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THE CONSTITUTIONAL DOCTRINES
OF JUSTICE HARLAN
BY
FLOYD BARZILIA CLARK
• A DISSER'iATION
Submitted to the Board of University Studies of The Johns
Hopkins University in Conformity with the Requirements
for the degree of Doctor of Philosophy
1914
Baltimore
191 5
/"
THE CONSTITUTIONAL DOCTRINES OF
JUSTICE HARLAN
THE CONSTITUTIONAL DOCTRINES
OF JUSTICE HARLAN
BY
FLOYD BARZILIA CLARK
A DISSERTATION
Submitted to the Board of University Studies of The Johns
Hopkins University in Conformity with the Requirements
for the degree of Doctor of Philosophy
1914
Baltimore
1915
Copyright 191 5 by
THE JOHNS HOPKINS PRESS
PRESS OF
THE NEW ERA PRINTING COMPANY
LANCASTER, PA.
TABLE OF CONTENTS
9AQM
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
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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.
R B. C.
vu
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 I43-I45
Backus V. Fort Street Union Depot Co 73-74
Bailey v. Alabama 126, 136-137, 161, 164-166, 170
Baldwin v. Franks I37-I39
Baltimore and Ohio R. Co. v. United States 160
Baltimore and Ohio Southwestern R. Co. v. Voigt 191
Belknap v. Schild 32, 35, Z7, "SZ, 54
vB^rea 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 ^7
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 188-190
i;6ivil Rights Cases 126-131, 196
Congress and Empire Spring Co. v. Knowlton 1 53-154
Cornell v. Coyne i lo-i 12
Cunningham v. Macon and Brunswick R. Co 33-34
Davis V. Gray 22
iZ)ownes v. Bidwell 185
^orr V. United States 188
Elk V. Wilkins 141-143
Fairbank v. United States 108-1 10
Ficklin v. Shelby County Taxing District 103-105
Fidehty Mutual Life Insurance v. Mettler 150-151
Fire Association of Philadelphia v. New York 145-148
Fisk V. Henarie 155-156
Fitts V. McGhee 29, 31, 32, 35
Foster v. Kansas, ex rel. Morgan Tj
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 1 19-120
Giles V. Harris 126, 134-135, 168, 170-172
Gulf, Colorado, and Santa Fe R. Co. v. Ellis 144-14S
Hapgood V. Southern 32, 34
Hall V, Decuir 90
wHawii v. Mankichi 65, 185-188, 197-198
Hawker v. New York 180-182
Hodges V. United States 126, 135-136
Hooper v. CaHfornia 114-117
Houghton V. Payne 198-199
TABLE OF CASES
Howard v. Illinois Central R. Co 121-122, 192
^Hurtado v. California 59, 61-65
International Postal Supply Co. v. Bruce 32, 36, 53, 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 'j^
Leisy v. Hardin 86 (note)
Leloup V. Port of Mobile 105
Linford v. Ellison 78-79, 168-170
iJbockner v. New York 191-192
Louisiana v. Jumel 17-25, 2>2; 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
,^axwell 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 79-80
O'Neil V. Vermont 87 (note), 173-174
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
t-^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 19
Rhodes v. Iowa 83, 87-89
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 I74
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 105
Taylor v. Beckham Ii, 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, z'^
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» I93> I99
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 yy
Younsr, 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
lO CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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 oi
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
INTRODUCTION J J
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
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, ^^til his death on October 14, 191 1.
Though he was 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
1 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.
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, 191 1, 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 pubHc 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
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
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 reheve 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 feeHng on the part of
his associates. He did not bear maHce 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 officer 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 Hfe,
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
SUABILITY OF STATES 1/
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
the purpose of meeting the above obUgations, and immedi-
ately thereafter passed an amendment to the constitution
making the bonds create a vaHd contract between the State
and every holder of such bonds, v^hich 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
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 the
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
the Statute and Constitution of 1874, which were his sole
authority to receive them. Here is a statutable obHgation
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-
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
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
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
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
mandamus, 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; vis.: 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 ;
SUABILITY OF STATES 2$
"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 obhgation 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
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 railroad company to
prevent the State of Minnesota from enforcing certain laws
which the company claimed were confiscatory and hence de-
prived them of property without due process of law. The
acts were so stringent in their nature as to make it almost
impossible for 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 orders and acts
deprived them of the equal protection of the laws, and 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
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 recourse 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 unusual 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 suabiHty of States, but the
line of sequence attempted to be established by these cita-
tions is difficult to follow.
Justice Harlan said : "If a suit be commenced in a state
court, and involves a right secured by the Federal Constitu-
28 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
tion, the way is open under our incomparable judicial sys-
tem to protect that right, first, by the judgment of the 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 whose action is alleged to be illegal. That
mode of redress is absolutely forbidden by the nth 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 declared 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, in 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. The preservation of the dignity and sovereignty of
the states, within the limits of their constitutional powers, is
of the last importance, and vital to the preservation of our
system of government. The courts should not permit them-
selves to be driven by the hardships, real or supposed, of
particular cases, to accomplish results, even if they be just
results, in a mode forbidden by the fundamental law."
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
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 hy 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 made
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
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-
SUABILITY OF STATES 3 I
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
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
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.
Justice Harlan, still warm from his dissent in the Louisi-
ana case, made the following remark : " It should be remem-
bered that the court places its decision upon the ground that
the change in the remedy has not, in legal effect, impaired
the obligation of the contract, and not upon the ground
that this suit is, within the meaning of the Federal Constitu-
tion, a suit against the State. Nor could it be placed upon
the latter ground without overturning the settled doctrines
of this court. ... It is a case in which a plain official
duty, requiring no exercise of discretion, is to be performed,
and where performance in the mode stipulated 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 Hen, 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
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
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
the vaHdity of a statute of Alabama which established a
maximum rate of tolls for a bridge across the Tennessee
River. The owners of the bridge claimed that since this
rate did not allow them reasonable compensation it took
their property without due process of law. The United
States circuit court took cognizance of the case, held that
the act was unconstitutional, and issued an injunction
against the officers of the State to prevent them 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
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 officers 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 State, seem to have got possession of it by paying for
it with a kind of paper issue which was practically worthless.
The possession of the land by the State of South Carolina
corresponded very significantly to the possession of the Lee
estate by the United States, in that the rightful owners had
not been duly paid for their property. In this case Justice
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
SUABILITY OF STATES 3/
is proceeding in violation of the plaintiff's right of property,
and denies the power of any court to interfere with him,
solely upon the ground that what he is doing is under the
order and sanction of 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
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
fuy relief 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-suability 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-
1 K. Singewald, " The Doctrine of Non-suability of the State in
the United States," in Johns Hopkins Studies, series xxviii, no. 3,
p. 10.
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
means of carrying on his government in war and in peace,
and the money in his treasury."^
This assertion means that shutting out a whole class 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.
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 officer whose consent was needed to enforce
its decree. There will usually be a way around this, and
there is no 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
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 has decided that the acts of the
States during the Civil War should, for the most part, be
valid, except in so far as they were directly in aid of the
rebellion. 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
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 of the Bank of
Tennessee issued while the State was in rebellion consti-
tute an impairment of the obligation of contracts ; or, better,
was the act which authorized that refusal an impairment
of the obligation of contracts, since the State had, when 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 Tennessee had never legally been out of the
Union, and hence its acts during the war had to be reckoned
with. Second, in spite of the fact that the States had so
far succeeded in separating 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 the powers 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
authority. 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
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-
4
46 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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.
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
not impair its own contracts. As has been seen, they have
usually succeeded in getting out of this situation by assert-
ing the suits to be against the States. As was brought out in
the first 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 typical 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
IMPAIRMENT OF OBLIGATION OF CONTRACTS 4/
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. So long as the
coupons were still receivable for taxes the obligation was
not impaired, and the method of receiving them was imma-
terial. In short, the change in remedy for non-acceptance
from mandamus to jury trial did not mean an impairment
of the obligation of contracts.
This decision did not meet with the approval of Justice
Harlan. He contended that a change in remedy which im-
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 had
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
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 worth 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
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
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 contract clauses
in charters seemingly permanent in their scope there is one
very interesting case, Stone v. Farmers' Loan and Trust
Co., ii6 U. S. 307. It was brought from the United States
circuit court for the southern district of Mississippi in order
to test the vaHdity 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 tariff 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 differently. 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
IMPAIRMENT OF OBLIGATION OF CONTRACTS 5 I
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 it
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
regarding the power of the Interstate Commerce Commis-
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
iWith 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.
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 : SchilHnger
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 and 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,theref ore,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
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
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 Postoffice 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."
From these opinions it is seen that, though there is no
express prohibition upon the United States forbidding the
impairment of the obligation of contracts, yet, according to
Justice Harlan's doctrine, the prohibitions as to taking pri-
vate property without just compensation and without due
process of law would have worked to that end. But his
doctrine did not prevail, and as the decisions now stand, the
United States may impair the obligation 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
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
IMPAIRMENT OF OBLIGATION OF CONTRACTS 5/
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 even
a railway corporation of that Dominion, could have the
benefit, in our courts, of the constitutional inhibition upon
state laws impairing the obHgation of contracts."
The conclusion is as follows : " As I do not think that a
foreign railway corporation is entitled, upon principles of
international comity, to have the benefit, in our courts — to
the prejudice of our own people and in violation of their
contract and property rights — of a foreign statute which
could not be sustained had it been enacted by Congress or
by any one of the United States, with reference to the ne-
gotiable securities of an American railway corporation ; and
as I do not agree that an American court should accord to a
foreign railway corporation the privilege of repudiating its
contract obligations to American citizens, when it must deny
any such privilege, under like circumstances, to our own
railway corporations, I dissent from the opinion and judg-
ment of the court."
It is seen, therefore, that according to Justice Harlan's
doctrine the United States need not recognize that a foreign
government has any more right to pass laws impairing the
obligation of contracts of American citizens than has the
home government.
To sum up Justice Harlan's doctrine of the obligation of
contracts : He believed that the enforcement of valid con-
tracts was a right to which all people were entitled and that
the right lay deeper than any express command or limitation,
being founded in abstract justice. Holding this view, he
would not give his assent to any state law that impaired
the obligation of contracts, and he thought that the neces-
sary proceedings should always have been taken to prevent
any impairment of state contracts, whether in regard to the
State's own contracts or those of private citizens. More-
over, he contended with equal vigor that there was just as
58 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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
differed 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
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 zvhich 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
DUE PROCESS OF LAW 6 1
differently for two different spheres of government under
the 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
" 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 unchange-
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 Hberty 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."
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
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 offense, 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
DUE PROCESS OF LAW 65
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."2
The case of Hurtado v. California 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 plaintiffs 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
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 plaintiffs
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-
DUE PROCESS OF LAW 6/
tiff 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 efficacy.
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,
6S CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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.
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-
^ See page 49.
DUE PROCESS OF LAW 6g
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 right in the taxing power of the city as to
render its diminution by the State, to a degree affecting the
present collection of their judgments, a deprivation of their
property in the sense of the constitutional prohibition. A
party cannot be said to 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 main 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
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 the judgment as property. ... 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 municipal corporation — which judg-
ment is capable of enforcement by judicial proceedings at
the time of its rendition — is deprived of his property with-
out due process of law, if the State, by a subsequent law,
so reduces the rate of taxation 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-
DUE PROCESS OF LAW 7 1
ments were still existing liabilities against the city, Justice
Harlan said : " My answer is, that such liability on the 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. WilHams, 131 U. S. 405, and was a question
of trespass which took place during the Civil War. 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 was,
did that section of the constitution of West Virginia which
made it impossible for Williams to collect the money on his
judgment take property without due process of law? The
court, speaking through Justice Miller, said that it did not.
Justice Harlan in his dissent 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 judgments 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
72 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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 itself was erroneous,
is a voidable judgment, and may be voided, if it can be
brought within due process of law already existing, and
shall by this means be inquired into, and if it is against right,
justice, and law, shall be no longer in force, and the judg-
ment plaintiff shall be forever enjoined from putting it into
execution." Thus it is seen that the argument of the court
amounts to saying that it is not unconstitutional for a State
so to amend its constitution as to take property as long as
the means through which that property is taken are not in
conflict with a process of law which has become widely
recognized as due process of law.
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 reasonable 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
judgment obtained by Freeland was an adjudication that
the taking was illegal. He acquired by that judgment a
vested right to have and demand the amount named in it,
as well as the benefit of such remedies as the law gave for
the enforcement of personal 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 of law.
I cannot agree that a State may, by amendment of its funda-
mental law, prevent a citizen from recovering the value of
property, of which, according to the final judgment of its
own courts, he has been illegally deprived by a mere tres-
passer. That would be sheer spoliation under the forms
of law. If the amendment in question had, in terms, given
the defendant a right to a new trial, of the action of trespass
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."
From the above cases it may be deduced that Justice
Harlan considered a judgment as property within the
meaning of the Constitution of the United States, and held
that any action taken by the State to render ineffective the
collection of such judgment amounts to the taking of
property without due process of law. It is true that the
court did not hold that a judgment was not property, but it
did hold that the action on the part of the State did not
amount to the taking of property without due process of
law. Since, however, the action of the State destroyed the
value of the judgment in the hands of the owner. Justice
Harlan contended that property had been taken. No doubt
the court felt that a certain conclusion 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
74 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
procedure. The contention between the court and Justice
Harlan, however, was on the definite point of taking
property without due process of law. The case came up
from the supreme court of Michigan. The plea had been
made that in a jury trial to determine what should be just
compensation for property condemned for public use, just
compensation had not been given because the judge had
not properly charged the jury.
The condemnation was of a factory site, 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 court
said that it was due process, and Justice Harlan said that
it was not. He concluded 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 that the trial 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 Taylor v. Beckham, 178
U. S. 548. This case came up from the Supreme Court of
Kentucky, and involved the question of the election of the
governor of that State. The facts in the case were briefly
as follows : Taylor and Marshall were the Republican candi-
dates for the governorship and lieutenant-governorship re-
spectively of Kentucky. Goebel and Beckham were the
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 then carried his appeal to the
Supreme Court of the United States, claiming that the ac-
tion of 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 that 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 dismissed the case for want of jurisdiction, upon
the ground that a public office is not property within the
meaning of the Constitution, and that the whole question
was political.
Justice Harlan thought that the court ought to have taken
jurisdiction and declared to whom the office belonged. He
thought that the right to an office was property, the owner-
ship of which could not be interfered with without due
76 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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
DUE PROCESS OF LAW 77
found that the court had determined this very point. The
claim had 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.
Justice Harlan, after reviewing these cases, said : " When
the Fourteenth Amendment forbade any State from depriv-
ing any person of life, liberty, or property without due
process of law, I had supposed that the intention of the
people of the United States was to prevent the deprivation of
any legal right in violation of the fundamental guarantees
inhering in due process of law. The prohibitions of that
Amendment, as we have often said, apply to all the instru-
mentalities of the state, to its legislative, executive, and
judicial authorities; and therefore it has become a settled
doctrine in the constitutional jurisprudence of this country
that 'whoever by virtue of public position under a state
government deprives another of property, life, or liberty
without due process of law . . . violates the constitutional
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.'"
6
78 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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 Harlan conceived
to be due process of law with regard to the taxation of
property and the opinion which has been established by the
decisions of the court seems to have revolved around the
single point of special assessments. In a series of cases
involving this question Justice Harlan has held consistently
to one doctrine, 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 portions 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.
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 Harlan, however, dissented from the
opinion. He asserted very emphatically that the Supreme
Court was called upon to review an act of a subordinate
governmental authority which had been accused of taking
property without due process of law, and that even 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 is not disputed that the
plaintiff's lands are within the limits of Kaysville, as de-
fined by the act of the territorial legislature. It is conceded
that the seizure 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 within the defined limits of Kaysville, as were
agricultural lands, namely, lands outside of the platted part
of the city, which did not receive the benefits of the 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 plaintiff. 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, contains
the essence of his doctrine on the point of special assess-
ment. This case involved an unusually expanded burden
upon an individual, and, as Justice Harlan contended, was
80 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
an instance of what might be continually occurring, though
to a less degree, when the attempt is not made to fix by the
benefit received the proportion of special assessment that
persons affected should pay. Here the property condemned
was a strip of land belonging to a Mrs. Baker. The com-
pensation made for the 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. This the court,
speaking through Justice Harlan, held to be taking prop-
erty without due process of law. '* In our judgment the
exaction from the owner of private property for the cost
of public improvement in substantial excess of the special
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,' because 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 tax had been assessed upon the owners of
lots abutting on this avenue, to help pay for the new pave-
ments. To this end liens had been taken upon those lots to
DUE PROCESS OF LAW 8 1
secure the tax. The paving company instituted a suit to
enforce these liens so as to receive payment for the work
done by them. The state supreme court decided in favor
of the company. Thereupon an appeal was taken to the
Supreme Court by French and others, owners of abutting
lots, who asserted that such a tax amounted to the taking
of property without due process of law. The Supreme
Court affirmed the decision of the state court, and thus
reasserted the validity of the frontage rule.
In dissenting from this opinion Justice Harlan reasserted
the doctrine laid down in Norwood v. Baker, and criticized
the court for not following the precedent set by that case.
He furthermore accused the court of vagueness 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. He contended more vigor-
ously than ever that no special assessment made without
inquiry as to the benefits to be received by the individual
through the improvement should be upheld. In conclud-
ing he said : " In my opinion the judgment in the present
case should be reversed upon the ground that the assessment
in question was made under a statutory rule excluding all
inquiry as to special benefits and requiring the property
abutting on the avenue 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 that Justice
Harlan's constitutional doctrine as to the relation between
special taxation and due process 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 benefit
equivalent to the amount paid. In other words, he believed
that the doctrine promulgated in Norwood v. Baker should
82 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
always hold. The exact difference between this doctrine
and that of the court needs to be noted. The court looked
only to the neighborhood upon which the assessment had
been made, and tried to make sure that the assessment would
not be greater than the benefits to be derived by that section
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.
6 See also Wight v. Davidson, i8i 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 will 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 legis-
lation there are two marked dissents, which, though they
are now mainly of historic value, will be of interest in show-
ing his insight 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 Hquors 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
linois? If the law of Iowa forbids the deUvery, 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 fundamental ques-
tion, therefore, is whether Iowa may lawfully restrict the
bringing of intoxicating liquors from other States into her
limits, by any person or carrier for another person or cor-
poration, except such as are consigned to persons authorized
by her laws to buy and sell them for the special purposes
indicated. In considering this question, we are not left to
conjecture as to the motives prompting the enactment of
these statutes ; for it is conceded that the prohibition upon
INTERSTATE AND FOREIGN COMMERCE 85
common carriers bringing intoxicating liquors from other
States, except under the foregoing conditions, was adopted
as subservient to the general design of protecting the health
and morals and the peace and good order of the people of
Iowa against the physical and moral evils resulting from
the unrestricted manufacture or sale of intoxicating liquors."
Justice Harlan's argument rests upon the assertion that
liquors are inherently not suitable articles of commerce.
" It is admitted that a State may prevent the introduction,
within her limits, of rags or other goods infected with
disease, or of cattle or meat or other provisions which, from
their condition, are unfit for human use or consumption ; be-
cause, it is said, such articles are not merchantable or legiti-
mate subjects of trade and commerce. But suppose the
people of a State believe, upon reasonable grounds, that the
general use of intoxicating Hquors 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 Harlan was that
the framers of the Constitution could not have intended —
whether Congress had or had not chosen to act upon this
subject — " to withhold from a State authority to prevent the
introduction into her midst of articles or commodities, the
manufacture of which, within her limits, she could prohibit,
without impairing the constitutional rights of her own
people. . . . Even the constitutional prohibition upon laws
S6 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
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-
stantiation of the contention that the police power of the
State allowed the State to regulate almost anything that had
to do with public health and morals he cited the case of
Wilson V. Blackbird Creek Marsh Co., 2 Pet. 245. Other
cases are cited which bear on this point. " The reserved
power of the States to guard the health, morals and safety
of their people is more vital to the existence of society than
their power in respect to trade and commerce having no pos-
sible connection 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 court had to go out of its way to declare the law
unconstitutional. 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
would have been avoided.^
To follow 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. 545, must next be con-
1 Note the case of Leisy v. Hardin, 135 U. S. 100, where Justice
Harlan concurred in a dissent upon similar grounds.
