from the 
 majority of the Court to the sovereign whose servants they are. If the 
 judge delivering the decision of the majority ought to give his reasons, 
 certainly the judge or judges who refuse to go with the majority owe it to 
 themselves and to the public to give their reasons for not doing so. The 
 reasons given in such opinions have been the safeguard of the republic 
 on more occasions that one ; besides, the fear of them has prevented 
 many a decision that would have been rendered. By his dissenting 
 ' opinion in Chisholm v. Georgia, Mr. Justice Iredell, of this State, awoke 
 the people of the Union and caused the prompt enactment of the 
 Eleventh Amendment. The dissenting judge who immortalized himself 
 in the Dartmouth College Case has practically repealed that decision. 
 The dissenting judges in the Income Tax Case caused the enactment of 
 the Sixteenth Amendment — but for which this country would have been 
 disabled to engage in and carry on to a successful end the great war 
 which has just closed. And the dissenting opinions in the Lochner Case, 
 which brutally held that a State had no power to protect its citizens 
 from being worked ten hours a day in a temperature of 120 degrees, 
 have forced the highest court in the land to repeal its own violation of 
 the Constitution and of the rights of free men in that case by holding 
 valid the Adamson Law which gave to the railroad employees of this 
 country an eight-hour day. 
 
 John Milton said, "I value no other liberty like the liberty of freely 
 writing and speaking the truth"; and Thomas Jefferson, in his inaugu- 
 ral, said that he feared no assertion of error if the truth could be left 
 
free to combat it. Only they fear the dissent of an honest judge who 
 fear the verdict thereon of an honest and intelligent public. But for 
 dissenting opinions the autocracy assumed by the courts would be abso- 
 lute. Men who deny the right of a jury to find a verdict, upon the 
 smallest facts, if even one juror dissents, illogically contend not only 
 that a bare majority of the court should invalidate the best considered 
 and most important statute, but would suppress even the expression of 
 dissent by the minority of the judges. 
 
 There are many things which the young lawyers of the State can 
 remedy when they come into the profession and before their youth and 
 unbounded enthusiasm become petrified by the study of precedents. 
 Lord Brougham said, "Touch but a single technicality, a single thread 
 of her web, and the old black spider of Westminster Hall will rush out 
 upon you with all her brood." 
 
 ROTATION OF JUDGES 
 
 Among other things needing remedy is first the antiquated rotating 
 system by which our judges ride the districts in succession. 'No one 
 cause probably contributes more to the delay and the costs of litigation 
 than this. A judge is nominated by one district, but he can ride in 
 succession the other nineteen, whose people had no voice in his nomi- 
 nation and to whom he is not responsible in any way. Aside from the 
 great and useless expense devolved on the judge by such rotation and the 
 long absences from his family (which deter many of the best men from 
 accepting such position) and his ignorance of the people and the sur- 
 rounding circumstances — a knowledge of which would be a great aid in 
 the administration of justice — there is the constant, though it may be 
 often unconscious, temptation to each rotating judge to "continue" cases, 
 which are thus thrown in succession on judge after judge, and the 
 absence of that sense of responsibility to the public which belongs to 
 every judge who rides his own district only. This antiquated and obso- 
 lete system obtains nowhere in the world except in North and South 
 Carolina. It has long been discarded in other jurisdictions. 
 
 REFORM IN PROCEDURE 
 
 Again, when the Code of Civil Procedure was adopted in 1S6S it 
 provided, as is still the case in the other Code States, that all summonses 
 were returnable before the clerk at a date named therein — not less than 
 ten nor more than twenty days after its issue; that if there was a de- 
 murrer it should be filed in three days and sent at once with the com- 
 plaint to the judge at chambers, who should promptly decide and return 
 it, and if an answer was filed the case should be transmitted to the first 
 term of court for trial by jury. If neither answer nor demurrer were 
 filed, judgment by default was taken before the clerk. In this way there 
 was a practical and common-sense dispatch in the administration of 
 
justice. But in our State at that time the people were largely in debt 
 and delay, not expedition, in the courts was desired. Accordingly, the 
 Batchelor Act was enacted to suspend this section, which was afterwards 
 made permanent, and has prevailed for fifty years, by winch a demurrer 
 carries the case over to the next term; and then if there is an appeal 
 there may be a delay of twelve months, and on its return the answer 
 may be filed within a year or two and the trial on the facts happens 
 when it may. 
 
 A census of the cases in our Supreme Court for the last year show that 
 on an average appeals get to that Court in four and one-half years after 
 summons issues. We have had cases there that have been pending 
 twenty years, and indeed one case had been in court sixty years. No 
 other business in the world could stand this method of procedure, and 
 as a matter of fact a very large portion of litigation dies in the process, 
 ■with wrongs unredressed and rights unadjudged. 
 
 Among the proposed betterments in trial practice is the suggestion of 
 Prof. Hugo Munstenberg, that an instrument can be devised to tell when 
 a witness is lying. This would save much time in trials. The theory is 
 that it will raise his temperature and a delicate instrument would regis- 
 ter the result. A lawyer not long since told an intelligent client that he 
 would have to put him on the stand as a witness in his own behalf. With 
 some trepidation the client asked if such a machine was in existence. 
 The lawyer replied, "Of course there is ; I married one." 
 
 DISQUALIFICATION OF WOMAN AS A WITNESS 
 
 Under the laws of Xorth Carolina formerly no negro or Indian or 
 person of mixed blood with as much as one-sixteenth negro or Indian 
 blood, whether bond or free, was competent as a witness against any 
 white person. (Rev. Code, p. 587.) In an eastern county of this State, 
 in 1862, a most estimable citizen, while supervising the digging of a 
 canal on his own land and unarmed, was shot down in cold blood, with- 
 out provocation, by a neighbor who had a grudge against him, and who 
 rode up on a horse with a double-barreled gun laid across the pommel. 
 There were more than two dozen witnesses present. One of them, who 
 was the foreman or contractor of the work, was a free colored person, 
 the owner of property and of good character, but he had one-sixteenth 
 negro blood in his veins. There were other free colored persons present 
 as laborers, with some slaves hired from neighbors, and a dozen or more 
 slaves of the murdered man. The murderer was promptly acquitted be- 
 cause there was no one who could testify against him under our law. 
 That law has since been repealed and the jury are allowed to weigh the 
 testimony of such witnesses for what they may deem it worth. The only 
 statute in this State which now prohibits a jury to believe a witness who 
 is competent to testify is that which provides that the jury shall not be- 
 lieve the testimonj- of the "icoman" on an indictment for seduction, even 
 though they do believe her, unless she is "supported" by other testimony. 
 
