protection of the Supreme Court." A leading Whig Review said that the decision "merits the severest animadversion that wounded justice and indignant patriotism can bestow."

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Eleven years later, in 1848, when the Court upheld the right to take chartered rights by eminent domain, in West River Bridge Co. v. Dix, it was praised by the Boston Post, as having dealt "a great blow at monopoly" and "triumphantly sustained the republican doctrine that a corporation has no more right than individuals." But nine years later, in 1854, the same Court was assailed with the contrary cry that it was corporation-ridden, when, by its decision in the Bank Tax Emption Cases, it held an Ohio statute invalid. "An outrageous decision by the truly Federal Court," said a leading Ohio newspaper. "The sober mind may begin to wonder how this unrighteousness can possibly be imposed upon a community or a democratic form of Government."

In 1873, after the famous Slaughterhouse Cases, the Court was attacked as too conservative and as pro-monopoly. Yet within four years, after the Granger Law decisions- Munn v. Illinois, and other cases it was equally attacked as too radical and anti-corporation, and, in the Sinking Fund Cases in 1879, as anti-railroad.

Labor attacked the Court in 1908, because of its decision in the Danbury Hatters Case, and claimed that this case and the New York Bakers' Ten-Hour Law Case (Lochner v. New York) proved that the Court favored the capitalist and the employer. And yet these cases were decided by a Court composed of practically the identical Judges who decided

the Northern Securities Company Case, in 1904, in which a great capitalist holding company was dissolved, and in which the Court, through Judge Harlan, said:

Disaster to business and widespread financial ruin, it has been intimated, will follow the execution of its provisions. Such predictions were made in all the cases heretofore arising under that Act. But they have not been verified. . . . But even if the Court shared the gloomy forebodings in which the defendants indulge it could not refuse to respect the action of the legislative branch of the government, if what it has done is within the limits of its constitutional power. ... This Court has no function to supervise such legislation from the standpoint of wisdom or policy.

This, by the way, was a five to four decision in support of the Federal statute. The trust's opponents found no fault with such a close decision, when it went their way.

Within the past few years, radical papers like the Nation have been found assailing the Court for its alleged suppression of freedom of speech in the Espionage Law Cases, and yet praising it for protecting freedom of speech in the Nebraska Foreign Language Teaching Case.

In 1923, Labor attacked the Court for its Minimum Wage Law decision which held invalid a statute allowing a District of Columbia Board to fix wages; but Labor praised the same Court for holding invalid, in the same year, the Labor Court Act of Kansas, which also allowed a Board to fix wages and to establish compulsory arbitration.

It thus appears that those who have attacked the

Court for a decision to-day have often been the very persons to praise it for another decision to-morrow. What better proof of the independence of our Judiciary could be asked?

When, therefore, radical changes in our Constitution affecting the functions of the Court are suggested, simply because some few decisions of the Court have displeased certain classes or sections of the community, when the American people are asked to amend their Constitution simply for the purpose of avoiding the effect of these few decisions, when it is proposed to allow Congress full scope to deprive the minority of their rights, when it is proposed to allow a minority of the Court to hold a statute void, when these remedies are proposed to cure a temporary evil which can at any time be cured by such Amendments as the Constitution already makes ample provision for, each American citizen should consider well whether the remedy would not be greater than the supposed ill. The Court with its present functions may not at all times satisfy every one; it may not effect what appears to every one to be justice. But the question for each citizen to ponder is: Will the Court be better able to do justice, if its powers are weakened? Is it wise, in order to gain a temporary advantage, to bring about a permanent loss of the Court's full ability to protect and to enforce the citizens' constitutional rights? Those were wise words which Alexander Hamilton uttered in The Federalist, in 1788: "No man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day."

In 1808, John Randolph of Virginia, in a bitter

political debate on the Embargo Bill, excitedly exclaimed: "What are Constitutions themselves in the mighty concussions of parties?" Eighty years later, a less noted politician, in less elegant language, asked: "What is the Constitution between friends?" It is the good fortune of the American people that there is one branch of the Government possessed with the power to answer: "The Constitution is to be upheld, regardless of parties or of friends, whenever Congress or the President shall overstep the bounds set by that instrument."

NOTE. For proof that the Courts of the States, prior to the adoption of the Federal Constitution (page 49, supra), were frequently holding State statutes invalid, as in contravention of the treaty between the United States and Great Britain, see letter of Jefferson as Secretary of State to George Hammond, the British Minister, May 29, 1792, American State Papers, Foreign Relations, I, 201, 208, 209. "Mr. Channing, the Attorney of the United States in that State (Rhode Island) (No. 19) speaking of an Act passed before the treaty says: 'This Act was considered by our Courts as annulled by the treaty of peace and subsequent to the ratification thereof, no proceedings have been had thereon.' The Governor of Connecticut in his letter (No. 18) says: "The sixth article of the treaty was immediately observed, on receiving the same with the proclamation of Congress; the Courts of justice adopted it as a principle of law.' . . . In Pennsylvania, Mr. Lewis, Attorney for the United States, says in his letter (No. 60): 'The Judges have uniformly and without hesitation declared in favor of the treaty, on the ground of its being the supreme law of the land.' . . . In Maryland in the case of Mildred v. Dorsey, cited in your letter a law of the State, made during the war, had compelled those who owed debts to British subjects to pay them into the treasury of that State. This had been done by Dorsey before the date of the treaty; yet the Judges of the State General Court decided that the treaty not only repealed the law for the future, but for the past also, and decreed that the defendant should pay the money all over again. In Virginia, Mr. Monroe, one of the Senators of that State in Congress and a lawyer of eminence tells us (No. 52) that both Court and counsel there announced the opinion that the treaty would control any law of the State opposed to it. . . . In New York, Mr. Harrison, Attorney for the United States in that District, assures us (No. 45) that the Act of 1782 of that State relative to debts due to persons within the enemy's lines was immediately after the treaty, restrained by the Superior Courts of the State from operating on British creditors, and that he did not know a single instance to the contrary."

1 10th Cong., 2d Sess., Dec. 3, 1808, p. 675.

The fifty-three decisions of the Court holding Acts of Congress unconstitutional from 1789 to June, 1924, together with the exact citations of the statutes involved, and a brief summary of the grounds of the decisions are as follows.

1. Marbury v. Madison (1803, Feb. 24.), 1 Cranch 137. Act September 24, 1789, c. 20, last subsection of sec. 13; 1 Stat. 81.

Section 13 (of the original Judiciary Act) authorized the Supreme Court to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States." On an original motion for a writ of mandamus to the Secretary of State to direct the delivery of a commission as justice of the peace in the District of Columbia, a rule to show cause why the writ should not issue was discharged on the ground that the provisions in Section 13 was unconstitutional, being an attempt to enlarge the original jurisdiction of the Supreme Court as prescribed in Article III, section 2, clause 2, of the Constitution.

2. Scott v. Sandford (1857, March 6), 19 How. 393.

Act March 6, 1820, c. 22, sec. 8; 3 Stat. 545, 548. Section 8 contained a proviso (the Missouri Compromise) prohibiting the existence of slavery within the Louisiana Territory north of Missouri. One