INTERSTATE AND FOREIGN COMMERCE 8/
sidered. This case involved the constitutionaHty of a stat-
ute of Congress which tried to undo the mischief done by
the Bowman case. This act, known as the Wilson Act, pro-
vided that " upon arrival " of the liquor in any State or ter-
ritory it should become subject to the laws there. This law
was declared constitutional, and seemed to be the remedy for
the situation. Justice Harlan dissented from the reasoning
of the court, but agreed with the decree. 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, Rhodes v. Iowa, 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/* but
the court so interpreted this phrase that the goods could
proceed to their destination without interruption. " Only
after their coming into the State and the consummation of
their shipment " did the goods become subject to the laws
of the State. " The words * shall upon arrival in such state
or territory be subject to the operation and effect of the
laws of such state or territory ' in one sense might be held
to mean arrival at the state line. But to so interpret them
would necessitate isolating these words from the entire con-
text of the act, and would compel a construction destructive
of other provisions contained therein. But this would violate
the fundamental rule requiring that a law be construed as a
whole, and not by distorting or magnifying a particular
word found in it. It is clearly contemplated that the word
* arrival ' signified that the goods should actually come into
the State, since it is provided that * all fermented, distilled,
or other intoxicating liquors or liquids transported into a
state or territory,' and this is further accentuated by the
other provision, ' or remaining therein for use, consumption,
sale, or storage therein.' "
"This language makes it impossible in reason to hold
that the law intended that the word * arrival ' should
mean at the state line, since it presupposes the coming of
the goods into the state for * use, consumption, sale, or
storage.' "
It is easy to see the nature of the argument. By indulg-
ing in the use of the " subtle signification of words and the
niceties of verbal distinction" which they condemn as not
furnishing a safe guide, the judges came to their conclusion.
But it must be added that this was done under the assump-
tion by the court that unless such a meaning were attached
to the word " arrival " the act would not have been consti-
tutional.
Naturally the dissenting opinion centered its argument
in the word " arrival." It contended that no such distorted
meaning needed to be attached to that word in order to
INTERSTATE AND FOREIGN COMMERCE 89
allow the Wilson Act to stand. It asserted and reinforced
the assertion that Hquor legislation was a legitimate subject
for the poHce power of the State. That being true, there
was little question that 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 travelHng 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."3
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 liquors 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.
90 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
gards the Jim Crow laws. There are two cases which are
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 a
State upon interstate commerce; and in the other, Louis-
ville, N. O. and T. R. Co. v. Mississippi, 133 U. S. 587, it
declared valid a law of Mississippi which required that the
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 import
of both. From the first decision Justice Harlan did not
dissent, but from the other he did. The case came by writ
of error to the Supreme Court of Mississippi to pass upon
the constitutionality of a statute of that State which required
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 power
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 that
case as follows : " So the decision was by its terms carefully
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
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 sufficient 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
regarding the bearing of such laws upon interstate com-
merce, but it can be readily seen that if he had had his way
the Jim Crow laws would have been brushed aside.
The Sherman Anti-Trust Law. — In this subject are found
Justice Harlan's most vigorous dissents. It was due to the
fact that these cases were so much in the public eye that
Justice Harlan became so prominently known as a dissenter.
Though it is true that he gave more dissenting opinions in
the earlier part of his life than he did in the later, yet his
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 the E. C. Knight
case to his death Justice Harlan was more prominently be-
fore the public than at any previous time, and deservedly
so, because his dissents were greater and rang more truly
of the democratic spirit.
The first case arising under the anti-trust act of 1890 was
that of United States v. E. C. Knight Co., 156 U. S. i.
Though this case is hardly any longer citable for precedent,
it w^ll be interesting to follow out the change of opinion on
this subject on the part of the Supreme Court. The case
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 violated
the act of 1890, in that it had resorted to an unlawful re-
straint of trade in violation of the statute of the United
States forbidding all monopoly in restraint of trade. The
suit, therefore, was against the various companies which
had conspired to form the American Sugar Refining Com-
pany. The circuit court of appeals decided in favor of the
corporation, and the Supreme Court affirmed its decision.
The following is a synopsis of the decision of the Supreme
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 was
made : " But the monopoly and restraint denounced by the
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 Hfe.
" 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 ; but
this was no more than to say that trade and commerce served
manufacture to fulfill its function."
Thus the argument of the court was placed expressly on
two grounds, in the first place, that theoretically there was
not a monopoly. Even though the syndicate did embrace
all the sugar-refining companies in the country, that was no
reason why others might not develop in the future. In the
second place, in order to preserve the police power of the
States it was advisable to leave such matters in their hands.
Justice Harlan's dissent may be quoted at length. " If it
be true that a combination of corporations or individuals
may, so far as the power of Congress is concerned, subject
interstate trade, in any of its stages, to unlawful restraints,
the conclusion is inevitable that the Constitution has failed
to accomplish one primary object of the Union, which was
to place commerce among the states under the control of the
common government of all the people, and thereby relieve
or protect it against burdens or restrictions imposed, by
whatever authority, for the benefit of particular localities
or special interests."
In answer to the question as to what is an unlawful re-
straint of trade he said : " A general restraint of trade has
often resulted from combinations formed for the purpose
of controlling prices by destroying the opportunity of buyers
and sellers to deal with each other upon the basis of fair,
open, free competition. Combinations of this character
have frequently been the subject of judicial scrutiny, and
have always been condemned as illegal because of their
necessary tendency to restrain trade. Such combinations
are against common right and are crimes against the public.*'
In reference to the inapplicability of the state power to
this question he spoke as follows : " There is a trade among
the several states which is distinct from that carried on
within the territorial limits of a state. The regulation and
control of the former is committed by the national Constitu-
tion to Congress. Commerce among the states, as this court
INTERSTATE AND FOREIGN COMMERCE g$
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 interstate com-
merce is expressly given by the people of all the states.
Interstate intercourse, trade, and traffic is absolutely free,
except as such intercourse may be incidentally or indirectly
affected by the exercise by the state of their reserved police
powers."
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 individuals
96 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
may — so far as national power and interstate commerce are
concerned — do, with impunity, what no state can do."
Thus it is seen that, according to Justice Harlan's inter-
pretation of the opinion of the court, the court had declared
to be within the jurisdiction of the State that which, by this
decision, had more power than the States themselves had.
One other quotation will help to substantiate the doctrine
set forth by Justice Harlan. He said: "After the fullest
consideration I have been able to bestow upon this im-
portant question, I find it impossible to refuse my assent to
this proposition: Whatever a state may do to protect its
completely interior traffic or trade against unlawful re-
straints, the general government is empowered to do for the
protection of the people of all the states — for this purpose
oiie people — against unlawful restraints imposed upon inter-
state traffic or trade in articles that are to enter into com-
merce among the several states. If, as already shown, a
state may prevent or suppress a combination, the effect of
which is to subject its domestic trade to the restraints neces-
sarily arising from their obtaining the absolute control of
the sale of a particular article in general use by the com-
munity, there ought to be no hesitation in allowing to Con-
gress the right to suppress a similar combination that im-
poses a like unlawful restraint upon interstate trade and
traffic in that article. While the states retain, because they
have never surrendered, full control of their complete in-
ternal traffic, it was not intended by the framers of the
Constitution that any part of interstate commerce should
be excluded from the control of Congress."
His doctrine might be summarized by saying that since
the States were not allowed any control over interstate
commerce, and since the regulation of corporations in their
interstate relations constituted regulation of interstate com-
merce, or rather of a part of interstate commerce, the
power expressly belonged to the national government. As
will be seen, this later through the effort of Justice Harlan
became the doctrine of the court. By that time much mis-
INTERSTATE AND FOREIGN COMMERCE 9/
chief had been done, and the court had lost the 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
curities Company in the circuit court of the United States
for the district of Minnesota, and this decision was affirmed
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
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
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.
INTERSTATE AND FOREIGN COMMERCE lOI
court held that the levy was a wharfage charge. The Su-
preme Court affirmed the decision, reinforcing the decree
with complicated reasoning.
The core of the decision is found in the following quo-
tation : " Now wharves, levees and landing places are es-
sential to commerce by water, no less than a navigable
channel and a clear river. But they are attached to the
land; they are private property, real estate; and they are
primarily, at least, subject to the local state laws. Con-
gress has never yet interfered to supervise their adminis-
tration; it has hitherto left this exclusively to the States.
There is little doubt, however, that Congress, if it saw fit,
in case of prevailing abuses in management of wharf prop-
erty, . . . might interpose and make regulations to prevent
such abuses. When it shall have done so, it will be time
enough for the courts to put its regulations into effect by
judicial proceedings properly instituted. But until Congress
has acted, the courts of the United States cannot assume
jurisdiction over the subject as a matter of Federal cogniz-
ance. It is the Congress, not the judicial department, to
which the constitution has given power to regulate com-
merce with foreign nations and among the States. The
courts can never take initiative on this subject."
From this it is seen that the court asserted that it was
unwilHng to take cognizance of a case of this kind in the
absence of a statute of Congress. But it intimated further
on that if the charge were extortionate it might take juris-
diction, but that ordinarily such things are in charge of the
State unless Congress has acted on the subject.
Justice Harlan disagreed with this reasoning. With him
the Constitution was express in forbidding tonnage and
poundage, and he thought that it was for the court to decide
whether or not any charge made by any state agency
amounted to tonnage or poundage, or whether it was simply
wharfage. In this case he contended that the levy was a
duty of tonnage, and hence was unconstitutional. "It is
conceded by the demurrer to the bill that, from these fees,
I02 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
the City has long since been re-imbursed for the actual cost
of constructing the wharf; that the amount, annually col-
lected for its use by boats, is largely in excess of any ex-
pense incurred in its maintenance and repair; that the
wharf has been permitted to become and remain in bad
repair, at times almost unfit for use; that nearly all the
money so raised is applied by the City to increase its general
revenue, and to payment of its indebtedness; lastly, that
the wharfage charges are unreasonable in amount and
oppressive. . . .
" In the opinion of the court, a duty of tonnage is de-
fined to be a charge, tax or duty on a vessel for the mere
privilege of entering or lying in a port. The City of Park-
ersburg cannot, therefore, constitutionally impose a charge,
tax or duty upon or for the exercise of that privilege. Now,
do the Constitution and the existing laws of the United
States extend their protection no further than to secure the
bare, naked right of entering a port free from local burdens
or duties upon its exercise? May not the boat, in virtue
of the Constitution and existing laws, also land at any
wharf, at least at any public wharf, on the Ohio River for
the purpose of discharging and receiving freight and pas-
sengers? Of what value would be the right to enter the
port without the privilege of landing its passengers and
freight? Is not the substantial privilege of landing pas-
sengers and freight necessarily involved in the right of
entering the port? If so, it would seem that the right to
land a boat at a public wharf on a navigable water of the
United States, is as fully protected by the Constitution and
the existing laws of the United States, as of entering the
port. A charge, tax or duty imposed upon the exercise of
the right to land is, consequently, for every practical pur-
pose, as much a duty of tonnage as a charge, tax or duty
upon the privilege of entering the port."
His conclusion is as follows : " The opinion of the court,
I repeat, rests necessarily upon the ground that the en-
forced exaction and collection by a municipal corporation
INTERSTATE AND FOREIGN COMMERCE IO3
of unreasonable compensation for the use of its wharf by a
boat, duly enrolled and licensed under the laws of the United
States, and engaged in commerce upon the Ohio River,
does not infringe or impair any right given or secured
either by the Constitution or the existing laws of the United
States. To that proposition I am unable to give my assent."
It is plain, therefore, that Justice Harlan could not see
how a levy could be a wharfage charge when none of the
proceeds were applied to the up-keep of the wharf, or how
it could fail to be a tonnage charge when the rate was speci-
fied at so much a ton. Nor could he see how the court
could refuse to pass upon the constitutionality of an action
when that action clearly involved the interpretation of a
clause of the Constitution. To summarize his doctrine on
this matter, it might be said that he believed that it was
within the jurisdiction of the court, regardless of the fact
that Congress had not acted, to decide in any case whether
a fee charged for the use of a wharf amounted to a duty
of tonnage or poundage or a restriction upon interstate
commerce, or whether it was simply a levy to cover the ex-
pense of the construction and repair of the wharf.
In the case of Ficklen v. Shelby County Taxing District,
145 U. S. I, is found a very interesting dissent on the part
of Justice Harlan, in which he accused the court of allow-
ing discrimination in taxation, and discrimination of a kind
that amounted to a burden on interstate commerce. An
out-of-the-State concern had representatives in Shelby
County, Tennessee. These representatives were simply
agents, having a definite location for the exhibition of their
wares and for taking orders of goods to be shipped into the
State. In addition to a license fee of fifty dollars, the
State, or rather the county, undertook to levy a tax of two
and a half per cent on the profits made by one of these
representatives. The plaintiff set up the plea that such a
tax by the State amounted to a burden upon interstate com-
I04 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
merce. The court held that this was not such a burden, but
that a State has power to tax all property having a situs
within its limits whether it is employed in interstate com-
merce or not.
" No doubt can be entered of the right of a state Legis-
lature to tax trades, professions, and occupations, in the
absence of inhibition in the state constitution in that regard,
and where a resident citizen engages in general business
subject to a particular tax, the fact that the business done
chances to consist, for the time being, wholly or partially
in negotiating sales between resident and non-resident mer-
chants of goods situated in another State does not neces-
sarily involve the taxation of interstate commerce, forbidden
by the Constitution."
Justice Harlan dissented from this ruling. At the outset
he said: "It seems to me that the opinion and judgment in
this case are not in harmony with the numerous decisions
of this court. I do not assume that the court intends to
modify or overrule any of those cases, because no such
purpose is expressed. And yet I feel sure that the present
decision will be cited as having that effect."
He said further: "The principles announced in these
cases, if fairly applied to the present case, ought, in my
judgment, to have led to a conclusion different from that
reached by the court. Ficklen took out a license as mer-
chandise broker and gave bond to make a return of the
gross commissions earned by him. His commissions in
1887 were wholly derived from interstate business, that is,
from mere orders taken in Tennessee for goods in other
states, to be shipped into that State, when the orders were
forwarded and filled. He was denied a license for 1888
unless he first paid two and a half per cent on his gross
commissions. And the court holds that it was consistent
with the Constitution of the United States for the local
authorities of the taxing district of Shelby County to make
it a condition precedent to Ficklen's right to a license for
1888 that he should pay the required per cent of the gross
INTERSTATE AND FOREIGN COMMERCE IO5
commissions earned by him in 1887 in interstate business.
This is a very clever device to enable the taxing district of
Shelby County to sustain its government by taxation upon
interstate commerce."
The following distinctions are drawn in conclusion : " The
result of the present decision is, that while under Robbins v.
Shelby County Tax. Dist., a license tax may not be imposed
in Tennessee upon drummers for soliciting there the sale
of goods to be brought from other states; while under
Leloup V. Port of Mobile, a local license tax cannot be im-
posed in respect to telegrams between points in different
states; and while under Stoutenburgh v. Hennick, com-
mercial agents cannot be taxed in the District of Columbia
for soliciting there the sale of goods to be brought into the
District from one of the states; the taxing district of
Shelby County may require, as a condition of granting a
license as merchandise broker, that the applicant shall pay a
license fee, and, in addition 2^ per cent upon the gross
commissions received, not only in the business transacted
by him that is wholly domestic, but in that which is wholly
interstate."
The last quotations show clearly the ground of Justice
Harlan's dissent. He could see no reason for refusing at
one time to allow the State to tax persons in one category,
and at a later date allowing it to tax another person in a
similar situation. It must be admitted, however, that the
situations were only apparently similar. The dissent was
due to the fact that the tax was in effect upon interstate
trade, and only interstate trade, for proof was present that
the agent in question had done no intrastate business. With
the court the fact that the man did only interstate business
was immaterial, since his license granted him the right to
sell goods produced within the State. Justice Harlan
contended, however, that since the man in fact did no in-
trastate business he was beyond the taxing power of the
State.
I06 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
The question of state taxation of federal franchises is a
complex one. It appears, however, that the Supreme Court
has done much to complicate instead of simplify the situa-
tion. The case of the Central Pacific R. Co. v. California,
162 U. S. 91, will bear out this assertion. This case came
to the Supreme Court by writ of error from the supreme
court of California. According to the railroad company's
estimate, its taxable property in the State of California
amounted to $12,273,785, while according to the estimate
of the Board of Equalization the amount was $18,000,000.
The railroad company objected because the Board of Equal-
ization had included within its assessment the value of the
company's federal franchise to engage in the business of
interstate commerce, and said that this was unconstitu-
tional in that it was a burden laid by the State upon a
federal agency. The court decided against the railroad
company upon the following grounds: The rights and
privileges of doing business have value as taxable property,
and in addition to the federal franchise there was a state
franchise, admitted by the company. Upon this admitted
franchise the State could place a tax. Since the express
valuation of the state franchise was not given, the extra
assessment could be taken to mean a tax by the State upon
the state franchise.
Justice Harlan did not agree with this line of argument.
He felt that if the State were allowed to tax as highly as it
pleased the state franchise of a federal agency, that power
might enable the State in certain instances seriously to
hamper the performance of federal functions. He said:
'' If the assessment in question had been separately upon
the visible property of the company, as distinguished from
its franchises, the case would have presented a different
aspect; and we should then have been compelled to re-
examine the question as to the extent to which the property
of the company, used in accomplishing the objects designed
by Congress, could be taxed by the State. But, as the
opinion of the court shows, the present assessment was
INTERSTATE AND FOREIGN COMMERCE 10/
upon the franchise, railway, roadbed, rails, and rolling
stock of the company without stating separately their re-
spective values. That which was invalid cannot be sep-
arated from that which was valid. So that the question is
presented whether it is competent for the State to sell for
its taxes the franchise of the company. If it cannot the
whole assessment is void.
" I cannot agree that the franchise which the corporation
has received from the United States and the state can be
assessed by the state for taxation along with its roadbed,
right of way, etc., and then sold. That is taxation of one
of the instrumentalities of the national government, which
no state may do without the consent of the Congress of the
United States. Of course, this corporation ought to con-
tribute its due share to support the government of each
state within whose limits its property is situated and its
privileges exercised. But it is for Congress to prescribe
the rule of taxation to be applied at least to the franchises
of the corporation, which, although created by the state, is
as much a federal agency as if it had been created a cor-
poration by national enactment. It has never heretofore
been recognized that a state could, without the assent of
Congress, sell for its taxes the franchises, rights, and priv-
ileges employed, under the authority of the national gov-
ernment, to accomplish national objects, particularly when
such franchises, rights, and privileges are under mortgage
to secure the government specified liabilities."
Justice Harlan held that if there was a federal franchise
and at the same time a state franchise, the State should not
be allowed to tax the state franchise without a separate
specification as to what was the rate and amount of the tax
on the state franchise; and above all the State should not
be allowed the power to hamper by taxation a federal in-
strumentality.
Justice Harlan has differed from the court in two inter-
esting cases with reference to export taxes, in one case say-
I08 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
ing that what the court claimed was a tax upon exports
was not one, and in the other case arguing that what the
court asserted was not a tax on exports was one.
The first of these cases is that of Fairbank v. United
States, i8i U. S. 283. Here was contested the stamp duty
levied upon various forms of commercial paper to help
defray the expenses of the Spanish-American War, as ap-
pHed to bills of lading accompanying shipments to foreign
ports. The plea was set up that a tax of ten cents on every
such bill of lading amounted to a duty upon exports, for-
bidden by the Constitution in Article i. Par. 9, which reads
that "no tax or duty shall be laid on any article exported
from any State."
The court with a majority of one declared that such a tax
amounted to a duty on exports in that the bill of lading
was an essential accompaniment of articles of commerce.