6 
 
 From the nature of the transaction she is sometimes the only witness. 
 The defendant has his testimony enhanced by the fact that he must be 
 found guilty beyond a reasonable doubt. While the perpetrator of the 
 foulest of wrongs is competent, the woman, who is embarrassed with her 
 shame, the victim of his lust and lying and of her faith in him, is ruled 
 out unless she can find some evidence to corroborate her. This is true 
 though the law requires the jury to find beyond a reasonable doubt that 
 the victim was a virtuous and innocent woman, and that there was a 
 promise of marriage, while the defendant can offer all the testimony he 
 can rake up to assail her life-long record. This blot upon our statute 
 book, this discrimination against women, will be remedied when women 
 have a voice in choosing legislators. It should be done now. It was 
 Robert Burns who said, "Man to man so oft unjust is always so to 
 woman." 
 
 In an Abbey in France there is a tomb to a knight of the olden time. 
 On it lies his effigy in marble, with shield and spear, and on his armorial 
 escutcheon there is engraved his name and the following words : "He 
 was a good Christian and a good knight and traveled a long ways over 
 the world deceiving the ladies." Our law in JSTorth Carolina seems not 
 to have progressed beyond that sentiment. 
 
 THE NEGRO PROBLEM 
 
 A recent address speaking of the effect of the negro element in our 
 midst expressed the opinion that only these four solutions were possible — ■ 
 i. e., (1) Amalgamation; (2) Extermination; (3) Emigration, or (4) 
 Servitude. 
 
 It seems to me that, speaking to young men who may have read this 
 statement, I should express the opinion that neither of these four is 
 possible, and that by the observance of justice and due consideration 
 for the rights of the weaker race the two races may, and in fact do, live 
 amicably together. In truth, there is no "negro problem." 
 
 Amalgamation is not desired by either race, and the Census shows, 
 with its stubborn figures, that its percentage has steadily decreased in 
 each decade since the war, and has not increased. Extermination is im- 
 possible and no one will advocate it in this twentieth century after 
 Christ. Emigration is also impossible. The colored people are nearly 
 one-third of our population and furnish probably a still larger propor- 
 tion of the labor upon which our very existence depends. Our agricul- 
 tural products in this State last year brought $700,000,000. The large 
 portion of it created by colored labor if struck from our receijjts would 
 paralyze the State. In the main, they are industrious, peaceable, and 
 inoffensive. 
 
 When "Peg-leg" Williams and one or two other labor agents sought 
 to carry off a few of our colored laborers our Legislature promptly im- 
 posed a license fee of a thousand dollars and enacted other restrictive 
 measures, which showed that the people of this State not only did not 
 
wish, but would not willingly permit, the emigration of our colored 
 labor. Colored labor has its faults — largely due to its environments and 
 lack of education — but if the vacuum which it would leave were filled 
 with Dagoes, Slovacs, Slavs and other white races, which now furnish 
 the bulk of the immigration to this country, such labor would be more 
 unruly, more given to strikes and more unsatisfactory. 
 
 The fourth and last alternative of Servitude cannot be contemplated a 
 half-century after Appomattox. Throughout the former Confederate 
 States there is not a neighborhood that would be willing to return to 
 that form of labor. 
 
 In all the countries of the world the movement and migration of indi- 
 viduals and of peoples have been such that nowhere can there be found 
 any large body of men entirely of one race. The English and a dozen 
 races live amicably in India ; and the same is true in all the more pros- 
 perous States of this country where the emigrants from abroad consti- 
 tute a large part of the creative force known as the labor element. With 
 us, the colored people are as a rule orderly, and not turbulent. Our 
 Southern people know them well — their good traits and their failings. 
 It would take us long to become accustomed to laborers of a different 
 race. The progress and the development of any country depend upon its 
 labor, which is the basis on which civilization rests. Without labor there 
 can be no civilization. 
 
 SUFFRAGE FOR WOMEN 
 
 Then there is the certainty of the extension of the suffrage to women. 
 This has been advocated by President Wilson, ex-President Roosevelt, 
 and William J. Bryan, and is in the platforms of all the great parties. 
 It is quite probable that the amendment to the U. S. Constitution will 
 get the one additional vote necessary to pass it through the Senate be- 
 tween now and 4 March; and if not, it is certain to be enacted at the 
 called session in the summer, and will be ratified, like the Prohibition 
 Amendment, so quickly that women will vote in all the States at the 
 November election next year. A little boy who had never seen his 
 grandmother before, looking her over very closely, said : "Are you my 
 grandmother?" She replied with much dignity: "I am your grand- 
 mother on your father's side." To which he replied : "You've got in 
 on the wrong side. If you want to have any infiuence around this house 
 you will have to be on mother's side." 
 
 Young gentlemen, you can take the hint. It is true the province of 
 women is the home, but for that very reason they should have the ballot. 
 Their vote will always be in the interest of the home and conservative, 
 for morality, for education, for sanitation and for the protection of 
 childhood. Mr. T. T. Hicks, in his address at the Centennial of the 
 Supreme Court, truthfully and wittily said, "The objection of many 
 politicians to equal suffrage is the fear that for them it would be an 
 answer to the prayer of the Psalmist, 'Teach me to know mine end and 
 
the number of my days.' " As a rule, women do not seek office ; and as 
 ■ to his prediction that one of them may become Chief Justice, readers of 
 the Scriptures will remember that Deborah was Chief Justice of Israel 
 more than three thousand years ago, for it is said that she was judge 
 over all Israel; and it is significantly added "and the land had rest for 
 forty years." She was appointed, too, at a time when the Theocracy 
 ruled and all selections for office were made directly by Jehovah. 
 