" We are of opinion that a stamp tax on a foreign bill of
lading is in substance and effect equivalent to a tax on the
articles included in that bill of lading, and, therefore, a tax
or duty on exports, and in conflict with the constitutional
prohibition."
Justice Harlan, with whom concurred Justices Gray,
White, and McKenna, opposed this view. The grounds
upon which they rested their arguments were two. In the
first place, they held that since it had been the practice of
the nation since 1797 at intervals to impose such a stamp
tax, it was too late now to challenge the constitutionality of
it. In the second place, a simple tax of ten cents upon a
bill of lading of a large shipment of goods could not in fact
amount to a duty upon exports, but was a tax on the paper.
In support of the first contention the several instances in
which such a tax had been levied and collected were cited,
and the fact was urged that not before within the century
had they been even questioned. It should be mentioned
that the majority had not passed lightly over this point, as is
shown by the following words : " It must be borne in mind
also in respect to this matter that during the first period
INTERSTATE AND FOREIGN COMMERCE IO9
exports were limited, and the amount of the stamp duty was
small, and that during the second period we were passing
through the stress of a great civil war, or endeavoring to
carry its enormous debt; so that it is not strange that the
legislative action in this respect passed unchallenged. In-
deed, it is only of late years, when the burdens of taxation
are increasing by reason of the great expenses of govern-
ment, that the objects and modes of taxation have become
a matter of special scrutiny. But the delay in presenting
these questions is no excuse for not giving them full con-
sideration and determining them in accordance with the
true meaning of the Constitution."
The other point, which seems to be the stronger, was
not answered by the majority, though they alluded to it
with the assertion that the power to tax is the power to
destroy. The following quotation will show the reasoning
of the minority in this regard: "It is said that the power
to tax is the power to destroy, and that if Congress can
impose a stamp tax of lo cents upon the vellum, parchment,
or paper on which is written a bill of lading for articles to
be exported from a state, it could as well impose a duty of
$5,000, and thereby indirectly tax the articles intended for
export. That conclusion would by no means follow. A
stamp duty has now, and has had for centuries, a well-
defined meaning. It has always been distinguished from
an ordinary tax measured by the value or kind of the prop-
erty taxed. If Congress, in respect of a bill of lading for
articles to be exported, had imposed a tax of $5,000 for and
in respect of the vellum, parchment, or paper upon which
such bill was written, the courts, looking beyond form and
considering substance, might well have held that such an
act was contrary to the settled theory of stamp-tax laws,
and that the purpose and necessary operation of such legis-
lation was, in violation of the Constitution, to tax the
articles specified in such bill, and not to impose simply
a stamp duty. Here, the small duty imposed, without ref-
erence to the kind, quantity, or value of the articles ex-
8
no CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
ported, renders it certain that when Congress imposed such
duty specifically on the vellum, parchment, or paper upon
which the bill of lading was written or printed, it meant
what it so plainly said; and no ground exists to impute a
purpose by indirection to tax the articles exported."
An interesting contrast to the Fairbank case is found
in Cornell v. Coyne, 192 U. S. 418. Here the court upheld
a statute which placed a direct tax of one per cent per
pound on filled cheese. The contention was raised by Cor-
nell, the manufacturer of the cheese, that this tax did not
apply to that part of his products which was intended ex-
pressly for filling foreign orders. In spite of the decision in
the Fairbank case, however, the court did not sustain his
contention. No special argument was presented except that
the cheese before shipment was just like other cheese which
was intended for home consumption, and if part of it had
to bear a tax all of it should. " The true construction of the
constitutional provision," said the judge, " is that no burden
by way of tax or duty be cast upon the exportation of
articles, and does not mean that articles exported are re-
lieved from prior ordinary burdens of taxation which rest
upon all property similarly situated. The exemption at-
taches to the export, and not to the article before ex-
portation."
Justice Harlan opposed the reasoning of the court on two
grounds, in the first place, because of the possibility of
great abuse developing from such a decree ; and, in the sec-
ond place, because it was inconsistent with the doctrine
established in the Fairbank case, from which, it is to be
noted, he dissented. Of the first point he said this : " The
result would be that Congress, in time of peace, and by
means of taxation, could bring about a condition of utter
occlusion between the manufacturers of this country and
the markets of other countries. Indeed, the several states
could bring about that result by taxation; for if an ar-
ticle manufactured for exportation and which was pre-
pared for exportation as soon as the manufacture was com-
INTERSTATE AND FOREIGN COMMERCE III
pleted, is not an export from the moment such preparation
was begun, then a state may impose a tax upon it as prop-
erty and compel the payment thereof before the article is
removed from its limits for exportation. I do not think
that the framers of the Constitution contemplated such a
condition as possible."
As regards the second point he made the following asser-
tion : " In the Fairbank case the court held that a mere
stamp tax on a bill of lading taken at the time articles
were shipped from a state to a foreign country was a tax
on the articles themselves as exports, and was forbidden by
the constitutional provision that no tax or duty shall be
laid on articles exported from any state. It is now held
that a tax on articles admittedly manufactured only for
exportation, and not for sale or consumption in this country,
and which are exported as soon as they can be made ready
for shipment, after the completion of manufacture, in exe-
cution of contracts entered into prior to the commencement
of manufacture, is a tax on the articles themselves as prop-
erty, and not on them as exports. . . . Thus, despite the
express prohibition of all taxes or duties upon articles ex-
ported from the states, Congress is recognized as having
the same power over exports from the several states as it
has exercisd over .imports from foreign countries. I do not
think that it has such power."
It is interesting to note the contrast between Justice Har-
lan's dissent from this case and that from the Fairbank
case. In the former his argument was that the tax in ques-
tion could not properly be construed to be a tax upon ex-
ports, because it was so small that it was impossible that it
should affect the price of the article exported. In this case
he asserted that the tax could not be construed in any other
way, since the tax of one cent a pound on the exported
cheese necessarily raised the price that much. But he
seemed not to recognize that the tax on the cheese was not
placed there because of its exportation. If the tax were on
the export because it was an export, it would come within
112 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
the constitutional provision; otherwise it would not. Yet
if the Constitution is to be interpreted to mean that the
f ramers wished to encourage exportation by exempting ex-
ports from all taxation, Justice Harlan's doctrine in this
case will have to be accepted as correct. Such an interpre-
tation, however, seems to be a discrimination against the
home consumer.
A very hotly contested case on the question of the ability
of a State to tax the gross receipts^ of a railroad doing part
interstate and part intrastate commerce was that of Galves-
ton, Harrisburg, and San Antonio R. Co. v. Texas, 210 U.
S. 217. In this case was contested an attempt of the State
of Texas to impose a tax " equal to one per cent of their
gross receipts" upon railway companies whose lines lay
wholly within the State. The company sought to have re-
funded money which it had paid under such a levy, on the
plea that the tax constituted a burden on interstate com-
merce.
The argument of the court, speaking through Justice
Holmes, is found in the following quotation : " We are of
the opinion that the statute levying this tax does amount to
an attempt to regulate commerce among the States. The
distinction between a tax * equal to ' i per cent of gross re-
ceipts, and a tax of i per cent of the same seems to us
nothing, except where the former phrase is the index of an
actual attempt to reach the property and to let the interstate
traffic and the receipts from it alone. We find no such at-
tempt or anything to qualify the plain inference from the
statute taken by itself. On the contrary, we rather infer
from the judgment of the state court and from the argument
on behalf of the state that another tax on the property of
the railroad is upon a valuation of that property taken as a
going concern. This is merely an effort to reach the gross
receipts, not even disguised by the name of an occupation
^ For a significant discussion of the importance of this subject,
and how the court got itself out of the evil effects of this decision,
see E. R. A. Seligman, Essays in Taxation, ch. viii, pp. 264-270.
INTERSTATE AND FOREIGN COMMERCE II 3
tax, and in no way helped by the words * equal to.' " As
is seen, the contention centered around the wording of the
statute, that the tax should be " equal to " the gross receipts.
The court held that the State had attempted to make a dis-
tinction between a tax equal to and a tax on the gross re-
ceipts, in other words, that the gross receipts should be a
gauge of the amount of business done in the State. This
distinction was considered not well founded.
Justice Harlan, however, with whom concurred Justices
Fuller, White, and McKenna, thought this a valid tax. Jus-
tice Harlan's reasons for not considering the tax an im-
proper burden upon interstate commerce are mainly two.
First, such a tax did constitute an occupation tax upon busi-
ness within the State of Texas, which had been declared to
be constitutional under the Texas constitution. " Such is
the construction which the state court places on the statute,
and that construction is justified by the words used. We
have the authority of the Supreme Court of Texas for say-
ing that the Constitution of that state authorizes the imposi-
tion of occupation taxes upon natural persons and upon cor-
porations, other than municipal, doing business in that state.
The plaintiff in error is a Texas corporation, and it cannot
be doubted that the state may impose an occupation tax on
one of its own corporations, provided such a tax does not
interfere with the exercise of some power belonging to the
United States."
Second, the minority held that the burden upon inter-
state commerce would be incidental and not direct, and
hence would be constitutional, as the court had often pre-
viously asserted. " The state only measures the occupation
tax by looking at the entire amount of the business done
within its limits without reference to the source from which
the business comes. It does not tax any part of the business
because of its being interstate. It has reference equally to
all kinds of business done by the corporation in the state.
Suppose that the state, as, under its constitution it might do,
should impose an income tax upon railroad corporations of
114 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
its own creation, doing business within the state, equal to a
given per cent of all incomes received by the corporation
from its business, — would the corporation be entitled to have
excluded from computation such of its income as was
derived from interstate commerce ? Such would be its right
under the principles announced in the present case. In the
case supposed the income tax would, under the principles or
rules now announced, be regarded as a direct burden upon
interstate commerce. I cannot assent to that view."
Justice Harlan's contention was, therefore, that the gaug-
ing of the amount of the tax by the gross receipts of a rail-
road company may have constituted an unsound method
■ of taxation, yet since it could not be fairly said to be a direct
burden upon interstate commerce, or opposed to any other
prohibition in the United States Constitution, it was a valid
method. This seems to be an instance when the liberality of
the court allowed it to go into the merit of a state law and
forbid it, even though there was not a really fair basis upon
which to rest this disallowance.
Freedom of Contract. — The question of freedom of con-
tract might well be discussed under a different heading, but
since the specific cases so closely concern commerce, the
matter may be taken up here. There are two cases in which
the principle was primarily involved, namely. Hooper v.
California, 155 U. S. 648, and Robertson v. Baldwin, 165
U. S. 275. The first involved a contract for insurance
which was entered into contrary to the laws of California.
The second involved the compulsion of seamen to perform
their contracts.
The facts of the first case were these : Hooper was an
agent for Johnson and Higgins, duly organized brokers in
New York, who conducted an office in California according
to the laws of that State. A citizen of California named
Mott applied to Hooper to procure a certain amount of in-
surance for a vessel, named the Alliance. This Hooper suc-
ceeded in doing through his employers in the city of New
York, who, in turn, secured the insurance from a Boston
INTERSTATE AND FOREIGN COMMERCE I I 5
company which was not licensed to do business in Califor-
nia. The question was, could the California statute which
forbade this transaction operate in this case, or was it an in-
terference with privileges granted under the Constitution, —
granted in the first place in the commerce clause, and in the
second place in the fourteenth amendment. The court,
speaking through Justice White, answered the question in
the negative. Justice Harlan said that it should have been
answered affirmatively.
The reasons for the holding of the court may be briefly
stated as follows: First, insurance business had been de-
clared not to be commerce, and the exclusive control by
Congress of marine affairs did not alter this declaration.
Insurance poHcies were no more articles of commerce on
the sea than on the land. "The business of insurance is
not commerce. The contract of insurance is not an instru-
mentality of commerce. The making of such a contract is
a mere incident of commercial intercourse, and in this re-
spect there is no difference whatever between insurance
against fire and insurance against * the perils of the sea.' "
Second, Hooper could not be considered an agent of Mott in
procuring this insurance for him, but he had to be looked
upon as an agent of the Boston company, which was not
licensed to do business in California, and hence Mott was
not unconstitutionally deprived of his liberty of contract.
"If the contention of the plaintiff in error were admitted,
the established authority of the state to prevent a foreign
corporation from carrying on business within its limits,
either absolutely or except upon certain conditions, would
be destroyed. It would be only necessary for such a cor-
poration to have an understanding with a resident that in
the effecting of contracts between itself and other residents
of the state, he should be considered the agent of the in-
sured persons, and not of the company. This would make
the exercise of a substantial and valuable power by a state
government depend not on the actual facts of the transac-
tions over which it lawfully seeks to extend its control, but
Il6 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
Upon the disposition of a corporation to resort to a mere
subterfuge in order to evade obligations properly imposed
upon it. Public policy forbids a construction of the law
which leads to such a result, unless logically unavoidable."
Justice Harlan dissented upon the following grounds:
" We have before us a statute making it a crime to procure
or agree to procure,, in California, for a resident of that
state, a policy of insurance from a foreign corporation which
does not propose to do business there by agents, and, so far
as appears, has never issued to a resident of California any
policy but the one issued to Mott." This he goes on to say
" is an illegal interference with the liberty both of Mott and
of Hooper, as well as an abridgment of the privileges, not
of a foreign corporation, but of individual citizens of other
states through whom the policy in question was obtained."
He said further : " If he [Mott] preferred insurance in a
company that had no agent in California, he had a right to
that preference ; and any interference with its free exercise
would infringe his liberty. Suppose he had himself ap-
plied, by mail, directly to Johnson & Higgins for insurance
on his vessel, and that firm had delivered the policy in ques-
tion to an express company with directions to deliver it to
Mott. Or, suppose that Mott had made his application, by
mail, directly to the company. I cannot believe that a
statute making his conduct, in either of the cases supposed,
a criminal offence, would be sustained as consistent with
the constitutional guaranties of liberty. But, it seems from
the opinion of the court, that a state is at liberty to treat
one as a criminal for doing for another that which the latter
might himself do of right and without becoming a criminal.
In my judgment a state cannot make it a crime for one of
its people to obtain, himself or through the agency of indi-
vidual citizens of another state, insurance upon his property
by a foreign corporation that chooses not to enter the former
state by its own agents."
This brings out clearly enough the ground of Justice Har-
lan's dissent. But when one considers the import of the
INTERSTATE AND FOREIGN COMMERCE 11/
reasoning here set forth one must admit that according to
this doctrine an insurance company could do business within
a State without complying with the laws of that State. In
this case Justice Harlan doubtless let his fondness for
freedom get the better of his judgment. If the above case
had gone according to his doctrine, the declaration that in-
surance policies are not articles of commerce would have
been useless, for, as the majority opinion pointed out, the
insurance companies could do all business through repre-
sentatives without of necessity complying with the state
laws. Though there is no direct assertion to that effect, one
feels from this decision that Justice Harlan thought that
insurance policies ought to have been declared articles of
commerce.
In Robertson v. Baldwin, 165 U. S. 275, Justice Harlan
dissented more vigorously along lines similar to those of the
Hooper case. The circumstances and argument of this
case can be stated very briefly. Certain seamen were ar-
rested in San Francisco and forced, against their will, to
go back to work on a vessel engaged in commerce. The em-
ployers claimed that the men had agreed to work in this
vessel until it should return to some port in the United
States. The plea of the seamen was that the act of Con-
gress authorizing their seizure by a justice of peace and re-
turn to the vessel was unconstitutional in that it forced them
into involuntary servitude.
The majority of the court held that the contract of sea-
men differs from other contracts. Tracing the laws from
the earliest times. Justice Brown, rendering the opinions of
the court, showed that sailors have always had this coercion
applied to them. " In the face of this legislation upon the
subject of desertion and absence without leave, which was
in force in this country for more than sixty years before
the 13th Amendment was adopted, and similar legislation
abroad from time immemorial, it cannot be open to doubt
that the provision against involuntary servitude was never
intended to apply to their contracts."
Il8 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
Justice Harlan looked at this question differently. He
contended that such compulsion was involuntary servitude,
and that citations from history had no bearing since,
throughout history, slavery itself had been legal. Nor did
he think that the nature of the undertaking gave sufficient
reason to force the men to work. In regard to this last
point he said : " Under the contract of service, it was at the
volition of the master to entail service upon these appellants
for an indefinite period. So far as the record discloses, it
was an accident that the vessel came back to San Francisco
when it did. By the shipping articles, the appellants could
not quit the vessel until it returned to a port of the United
States, and such return depended absolutely upon the will of
the master. He had only to land at foreign ports, and keep
the vessel away from the United States, in order to prevent
the applicants from leaving his service."
In connection with the other consideration the following
quotation is interesting: "The 13th Amendment, although
tolerating involuntary servitude only when imposed as a
punishment of crime of which the party shall have been
duly convicted, has been construed, by the decision just
rendered, as if it contained an additional clause expressly
excepting from its operation seamen who engage to serve
on private vessels. Under this view of the Constitution, we
may now look for advertisements, not for runaway servants
as in the days of slavery, but for runaway seamen. In
former days, overseers could stand with whip in hand over
slaves, and force them to perform personal service for their
masters. While, with the assent of all, that condition of
things has ceased to exist, we can but be reminded of the
past when it is adjudged to be consistent with the law of the
land for freemen who happen tO be seamen to be held in
custody that they may be forced to go aboard private vessels
and render personal services against their will."
From the above it is seen that Justice Harlan did not
believe that Congress, under its power over interstate and
foreign commerce, could pass laws which would abridge the
INTERSTATE AND FOREIGN COMMERCE II 9
rights of seamen, any more legitimately that it could abridge
the rights of any other class of workmen.
Along the same line with the case just discussed is the
case of Geer v. Connecticut, i6i U. S. 519. In this case it
was held that it is not unconstitutional for a State to forbid,
under pain of fine or imprisonment, that its citizens ship
game killed within the boundaries of the State to any point
outside of the State. The ground for the decision was that
a State may preserve the game for its own people. " The
power of a state to protect by adequate police regulation its
people against the adulteration of articles of food . . .
although in doing so commerce might be remotely affected,
necessarily carries with it the existence of a like power to
preserve a food supply which belongs in common to all the
people of the state, which can only become the subject of
ownership in a qualified way, and which can never become
the object of commerce except with the consent of the state
and subject to the conditions which it may deem best to
impose for pubHc good."
Justice Harlan dissented. He held that after a man has
gained possession of killed game, it becomes his own, to
deal with as he pleases. He said : " The game in question
having been lawfully killed, the person who killed it and
took it into his possession became the rightful owner
thereof. This, I take it, will not be questioned. As such
owner he could dispose of it by gift or sale, at his dis-
cretion. So long as it was fit for use as food, the state
could not interfere with his disposition of it, any more than
it could interfere with the disposition by the owner of other
personal property that was not noxious in its character. To
hold that the person receiving personal property from the
owner may not receive it with the intent to send it out of
the state is to recognize an arbitrary power in the govern-
ment which is inconsistent with the liberty belonging to
every man, as well as with the rights which inhere in the
ownership of property. . . . Believing that the statute of
Connecticut, in its application to the present case, is not
I20 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
consistent with the liberty of the citizen or with the freedom
of interstate commerce, I dissent from the opinion and judg-
ment of the court."
The last case to be mentioned involving freedom of con-
tract in interstate commerce is that of Smith v. St. Louis
and S. W. R. Co., i8i U. S. 248. Here was brought into
question the constitutionality of a statute of Louisiana — a
quarantine law — which forbade any shipment of cattle of
any description from Texas into Louisiana, or from Loui-
siana into Texas, because of the existence of anthrax among
the animals of Texas. The court sustained the law as a
valid police regulation.
Justice Harlan, with whom concurred Justice White, ob-
jected to the sweeping scope of the law. Its inclusiveness,
according to him, made undue restrictions upon interstate
commerce. " The grounds of my dissent are these : ( i ) The
railroad company was bound to discharge its duties as a
carrier unless relieved therefrom by such quarantine regu-
lations under the laws of Texas as were consistent with
the Constitution of the United States. It could not plead
in defense of its action the quarantine regulations adopted
by the state sanitary commission and the proclamation of
the governor of that state, if such regulations and proclama-
tion were void under the Constitution of the United States.