 A member of the Legislature has said, "I am for the women having 
 the suifrage if they want it, but I cannot see why in the world they wish 
 it." He is partly of Scotch descent and proud of it. Some one asked 
 him if the Legislature could and should pass an act depriving all men 
 of Scotch descent of the suffrage if he would be satisfied. He instantly 
 replied that he and all other men of like descent would come down to 
 Raleigh and tear down the Capitol. Yet he seemed to think that his 
 wife, sisters and daughters should be content with their present exclusion 
 from all share in the government and with being put in the same class 
 with "convicts, idiots, lunatics and illiterate negroes." 
 
 The real influences against suffrage influences that count are the 
 liquor interests, who feel that though Prohibition has been adopted, the 
 vote of the women will make it more effective, and the employers of large 
 bodies of labor, who fear that that vote will enforce the execution of the 
 laws against child labor and will stand for shorter hours of labor. Then 
 there is everywhere an organization, more or less perfect, known as "the 
 machine in politics." This element have a large part of the vote of the 
 men coralled and they fear that the coming of the women to the polls 
 will break up their schemes. 
 
 It has been urged in opposition that if women vote the negroes wilL 
 There are 53,000 more white women in North Carolina than all the 
 negro men and negro women put together, and the admission of the 
 women to the ballot box will be the only certain guarantee of white 
 supremacy. We must also face the fact that sooner or later the negroes 
 will exercise the right to vote guaranteed by the Fifteenth Amendment. 
 Every man who has registered, voted or held office in North Carolina 
 during the last fifty years has taken an oath to "support and maintain 
 the Constitution" which contains the Fifteenth Amendment. Our "Grand- 
 father Clause" cannot and does not attempt to repeal that amendment. 
 It merely disqualifies "illiterates," which the State had a right to 
 enact. There is a provision therein of an exemption as to white people 
 till 1908 from the disqualification, but that has been held invalid by 
 three decisions in the 238 U. S. Reports, construing provisions in the 
 Maryland and Oklahoma constitutions exactly like ours, and enforcing 
 the Federal statute, which authorizes ten years imprisonment and a 
 $5,000 penalty and an action for damages against any registrar, poll- 
 holder or other person making a discrimination in the exercise of the 
 suffrage on account of race, color or previous condition of servitude. 
 We have to face a condition, and not a theory, and our surest protection 
 
9 
 
 is to increase the white vote by doubline; the white majority. We have in 
 this State about 70 white men to every 30 negroes — a white majority of 40. 
 When women are admitted to suffrage we shall double these figures and 
 will have 140 white voters for every 60 colored — a white majority of 80, 
 just double. 
 
 The suggestion that admitting women to the ballot will enable the 
 negroes to vote (who have been entitled to do so for fifty years under the 
 Fifteenth Amendment) has no parallel in its logic except in the state- 
 ment of the African guide who said "The little negro boys tie the 
 ostrich's leg to the cocoanut tree and that accounts for the milk in the 
 cocoanut." 
 
 LABOR ORGANIZATIONS AND SOLDIERS 
 
 The great growing power in this country is the labor organizations 
 which have risen wherever large bodies of white men are engaged in in- 
 dustry. A hundred years ago in England laborers Avere forbidden under 
 heavy penalties to organize in labor unions, and an attempt to procure 
 higher wages, whether by peaceable demand, by strikes, or any other 
 methods, was made a serious offense. This "has long ceased to be the 
 law there, and the history of legislation here is known to you all to have 
 been in favor of larger opportunities to those who create the wealth of 
 the country. 
 
 In England up to a little over one hundred years ago when a soldier 
 or a sailor returned from the war there was no hospital, no soldiers' 
 home, and no pensions for him. The generals, like Marlborough, Well- 
 ington and others, received immense grants of money and seats for them- 
 selves and descendants in the House of Lords, but the veterans who won 
 the battle for them at Waterloo, at Trafalgar and at Blenheim were 
 rewarded, if at all, by a permit to beg and with the statutory provision 
 that if any discharged soldier or sailor should beg without receiving such 
 permit he should be hanged, and some of them, forced by necessity to 
 beg, were accordingly hung. 
 
 Farther back, after the great English victory at Crecy and the peace 
 of Bretigny in 1359, when England annexed the larger part of France, 
 Edward III. rewarded his victorious soldiers by refusing to permit any 
 of them to return home, but disbanded them in the peaceful and pros- 
 perous province of Brittany with permission to plunder its rich and 
 unoffending people at leisure and at their will, which the soldiery did. 
 You will find the details stated as a cold matter of fact in the pages of 
 Froissart. The different manner in which we are receiving our return- 
 ing soldiers from France is proof of the consideration which the soldier 
 has won since the day when laborers and soldiers and people existed only 
 for the exaltation of those who held rule. 
 
 It is a common saying that young lawyers take to politics as a duck 
 to water. As our profession furnishes all the judges (on the higher 
 courts at least), two-thirds of the Presidents and Governors, and on an 
 
10 
 
 average more than 60 per cent of the members of Congress and of the 
 State Legislatures, this is but natural. Our profession not only largely 
 make the laws, but construe them and execute them, and sometimes veto 
 them. 
 
 CURRENT CAMOUFLAGE 
 
 As a large proportion of you will doubtless be in public life at some 
 time, it may not be amiss to say to you that you should not be misled 
 by the current camouflage nor mistake the use of phrases for sound 
 argument. There are many of these, but I will mention briefly six : 
 
 1. Personal Liberty. — This is a good thing and deserving all honor, 
 and every effort to maintain it, but, as Madam Koland said, "Oh, liberty, 
 what crimes are committed in thy name !" Personal liberty has been 
 thus used for a hundred years as the chief reliance of the saloons, the 
 breweries, and their hirelings to delay and prevent the emancipation of 
 the people from the iniquities of the liquor traffic. Only recently the 
 people, still unaware of their power, with great speed ratified the consti- 
 tutional amendment which the liquor interests thought they had defeated 
 by requiring its adoption within seven years. 
 
 2. States Rights — has been another favorite camouflage with which to 
 humbug the public. We all know that this is an element in our Federal 
 Constitution, but it has been invoked for the protection of slavery, and 
 on many other occasions to prevent all progress, as indeed it is now to 
 defeat the just demand of the women for a share in the government. 
 The Constitution expressly provides that it may be amended by a two- 
 thirds vote in Congress and upon the ratification of thirty-six States, but 
 they who are opposed to equal suffrage quote it as their chief defense, 
 even those who have voted for the National Prohibition Amendment. 
 
 3. Unconstitutional. — This is another cry raised, in season and out of 
 season, to defeat measures which, too strong for the lobby, have been 
 voted by Congress and the Legislatures upon the demand of the people. 
 
 4. Social Equality. — This also has been used to frighten the people of 
 the South into the abandonment of all measures of progress whenever 
 other means fail. It is a scare-crow. Neither race desires it. 
 
 5. Socialism. — Our learned brethren of the medical profession say 
 that there are ninety-two kinds of rheumatism. There are at least that 
 many kinds of Socialism. If by Socialism is meant the abolition of the 
 private ownership of property, or its ownership in common, it is im- 
 possible until human nature is changed. It was tried in the days of the 
 Apostles and failed. Its most notable product was the incident of 
 Ananias and Sapphira. If by Socialism is meant municipal ownership 
 of lights and water and State or Government ownership of railroads, 
 we have them already. 
 
 6. "The right to vote is a privilege and not a right." — This statement 
 is without foundation, and rests solely upon the repetition of assertion. 
 We did not fight Great Britain for the "privilege" of self-government, 
 
11 
 
 but for tlic "right" to govern ourselves by our own votes. Every person 
 who has sufficient intelligence and good character has a right to share 
 in the government. The majority have the right to exclude lunatics, 
 idiots, infants, and illiterates because they are not mentally competent, 
 and to exclude convicts because they are morally defective. We excluded 
 negroes till 1S68 because they were mostly uneducated and incompetent. 
 It was a mistake that the State and Federal Constitutions admitted them 
 in 1868. After experience proved this, the "Grandfather Clause" in 1898 
 excluded them — not as negroes, but as "illiterates." This clause has 
 now been held unconstitutional by the U. S. Supreme Court because we 
 exempted white illiterates. 
 
 Women are as competent, morally and mentally, as men, and have a 
 right, and not a mere privilege, to vote and should not be excluded ex- 
 cept in those cases in which men are excluded — i. e., when they are 
 lunatics, idiots, infants, illiterates, or convicts. 
 
 There was never a more unfounded statement than that the vote is a 
 mere privilege granted by a superior, unless our American Eevolution 
 and all other struggles for freedom the world around were based on 
 falsehood. When did the male sex become so superior that they should 
 "grant" or refuse such "privilege" to their mothers, wives, sisters, and 
 dautrhters ? 
 
 You will find that when argument fails, one or the other of the above 
 phrases will be thrown at your head, as if an epithet were an argument; 
 and when these fail there is the customary appeal to race and sectional 
 prejudice. In the language of the Apostle, "Let none of these things 
 move you." 
 
 There are other matters, but I will close with the following quotation 
 from the Areopagitica, by John Milton: "For this is not the liberty 
 which we can hope for, that no grievance ever should arise in the com- 
 monwealth, that let no man in this world expect ; but when complaints 
 are freely heard, deeply considered, and speedily reformed, then is the 
 utmost bound of civil liberty attained that wise men look for." 
 
 And I again quote from the same author : "I cannot praise a fugitive 
 and cloistered virtue, unexercised and unbreathed, that never sallies out 
 and sees her adversary, but slinks out of the race, where that immortal 
 garland is to be run for, not without dust and heat." 
 
 Young gentlemen, do not look forward to a life of ease, nor float with 
 the current. Stand for better and higher things, so that the condition 
 of the great dumb masses may be somewhat better because you have 
 lived. In the language of the great Lord Mansfield, "Seek not the popu- 
 larity that is run after," but that which follows noble deeds. Give to 
 the people among whom you live the best that is in you ; it will come 
 back to you. 
 
Infallible Government 
 
 By the Odd Man 
 
 Chief Justice Walter Clabk in The American Law Revieio. 
 
 There is no question that is more important than the right of the 
 people, through their freely elected representatives, to enact their will 
 into law. The men who made the Federal Constitution at Philadelphia 
 were naturally doubtful of the safety of property under a government 
 by the people. Up to that time manhood suffrage had been entrusted to 
 the people in none of the States. Suffrage pertained to the ownership 
 of property, and there were other restrictions. Besides, at that time, the 
 masses were uneducated and the experiment of government by the people 
 was new and untried. It had not existed in England, which was a gov- 
 ernment by the landlords who sat in the House of Lords and dictated 
 the selection of the members of the House of Commons. 
 
 The Constitution at Philadelphia restricted the making of laws to 
 this extent and no further : that the bill had to be passed by one House 
 and then by the other, and then it had to be approved by the Executive, 
 and, failing to receive his approval, it was necessary to be passed by a 
 two-thirds vote in each House. This was deemed an ample security that 
 the law was in accordance with the Constitution, and should be enforced, 
 subject to the right of the people to repeal it by the election of members 
 of the House and Senate and President. 
 
 THE JUDICIAL VETO 
 
 There is not a line in the Constitution which intimates an intention 
 that a majority of the Supreme Court should set aside a statute that 
 had been passed in this manner and approved by the President. It is 
 contended that the proposal to give the judges such power, and which 
 was four times defeated in the Convention, was a proijosition that the 
 judges and the President should have revisionary power over an act 
 before it passed. Be it so. This would have been less objectionable 
 than the present system, for it would have given the Congress an oppor- 
 tunity to conform the statute to the revision, but it is most singular logic 
 to hold that because such power of revision was four times defeated, 
 therefore the Constitution gave to the courts the power to set aside a 
 law after it was enacted. 
 
 If the Constitution gave such power, all that is necessary is to point 
 it out; and this no man has yet done. The Convention knew how to 
 
13 
 
 give the President the veto power, and it took care not to make it abso- 
 lute, but merely suspensive and subject to be overruled by a two-thirds 
 vote. If it intended to give the judges the veto it certainly would have 
 said so plainly, and also more certainly would not have made it absolute, 
 but subject to review by a prescribed vote in Congress, as it did in 
 regard to the presidential veto. An irreviewable veto by five men is as 
 objectionable as if exercised by one. The Decemvirs were as odious as 
 Tarquin. 
 