(2) The authority of the state to establish quarantine regu-
lations for the protection of the health of its people does
not authorize it to create an embargo upon all commerce
involved in the transportation of live stock from Louisiana
to Texas. The regulations and the governor's proclama-
tion upon their face showed the existence of a certain cattle
disease in one of the counties of Texas. If, under any
circumstances, that fact could be the basis of an embargo
upon the bringing into Texas from Louisiana of all live
stock during a prescribed period, those circumstances should
have appeared from the regulations and the proclamation
referred to. On the contrary, there does not appear on
the face of the transaction any ground whatever for estab-
INTERSTATE AND FOREIGN COMMERCE 121
lishing a complete embargo for any given period upon all
transportation of live stock from Louisiana to Texas."
In other words, Justice Harlan could not see that there
were sufficient grounds to cause the discontinuance of all
shipments of cattle into Texas because of disease there.
He could not see how sending cattle from Louisiana into
Texas would bring disease from Texas into Louisiana, and
hence he thought that such a restriction was an improper
burden upon interstate commerce.
In considering the attitude of Justice Harlan to freedom
of contract as a whole, the conclusion is inevitable that he
was more liberal on this point than on almost any other.
He magnified individual freedom greatly, and in so doing
seemed to lose sight at times of the real working of the
law. For instance, in Hooper v. California a doctrine such
as he upheld would in practice have displaced the accepted
position of insurance policies, and would have forced them
into a rather anomalous category. They would not have
been articles of commerce, and at the same time could not
be subjected to effective regulation by the States. Thus
they would have tended to slip out from under both national
and state control.
Employers' Liability. — The case of Howard v. Illinois
Central R. Co., 207 U. S. 463, brought before the Supreme
Court the constitutionality of a statute of Congress, passed
June II, 1906, making employers liable for the injury or
death of employees on railroad trains. That was the first
employers' liability act passed by Congress, and was held
to be unconstitutional as an attempt on the part of Congress
to regulate intrastate as well as interstate commerce. The
court spoke as follows: "Concluding, as we do, that the
statute, whilst it embraces subjects within the authority of
Congress to regulate commerce, also includes subjects not
within its constitutional power, and that the two are so inter-
blended in the statute that they are incapable of separation,
we are of the opinion that the courts below rightly held
the statute to be repugnant to the Constitution and non-
enforceable."
122 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
Justices Moody, Harlan, Holmes, and McKenna dissented
from this opinion. They asserted that though the statute
could be so read as to make it include matters that were
without the power of the general government to regulate,
a narrower reading could and should have been given to it
so as to make it constitutional. Justice Moody rendered an
able dissent from this case, and Justice Harlan concurred
in his views, but also gave a short dissenting opinion of
his own. He said : " We do not concur in the interpretation
of that act as given in the opinion delivered by Mr. Justice
White, but think that the act, reasonably and properly in-
terpreted, applies, and should be interpreted as intended
by Congress to apply only to cases of interstate commerce
and to employees who, at the time of the particular wrong
or injury complained of, are engaged in such commerce, and
not to domestic commerce or commerce completely internal
to the State in which the wrong or injury occurred."
Beginning of the Interstate Commerce Commission. —
There are two significant cases in which Justice Harlan
differed from the court in its review of decisions rendered
by the Interstate Commerce Commission. The first was
the case of Texas and Pacific R. Co. v. Interstate Commerce
Commission, 162 U. S. 197. Here the question was whether
under the Interstate Commerce Act the railroad company
could legally charge a cheaper rate for shipments of goods
from foreign ports through the territory of the United
States than it did between two equally distant places within
the United States. The commission held that there had
been an unlawful discrimination. In the Supreme Court it
was argued that the Interstate Commerce Commission had
erred in interpreting the statute of Congress by not con-
sidering circumstances which would have justified the rail-
road companies in making the distinction. The special cir-
cumstances under which they claimed justification were that
since the freight vessels charged a cheaper rate for deliver-
ing goods from foreign ports to points along the Pacific
coast, they were justified in putting the railroad rates so low
INTERSTATE AND FOREIGN COMMERCE 1 23
as to draw the shipments over the land. This contention
the Supreme Court upheld, reversing the decision of the
circuit court : " The mere fact that the disparity between the
through and local rates was considerable did not, of itself,
warrant the court in finding that such disparity constituted
an undue discrimination — much less did it justify the court
in finding that the entire difference between the two rates
was undue or unreasonable, especially as there was no
person, firm, or corporation complaining that he or they had
been aggrieved by such disparity." The case had been con-
tested at the instigation of chambers of commerce.
As would naturally be supposed, Justice Harlan's conten-
tion was that such a decree legitimised partiality to foreign
shippers as opposed to those at home. He contended that
the Interstate Commerce Commission gave the only proper
interpretation of the act of Congress, either as to its mean-
ing or as to the intent of the legislators. He said : " If such
discrimination by American railways, having arrangements
with foreign companies, against goods, the product of
American skill, enterprise and labor, is consistent with the
act of Congress, then the title of that act should have been
one to regulate commerce to the injury of American in-
terests and for the benefit of foreign manufacturers and
dealers."
He said further: "I am not much impressed by the
anxiety which the railroad company professes to have for
the interests of the consumers of foreign goods and products
brought to this country under arrangement as to rates made
by it with ocean transportation lines. We are dealing in
this case only with a question of rates for the transporta-
tion of goods from New Orleans to San Francisco over the
defendants' railroad. The consumers at San Francisco,
those who may be supplied from that city, have no concern
whether the goods reached them by the way of railroad
from New Orleans, or by water around Cape Horn, or by
route across the isthmus of Panama."
The last and most significant case regarding the early
124 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
powers of the Interstate Commerce Commission is that of
the Interstate Commerce Commission v. Alabama Midland
R. Co., i68 U. S. 144. This again was a case in which it
was held that the commission had not given weight to
material considerations.
The town of Troy, Alabama, claimed that it was dis-
criminated against in railroad rates. On phosphate rock
from a certain point to Troy the charge was $3.22 a ton,
while from the same point to Montgomery, a longer dis-
tance, the charge was only $3 a ton. A similar rate was
charged on cotton and various other commodities. Upon
appeal to the Interstate Commerce Commission this was held
to be discrimination, and the rates were ordered to be re-
duced to a certain point. Because of this reduction the
case was taken by the railroad company into the circuit
court of appeal, where the decision of the commission was
overthrown, whereupon the commission appealed to the
Supreme Court. The Supreme Court decided that in at-
tempting to fix rates the commission had exceeded the
powers granted to it by Congress. Furthermore, the court
in this case went further than to attempt to determine
whether the commission had rightly interpreted the statute
of Congress. It justified this conduct by asserting that it
had to investigate the circumstances in order to answer the
question put by the Interstate Commerce Commission. It
had been asked by the commission whether or not the
decision made by the commission was right, and since the
decision rested on the facts, the court had to investigate the
facts to decide whether the commission had exceeded its
jurisdiction or not. Having done this, it decided that the
commission had exercised a power which it did not have,
and furthermore asserted that the circumstances required a
higher rate than the commission had set, hence the decision
of the commission remained overthrown.
Justice Harlan disagreed with this decision because it
apparently deprived the Interstate Commerce Commission
of its ability to prevent discrimination in rates. He said:
INTERSTATE AND FOREIGN COMMERCE 125
"The Commission was established to protect the public
against improper practices of transportation companies
engaged in commerce among the several states. It has been
left, it is true, with power to make reports and issue
protests. But it has been shorn by judicial interpretation,
of authority to do anything of an effective character. It is
denied many of the powers which, in my judgment, were
intended to be conferred upon it. Besides, the acts of
Congress are now so construed as to place communities on
the lines of interstate commerce at the mercy of competing
railroad companies engaged in such commerce."
But however condemnable a situation may, for the time
being, seem to be, it appears that somehow things right
themselves in a government which is responsible to a healthy
public opinion. At that time one of the most significant
steps that had been taken to assure honest railroad rates
must have seemed to Justice Harlan to have been blocked.
The delay proved, however, to be only temporary, for since
the above case was decided Congress has thought it wise so
to amend the act establishing the Interstate Commerce Com-
mission as to give it the power which the court in this case
said that it did not have. In other words, Congress has
said that it did mean to say what the court said that it did
not mean to say, and what Justice Harlan contended was the
only thing that it could very well have meant to say,
namely, that the commission should determine what are
fair rates for interstate lines to charge for the various
articles of transportation.
Although the court alluded to the fact that the granting of
the rate-making power to the Interstate Commerce Com-
mission might be considered a delegation of legislative
power, no definite point was made of it. This considera-
tion did not seem to Justice Harlan to be a serious obstacle
in the way of granting such a power to the Commission.
Since the later amendment to the act of Congress, however,
the judges seem to be unanimous in indicating that they do
not consider this a delegation of the legislative power.
CHAPTER V
Equal Protection of the Laws
Race. — In discussing the question of the equal protection
of the laws in reference to the negroes it will be necessary
to bring into consideration cases which might have been
dealt with exclusively under other subjects. There are
seven cases in which this vexed question has arisen in one
way or another: (i) The Civil Rights Cases, 109 U. S. 3;
(2) Louisville, New Orleans and Texas R. Co. v. Missis-
sippi, 133 U. S. 587; (3) Plessy v. Ferguson, 163 U. S. 537;
(4) Giles V. Harris, 189 U. S. 475; (5) Hodges v. United
States, 203 U. S. I ; (6) Berea College v. Kentucky, 211
U. S. 45; (7) Bailey v. Alabama, 219 U. S. 219.
The first determined the position which the negroes
should occupy in the States after the adoption of the thir-
teenth and fourteenth amendments, that is, that they should
be citizens of the States and not wards of the nation. The
second involved the constitutionality of the so-called Jim
Crow laws from the standpoint of interstate commerce.
The third passed upon the Jim Crow laws under the general
provisions of the thirteenth and fourteenth amendments.
The fourth refused to pass upon the constitutionality of the
so-called disfranchisement provisions in the constitution of
Alabama. The fifth and seventh involved the constitu-
tionality of certain acts which were claimed to allow peonage
in some of the Southern States. The sixth involved the
constitutionality of a state law forbidding admission of
negroes to Berea College, Kentucky. In every case the
negro was denied the rights which he claimed.
The Civil Rights Cases will be discussed in more detail
than the others, for in them is found the heart of the ques-
tion as to the position which the negro was to occupy after
126
EQUAL PROTECTION OF THE LAWS 12/
the passage of the thirteenth and fourteenth amendments.
There were five of these cases, but only four of them in-
volved the main question. Two cases arose because of the
refusal to admit negroes to hotels and two on account of the
refusal to admit negroes to theatres on the same footing as
other people ; the other arose out of the refusal of a railway
conductor to allow a colored woman to ride in the ladies'
car. The contention of the plaintiffs was that these denials
constituted violations of sections i and 2 of an act of Con-
gress known as the Civil Rights Act, passed March i, 1875,
as appropriate legislation to enforce the rights which the
negroes had acquired under the newly added amendments.
The question, therefore, was whether the sections of the act
were constitutional.
The argument of the court in declaring the sections un-
constitutional may be summarized as follows : ( i ) In reply
to the contention that the power of Congress to pass such a
law was granted by the fourteenth amendment, the state-
ment was made that, similar to the requirement that no
State should pass any law impairing the obligation of con-
tracts, it was state action of a particular character that was
prohibited, and that individual invasion of individual rights
was not the subject-matter of the amendment. A differen-
tiation was thus made between the legislative powers of
Congress under these amendments and those derived from
the provisions of the Constitution which clothe Congress
with plenary power of legislation over the whole subject-
matter, as, for example, the regulation of interstate com-
merce. " In these cases, Congress has power to pass laws
regulating subjects specified in every detail, and the conduct
and transactions of individuals in every respect thereof.
But where a subject is not submitted to the general legis-
lative power of Congress, but is only submitted thereto for
the purpose of rendering effective some prohibitions against
particular State legislation or State action in reference to
that subject, the power given is limited by its object, and
any legislation by Congress in the matter must necessarily
128 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
be corrective in character, adapted to counteract and redress
the operation of such prohibited state laws or proceedings
of State officers."
(2) Such legislation by Congress was not needed for the
enforcement of the thirteenth amendment because that
amendment is self-executing. " By its own unaided force
and effect, it abolished slavery, and established universal
freedom. Still legislation may be necessary and proper to
meet all the various cases and circumstances to be affected
by it, and to prescribe proper modes of redress for its viola-
tion in letter and in spirit, and such legislation may be
primary and direct in its character; for the Amendment is
not a mere prohibition on state laws establishing or uphold-
ing slavery, but an absolute declaration that slavery or in-
voluntary servitude shall not exist in any part of the United
States." The court admitted, therefore, that Congress had
the right to pass any appropriate legislation for the oblitera-
tion and prevention of slavery, but denied that the refusal
of admission to accommodations and privileges in all inns,
public conveyances, and so on, subjected those persons to
any form of servitude, or tended to fasten on them any
badges of slavery. "It would be running the slavery ar-
gument into the ground, to make it apply to every act of
discrimination which a person may see fit to make as to the
guests he will entertain, or as to the people he will take
into his coach or car, or admit to his concert or theatre, or
deal with in other matters of intercourse or business. Inn-
keepers and public carriers, by the laws of all the States,
so far as we are aware, are bound, to the extent of their
facilities, to furnish proper accommodations to all unob-
jectionable persons who apply in good faith for them. If
the laws themselves make any unjust discrimination, amen-
able to the 14th Amendment, Congress has full power to
afford a remedy, under that Amendment and in accordance
with it."
It is seen, therefore, that the argument of the court rested
in the first place on the assumption that the fourteenth
EQUAL PROTECTION OF THE LAWS 1 29
amendment gave Congress only the power of passing cor-
rective legislation directed at state action, and that since the
act in question was directed against individuals it could not
be considered appropriate legislation for the enforcement
of the provisions of the fourteenth amendment. In the
second place, it was not appropriate legislation for the en-
forcement of the thirteenth amendment, for it had been
aimed at some things which the appellants had attempted to
characterize as badges of slavery, but which could not be
termed such.
Justice Harlan's contentions in dissenting from these
views may be briefly given as follows: First, he held that
the freedom established by the thirteenth amendment in-
volved more than exemption from actual slavery. It meant
more than simply preventing one person from owning an-
other as property. The people, in adding the thirteenth
amendment to the Constitution, could not have intended to
destroy simply the institution of slavery and then remit
those who had been set free to the States which had held
them in bondage, and expect those States to protect them in
the rights which necessarily grew out of the freedom which
those States did not desire them to have. " I do not con-
tend that the 1 3th Amendment invests Congress with author-
ity, by legislation, to define and regulate the entire body of
civil rights which citizens enjoy, or may enjoy in the sev-
eral States. But I hold that since slavery, as the court has
repeatedly declared . . . was the moving force or principal
cause of the adoption of that Amendment, and since that
institution rested wholly upon the inferiority, as a race, of
those held in bondage, their freedom necessarily involved
immunity from, and protection against, all discrimination
against them, because of their race, in respect of such civil
rights as belong to freemen of other races."
Second, he held that it was not for the judiciary but for
Congress to say what was appropriate legislation for the
enforcement of the thirteenth and fourteenth amendments.'
" Under given circumstances, that which the court charac-
130 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
terizes as corrective legislation might be deemed by Con-
gress as appropriate and entirely sufficient. Under other
circumstances primary direct legislation may be required.
But it is for Congress, not the judiciary, to say that legis-
lation is appropriate ; that is, the best adapted to the end to
be attained."
Another quotation along this same line will be pertinent :
" With all respect for the opinion of others, I insist that the
National Legislature may, without transcending the limits
of the Constitution, do for human liberty and the funda-
mental rights of American citizenship, what it did, with the
sanction of this court, for the protection of slavery and the
rights of the master of fugitive slaves. If fugitive slave
laws providing modes, and prescribing penalties whereby
the master could seize and recover his fugitive slave, were
legitimate exercises of an implied power to protect and en-
force a right recognized by the Constitution, why shall the
hands of Congress be tied, so that, — under an express power
by appropriate legislation, to enforce a Constitutional pro-
vision granting citizenship — it may not, by means of direct
legislation, bring the whole power of this Nation to bear
upon States and their officers, and upon such individuals
and corporations exercising public functions as assume to
abridge, impair or deny rights confessedly secured by the
supreme law of the land ? "
This gives an insight into the most significant points de-
veloped by Justice Harlan. Other considerations were
urged by him, but they were of less importance than these.
His doctrine might be stated as follows : ( i ) Admission to
hotels, places of amusement, and so forth, on equal footing
with other citizens was a right that could not be denied to
citizens without infringing their freedom; hence such re-
fusals constituted badges of slavery, and could be punished
under the section of the thirteenth amendment which gives
Congress the right to enforce by appropriate legislation
the provision against slavery or involuntary servitude. (2)
It was absurd to take the slaves out of the hands of the
EQUAL PROTECTION OF THE LAWS I3I
States, and soon thereafter give them back as free men to
these same States, and expect them to be protected in their
civil rights. The nation could not have meant to do so il-
logical a thing. And as simply the protection of the civil
rights of negroes — or those who were once slaves — did not
mean the taking by Congress of all civil rights of other
citizens into its charge, such protection did not materially
alter the nature of our institutions. No such alteration was
intended by the newly added amendments. (3) It was not
intended that the court should say what is meant by appro-
priate legislation. If Congress saw in certain acts badges
and incidents of servitude or violations of the fourteenth
amendment, it was not for the court to say what legislation
Congress might choose to pass to remedy that condition;
and a pronouncement by the court against the condition was
judicial legislation. (4) Precedent showed that before the
war Congress had, under an implied power, legislated so
that owners of slaves could retain possession of their slaves ;
under an expressed power Congress should be able to secure
freedmen in the possession of their rights.
When a fair examination is made of the decision and the
dissent, the conclusion is plain that legally there is as much
ground for one opinion as for the other. By a restricted
and somewhat narrower interpretation of the amendments
in question, the opinion of the court is logically sound.
Justice Harlan's arguments do not refute the arguments of
the court. His view is broader in some ways, and is based
on a different line of reasoning. Both are sound constitu-
tional doctrines, and the question was simply which of the
two the majority of the court espoused. They upheld the
former, and, of course, the decision went contrary to Justice
Harlan's opinion. But since in this case the court decided
the question upon the ground that the legislation in the
Civil Rights Act was directed against individual action and
was not corrective of state legislation and hence was un-
constitutional, it will be interesting to follow the opinions
that have been delivered as regards state acts.
132 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
The next case is Louisville, New Orleans and Texas R.
Co. V. Mississippi, 133 U. S. 587. Since, however, this
case was discussed fully under interstate and foreign com-
merce,^ it need not be considered further at this point.
Probably the most typical case, after the Civil Rights
Cases, that has arisen under the equal protection clause is
that of Plessy v. Ferguson, 163 U. S. 537. This case also
involved the constitutionality of a statute of a State requir-
ing the separation of races on the trains. It was rested
directly upon the equal protection clause, but brought into
question the general purpose of the thirteenth and four-
teenth amendments.
The court held the following opinion: (i) There was
nothing to show that the statute required involuntary servi-
tude : " A statute which implies merely a legal distinction
between white and colored races — a distinction which is
founded in the color of the two races, and which must
always exist so long as white men are distinguished from
the other race by color — has no tendency to destroy the legal
equality of the two races, or to re-establish a state of invol-
untary servitude." (2) The statute was in no way in con-
flict with the fourteenth amendment: "The object of the
amendment was undoubtedly to enforce absolute equality
of the two races before the law, but in the nature of things
it could not have been intended to abolish the distinctions
based on color, or to enforce social, as distinguished from
political, equality, or as commingling the two races upon
terms unsatisfactory to either. . . . We consider the un-
derlying fallacy of the plaintiff's argument to consist in the
assumption that the enforced separation of the two races
stamps the colored race with a badge of inferiority. If this
be so it is not by reason of anything found in the act, but
solely because the colored race chooses to put that construc-
tion upon it. The argument necessarily assumes that if, as
has been more than once the case, and is not unlikely to be
so again, the colored race should become the dominant power
1 See pages 89-90.
EQUAL PROTECTION OF THE LAWS 1 33
in the state legislature, and should enact a law in precisely
similar terms, it would thereby relegate the white race to
an inferior position. We imagine that the white race, at
least, would not acquiesce in this assumption." (3) The
question as to the amount of negro blood necessary to
stamp a person a negro was to be settled by the State.
What the State pronounced in this regard would be held
correct in the United States Supreme Court.
In opposition to these views Justice Harlan developed the
following points: (i) The railroad, as a public highway,
should not be directed or allowed to discriminate on account
of race. " In respect of civil rights, common to all citizens,
the Constitution of the United States does not, I think, per-
mit any public authority to know the race of those entitled
to be protected in the enjoyment of such rights. Every
true man has pride of race, and under appropriate circum-
stances, when the rights of others, his equals before the law,
are not to be aifected, it is his privilege to express such pride
and take such action based upon it as to him seems proper.
But I deny that any legislative body or judicial tribunal may
have regard to the race of its citizens when the civil rights
of those citizens are involved. Indeed, such legislation as
that here in question is inconsistent, not only with that
equality of rights which pertains to citizenship, national and
state, but with the personal liberty enjoyed by every one
within the United States." (2) The thirteenth amendment
does not permit the withholding or the deprivation of any-
thing necessarily inhering in freedom. As that amendment
had been found inadequate for the protection of the rights
of those who had been in slavery, it was followed by the
fourteenth, which added greatly to the dignity and glory of
American citizenship. " Finally, and to the end that no
citizen should be denied, on account of his race, the privi-
lege of participating in the poHtical control of his country
it was declared by the 15th Amendment that *the right of
citizens of the United States to vote shall not be denied or
abridged on account of race, color, or previous condition
of servitude.' "
134 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
The following quotation will give the gist of the dissent :
" It was said in argument that the statute of Louisiana does
not discriminate against either race, but prescribes a rule
applicable alike to white and colored citizens. But this
argument does not meet the difficulty. Every one knows
that the statute in question had its origin in the purpose, not
so much to exclude the white persons from railroad cars
occupied by blacks, as to exclude colored persons from
coaches assigned to white persons. Railroad corporations
of Louisiana did not make discrimination among whites in
the matter of accommodation for travellers. The thing to
accomplish was, under the guise of giving equal accommo-
dation for whites and blacks to compel the latter to keep to
themselves while travelling in railroad passenger coaches.
No one would be so wanting in candor as to assert the con-
trary. . . .
" I am of opinion that the statute of Louisiana is incon-
sistent with the personal liberty of citizens, white and black,
in that state, and hostile to both the spirit and letter of the
Constitution of the United States. If laws of Hke charac-
ter should be enacted in the several states of the Union, the
effect would be in the highest degree mischievous. Slavery
as an institution tolerated by law would, it is true, have dis-
appeared from our country, but there would remain a power
in the states, by sinister legislation, to interfere with the
full enjoyment of the blessings of freedom."
The next case, Giles v. Harris, 189 U. S. 475, involved
various provisions in the constitution of the State of Ala-
bama which operated to disfranchise the negroes. The case
had been dismissed from the circuit court because damages
to the amount of two thousand dollars were not averred.
It was appealed to the Supreme Court of the United States,
where the point as to the amount averred was waived, and
the case was argued on its merits. Although the court
showed that it was not within the power of equity to grant
relief, and not possible to assure the right to vote to the
colored people in face of the opposition of the white popu-
EQUAL PROTECTION OF THE LAWS 1 35
lation, it did not pass upon the constitutionality of the pro-
visions in question. This case is discussed more fully in
the chapter on jurisdiction of court.^
The next two cases involve the question of peonage in the
Southern States. Hodges v. United States, 203 U. S. I,
was a review of a judgment in a lower federal court " con-
victing individual citizens of compelling negro citizens, by
force and intimidation, to desist from performing their
contracts of employment." It came by writ of error to the
United States district court of Arkansas, where the decision
was that interference with citizens to such an extent as to
prevent them from contracting for their labor as they
pleased was forbidden by the thirteenth amendment to the
Constitution of the United States. The Supreme Court
said that such an interference was not sufficient to be pro-
nounced involuntary servitude as the words are used in the
thirteenth amendment.
The arguments in the decision of the Supreme Court may
be stated as follows : By a strict definition of slavery and
involuntary servitude it was held that the lack of power to
make or perform contracts was not embodied within the
meaning of the thirteenth amendment. " It is said, how-
ever, that one of the disabilities of slavery, one of the indicia
of its existence, was a lack of power to make or perform
contracts, and that when these defendants, by intimidation
and force, compelled the colored men named in the indict-
ment to desist from performing their contracts, they, to that
extent, reduced those parties to a condition of slavery, —
that is, of subjection to the will of the defendants, and de-
prived them of a freeman's power to perform his contract.
But every wrong done to an individual by another, acting
singly or in concert with others, operates pro tanto to
abridge some of the freedom to which the individual is en-
titled. A freeman has a right to be protected in his person
from assault and battery. He is entitled to hold his prop-
erty safe from trespass or appropriation ; but no mere per-
2 See pages 170-172.
136 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
sonal assault or trespass or appropriation operates to reduce
the individual to a condition of slavery." Then follows a
declaration that the thirteenth amendment did not intend to
make the negroes wards of the nation, but only to give them
citizenship and protect them against the abridgment of the
privileges of citizenship by state action.
Justice Harlan did not agree with the arguments of the
court in any particular. He claimed that a conspiracy forc-
ibly to prevent citizens of African descent from contracting
for their labor as they pleased infringed or violated a right
or privilege, created by, derived from, or dependent upon
the Constitution of the United States, because (i) the in-
fringement of the right to contract for one's own labor is,
within the meaning of the Constitution, slavery; (2) the
thirteenth amendment not only abolished slavery, but au-
thorized Congress to make this abolition effective by appro-
priate legislation; (3) Congress had passed such appro-
priate legislation by Par. 5508 of the Revised Statutes,
which had been declared constitutional by the Supreme
Court.
As is shown in another chapter, the case of Bailey v. Ala-
bama, 211 U. S. 452, was dismissed on a technicahty. This
case is discussed elsewhere.^ It is sufficient to say here that
Justice Harlan in his dissent argued that the contention of
the court was not well founded, and that the failure of the
court to pass upon the constitutionality of the statute in
question permitted discriminatory legislation.
Berea College v. Kentucky, 211 U. S. 45, involved the
constitutionality of a law of Kentucky making it unlawful
for negroes and whites to attend the same schools. In the
Supreme Court this law was upheld as regarded its opera-
tion upon Berea College, a corporation of the State.
As will be shown later, Justice Harlan believed that a
State had the right to prevent any corporation from enter-
ing its borders, but after a corporation had begun to do busi-
ness there he did not think that because of this right the
3 See pages 164-166.
EQUAL PROTECTION OF THE LAWS 1 37
State could impose any restriction it might please. This
doctrine of his, combined with his strong desire to see the
colored people get justice, brought forth a stinging dissent
from him in the Berea College case. The spirit of his dis-
sent here is not materially different from that in the other
cases on this subject. The following quotation is typical :
"In the eye of the law, the right to enjoy one's religious
belief, unmolested by any human power, is no more sacred
nor more fully or distinctly recognized than is the right to
impart and receive instruction not harmful to the public.
The denial of either right would be an infringement of the
liberty inherent in the freedom secured by the fundamental
law."
Justice Harlan's doctrine as to the position which the
negroes should be allowed to occupy in our country may be
stated as follows : He believed that they should occupy the
position that historically they were intended to occupy by
the thirteenth and fourteenth amendments. He believed
that the law should be interpreted as it was meant and not
as the court thought expedient and wise. Though it may
be true that his relation to the negro in political matters
may have made him more violent in his dissents, any one
who will look fairly at the question must conclude that his
doctrine was legally correct. And as time passes, and as
both classes become better educated and broader in their
views, it may be said that the tendency of the court is likely
to be to interpret the laws largely as he thought they should
have been interpreted, that is, as historically they were
meant.
There are two cases representative of Justice Harlan's
doctrine regarding legislation as to the Chinese immigrants
in this country. They are Baldwin v. Franks, 120 U. S.
678, and United States v. Jung Ah Lung, 124 U. S. 621.
The first involved the following points : A group of men
in California drove a Chinaman from his home and forbade
his doing business in the town in which he had set up his
laundry. These men were arraigned before the United
138 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
States circuit court and punished for having violated cer-
tain sections of the Civil Rights Act. Appeal was made by-
Baldwin upon writ of error to the Supreme Court of the
United States, and here the decision of the circuit court was
reversed.
In this case there were several questions to be answered,
the most important of which was whether such acts were in
violation of the following provisions of the revised statutes
of Congress, being portions of the well-known Civil Rights
Act : Sections 5508, 5519, and 5536. If they were violations
of any of these sections, was the decision below constitu-
tionally correct? In each point the court held as follows:
The intent of Section 5519 was to impose a fine upon any
person or group of persons who go upon the premises of
another for the purpose of depriving him of the equal pro-
tection of the laws. That of Section 5508 was to make it
criminal for two or more persons to threaten or in any way
intimidate any citizen in the enjoyment of the rights se-
cured to him by the Constitution. That of Section 5536
was to impose the same fine upon persons conspiring to de-
stroy or hamper the force of the government of the United
States. Section 5519 had already been declared unconstitu-
tional, but the question was raised whether the same ruling
would hold regarding aliens. The court held that the
statute was not so worded as to be applicable to aliens.
Section 5536 was likewise declared invalid. Section 5508,
however, had been repeatedly declared constitutional. The
question was, therefore, did this section apply to this par-
ticular case? The court answered this question by saying
that the statute applied to citizens and not to persons, there-
fore it could not have been meant to apply to aliens.
The following quotation from Justice Harlan's dissent
will indicate his answers to the arguments of the court:
" It would seem from the decision in this case, that if
Chinamen, having a right, under treaty, to remain in our
country, are forcibly driven from their places of business,
the Government of the United States is without power in
EQUAL PROTECTION OF THE LAWS 1 39
its own courts to protect them against such violence, or
to punish those who, in this way subject them to ill treat-
ment. If this be so, as to Chinamen lawfully in the United
States, it must be equally true as to citizens, or subjects of
every other foreign Nation, residing or doing business here
under the sanction of treaties with their respective gov-
ernments. I do not think that such is the present state of
the law."
In reference to the assertion of the court that the act did
not apply to aliens, he said that since further on in the act
the word "another" instead of "citizen" occurred, Con-
gress must have had in mind any other person, whether a
citizen or not.
He again contended that in spite of the previous decisions
regarding Section 5519, it was constitutional as appropriate
legislation to secure rights guaranteed under the thirteenth
and fourteenth amendments. "If Congress, upon looking
over the whole ground, determined that an effectual and
appropriate mode to secure such protection was to proceed
directly against a combination of individuals, who sought,
by conspiracy or by violent means, to defeat the enjoyment
of the right given by the Constitution, I do not see upon
what ground the court can question the validity of legisla-
tion to that end." That is, of course, but a reiteration of
his disapproval of the declaration of unconstitutionality in
the Civil Rights Cases. Justice Harlan's dissent from this
case, therefore, was simply a call to the nation to stand by
its treaty obligations to aliens regardless of race or other
considerations.
The case of the United States v. Jung Ah Lung contains
what appears to be a departure from Justice Harlan's usual
mode of dissent, but a close examination shows that it was
not a departure. The case in question came up from the
United States circuit court for the district of California.
It was an appeal to review the decision of this court issu-
ing a writ of habeas corpus to immigration authorities who
held a Chinaman because of his inability to produce a cer-
140 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
tificate which would have shown that he was a laborer in
this country prior to the passage of the Chinese exclusion
acts, and which would have, therefore, given him the right
to readmission into this country. It appeared that Jung
Ah Lung had been captured by pirates and had been robbed
of this certificate, which according to the law he was re-
quired to produce before he could be allowed to reenter this
country. The circuit court denied the claim of the immi-
gration officials that their decision was final, and gave the
Chinaman a hearing.
As it appeared from other evidence satisfactory to the
court that he was the same man to whom this certificate
had been issued, and that, in the light of every consideration
except the production of the certificate, he was entitled to
enter, the circuit court ordered his release. This order the
Supreme Court of the United States upheld.
Justice Harlan, with Justices Field and Lamar concur-
ring, contended that the action of the circuit court was
wrong. The law expressly stated that the certificate should
be produced, and admission without it was illegal. The
reason for their contention was, in the first place, that ad-
mission through one port ought not to have been allowed on
any condition that could not be allowed in another port.
Immigration laws in order to be constitutional must be uni-
form. Since the defendant could not have been admitted
under the same circumstances through any port except the
one from which he departed, he ought not to have been
admitted through that one.
In the second place, since the law read that "said cer-
tificate shall be the only evidence permissible to establish
his right to re-enter," the court did not have a right to
accept any other evidence. "If appellee's certificate was
forcibly taken from him by a band of pirates, while he was
absent, that is his misfortune. That fact ought not to defeat
what was manifestly the intention of the legislative branch
of the Government. Congress, in the Act of 1882, said,
in respect to a Chinese laborer who was here when the
EQUAL PROTECTION OF THE LAWS I4I
treaty of 1880 was made, and who afterwards left the coun-
try, that the * proper evidence ' of his right to go and come
from the United States was the certificate he received from
the collector of customs at the time of his departure, and
that he should be entitled to re-enter ' upon producing and
delivering such certificate ' to the collector of customs of
the district at which he seeks to re-enter; while this court
decides that he may re-enter the United States without pro-
ducing such certificate, and upon satisfactory evidence that
he once had it, but was unable to produce it. As by the
very terms of the act, a Chinese laborer, who was here on
November 17, 1880, is not excepted from the provision
absolutely suspending the coming of that class to this coun-
try for a given number of years, unless he produces to the
collector the certificate issued to him, we cannot assent to
the judgment of the court."
The loss of that certificate would seem to be similar to
the loss of a ticket of any kind. As a matter of practice
no one assumes that if a person has lost his ticket he will
be allowed to ride on a train or got to a theatre. In the
same way there seems to be no reason why any one should
have assumed that a Chinaman could have been readmitted
to this country without his certificate of admission.
There is one case of particular interest regarding attempts
at discrimination against Indians. There seem to be few
attempts to deny the equal protection of the laws to them,
and this is an interesting fact in its relation to race preju-
dice. Though it must be admitted that the Indians have
not at all times been fairly dealt with in other respects by
the white people, it cannot be said that the race prejudice
against them has been strong. It is an interesting observa-
tion that the presence of any white blood in their veins
tends to classify them as white rather than red men; and
people possessing Indian blood are often proud of the fact.
The case in question, however, does contain an element
of denial of the equal protection of the laws. The case is
Elk V. Wilkins, 112 U. S. 94. It came by writ of error
10
142 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
from the United States district court for Nebraska, and
arose because of the fact that a registration officer had
denied to the Indian the right to register as an elector of
the city of Omaha. Elk, the Indian, had severed his tribal
connections, and had taken up his abode among the white
citizens of Nebraska. Having been denied the right to
vote, and the necessary requirements being present for the
recognition of the suit by the district court, he entered suit
against Wilkins, the registration officer, on the plea that he
had been denied rights granted to him under the fourteenth
and fifteenth amendments of the United States Constitu-
tion,— under the fourteenth amendment in that he was born
in the United States and hence was a citizen thereof, and
under the fifteenth amendment in that he had been denied
the right to vote because of race. The lower court decided
against him, and the decision was sustained in the Supreme
Court.
The reason for this decision was that Indians could not
become citizens except through the regular process of nat-
uralization. Since this process had not been complied with,
the Indian in question was not a citizen. Nor did the fact
that he was born in the United States alter the situation.
The reason for such a decree was the fact that Congress
had in all respects dealt with the Indians as if they were
aliens, and had passed no statute making citizens of them.
Hence the denial of the right to vote did not need to be
considered.
Justice Harlan in his dissent established the fact that the
Indian in question had taken up his abode in the State in
such a way as to be subject to taxation. This point estab-
lished, he showed that the words " excluding Indians not
taxed " as inserted in the fourteenth amendment recognized
that there were a number of Indians in the States who
were taxed, and that these were not excluded from citizen-
ship, but were impliedly included. From this, therefore,
he concluded that Indians in the position which Elk occu-
pied were recognized as citizens by the fourteenth amend-
EQUAL PROTECTION OF THE LAWS 1 43
ment. This assertion he reinforced by showing by quota-
tions that the men who drew up the amendment meant it
that way. Furthermore, he showed that in the act of Con-
gress passed in 1886 regulating the relations with Indians
the same phrase was used and with the same meaning.
The following conclusion is significant : " Born, there-
fore, in the territory, under the dominion and within the
jurisdictional limits of the United States, plaintiff has ac-
quired, as was his undoubted right, a residence in one of
the States, with her consent, and is subject to taxation and
to all other burdens imposed by her upon residents of every
race. If he did not acquire national citizenship on aband-
oning his tribe and becoming subject by residence in one of
the States to the complete jurisdiction of the United States,
then the 14th Amendment, has wholly failed to accomplish,
in respect to the Indian race, what we think was intended
by it; and there is still in this country a despised and re-
jected class of persons, with no nationality whatever; who,
born in our country, owing no allegiance to any foreign
power, and subject, as residents of the States, to all the
burdens of government, are yet not members of any polit-
ical community nor entitled to any of the rights, privileges
or immunities of citizens of the United States."
It may be noted that this situation was alleviated by an
act of Congress, passed in 1887, which made citizens of
such men whether they wished citizenship or not.
Corporations. — Since the case of Paul v. Virginia, 8
Wall. 168, which determined the fact that corporations are
citizens in the constitutional sense, was decided prior to
Justice Harlan's appointment as associate justice, it is not
possible to say what would have been exactly his view on
this subject. There is, however, in the case of Atchison,
Topeka, and Santa Fe R. Co. v. Matthews, 174 U. S. 96,
an interesting expression of his opinion on this general sub-
ject, but since this case did not present the question squarely
to the court, his constitutional doctrine on the subject can-
not be deduced.
144 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
This case came from the supreme court of Kansas, and
involved the constitutionality of a statute of that State
which required that a railroad company, in case of suit for
damages against it by an injured person, should pay, in
addition to the damages awarded by the court, the attor-
neys' fees of the plaintiff. One of the questions raised was
whether the statute did not discriminate against the rail-
road company in that it stipulated that the company should
pay the fees if the suit went against them, and did not
force the plaintiffs to pay the fees if the suit went in favor
of the company. The court, nevertheless, upheld the stat-
ute on the ground that the classification was just in that it
was made because of the nature of the business, the rail-
way business being one which people enter at their peril.
Though Justice Harlan's argument in this case may not
seem fair, it is extremely interesting. After reviewing the
decision in Gulf, Colorado and Santa Fe R. Co. v. ElHs,
165 U. S. 150, he said: "If the opinions in the Ellis Case
and in this case be taken together, the state of the law seems
to be this :
" I. A state may not require a railroad company sued for
negligently killing an animal to pay to the plaintiff, in ad-
dition to the damages proved and the ordinary costs, a
reasonable attorney's fee, when it does not allow the cor-
poration when its defense is sustained to recover a like
attorney's fee from the plaintiff.
"2. A state may require a railroad company sued for
and adjudged Hable to damages arising from fire caused by
the operation of its road, to pay to the plaintiff, in addition
to the damages proved and the ordinary costs, a reasonable
attorney's fee, even if it does not allow the corporation
when successful in its defense to recover a like attorney's
fee from the plaintiff. . . .
" Having assented in the Ellis Case to the first proposi-
tion, I cannot give my assent to the suggestion that the
second proposition is consistent with the principles there
laid down. Placing the present case beside the former
EQUAL PROTECTION OF THE LAWS 1 45
case, I am not astute enough to perceive that the Kansas
statute is consistent with the Fourteenth Amendment, if
the Texas statute be unconstitutional."