 SUPREMACY OF FEDERAL LAWS 
 
 It is true that there is a provision that the laws enacted by Congress 
 shall be supreme over those enacted by the States. This is necessary in 
 a federal form of government, and it is the function of the Supreme 
 Court to construe the meaning of acts of Congress; but this does not 
 include the power to repeal them. Neither do the State Constitutions 
 confer power upon their Supreme Courts to set aside an act of a State 
 Legislature which has been passed with the approval or over the veto of 
 the Governor. The State courts, like the U. S. Supreme Court, must 
 recognize the supremacy of the Federal laws over the State laws. 
 
 It is argued that this implies a power in the courts to pass upon the 
 constitutionality of an act of Congress, for "otherwise it is no law." 
 This has no warrant in the Constitution. That provides that when the 
 statute has been passed by one House and then by the other, and ap- 
 proved by the President, or passed by both Houses over the presidential 
 veto, it is a law. Any assumption by the courts or any one else there- 
 after to set it aside is without warrant, except in sheer judicial assump- 
 tion. 
 
 In England the veto has not been exercised by the executive in any 
 case for more than two centuries ; and by recent legislation when the 
 bill is passed by the Lower House, the representatives of the people, on 
 two separate occasions it becomes a law in spite of an adverse vote of 
 the Upper House. Yet England is not governed by a mob, and they are 
 imduly frightened at popular rule who doubt the capacity of the Ameri- 
 can people, acting through the House and Senate and with the approval 
 of the President, to pass legislation, subject only to the review of the 
 people themselves in the choice of new agents. 
 
 As further evidence, the Constitution did not create the Supreme 
 Court, but left it with Congress to prescribe its membership, and, with 
 unimportant exceptions, left its jurisdiction to be prescribed by Con- 
 gress, "with such exceptions and under such regulations as Congress 
 shall prescribe." As to the lower Federal courts, they were to be "or- 
 dained and established" by Congress from time to time, which, of course, 
 must prescribe and regulate their jurisdiction. In 1803 Congress abol- 
 ished sixteen Federal Circuit Courts, and from time to time since has 
 abolished District Courts. It has increased and reduced at will the num- 
 ber of Supreme Court judges. Congress also has the power to remove 
 
14 
 
 the judges by impeachment. These provisions of the Constitution cer- 
 tainly do not indicate the irreviewable supremacy of the Supreme Court 
 (or of five members thereof) over the law-making body. 
 
 In England, the judges once (and only once) held an act of Parlia- 
 ment invalid, and then Chief Justice Tressilian was hanged and his 
 associates were banished to France. With such encouragement, the 
 courts in England have never since attempted a like feat. There have 
 been expressions from time to time in the English courts that an act of 
 Parliament was unconstitutional, but those who are conversant with the 
 English decisions know that this was merely an expression by the judges 
 that such legislation was in their opinion not conformable to the un- 
 written Constitution of the Kingdom, but in not one of those cases was 
 it held that the act was void, and the courts have not attempted to set it 
 aside or dared to disregard it. In this connection, reference may be 
 had to the misimpression that the English judges hold for life, which 
 they do not. Prior to the Revolution of 1688, the English judges held 
 subject to the pleasure of the king, who could and did remove them at 
 will. Ever since 1688 they hold subject to the will of Parliament, which 
 can remove any judge by a majority vote without a trial. A similar 
 provision obtains in the Constitution of Massachusetts, and though 
 Daniel Webster in the Constitutional Convention of his day earnestly 
 endeavored to have that provision stricken out it was and still is re- 
 tained. In practice, this power has been seldom exercised in England, 
 and never, I believe, in Massachusetts, but the power is there and is a 
 full recognition of the fact that the law-making body, and not the court, 
 is the supreme power in the State to prescribe its laws. 
 
 MARBURY V. MADISON 
 
 The Court in Marhury v. Madison declared (though in an obiter 
 dictum) that it had power to hold an act of Congress unconstitutional, 
 but it did not exert that power for fifty-four years — till the Dred Scott 
 case in 1857, when (in another obiter) it held the Missouri Compromise 
 invalid, and thereby "turned loose the dogs of war." This decision has 
 been followed since by the Court construing the language of the Four- 
 teenth Amendment, which was enacted for the protection of the newly 
 emancipated slaves (which it did not effect) as conferring such power. 
 But unless the Constitution made the Supreme Court (or rather five 
 members thereof) the supreme and ultimate power in the government, 
 the decision in Marbury v. Madison and all decisions since based on it 
 cannot amend the Constitution. The proper mode to amend the Con- 
 stitution is through the law-making department of the Federal Govern- 
 ment, with the ratification of the law-making bodies in three-fourths of 
 the States. In this there is no indication that the courts are to have 
 any power in amending the framework of our Federal Union. It is 
 solely a matter for the people acting through their duly elected repre- 
 sentatives. 
 
15 
 
 ■ There has been a great effort by lawyers representing aggregated 
 •wealth to arouse the esprit du corps of the Ic.^al profession, as if to 
 deny the infallibility of five lawyers on the Supreme Court, is an attack 
 upon the lawyers of the country. There is nothinj; in the Constitution 
 which entrusts the control of our Government to any one profession or 
 calling; but if, as some seem to argue, it should be entrusted by tacit 
 consent to the lawyers of the country, there remains the fact that on an 
 average more than 60 per cent of the Legislatures and of both Houses 
 of Congress and of the State Executives and of our Presidents have been 
 lawyers, and to admit that the power to overrule their action resides in 
 the infallibility of a majority of five lawyers at Washington, and as to 
 State le2;islation in a majority of the State Supreme Court, is the great- 
 est reflection upon the Bar instead of an honor conferred upon it. There 
 is never a session of Congress in which there is not more legal ability in 
 the two Houses and the President than there is in any five men upon 
 the Court ; and the same is true as to the State Legislatures and Gov- 
 ernors and the State courts. Congress and the President are elective 
 and reviewable, but the Court is not. 
 
 COURTS NOT INFALLIBLE 
 
 The Supreme Court has not been infallible. Its action in the Dart- 
 mouth College case has been entirely overruled by provisions inserted 
 in the several State Constitutions, and the method in which that decision 
 was brought about conferred no credit upon the Court of that day. 
 
 The Court in many cases has held that its own action was unconsti- 
 tutional by overruling its former decisions. As to the decision in the 
 Legal Tender case, every one knows how a reversal was brought about 
 by reducing and increasing the number of judges. In the McCardle case 
 Congress asserted its prerogative by prescribing "Such exceptions and 
 regulations" as prevented the Court from attempting to set aside the 
 act of Congress in question, though the lower court had already passed 
 upon it. In the Income Tax case the Court first affirmed its unbroken 
 precedents of a hundred years, and then by a change in the vote of one 
 judn;e reversed it, thereby declaring its previous action unconstitutioual, 
 and necessarily holding that it was not infallible. 
 
 The Lochner case, which held that the law-making authority could 
 not restrict the hours of labor to ten hours a day, has since been over- 
 ruled by the decision as to the Adamson Law holding valid legislation 
 limiting the hours of labor to eight hours. The judicial somersault as 
 to the income tax required twentj' years to remedy by a constitutional 
 amendment, and in the interim transferred $3,000,000,000 from the over- 
 rich upon whom the law-making body had placed a fair share of the 
 burdens of the Government, and by judicial enactment transferred it to 
 the laborers and farmers of the country. Shall this always be necessary? 
 
 If the judges were infallible, there might be more excuse for this as- 
 sumption of power; but the effect of the Income Tax decision and many 
 
16 
 
 others shows why this claim of absolute, irreviewable, and ultimate 
 sovereignty in a majority of the Court is maintained. It is simply be- 
 cause the decisions in those cases have inured to the protection of the 
 possessors of aggregated wealth or self-styled "vested interests." The 
 lawyers representing those interests are zealous to assail those who deny 
 that this power is conferred by the Constitution. Without any reflection 
 upon the incumbents of that Bench in any period of its history, it has 
 been but natural that men who have achieved prominence as the repre- 
 sentatives and counsel of great corporations have been those most gener- 
 ally selected by the influences which control appointments to the Bench. 
 If the power resides in such infallible majority, whether of the Federal 
 or State Supreme Courts, to negative the action of the bodies elected by 
 the people to make their laws, with the approval of the executives chosen 
 by the people, then the control of our Government is in whatever influ- 
 ences can secure the appointment or selection of a majority of the Court. 
 Of course the great "Interests" and "Big Business" are alarmed at the 
 denial of such power in the courts and plausible arguments can always 
 be made by lawyers. 
 
 WHAT CLAUSE IN THE CONSTITUTION? 
 
 The question, however, narrows down to this : "What clause in the 
 Federal Constitution confers upon the Court the irreviewable veto upon 
 an act of Congress passed by the two Houses of Congress and approved 
 by the President?" If there is such, let it be pointed out and end the 
 controversy. All the argument in the world cannot put it there. If the 
 clause is there, any one who can read can see it as well as a robed judge. 
 
 It is a singular argument when the ruling of the Court in conferring 
 this power upon itself is questioned to cite subsequent rulings by the 
 courts to the same effect. If the first ruling was an illegal assumption 
 and erroneous, all the subsequent decisions are the same. One hundred 
 times zero is zero still. The repetition of an error does not make it true. 
 The only question is : "Is there such provision in the Constitution ?" 
 That is the sole test. If there is, no argument is needed. Simply let it 
 be pointed out. The resort to argument, however ingenious, is in itself 
 an admission that the power is not granted the Court in the Constitu- 
 tion, but was created by the Court in its own favor. 
 
 Does the governing power reside in the peojile who elect the House 
 and Senate and the President, or in the influences which shall be able 
 to secure the appointment of five judges of their own way of thinking 
 on public questions? 
 
 The King of England had the unquestioned and absolute veto power 
 (though for two centuries he has not used it). Yet if our Constitution 
 had not given the President in express words the veto, and he had at- 
 tempted to veto an act of Congress on the ground either that the King 
 of England had such power, or that the act of Congress was unconstitu- 
 tional, he would have been promptly impeached. 
 
17 
 
 On the other hand, the courts in England never had the power to set 
 aside an act of Parliament, and our Constitution does not give it to them, 
 but the Courts have assumed it! 
 
 GOVERNMENT BY THE ODD MAN 
 
 The U. S. Supreme Court has on several occasions set aside an act 
 by a vote of 5 to 4 — ?'. c, it held that the two Houses of Congress, the 
 President, and four members of the Court were fallible, but the other 
 five were infallible. The divine infallibility of heaven rests therefore 
 on the odd man. But in the Income Tax case the divine afflatus which 
 rested on the odd man itself changed. After holding the tax valid 
 according to the precedents of one hundred years the odd man went 
 over to the viewpoint asserted by the Interests and eo instanti his four 
 infallible associates of the day before became fallible and the four falli- 
 ble judges of the day before co instanti became infallible. The divine 
 afflatus on the odd man shifted like a summer's breeze. The action of 
 Congress and the President expressing the will of a free and great peo- 
 ple became null and void. It took twenty years and a constitutional 
 amendment to recover the right which Congress had exercised till 1893 
 to tax incomes. In those twenty years great wealth received an exemp- 
 tion of three thousand millions of dollars which had been thus shifted 
 upon the laborers and farmers of the country. 
 
"Making the Word of None Effect 
 by Their Traditions" 
 
 By Chxef Justice Walter Clabk. 
 
 (Reprinted from The Public.) 
 
 A lawyer would never think of construing a statute by industriously 
 getting together the statements of the members of the Legislature, or of 
 Congress, many years afterwards as to what they intended, or by pro- 
 curing their views upon the general subject. Yet that is what has been 
 attempted to be done in regard to the Constitution of the United States. 
 The intent of the members of the Convention is immaterial even if it 
 could be proven in this way. The question is. What power does the 
 language of the Constitution confer on the courts? That language is 
 as readily ascertainable today as at any other time and can be deter- 
 mined by any one who can read the English language. Certainly no 
 one has ever asserted that there is any clause of the Constitution which 
 expressly confers on the courts the veto power which the Constitution 
 does confer upon the Executive. 
 
 The power is not expressly conferred and the Court could not assume 
 it by argument. The fact that there have been decisions — in Marbury v. 
 Madison and in the Dred Scott case before the war, and several cases 
 since — cannot authorize the courts to take a power if it is not granted 
 them. To assert this is to do like the Pharisees, who the Master asserted 
 "Made the Word of none effect by their traditions." 
 