This gives the main contention in his dissent. But there
is another that should be noted, namely, that the statute did
not apply to all corporations, but only to railroad companies :
"Taken in connection with the principles of general law
recognized in that state, that statute, although not imposing
any special duties upon railroad companies, in effect says to
the plaintiffs, Matthews and Trudell, the owners of the
elevator property — indeed it says in effect to every individ-
ual citizen, and for that matter every corporation in the
state: * If you are sued by a railroad corporation for dam-
ages done to its property by fire caused by your negligence,
or in the use of your property, the recovery against you
shall not exceed the damages proved and the ordinary costs
of the suit. But if your property is destroyed by fire
caused by the operation of the railroad belonging to the
same corporation, and you succeed in an action brought to
recover damages, you may recover, in addition to the dam-
ages proved and the ordinary costs of suit, a reasonable
attorney's fee; and if you fail in such action no attorney's
fee shall be taxed against you.' In my judgment, such dis-
crimination against a litigant is not consistent with the
equal protection of the laws secured by the Fourteenth
Amendment."
When it is considered what the court really did in these
two cases, there is small wonder that there was objection
on the part of some one. In one instance a Texas statute
had been declared unconstitutional in a suit in which an
individual had sought the benefit of its operation, while in
the second instance a partnership firm had been granted the
protection of the same sort of law that had been declared
unconstitutional in Texas.
One of the most significant cases on the subject of taxa-
tion of corporations, the Fire Association of Philadelphia
146 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
V. New York, 119 U. S. 110, came by writ of error from
the supreme court of New York. A law of New York re-
quired that a fire-insurance corporation chartered in another
State should pay a greater tax than domestic corporations
did. The question to be answered was whether the statute
was unconstitutional in that it denied to such corporations
the equal protection of the laws.
The argument of the court in this case can best be given
in a single quotation : " The Pennsylvania corporation came
into the State of New York to do business, by the consent
of the State, under the act of 1853, with a license granted
for a year, and has received such license annually, to run
for a year. It is within the State for any given year under
such license, and subject to the conditions prescribed by
the statute. The State having the power to exclude en-
tirely, has the power to change the conditions of admission
at any time, for the future, . . . and the foreign corpora-
tion until it pays such license fee is not admitted within the
State or within its jurisdiction. It is outside, at the thresh-
old, seeking admission, with consent not yet given. The
Act of 1865 had been passed when the corporation first
established an agency within the State. The amendment
of 1875 changed the Act of 1865 only by giving to the
superintendent the power of remitting the fees and charges
required to be collected by then existing laws. There-
fore, the corporation was at all times, after 1872, subject,
as a prerequisite to its power to do business in New York,
to the same license fee its own State might thereafter im-
pose on New York companies doing business in Pennsyl-
vania. By going into the State of New York in 1872, it
assented to such prerequisites as a condition of its admis-
sion within the jurisdiction of New York. It could not be
of right within such jurisdiction, until it should receive the
consent of the State to its entrance therein under the new
provisions, such a consent could not be given until the tax,
as a license fee for the future, should be paid."
Thus it is seen that the argument of the court was, briefly,
EQUAL PROTECTION OF THE LAWS 1 4/
this : Since a corporation is a citizen in a different sense
from an ordinary person, different requirements may be
made for it. Since a State may forbid a corporation to do
business at all within its limits, it may put any restrictions
it pleases upon its doing business there.
Justice Harlan agreed that a State had a right to exclude
a corporation from its bounds, but he would not accept the
added corollary that the State could, because of this power
of exclusion, subject the corporation doing business within
its limits to any restrictions it might choose.
He said: ''Even if it were conceded that a State, which
provides for the organization, under her own laws, of cor-
porations for the transaction of every kind of business,
could arbitrarily exclude from her limits similar corpora-
tions from the remaining States, and declare all contracts
made within her jurisdiction with corporations from other
States, to be void — concessions to be made only for the pur-
poses of this case — it would not follow that she could sub-
ject corporations of other States, doing business within
her limits under a license from the proper department, to
higher taxes than she imposes upon other corporations of
the same class from the remaining States."
Coming more nearly to the point at issue, he said : " The
denial of the equal protection of the laws may occur in
various ways. It will most often occur in the enforcement
of laws imposing taxes. An individual is denied the equal
protection of the laws if his property is subjected by the
State to higher taxation than is imposed upon like property
of other individuals in the same community. So, a corpora-
tion is denied that protection when its property is subjected
by the State, under whose laws it is organized, to more
burdensome taxation than is imposed upon other domestic
corporations of the same class. So, also, a corporation of
one State, doing business, by its agents, in another State by
the latter's consent, is denied the equal protection of the
laws, if its business there is subjected to higher taxation
than is imposed upon the business of like corporations of
148 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
other States. These propositions seem to me to be indis-
putable. They are necessarily involved in the concession
that corporations, like individuals, are entitled to the equal
protection of the laws."
He said further : " It would seem to me to be the result
of the decision in this case, that New York may prescribe
such varying rates of taxation upon insurance corporations
of the remaining thirty-seven States, within her jurisdic-
tion, as she chooses — the rate for corporations from each
State differing from the rate established for corporations
of the same class from all other States, and the rate in re-
spect to corporations of other States being higher than she
imposes upon her own corporations of the same class. Such
legislation would be a species of commercial warfare by
one State against the others, and would be hostile to the
whole spirit of the Constitution, and particularly the Four-
teenth Amendment, securing to all persons within the juris-
diction of the respective States the equal protection of the
laws."
In this case is seen the first promulgation of Justice Har-
lan's doctrine that wherever a corporation has a right to do
business it has a right to the equal protection of the laws. His
reason for holding to this doctrine is well stated in the last
quotation given, namely, that if such discrimination were
allowed it would give rise to a condition of commercial
warfare that would be unwholesome in many ways.
This same doctrine was announced in his dissent from
People, ex rel. Parke, Davis, and Co. v. Roberts, 171 U. S.
658. This case, however, presented the question in a.
slightly different form. Here arose the question of the
constitutionality of a statute of the State of New York
which imposed a higher tax on corporations which manu-
factured their goods outside of the State and sent them
there to be sold than was imposed on either New York or
out-of -the- State corporations which operated plants within
the State. The claim was made by Parke, Davis, and Com-
pany, an out-of-the-State corporation which wished to do-
EQUAL PROTECTION OF THE LAWS I49
business in the State of New York without setting up an
establishment in the State, that this law was unconstitutional
in that it denied to them the equal protection of the laws.
A brief quotation will make clear the argument of the
court: "It is said that the operation of that portion of this
taxing law, which exempts from a business tax corporations
which are wholly engaged in manufacturing within the
State of New York, is to encourage manufacturing corpora-
tions which seek to do business in that State to bring their
plants into New York. Such may be the tendency of the
legislation, but so long as the privilege is not restricted to
New York corporations, it is not perceived that thereby any
ground is afforded to justify the intervention of the Federal
courts."
Justice Harlan's reply to this assertion is very convinc-
ing. He said, after an extended discussion of previous
cases : " I am unable to reconcile the opinion and judgment
in the present case with the principles announced in the
above cases. A tax upon the capital employed by a manu-
facturing corporation or company is pro tanto a tax upon
the goods manufactured by it. If this be not so, there are
many expressions in the former opinions of this court which
should be withdrawn or modified. A corporation or com-
pany wholly engaged in manufacture in New York has an
advantage, in the sale of its goods in the markets of that
state, over a corporation or company manufacturing like
goods in other states, if the former is altogether exempted
from taxation in respect of its franchise or business, and
the latter subjected to taxation of its franchise or business,
measured by the amount of its capital employed in New
York. That state may undoubtedly tax capital employed
within its limits by corporations or companies of other
states, but it cannot impose restrictions that will necessarily
prevent such corporations or companies from selling their
goods in New York upon terms of equality with corpora-
tions or companies wholly engaged there in manufacturing
goods of like kind. ... In my judgment, this statute cannot
150 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
be sustained in its application to the plaintiff in error with-
out recognizing the power of New York, so far as the
Federal Constitution is concerned, to enact such statutes as
will by their necessary operation amount to a tariff protect-
ing goods manufactured in that state against competition in
the market there with goods manufactured in other states.
And if such legislation as is embodied in the statute in
question is held to be consistent with the Federal Constitu-
tion, why may not New York, while exempting from taxa-
tion the franchises or business of corporations or com-
panies wholly engaged in carrying on their manufacturing
in that State, put such taxation upon the franchise or busi-
ness of corporations or companies doing business in that
State, but not wholly engaged in manufacture there, as will
amount to an absolute prohibition upon the sale in New
York of goods manufactured in other states? ... I had
supposed that the Constitution of the United States had
established absolute free trade among the States of the
Union, and that freedom from injurious discrimination in
the markets of any state, against goods manufactured in this
country, was a vital principle of constitutional law."
The case of Fidelity Mutual Life Insurance Co. v.
Mettler, 185 U. S. 308, contains a similar point. In this
case the court upheld a statute of Texas which directed that
life and health insurance companies which should default
in the payment of their policies should pay as damages, in
addition to the face of the poHcy, twelve per cent of the
original amount, together with reasonable attorneys' fees
that might have been made necessary in the collection of the
money due to be paid. The claim was made that this
statute was unconstitutional in that it discriminated against
health and life insurance companies as opposed to other
insurance companies, and therefore denied to them the equal
protection of the laws. The court held that the statute was
constitutional in that it was a condition imposed by a State
upon the right of a corporation to do business within its
borders.
EQUAL PROTECTION OF THE LAWS I5I
In his dissent from this case is stated even more clearly
Justice Harlan's doctrine as to the constitutional rights of
a corporation doing business in any State : " It is one thing
for a state to forbid a particular foreign corporation, or a
particular class of foreign corporations, from doing busi-
ness at all within its limits. It is quite another thing for
a state to admit or license foreign corporations to do busi-
ness within its limits, and then subject them to some
statutory provision that is repugnant to the Constitution of
the United States. If a corporation, doing business in
Texas under its licence or with its consent, insists that a
particular statute or regulation is in violation of the Con-
stitution of the United States and cannot therefore be en-
forced against it, the State need only reply — such seems to be
the logical result of the present decision — that the statute or
regulation is a condition of the right of the corporation to
do business in the state, and, whether constitutional or not,
must be respected by the corporation. Corporations created
by the several states are necessary to the conduct of the
business of the country ; and it is a startling proposition that
a state may permit a corporation to do business within its
limits, and by that act acquire the right to subject the cor-
poration to regulations that may be inconsistent with the
supreme law of the land."
It was a good while, however, before the other members
of the court seemed to see his point. They had gone on the
assumption that a whole is the sum of its parts, whereas the
proposition which they were facing was not one of geom-
etry, but of business. The analogy did not, therefore, hold.
In the case of Western Union Telegraph Co. v. Kansas, 216
U. S. I, they finally saw this, and Justice Harlan was him-
self called upon to deliver the opinion of the court. He
found opportunity to express in an affirmative way his long
cherished doctrine : " The exaction from a foreign telegraph
company for the benefit of the permanent school fund, under
the authority of Kan. Gen. Stat. 1901, p. 280, of a 'charter
fee ' of a given per cent of its entire authorized capital stock,
152 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
as a condition of continuing to do local business in the state,
is invalid under the commerce and due-process-of-law
clauses of the Federal Constitution, as necessarily amount-
ing to a burden and tax on the company's interstate business
and on its property located or used outside the state."
Though this decision was delivered under the commerce and
due process clauses, and not under the equal protection
provision, the principle was the same.
CHAPTER VI
Jurisdiction of Courts
Removal of Suits.- — The question seems to be settled that
if a case has been decided in a state court it is then too late
to remove it into a lower federal court. But some very
interesting points come up in determining when the question
at issue in a suit may be termed res judicata. A typical in-
stance of this kind occurred in the case of Congress and
Empire Spring Co. v. Knowlton, 103 U. S. 49. Here the
Supreme Court affirmed a decision of the United States
circuit court for the northern district of New York, which
had asserted that money paid on an illegal contract could
on certain conditions be recovered. The suit might have
been brought in the federal court because of diversity of
citizenship, and the question before the Supreme Court was
whether there was sufficient evidence that the case had been
decided in the New York court to prevent the lower federal
court from taking jurisdiction and deciding the case re-
gardless of any other decision. The Supreme Court said
that there was not, but Justice Harlan said that there was.
The reason why the court held that this suit had not been
decided was that there was not sufficient evidence on the
record to show that fact. " It is suggested by the counsel
for the plaintiff in error, that the Court of Appeals of the
State of New York has in this identical suit, upon the same
state of facts, adjudicated the rights of the parties, and this
court ought to consider the questions raised in this case as
res judicata.
" The reply to this suggestion is, that it nowhere appears
in the record that this case was ever before the Court of
Appeals, or that it was ever decided by any court except the
United States Circuit Court for the Northern District of
New York, from which the case has been brought to this
153
154 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
court on error. We cannot consider facts not brought to
our notice by the record."
Justice Harlan knew that when the court desired to do
so it sometimes considered facts not brought to its notice
by the record, and he contended that on this occasion the
evidence was sufficient. " It is, in my judgment," he said,
"an immaterial circumstance, that the present transcript
does not contain the proceedings had in the Commission of
Appeals. An examination of the case reported in 57 N. Y.
shows beyond question, that it is the identical case now
before us ; at any rate, that it was a case between the same
parties who are now before us, and that it involved the same
issues that are here presented for our determination. We
know that the adjudication in that court was long prior to
the removal of this case into the federal court. We know
also that the questions decided in the Circuit Court, and
which we are now asked to determine, have been once
passed upon, between the same parties, in a court of com-
petent jurisdiction. All this plainly appears upon the face
of the decision reported in 57 N. Y. The defendants in
error should not, therefore, be permitted to escape the legal
effect of that decision by a removal of the case into the
Circuit Court of the United States." This comment Justice
Harlan had previously reinforced by the assertion that the
"learned District Judge, who tried the case in the Circuit
Court, opened his opinion, which is part of the transcript,
with the statement that 'the case comes here by removal
from the State court, after a decision adverse to the plain-
tiff by the Commission of Appeals, reversing the judgment
of the Supreme Court in favor of plaintiff, and ordering a
new trial.* He then proceeds to determine the case upon
principles of law different from those announced by the
Commission of Appeals."
Justice Harlan's contention here was that even if the
record itself did not show that the case had been tried
before, extensive evidence showing that the case had been
tried should be accepted as determining the fact.
JURISDICTION OF COURTS 1 55
Another case directly connected with the subject of re-
moval is that of Fisk v. Henarie, 142 U. S. 459. Here the
court decided that an application for removal into the United
States circuit court was made too late. The case had been
pending in the state courts from 1883 to 1887. It had been
tried three times in the lower state courts with no satis-
factory results. It had been appealed to the state supreme
court and remanded to the lower courts for retrial, after
which the case was held up and postponed so often that it
was practically impossible to have a final judicial determina-
tion in the state courts.
The suit involved the amount of $60,000, and there was
diversity of citizenship. The question at issue for the
Supreme Court to decide was whether the Judiciary act of
1887, which sought to reduce the number of cases to be
heard by the United States circuit court, so restricted the
field as to make it impossible for the federal court to give
relief. The syllabus of the case gives the decree of the
court : " Under the Act of March 3, 1887, a cause may be
removed from a state court into the U. S. Circuit Court
at any time before the trial thereof, on the ground of preju-
dice or local influence; after a cause has been tried three
times in the state court an application for removal is too
late."
Justice Harlan's contention was that the setting of such a
limit was contrary to what Congress meant by the statute
passed in 1887. He thought that further procedure might
be necessary before it could be ascertained whether local
prejudice would thwart the dealing out of justice. "The
fact of prejudice or local influence may be established by
overwhelming evidence ; still under the decision of the court,
there can be no removal if the application for removal
be not made before the first trial. We do not mean to say
that when a trial is in progress that the cause may be re-
moved before its termination, even upon the ground of
prejudice or local influence. But, if at the time the applica-
tion is made the cause is not on trial and is undetermined,
156 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
that is, has not been effectively tried, the Act of 1887, in
our judgment, authorizes a removal, on proper showing,
upon the ground of prejudice or local influence, although
there may have been a trial, resulting in a verdict which has
been set aside. . . .
" Congress could hardly have intended to give the de-
fendant citizen of another State simply the time between his
answering or pleading, and the calling of his case for the
first trial thereof, to determine whether he should apply for
a removal upon the ground of prejudice or local influence.
In our judgment, it meant to give the right of removal, upon
such ground, at any time, when the case is not actually on
trial, and when there is in force no judgment fixing the
rights of the parties in the suit. If a case is open for trial,
on the merits, an application for its removal before that
trial commences is made ' before the trial thereof.' In our
opinion, the interpretation adopted by the court defeats the
purpose which Congress had in view for the protection of
persons sued elsewhere than in the State of which they are
citizens."
By contrasting the two cases discussed we may deduce
Justice Harlan's doctrine that anything that has actually
been decided is res judicata, but that which has not been
decided is not res judicata. The length of time during
which it has been pending is not to be considered, as long
as the case is not actually on trial.
In the case of Railroad Co. v. Ide, 114 U. S. 52, the
Supreme Court decided, curiously enough, that in a suit
between a citizen or citizens of one State and a citizen or
citizens of another State diversity of citizenship does not
necessarily exist. In order that diversity of citizenship,
within the meaning of the Constitution, shall exist, all the
parties plaintiff or complainant must be of different citizen-
ship from that of all of the defendants. The diversity must
be complete. This doctrine Justice Harlan opposed. He
dissented in Railroad Co. v. Ide without giving grounds for
JURISDICTION OF COURTS I 5/
his dissent, but when the question came up again in Pirie
V. Tvedt, 115 U. S. 41, he broke his silence. This case
arose between citizens of Minnesota on the one hand and
citizens of Illinois and of Minnesota on the other. The
court held that this case was governed by that of Railroad
Co. V. Ide, and that the diversity of citizenship was not
such as could be termed diversity in the constitutional sense.
Justice Harlan asserted that there was diversity of citizen-
ship, and that even if a decree could not be rendered against
those parties who were citizens of Minnesota, it could be
rendered against the citizens of Illinois. " Had the suit
been only against the defendants who are citizens of Illinois,
as it might have been, the right of the latter to remove it
into the Circuit Court of the United States would not be
questioned. But it seems, by the present decision, that their
right of removal has been defeated by the act of the plaintiffs
in waiting in uniting with them as defendants, citizens of
Minnesota, against whom, as is conceded, it was not neces-
sary to introduce any evidence whatever in order to entitle
the plaintiffs to a judgment against the other defendants.
As in most, if not in all States the local statutes dispense
with the verification of the pleadings in action of tort,
this convenient device will be often employed. When, for
instance, a citizen of New York has a cause of action,
sounding in damages, against a citizen of New Jersey, who
happens to go within the jurisdiction of the former State,
the plaintiff can join a citizen of New York as a co-de-
fendant, charging them jointly with the liability to him for
damages claimed. And when the citizen of New Jersey
asks a removal of the suit to the federal court, he is met
with the suggestion that it is for the plaintiff, in his discre-
tion to sue him separately, or jointly with others. Upon his
application to remove the cause, the state court may not
institute a preliminary inquiry as to whether the plaintiff
had, in fact, a cause of action against the defendant citizen
of New York. It is not for that court, in advance, to
determine the good faith of the plaintiff in making a citizen
158 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
of New York a co-defendant with the citizen of New
Jersey. The removal statutes make no provision for such
an inquiry, and the state court, by the decision just rendered,
must look alone to the course of action as set out in the
petition or complaint. When, in the case supposed, the
evidence is concluded, and it appears that there is, in fact,
no cause of action against the defendant citizen of New
York, it is too late for the removal to occur; for, it must
be had, if at all, before the suit could be tried in the State
court."
Justice Harlan opposed this differentiation in diversity of
citizenship, which the court made, on account of a practical
consideration as well as because of proper constitutional
construction. He beheved that diversity of citizenship
ought not to have been so interpreted as to enable the un-
scrupulous to play with the law.