 Alexander Hamilton, in the 81 Federalist, declared there was not a 
 syllable in the Federal Constitution giving the courts this power. No 
 man more earnestly desired that the Court should have this power, for 
 of all the leading men of his day he most feared government by the peo- 
 ple. His great opponent, Thomas Jefferson, on the promulgation of the 
 obiter dictum in Marbury v. Madison, promptly denied that the courts 
 had such power under the Constitution. 
 
 It was a shrewd move on the part of Marshall (who, by the way, was 
 Jefferson's near kinsman) to assert the power as an abstract proposition 
 instead of in a concrete form which President Jefferson would have 
 negatived. 
 
 When Marshall made another of his unwarranted assertions of power, 
 President Jackson said, "John Marshall has made his decision, has he? 
 Now let us see him execute it," and it was never executed, and to this 
 day has remained a harmless paper in the archives of the court. 
 
19 
 
 When in 1857, in the Dred Scott case (fifty-four years after Marhury 
 V. Madison), the Court for the first time assumed to set aside an act of 
 Congress, relying upon the support of the then President (whose letters 
 expressing the desire that the Court should so decide are still extant) 
 Abraham Lincoln, as promptly and as emphatically as President Jeffer- 
 son denied the authority of the Court to exercise such power. The same 
 views have been expressed since by James A. Garfield, Theodore Roose- 
 velt, and many others. Let us admit that their views can avail no more 
 against the proposition than that of the judges in favor of granting 
 themselves the supreme power over the other two departments of the 
 Government. The test is not what any men, however distinguished, 
 have said on either side of the question. The sole test is what clause in 
 the Constitution confers this supreme power upon five men to set aside 
 an act of the two Houses of Congress approved by the President? If 
 there is such clause, no argument is needed; if there is none, then the 
 traditions of the elders cannot supply its absence in the word. 
 
 OUGHT THE COURTS TO HAVE THE VETO POWEK? 
 
 Neither is the question to be debated whether the courts ought to 
 have this power. The inquiry is. Does the Constitution confer it? It 
 is not an incidental or merely inferential power. It is the greatest of 
 all powers and cannot be created by argument. There is power to 
 review the action of Congress and the President, but it is not given to 
 the Court. That power is the people, of whose sovereignty the great 
 reactionary Interests are so fearful. 
 
 It is true that the Constitution gave the "Judicial Power" to the 
 Supreme Court, "subject to exceptions and regulation by Congress," but 
 to assert that the judicial power embraces the supreme power to disallow 
 the action of the law-making body is to beg the very question at issue. 
 Such power did not exist in England, nor does it exist today in any 
 other country. It could not be a part of the judicial power under the 
 Constitution of the new government unless it was put there by the Con- 
 stitution. 
 
 Those who doubt the capacity of the people for self-government can 
 suppose cases where the two Houses of Congress and the President may 
 conspire to act foolishly and unconstitutionally. If so, why not also 
 suppose that five men on the Supreme Court, who, unlike Congress and 
 the President, have not been placed in their positions by the expressed 
 confidence of the people at the ballot box in their integrity and ability, 
 should act foolishly or unconstitutionally ? The two Houses of Con- 
 gress and the President, acting in the open and subject to review at the 
 ballot box, are less likely to conspire against the rights of the people 
 than five men who, as Jefferson expressed it, may "huddle up their de- 
 cisions in secret conclave." It is no reflection upon the Court to say 
 that those who laid the foundation of the new government believed that 
 
20 
 
 the House and Senate and President acting together could be trusted 
 with law-making power, subject to the approval or disapproval of the 
 people. The Constitution required no other review. No amendment 
 subjecting Congress to supervision by the Court could be inserted in 
 the Constitution today. 
 
 The people elect the two Houses of Congress and the President, and 
 do not need to be "defended" from them by the judges, in whose selection 
 they have no voice and who hold for life without regard to the constitu- 
 tionality of their actions or popular approval. 
 
 NOT A JUDICIAL POWER AT ALL? 
 
 The power to set aside or nullify an act of Congress or a State Legis- 
 lature is a purely political power and is so recognized by the Constitu- 
 tions which give the veto to the Executive. It comes under no definition 
 or conception of the judicial power, which is to judge between the par- 
 ties to a controversy. Neither the Government nor the State is a party 
 to these proceedings, in which its supremest power — that of enacting 
 laws — is nullified. As claimed and exercised by the courts, it is the 
 absolute, autocratic power, because it is irreviewable. Those whose in- 
 terest it is to have such power over the legislative and executive assert 
 it for their own ends. The wonder is that it has ever been acquiesced 
 in at all under a free form of government. 
 
 The Constitution does not confer the absolute "judicial power of the 
 U. S." upon the courts. If it did it nowhere prescribes that the "judi- 
 cial" power includes the power to nullify the action of the law-making 
 power approved by the President. To assert that is begging the very 
 question at issue. The courts in England and all other countries exer- 
 cise the full judicial power of their respective countries, but in none of 
 them do they assume to set aside an act of the department charged with, 
 the duty of making the laws. The judicial power that is conferred by 
 our Constitution is expressly made subject "to such exceptions and 
 under such regulations as Congress shall prescribe." It did prescribe 
 such exceptions in the McCardle case, and Senator Owen's bill proposes 
 to do the same thing. 
 
 The Constitution is written in plain English and should be easily 
 understood of all men. As written and adopted, it confers the law- 
 making power upon the House and the Senate, with the safeguard of 
 the approval of the President, which, if he refuses, can be overcome by 
 a two-third vote in each House. There is no hint of any further review. 
 The Court, without any authority, has created itself a Privy Council 
 of appointive, life-tenure members, five of whom in secret conclave can 
 defeat the law-making power given by the Constitution. 
 
Judicial Supremacy Unwarranted 
 by the Constitution 
 
 By CuiEF Justice Walteb Clabk. 
 
 (Reprinted from The Public.) 
 
 The jurisdiction conferred on the Supreme Court by the Constition, 
 Art. Ill, is small, and then follows: "In all the other eases before 
 mentioned the Supreme Court shall have appellate jurisdiction, both as 
 to law and fact, with such exceptions and under such regulations as 
 Cnrifjrcss shall make." 
 