Another case in which arose the very interesting question
as to what constitutes diversity of citizenship of corpora-
tions is St. Louis and San Francisco R. Co. v. James, i6i
U. S. 545. Here one Etta James sued to recover damages
for the death of her husband, who was killed while a fire-
man upon that railroad. She was a citizen of Missouri,
and the railroad company was also a citizen of Missouri,
being a corporation chartered by that State. She con-
tended that inasmuch as the company was doing business
under the laws of Arkansas it was also a citizen of that
State, and that there was therefore diversity of citizenship.
The court decided that a corporation could not be a citizen
of two States at the same time, and since it was chartered
in Missouri, the company was a Missouri citizen, and there
was therefore no diversity of citizenship.
Justice Harlan dissented. According to his doctrine, a
corporation could under certain conditions be considered a
citizen of two States. Since in this case the railroad com-
pany had agreed to submit to the laws of Arkansas for the
privilege of doing business there, and since the laws of that
State stipulated that every railroad company that did busi-
JURISDICTION OF COURTS 1 59
ness within that State, whether chartered elsewhere or not,
should become a citizen of that State, this company had
properly to be considered as a citizen of Arkansas as well
as of Missouri, and if the Arkansas corporation was sued
by a citizen of another State there was diversity of citi-
zenship.
" At first blush," he says, " it may seem strange that the
plaintiff did not sue the Missouri corporation in one of the
courts of Missouri. But that cannot affect the jurisdiction
of the court below, if the defendant is an Arkansas cor-
poration. And her right to a judgment cannot be denied,
if the Arkansas corporation is liable for injuries caused, in
Missouri, by the negligence of the Missouri corporation.
It may be that the line in Missouri is covered by mortgages
for very large amounts, so that a judgment against the Mis-
souri corporation would be of no real value. That perhaps
is the reason why the plaintiff brought suit against the Ar-
kansas corporation. But, as already said, this view is not
at all material on the present hearing."
Closely allied to the matter of diversity of citizenship is
the question as to where the suit may properly be brought.
This point came out very emphatically in the case of Macon
Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 501.
Here was involved an attempt on the part of certain ship-
pers of Georgia to prevent a conjoint action of several rail-
road companies to put into operation an increase in freight
rates. The action was brought in the United States circuit
court for the southern district of Georgia on the ground of
diversity of citizenship. The court held that such a suit
could not be conducted in the federal court for that district,
and had to be brought in the district of one of the corpora-
tions. This decision was based upon the act of Congress
of 1888, which, the court asserted, provided that "no civil
suit shall be brought ... in any other district than that
whereof he [the defendant] is an inhabitant, but where
the jurisdiction is founded only on the fact that the action
l6o CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
is between citizens of different states, suit shall be brought
only in the district of the residence of either the plaintiff
or the defendant."
Justice Harlan differed from the court as to its interpre-
tation of the Act of 1888, and emphasized the lack of wis-
dom of the decree. In referring to the act he made the fol-
lowing comment: " I recognize the fact that the act of 1888
was not drawn with precision. But I am of opinion that,
as the act gives the circuit court original jurisdiction, con-
current with the courts of the several states, ' of all suits of
a civil nature, at common law or in equity, where the matter
in dispute exceeds, exclusive of interest and costs, the sum
or value of $2,000 ... in which there shall be a controversy
between citizens of different states,' the intention of Con-
gress would be best effectuated by holding that the juris-
diction of the circuit court is not excluded, in a controversy
between citizens of different states, simply because the plain-
tiff, who sued in the Federal court held in the state of his
residence, asserts a Federal right and seeks to have it pro-
tected against the illegal acts of the defendant, a citizen of
another state; provided, always, that the defendant, if a
corporation of another state, may, through agents conduct-
ing its business in the state where the suit is brought, be
reached by the process of the court, and subjected to its
authority. The presence in the case of a Federal right as-
serted by the plaintiff ought not to prejudice him, and does
not, I think, alter the fact that the controversy is one of
which a circuit court may take cognizance, because it is a
controversy between citizens of different states."
Justice Harlan also differed from the court on other
grounds. He contended that, to start with, the complaint
should have been made to the Interstate Commerce Com-
mission, where the question would almost certainly have
been once for all settled. "This, I think, is all that need
have been said; for, whatever interpretation was given to
the judiciary act of 1888 . . . the circuit court would have
been required, under the case just cited [B. & O. R. Co. v.
JURISDICTION OF COURTS l6l
United States, 215 U. S. 481], to decline jurisdiction. But
the court, in its wisdom, does not refer to this view of the
case, and deems it necessary to determine whether the plain-
tiffs, citizens of Georgia, may, under the judiciary act of
1888, considered alone, invoke the jurisdiction of the circuit
court, held in that state, against the defendant corporations
of other states.'*
This quotation shows sufficiently well the grounds of
Justice Harlan's dissent. Since the Interstate Commerce
Commission had been established for the express purpose
of passing upon such a contention as this, he saw no reason
why all jurisdiction other than that should not have been
excluded and the case remanded for determination there.
The court was uselessly contending for something that was
not necessarily to be considered, and avoiding that which
made the case very simple. Nevertheless, he proceeded to
reply to the contentions of the court, and to show that a
wiser interpretation of the act would have been to allow the
suit to be brought into the federal court at the home of the
plaintiff as well as at that of any of the corporations.
It may appear that the cases just considered turn on ques-
tions of statutory construction rather than of constitutional
right. They are, however, significant as evidencing the
strong desire on the part of Justice Harlan to secure to the
individual when possible the right of resort to federal courts.
The Meaning of Federal Immunity. — There are two very
significant cases in which Justice Harlan differed from the
court in its interpretation of what constitutes an immunity
guaranteed by the Federal Constitution. They are Tullock
V. Mulvane, 184 U. S. 497, and Bailey v. Alabama, 211 U.
S. 452. The first involved the constitutionality of a decree
of a state court which had given to a defendant the attor-
ney's fees, in addition to damages for losses incurred by the
unlawful imposition of an injunction issued by the circuit
court. The question raised was whether there was a fed-
eral question involved such as would give jurisdiction to the
federal court. The court, speaking through Justice White,
said that there was, but Justice Harlan said there was not.
1 62 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
The following quotation will give in a general way the
contention of the court : " To hold the contrary, as we have
previously pointed out, would be but to declare, that al-
though the power conferred by Congress upon this court to
adopt equity rules in controlling, nevertheless the interpre-
tations of the rules and limitations which arise from a
proper construction of them, as expounded by this court and
enunciated in its decisions, are without avail. And this yet
further points out the fallacy involved in the contention that
the lower court, in passing upon the issues, decided merely
a question of general law involving no Federal controversy.
Now it is at once conceded that the decision by a state court
of a question of local or general law involving no Federal
element does not as a matter of course present a Federal
question. But, where, on the contrary, a Federal element is
specially averred and essentially involved, the duty of this
court to apply to such Federal question its own conceptions
of the general law we think is incontrovertible."
The decision of the court amounted to this : If there arose
a dispute involving the application of law in which a fed-
eral right was averred, even though there was no constitu-
tional point involved, and though there was no federal
statute covering the case and the matter controlled was one
of private relations within the State, yet what the federal
court had decided as having had bearing on this point should
be given precedence over state law and decisions. As Justice
Harlan showed, this was an inadmissible extension of fed-
eral authority.
He said : " The claim is that the rules and decisions of
the Supreme Court of the United States have the force of
legislative declarations ; that they enter into, and become a
part of, the contract of sureties, who can only be held liable
for such consequences as are the direct result of the breach
and were within their contemplation at the time the bond
was executed. No statute, however, prescribed the condi-
tions of the bond nor limited the extent of liability thereon.
It is true that it was within the general equitable power of
JURISDICTION OF COURTS 1 63
the Federal court to prescribe the conditions upon which
the injunction should issue. . . . Being an independent con-
tract, actionable in any state court where service upon the
sureties can be obtained, the interpretation of the former
applies. . . . They knew that the obligation was enforceable
in the courts of the state of which the plaintiff and defend-
ants were all residents, and that the highest court of that
state had consistently held that counsel fees were recover-
able on an injunction bond. That the bond was given in a
Federal court, where a different rule of interpretation ob-
tains, has not been deemed to affect the state court in de-
termining the liability upon such bonds when suit was
brought thereon. . . .
" Suppose this court had not, prior to the trial of this case,
expressed any opinion upon that question of general law.
Could it then have been contended that the judgment com-
plained of denied any Federal immunity? If not, then the
Federal immunity now claimed arises entirely from the fail-
ure of the state court to take the same view of a question of
general law which this court took in prior cases between
other parties. There has been a wide difference of opinion
between this court and some of the state courts upon ques-
tions of general law. But it has never been supposed that
anyone has such a vested interest in the views of this court
upon questions of general law that he may complain of the
refusal of a state court to accept those views as denying
him an ' immunity ' existing or belonging to him in virtue
of an ' authority exercised under the United States.' "
From a study of this decision it is very difficult to ascer-
tain exactly what federal immunity the judge was defend-
ing. He was very positive in asserting that on the very face
of the case a federal immunity was involved, but he was ob-
scure in indicating exactly what that immunity was. The
more clearly, however, the matter in dispute is brought into
the foreground, the more certain it is that there was in
fact no federal immunity. Justice Harlan showed that
there had been many cases decided to the contrary, and
164 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
that even the decisions cited by the court do not, if prop-
erly interpreted, give precedent for the present decree.
This case illustrates how far at times the court will go in
order to discover a federal question. The next case for
discussion shows how hard it is, at other times, for the
court to see a federal question when it would seem to be
very evident. Justice Harlan, of course, dissented from
the latter also, — Bailey v. Alabama, 211 U. S. 452. The
case came from the supreme court of Alabama, to review a
decision denying relief by habeas corpus. The decision was
rendered by Justice Holmes, and may be summarized as
follows : The plaintiff in error was committed for detention
on a charge of having obtained fifteen dollars with the in-
tent to defraud his employer. The contention was that a
colored man had by a statute of Alabama been deprived of
his liberty without due process of law, and had been sub-
jected to involuntary servitude.
The nature of the statute in question was this : If any
one borrowed money in advance on a written contract for
labor, a fine of double the amount borrowed was to be im-
posed upon the borrower if he refused to perform the work
which he had agreed to perform. Half of the amount of
the fine went to the State, and the other half went to the
employer as a repayment of the amount lost. The follow-
ing was the contested stipulation in the statute : " And the
refusal of any person who enters into such contract to per-
form such act or service or to cultivate such lands, or re-
fund such money, or pay for such property, without just
cause, shall be prima facie evidence of the intent to injure
his employer or landlord, or to defraud him."
The plea was set up that this statute made it possible, by
the advancing of small amounts of money to persons in
need, to prevent such persons from making free labor con-
tracts. The fact that the non-performance of the work con-
tracted for was to be taken on prima facie evidence of his
intent to defraud made it impossible for the person, by
working elsewhere, to pay the debt. Hence the plea was
made that this was involuntary servitude.
JURISDICTION OF COURTS 1 65
The case was thrown out of court because of the way in
which the plaintiff proceeded. The ruling was that because
the plaintiff had sued out a writ of habeas corpus for dis-
charge in advance of his trial in the lower state court, he
had not taken the proper procedure to have his case deter-
mined by the Supreme Court. This was termed a "short
cut " by the court, and because of this short cut the question
asked could not be answered.
Such a grave injustice aroused Mr. Harlan. He recog-
nized, however, that if this procedure had taken place in a
lower federal court and the case had been appealed, the
writ of habeas corpus would have been denied. But since
this was a procedure in the state courts from the first, and
since the supreme court of the State had overlooked this flaw
in procedure, that fact once and for all settled the point of
procedure in the lower state court. All that the Supreme
Court was to decide, and had a right to decide, was the con-
stitutionality of the statute. In other words. Justice Harlan
contended that the Supreme Court exceeded its jurisdiction
in passing upon the procedure in state courts, particularly
when the supreme court of the State from which the case
came had not questioned it.
"If the accused," he said, "in advance of his trial, had
sought a discharge on a writ of habeas corpus sued out from
a circuit court of the United States, that might have been
deemed a ' short cut.' For it is well established that, ' in
the light of the relations existing under our system of gov-
ernment between the judicial tribunals of the Union and
of the states, and in recognition of the fact that the public
good requires that those relations be not disturbed by un-
necessary conflict between courts equally bound to guard
and protect rights secured by the Constitution,' the courts
of the United States will not, except in certain cases of
urgency, and in advance of his trial, discharge, upon habeas
corpus, one who is alleged to be held in custody by the state,
in violation of the Constitution or the laws of the United
States. , . . But whether the accused, in seeking his dis-
1 66 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
charge by the state court, adopted a mode of procedure
authorized by the local law, was for the Alabama courts,
not for this court, to determine. The state court recog-
nized the proceeding by habeas corpus to be in accordance
with the local law ; for the supreme court of Alabama, with-
out even intimating that the accused took a * short cut,' or
pursued the wrong method to obtain his discharge, enter-
tained his appeal and passed upon the constitutionaHty of
the statute under which he was held in custody."
Without going further into this subject, it is readily seen,
from these two cases, if the court wishes to see a federal
question, how little excuse is necessary to find one, but if
the court wishes to find otherwise, how much it takes to
make the court pass upon the constitutionality of a question.
With Justice Harlan it was not so. With him, if there was
a federal question to be decided, it was the court's duty to
pass upon it. If, on the other hand, there was none, he did
not think it the duty of the court to manufacture one.
Equity Competence. — The case of Thompson v. Allen
County, 115 U. S. 550, is an interesting illustration of Jus-
tice Harlan's desire to have the United States circuit court
enforce its decree. Here was involved the issue by a county,
in due legal form, of bonds as subscription to stock in a rail-
road company. The county court had been empowered by
the State to appoint a tax collector to collect the tax levy to
meet the interest on the coupons as it came due. The whole
county was opposed to this tax levy, and practically every-
body refused to pay. No one could be found by the county
court who would undertake the duty of collecting taxes to
meet the obligations which the county clearly owed. The
circuit court issued a mandamus directed to the county court
to have the taxes collected to meet the debt of the county.
When the reply came that no one could be found to collect
the taxes, suit was instituted to force the tax payers indi-
vidually to pay the taxes in court for the purpose of meet-
ing the interest due on the bonds. The circuit court held
that the collection of taxes was not a judicial function, and
JURISDICTION OF COURTS 1 6/
Upon this point the case was sustained by the Supreme
Court.
The language of the court on this point is as follows:
" No such power has ever yet been exercised by a court of
chancery. The appointment of its officer to collect taxes
levied by order of a common-law court is as much without
authority as to appoint the same officer to levy and collect
the tax. They are parts of the same proceeding, and relate
to the same matter. If the common-law court can compel
the assessment of a tax, it is quite as competent to enforce
its collection as a court of chancery. Having jurisdiction
to compel the assessment, there is no reason why it should
stop short, if any further judicial power exists under the
law, and turn the case over to a court of equity. The
sheriff or marshal is as well qualified to collect the tax as a
receiver appointed by the court of chancery."
Justice Harlan differed from the court both as to the col-
lection of this tax being an assumption by the court of an
executive function, and as to the ability of the circuit court
to put into effect its mandamus by collecting the tax itself.
After citing several cases to show that such had not be-
fore been necessarily deemed an assumption of an inappro-
priate function, he said : " The bill does not ask the court to
usurp the function of levying the taxes. That duty has been
performed by the only tribunal authorized to do it, viz. :
the County Court of Allen County. Nothing remains to
be done, except to collect from individuals specific sums of
money which they are under legal obligations to pay. The
collection of these sums will not interfere with any discre-
tion with which the Allen County Court is invested by law ;
for, by its own order, made in conformity with the law of
the State, and by judgment in the mandamus proceedings,
the sums due from the individual defendants, and from
other taxpayers, have been set apart for the payment of
Thompson's judgments. Those sums, when thus collected
cannot be otherwise used. As the county court cannot find
any one who will accept the office of special collector, and
1 68 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
as the parties agree that there is no mode of collecting the
sums set apart in the hands of the individual defendants
and other tax payers, for the payment of Thompson, I am
unable to perceive why the circuit court sitting in equity,
may not cause these sums to be applied in satisfaction of its
judgments at law. . . . With money in their hands, equit-
ably belonging to the judgment creditor, they walk out of
the court whose judgments remain unsatisfied, announcing
in effect, that they will hold negotiations only with a ' special
collector' who has no existence.
" That the court below, sitting in equity — after it has
given a judgment at law for money, and after a return of
nulla bona against the debtor — may not lay hold of moneys,
set apart, by the act of the debtor, in the hands of individuals
exclusively for the payment of that judgment, and which
money, the parties agree, cannot be otherwise reached than
by being brought into that court under its orders, is a con-
fession of helplessness on the part of the courts of the
CJnited States that I am unwilling to make."
Amount in Dispute. — ^The question of the amount in dis-
pute necessary for the Supreme Court to review decisions
below has given rise to some very interesting discussions.
The disputes, however, have not centered so much around
the amount itself as around the constitutional points in-
volved. Two cases illustrate this assertion, Linford v.
Ellison, 155 U. S. 503, and Giles v. Harris, 189 U. S. 475.
The case of Linford v. Ellison involved the validity of
an ordinance of the city of Kaysville, Utah. This ordi-
nance levied a tax on land which, though incorporated
within the city, was so far from the settled portions as not
to be benefited by incorporation. A person having refused
to pay the assessment made upon him, the tax collector
levied and sold a wagon, to obtain the amount of fifty dol-
lars to satisfy the assessment. The contention was made
that inasmuch as the tax was levied upon one who received
no benefit from the city, such a tax took property without
due process of law.
JURISDICTION OF COURTS 1 69
The Supreme Court decided, among other things, that
since the city had acted within authority granted by Con-
gress in estabhshment of the territory of Utah, and since
the constitutionality of no statute of Congress was involved,
and since the damages did not amount to $5000, the de-
cision of the territorial court would stand. The language
of the court on this point is as follows : " It is thus seen
that the decision of the supreme court of the territory in-
volved the construction of the organic law and the scope
of the authority to legislate conferred upon the territorial
legislature; but that the validity of that authority and of
the statute was not drawn in question. In order to give
us jurisdiction of this appeal, the matter in dispute exclu-
sive of costs must have exceeded the sum of $5,000, or else,
without regard to the sum or value in dispute, the validity
of a patent or copyright must have been involved, or the
validity of a treaty or statute of or an authority exercised
under the United States have been drawn in question."
Justice Harlan thought that the question should have
been answered regardless of the amount in dispute. The
question had been asked whether property had been taken
without due process of law, and it was for the court to
answer it. "We have jurisdiction to review the judgment
or decree of the supreme court of a territory, without re-
gard to the sum or value in dispute in any case in which is
* drawn in question the validity of ... an authority exer-
cised under the United States.'" Since "the validity of
the authority given by the territorial legislature, acting
under the United States, to tax agricultural lands like those
belonging to the plaintiff, was directly drawn in question
and was passed upon by the court of original jurisdiction,"
the question should have been answered.
In concluding, he said : " It seems to me that if a case in
a territorial court turns upon the validity of an act which
is authorized by a statute of the territorial legislature de-
riving its existence and powers from the United States, and
if that statute is itself drawn in question as being repug-
I/O CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
nant to the Constitution of the United States, then we have
a case in which is ' drawn in question the validity of . . .
an authority exercised under the United States.' "
It may appear that this case involves primarily the con-
struction of a statute, but underneath can be seen Justice
Harlan's desire that the court shall determine the point of
due process of law, and the desire to extend the jurisdiction
of the Supreme Court as far as possible to acts of subordi-
nate authorities in territories.
It has been seen how, in Bailey v. Alabama, Justice
Holmes, by calling the procedure undergone by the plaintiff
a short cut, denied to the colored man rights supposed to be
secured to him under the Constitution of the United States.
In Giles v. Harris occurs a similar situation. In this case,
however, the court assumed jurisdiction and considered the
merits of the case, but did not pass upon the constitutional
point involved.