 The inferior courts are "ordained and established" by Congress, which 
 must prescribe the limits of their jurisdiction. The claim of supremacy 
 by the Judiciary over its creator is therefore not authorized. It is as- 
 serted that it is "necessary to the independence" of the Judiciary. In 
 fact, it is the assumption by it of 
 
 SUPREME. IRRESPONSIBLE. AND AUTOCRATIC POWER 
 
 Of course every department of the Government takes an oath to sup- 
 port the Constitution ; but the sup-reme power to review, whether they 
 do or not, is reserved to the people, and is nowhere given to the Judi- 
 ciary. 
 
 If Congress disobeys the Constitution the members of both the House 
 and Senate are chosen by the people and can be reviewed at the next 
 election. 
 
 If the President disobeys the Constitution, he is chosen by the people 
 and his acts can be reviewed at the next election. 
 
 If the Federal Judiciary do an unconstitutional act, they are not 
 chosen by the people and cannot be reviewed at the next election. That 
 they have acted unconstitutionally has been held by themselves in re- 
 versing the Legal Tender decision and the Income Tax decision, in the 
 Ten-hour case (Lochner case), virtually reversed in the Adamson Law 
 case, and in other cases. 
 
 In the Income Tax case the last decision was wrong, and it required 
 eighteen years to get the evil corrected by constitutional amendment, 
 and in the meantime that one vote of one judge transferred 3,000 mil- 
 lions of dollars taxation from the predatory rich and placed it upon the 
 producing classes of the country. 
 
 Is it not worth while to prevent other abuses by an irresponsible 
 court, a bare majority of whom may again, as so often in the past, mis- 
 take their own economic views for the Constitution. 
 
An act similar to tliat now proposed by Senator Owen, depriving the 
 Court of jurisdiction over the Reconstruction Acts, was admitted by the 
 Court itself as depriving them of power in McCardle ex parte, 6 Wal- 
 lace, 324. 
 
 The first usurpation, in Marhury v. Madison, during the incumbency 
 of Chief Justice Marshall, was made by an obiter dictum, and was not 
 repeated as to an act of Congress for fifty-four years, in the Dred Scott 
 case; and this brings me to the purport of this article, which is to call 
 attention to the motive for the obiter dictum in the Marbury case, as 
 follows : 
 
 INVENTED TO SAFEGUARD SLAVERY 
 
 In laying the foundation of the Constitution, there began the trouble 
 between the free and slavery system of labor, which was a continuous 
 struggle down to 1861. It was compromised by the Constitution giving 
 three-fifths of a vote to slave owners as representatives of their slaves. 
 It was recognized that by the increase of the white vote at the North, 
 as well as by immigration, the South would soon lose control of the 
 House, and that it would ultimately lose the control of the Senate, 
 though for a long time the parity was kept up by always admitting a 
 slave State and a free State at the same time. On the admission of 
 Missouri in 1820 we came near a dissolution of the Union. The Mexi- 
 can War was largely caused by an effort to maintain the political 
 equality of the slave States in the Senate. For a long time the South 
 held the presidency by nominating a "Northern man with Southern 
 principles," but when Lincoln was elected it was seen that that could 
 not te relied on. 
 
 The Marbury v. Madison decision was simply "throwing an anchor 
 to windward" by giving to the Supreme Court power to invalidate any 
 action of Congress, though approved by the President, which should 
 jeopardize slavery, and which thus made the Court a third line of de- 
 fense that would last the lifetime of the judges. This was shattered by 
 the hostile reception given the Dred Scott case, and the results of the 
 Civil War. The contest for slavery made the South "A section apart," 
 and the waves have not yet entirely subsided. They have a proverb in 
 wind-swept Spain, a land of wind mills, "Though the mills are down, 
 the winds are blowing there still." 
 
 Marbury v. Madison having been thrown up as a bulwark for the 
 Slavery Trust when the Fourteenth Amendment was passed with a pro- 
 vision intended for the protection of the emancipated negro (which it 
 did not effect), the Interests created by the war, through the new ap- 
 pointees from time to time on the Supreme Bench, secured for them- 
 selves the construction by the Court of a newer and deadlier theory than 
 Marbury v. Madison, which was outworn. As to the Reconstruction 
 Acts, Congress made the Court stand off. But as the Court is appoint- 
 ive, and for life, the people have no hand in choosing them and no 
 power to review them, and if their assumption of the supreme and ulti- 
 
nate power of review of the action of Congress shall continue to be 
 ubstituted for that of the people, then aggregated wealth, following the 
 sample of the slavery leaders down to 1861, have the irreviewable 
 lower to control the Government and set at naught the will of the peo- 
 ile on all })ublie questions. 
 
 In Haines' "Judicial Supremacy," pp. 234 and 282, it is stated that 
 wice before — in 1825 and 1867 — bills like Senator Owen's present bill 
 fcro introduced. That in 1867 passed, but applied only to the Recon- 
 truction Act, and was obeyed by the Court in the McArdle case. 
 
 JEFFERSON AND LINCOLN 
 
 "Wlien the Marhury r. Madison decision was rendered it was at once 
 '.enounced by President Thomas Jefferson as an usurpation unwarranted 
 n the Constitution, and when it was repeated fifty-four years later in 
 ihe Dred Scott case it was as vigorously denounced by Abraham Lincoln, 
 ,nd these men were, respectively, the very chief est of the apostles of the 
 ■wo great parties now before the country. 
 
 Mr. Jefferson wrote to Chief Justice Spencer Roane of Virginia : "If 
 he judges have the power to annul statutes in conflict with the Consti- 
 ution, then the Constitution and laws are a mere thing of wax which 
 hey may twist and shape into any form they please." The power of 
 he courts to do so has been disputed at all times. 
 
 In passing the Keating Child-Labor Bill, the House and Senate de- 
 ilared the public policy of the people, by whom they were elected and 
 vhose will they represented. The President not only approved, but 
 •equested, the passage of the act. The odd man on the Court, imbued 
 vith the ideas of judicial supremacy and the rights of Capital over 
 Labor handed down from John Marshall and a Court impressed with 
 he necessity of protecting slavery, set the act aside. Where does the 
 governing power reside? 
 
 Senator Owen's bill, reenacting the Child-Labor Law and prohibiting 
 he Supreme Court from invalidating it, can be more speedily adopted 
 ban a constitutional amendment, and will be as effective. 
 
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