The case involved the provisions in the constitution of
Alabama which had been so applied as to deny to the
negroes the right to vote. The case was brought into the
circuit court of the United States, and was dismissed for
want of jurisdiction. Hence an appeal was taken to the
Supreme Court. The dismissal from the circuit court was
on the ground that damages were averred to be not two
thousand dollars.
The Supreme Court admitted that the circuit court did
not have jurisdiction as the record read, but rather than
remand for a revision of the record, the court waived the
pecuniary considerations and proceeded to decide the merits
of the case. It decided that equity could not give relief,
for the plaintiffs would have been forced by the court to
be registered under a statute which they themselves said
was unconstitutional. In the second place, it said that if
the whole of the white population of Alabama desired to
deprive the colored men of their votes, a decision to the
contrary would not remedy the situation. But the court
did not answer the question of the constitutionality of the
JURISDICTION OF COURTS 1 71
provisions of the Alabama constitution, one of the express
averments of the case.
Justice Harlan differed from the court because it dis-
cussed the merits of the case at all. He held that since the
case was not properly before the circuit court in that the
record did not show the averment of damages amounting
to two thousand dollars, the question of damages could not
rightly be waived by the Supreme Court and the case de-
cided upon its merits. In that connection he said : " It
seems to me that this question as to the value of the matter
in dispute was sufficiently raised in the circuit court; for
the demurrer to the bill was, in part, on the ground that the
facts stated did not make a case * within the jurisdiction of
the court.' But, passing that view, I come to a more serious
matter. In cases of which a circuit court may take original
cognizance, the value of the matter in dispute — which is
mentioned in the statute in advance of any reference to the
nature of the subject of the action — is as essential to juris-
diction as is the nature of the subject of such dispute. And
yet the court says that an objection that the record from the
circuit court does not show an allegation as to value is un-
availing here, even if such allegation ought to have been
made. That is a new, and I take leave to say, a startling
doctrine. Must not this court, upon its own motion, decline
to pass upon — indeed has this court, strictly speaking, juris-
diction to consider and determine — ^the merits of a case
coming from the circuit court, unless it affirmatively appears
from the record that the case is one of which that court
could take cognizance? Is not a suit presumably without
the jurisdiction of a circuit court, unless the record shows
it to be one of which that court may take cognizance? Is
it of any consequence that the parties did not raise the ques-
tion in the circuit court? If the record shows nothing
more than that the case arises under the Constitution and
laws of the United States, and if it does not affirmatively
appear in some appropriate way, that the value of the mat-
ter in dispute is up to the required amount, has this court
172 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
jurisdiction to consider and determine the merits of the
case ? "
In concluding he said : " My views may be summed up as
follows: I. This case is embraced by that clause of the act
of 1887-88 which provides that the circuit court shall have
original cognizance * of all suits of a civil nature . . . where
the matter in dispute exceeds, exclusive of interest and costs,
the sum of $2,000, and arising under the constitution or
laws of the United States.' 2. That the sum or value of the
matter in dispute in such cases is jurisdictional under the
statute. 3. That, as it did not appear from the record, in
any way, that the matter in dispute exceeded in value the
jurisdictional amount, the circuit court could not take cog-
nizance or dispose of it on its merits. 4. That least of all
does this court have jurisdiction to determine the merits of
this case. 5. That when a case comes here upon a certifi-
cate as to the jurisdiction of a circuit court, this court may
not forbear to decide that question, and determine the
merits of the case upon a record which does not show
jurisdiction in the circuit court." He added, however,
" that it is competent for the court to give rehef in such
cases as this."
There is one characteristic in all of Justice Harlan's dis-
sents on the ground of the jurisdiction of courts, namely,
the desire to see justice done to the individual. If a person
had been wronged in one court, and there was constitu-
tional reason for having the case taken into another court
and there dealing out justice to the individual, he was un-
willing that the letter of the law should stand in the way.
These cases well refute the accusation that has often been
made against him that he stood for the letter rather than
the spirit of the law.
CHAPTER VII
Miscellaneous Topics
Bearing of the Fourteenth Amendment upon the First
Eight Amendments. — Justice Harlan held, with regard to
the fourteenth amendment, a doctrine which few seem to
have supported. According to him, the provisions of the
fourteenth amendment made the first eight amendments
limitations upon the States as well as upon the United
States. Since by the fourteenth amendment no State could
abridge the privileges and immunities of citizens of the
United States, no State could deny anything guaranteed in
the first eight. These provisions had previously been con-
sidered privileges and immunities as opposed to the power
of the national government. Since, therefore, the four-
teenth amendment forbade the abridgment by the States of
the privileges and immunities of citizens of the United
States, it forbade the abridgment by them of those secured
to the citizens by the first eight amendments.
In O'Neil v. State of Vermont, 144 U. S. 323, Justice
Harlan, dissenting, expressed the following sentiment : " I
fully concur with Mr. Justice Field, that since the adoption
of the 14th Amendment, no one of the fundamental rights
of life, liberty, or property, recognized and guaranteed by
the Constitution of the United States, can be denied or
abridged by a State in respect to any person within its juris-
diction. These rights are, principally, enumerated in the
earlier amendments of the Constitution. They were deemed
so vital to the safety and security of the people, that the
absence from the Constitution, adopted by the convention
of 1787, of express guarantees of them, came very near de-
feating the acceptance of that instrument by the requisite
number of states. The Constitution was ratified in the be-
12 173
174 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
lief, and only because of the belief, encouraged by its lead-
ing advocates, that, immediately upon the organization of the
Government of the Union, articles of amendment would be
submitted to the people, recognizing those essential rights
of life, liberty, and property, which inhered in Anglo-Saxon
freedom, and which our ancestors brought with them from
the mother country."
In Maxwell v. Dow, 176 U. S. 581, Justice Harlan spoke
even more vehemently for this principle. A man had been
tried, convicted of robbery, and sentenced to eighteen years'
imprisonment, by a jury of eight persons. The case was
taken by writ of error from the supreme court of the State
of Utah on the plea that the section of the constitution of
that State which allowed trial by jury of less than twelve,
was unconstitutional in that it deprived citizens of the
United States of privileges and immunities secured to them
by the Constitution of the United States.
The court, speaking through Justice Peckham, denied this
claim. The main precedent cited was that established in
the Slaughter House Cases, 16 Wall. 36, where it was de-
veloped "that there was a citizenship of the United States
and a citizenship of the states, which were distinct from
each other, depending upon different characteristics and cir-
cumstances in the individual; that it was only privileges
and immunities of citizens of the United States that were
placed by the amendment under the protection of the Fed-
eral Constitution, and that the privileges and immunities of
a citizen of a state, whatever they might be, were not in-
tended to have any additional protection by the paragraph
in question, but they must rest for their security and pro-
tection where they have heretofore rested."
Justice Harlan, however, dissenting, said : " It does not
solve the question before us to say that the first ten Amend-
ments had a reference only to the powers of the national
government, and not to the powers of the states. For, if,
prior to the adoption of the Fourteenth Amendment, it was
one of the privileges or immunities of citizens of the United
MISCELLANEOUS TOPICS 1/5
States that they should not be tried for crime in any court
organized or existing under national authority except by a
jury composed of twelve persons, how can it be that a citi-
zen of the United States may be now tried in a state court
for crime, particularly for an infamous crime, by eight
jurors, when the Amendment expressly declares that 'no
state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States'? . . .
"If the court had not ruled otherwise, I should have
thought it indisputable that when by the Fourteenth Amend-
ment it was declared that no state should make or enforce
any law abridging the privileges or immunities of citizens
of the United States, nor deprive any person of life, lib-
erty, or property without due process of law, the People of
the United States put upon the states the same restrictions
that had been imposed upon the national government in
respect, as well of the privileges, and immunities of citizens
of the United States, as of the protection of the fundamental
rights of life, liberty, and property.
" The decision to-day rendered is very far-reaching in its
consequences. I take it no one doubts that the great men
who laid the foundations of our government regarded the
preservation of the privileges and immunities specified in
the first ten Amendments as vital to the personal security
of American citizens. To say of any people that they do
not enjoy those privileges and immunities is to say that they
do not enjoy real freedom. . . .
" But, if I do not wholly misapprehend the scope and
legal effect of the present decision, the Constitution of the
United States does not stand in the way of any state strik-
ing down guaranties of life and liberty that English-speak-
ing people have for centuries regarded as vital to personal
security, and which the men of the revolutionary period
universally claimed as the birthright of freemen."
It is seen from the above that Justice Harlan's doctrine
rested on a basis deeper than mere logic. The principles
176 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
stated in the first ten amendments were to him sacred ele-
ments of liberty, and he naturally opposed any decision that
gave to the States a constitutional right to abridge those
principles. He was not willing that the States individu-
ally should be left to determine whether their citizens had
been deprived of any of the fundamental rights of freedom.
In Patterson v. Colorado, ex rel. Atty. Gen., 205 U. S.
454, Justice Harlan again asserted this doctrine in the fol-
lowing words : " I go further and hold that the privilege of
free speech and of a free press, belonging to every citizen
of the United States, constitute essential parts of every
man's liberty, and are protected against violation by that
clause of the 14th Amendment forbidding a state to de-
prive any person of his liberty without due process of law.
It is, I think, impossible to conceive of liberty, as secured
by the Constitution against hostile action, whether by the
nation or by the states, which does not embrace the right
to enjoy free speech and the right to have a free press."
In Twining v. New Jersey, 211 U. S. 78, as late as the
year 1908, Justice Harlan asserted the same doctrine : " At
the close of the late Civil War, which had seriously dis-
turbed the foundations of our governmental system, the
question arose whether provision should not be made by
constitutional Amendments to secure against attack by the
states^ the rights, privileges, and immunities which, by the
original Amendments, had been placed beyond the power
of the United States or any Federal agency to impair or
destroy. Those rights, privileges, and immunities had not
then, in terms, been guarded by the national Constitution
against impairment or destruction by the states, although,
before the adoption of the 14th Amendment, every state,
without, perhaps, an exception, had, in some form, recog-
nized, as part of its fundamental law, most, if not all, the
rights and immunities mentioned in the original Amend-
ments, among them immunity from self-incrimination."
Direct Taxation. — It will be interesting from the stand-
point of history to make a short study of Justice Harlan's
MISCELLANEOUS TOPICS IJ'J
dissent in the case of Pollock v. Farmers' Loan and Trust
Co., 157 U. S. 429, 158 U. S. 601, wherein he differed from
the court as to the meaning of direct taxation. As is well
known, the court has not been uniform in its decisions as
to what constitutes direct taxation. At first it was thought
that only capitation taxes and taxes on real estate were di-
rect taxes, but in the case under consideration it was de-
clared that taxes on income from real estate and from
personal property are direct taxes.
As the case was tried when, owing to the sickness of one
of the justices, there were only eight sitting, and as the
judges were equally divided on various aspects of the case,
a rehearing was granted. At the first hearing the court
ruled that the law in question, so far as it levied a tax on
the rents or income of real estate, was in violation of the
Constitution and invalid. But the j udges were divided equally
on the following points: " i. Whether the void provision
[as to rents and income from real estate] invahdates the
whole act? 2. Whether as to the income from personal
property as such, the act is unconstitutional, as laying di-
rect taxes? 3. Whether any part of the tax, if not con-
sidered as a direct tax, is invalid for want of uniformity
on either of the grounds suggested ? " Upon the rehearing
the case was decided affirmatively on each of the above
points. Justice Harlan dissented from the whole decision
of the court. His full doctrine was brought out in his dis-
sent in the final hearing of the case.
His first condemnation of the decision was based upon
the court's disloyalty to the doctrine of stare decisis. After
recalling that there had been much difference of opinion in
the constitutional convention as to exactly what constituted
a direct tax, he showed that it had been decided in Hylton v.
United States, 3 Dall. 171, that nothing except taxes upon
real estate and capitation taxes constitutes direct taxes, and
therefore that in asserting that taxation upon income from
real estate or personal property was direct taxation the
court departed from the accepted doctrine. Many other
1^8 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
cases were cited to develop this argument. He said : " It
seems to me that the court has not given to the maxim of
stare decisis the full effect to which it is entitled. While
obedience to that maxim is not expressly enjoined by the
Constitution, the principle that decisions, resting upon a par-
ticular interpretation of that instrument, should not be
lightly disregarded where such interpretation has been long
accepted and acted upon by other branches of the govern-
ment and by the public, underlies our American jurispru-
dence. . . . While, in a large sense, constitutional ques-
tions may not be considered as finally settled, unless settled
rightly, it is certain that a departure by this court from
a settled course of decisions on grave constitutional ques-
tions, under which vast transactions have occurred, and
under which the government has been administered during
great crises, will shake public confidence in the stability of
the law."
" I have a deep, abiding conviction," he continued, " which
my sense of duty compels me to express, that it is not
possible for this court to have rendered any judgment more
to be regretted than the one just rendered. ... In my judg-
ment a tax on income derived from real property ought not
to be, and until now has never been, regarded by any court
as a direct tax on such property within the meaning of the
Constitution. . . . And, in view of former adjudications,
beginning with the Hylton case and ending with the Springer
case, a decision now that a tax on income from real prop-
erty can be laid and collected only by apportioning the same
among the states, on the basis of numbers, may, not im-
properly, be regarded as a judicial revolution, that may sow
the seeds of hate and distrust among the people of different
sections of our common country."
Though the above quotation might seem to indicate that
Justice Harlan did not look at the economic meaning of a
direct tax, the following will show that he was not unaware
of this consideration : " In determining whether a tax on
income from rents is a direct tax, within the meaning of the
MISCELLANEOUS TOPICS 1 79
Constitution, the inquiry is not whether it may in some way
indirectly affect the land or the landowner, but whether it
is a direct tax on the thing taxed, the land. The circum-
stance that such a tax may possibly have the effect to
diminish the value of the use of the land is neither decisive
of the question nor important. While a tax on the land
itself, whether at a fixed rate applicable to all lands without
regard to their value, or by the acre or according to their
market value, might be deemed a direct tax within the
meaning of the Constitution as interpreted in the Hylton
case, 2l duty on rents is a duty on something distinct and
entirely separate from, although issuing out of, the land."
In the next place, Justice Harlan proceeded to show how
much more unreasonable was the decision that income from
tangible personal property should not be subject to a tax by
the national government under a rule of uniformity than
was the decision regarding income from real estate. "When
direct taxes are restricted to capitation taxes and taxes on
land, taxation, in either form, is limited to subjects always
found wherever population is found, and which cannot be
consumed or destroyed. They are subjects which can al-
ways be seen and inspected by the assessor, and have im-
mediate connection with the country and its soil throughout
its entire limits. Not so with personal property."
Furthermore, he upbraided the court for this decision be-
cause of the practical results to be expected from it regard-
less of former adjudications. "Why do I say that the
decision just rendered impairs or menaces the national
authority? The reason is so apparent that it need only be
stated. In its practical operation this decision withdraws
from national taxation not only all incomes derived from
real estate, but tangible personal property, 'invested per-
sonal property, bonds, stocks, investments of all kinds,' and
the income that may be derived from such property. This
results from the fact that by the decision of the court, all
such personal property and all incomes from real estate
and personal property, are placed beyond national taxation
l80 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
Otherwise than by apportionment among the states on the
basis simply of population. No such apportionment can
possibly be made without doing gross injustice to the many
for the benefit of the favored few in particular states. Any
attempt upon the part of Congress to apportion among the
states, upon the basis simply of their population, taxation of
personal property or of incomes, would tend to arouse such
indignation among the freemen of America that it would
never be repeated. When, therefore, this court adjudges,
as it does now adjudge, that Congress cannot impose a duty
or tax upon personal property, or upon income arising either
from rents of real estate or from personal property, * in-
cluding invested personal property, bonds, stocks, and in-
vestments of all kinds,' except by apportioning the sum to be
so raised among the states according to population, it prac-
tically decides that, without an amendment of the Constitu-
tion— two thirds of both Houses of Congress and three
fourths of the states concurring — such property and incomes
can never be made to contribute to the support of the
national government."
In closing he said: "The practical effect of the decision
to-day is to give to certain kinds of property a position of
favoritism and advantage inconsistent with the fundamental
principles of our social organization, and to invest them
with power and influence that may be perilous to that
portion of the American people upon whom rests the larger
part of the burdens of government, and who ought not to
be subjected to the dominion of aggregated wealth any more
than the property of the country should be at the mercy of
the lawless."
The question as to what is in fact a direct tax is impossible
of solution. The court had already hit upon two things
that were as nearly direct taxes as anything could be, and
there the matter should have rested. The effect of the
decision was to make necessary an amendment to the Con-
stitution of the United States.
Ex Post Facto Laws. — The case of Hawker v. New York,
MISCELLANEOUS TOPICS i8l
170 U. S. 189, shows what Justice Harlan conceived to be
an ex post facto law. The case arose because of the denial
to a physician, by a statute of the State of New York, of
the right to practice medicine. The doctor had been con-
victed of the crime of abortion and sentenced to a term
of ten years in the penitentiary. He had served his term
and was again engaged in practice when the State passed a
statute providing that no one who had been convicted of
felony should practice medicine. The doctor was arrested
and was fined two hundred and fifty dollars for treating a
patient, and this case was taken by way of appeal to the
Supreme Court of the United States upon the plea that the
later statute was an ex post facto law.
The court held that law valid, and said : " The state is not
seeking to further punish a criminal, but only to protect its
citizens from physicians of bad character. The vital matter
is not the conviction, but the violation, of law. The former
is merely the prescribed evidence of the latter. Suppose the
statute had contained only a clause declaring that no one
should be permitted to act as a physician who had violated
the criminal laws of the state, leaving the question of the
violation to be determined according to the ordinary rules of
evidence, would it not seem strange to hold that that which
conclusively established the fact effectually relieved from
the consequences of such violation ? "
To Justice Harlan this argument was unconvincing. His
claim was that if the previous law had stipulated as a part
of the punishment of felonies that a physician should not
thereafter practice medicine, the denial of the privilege to
Hawker would not have been ex post facto. But since he
had suffered the penalty imposed by the State for the crime
committed, any additional punishment inflicted for the same
offence would be ex post facto. "If the statute in force
when the offense of abortion was committed had provided
that, in addition to imprisonment in the penitentiary, the
accused, if convicted, should not thereafter practice medi-
cine, no one, I take it, would doubt that such prohibition was
1 82 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
a part of the punishment prescribed for the offense. And
yet it would seem to be the necessary result of the opinion
of the court in the present case, that a statute passed after
the commission of the offense of 1877 and which by its own
force, made it a crime for defendant to continue in the prac-
tice of medicine, is not an addition to the punishment in-
flicted upon him in 1878. I cannot assent to this view. It
is, I think, inconsistent with the provision of the Constitu-
tion of the United States declaring that no State shall pass
any ex post facto law."
Justice Harlan also urged the fact that the offender might
have become a different sort of man after serving in prison
and therefore be well suited to practice medicine. But that
point seems to be wide of the mark. It has an important
ethical consideration, but could have no bearing upon an
ex post facto law as such, for the State would have been
denying this opportunity of reform if it had been a part of
the punishment of the crime from the beginning that a
physician guilty of felony should not again practice
medicine.
But it might be argued that the first contention was well
founded. It depends upon whether the law is considered
simply as a provision to insure suitable characters for the
practice of medicine. That is a legitimate police measure,
within the power of the State. If the law be looked upon
merely as instituting a punishment, it must be admitted that
Justice Harlan was contending correctly that the law was
an ex post facto law, for the statute in question not only
operated as a punishment for crime after it had been com-
mitted, but also after the man had been punished to the
full extent of the law as it existed at the time of the com-
mission of the crime.
Copyrights. — The Constitution of the United States gives
Congress the power to pass laws promoting science and
useful arts by means of patents and copyrights. Under
the statutes regulating copyrights a very amusing case came
up from the United States circuit court for the district of
MISCELLANEOUS TOPICS 1 83
Kentucky.^ This court had decided that certain copies of
pictures of dancing girls from advertisements of the Wallace
circus were not protected by the laws regulating the pro-
duction of useful arts. The case having been appealed to
the Supreme Court, the decision of the lower court was
reversed.
The following quotation from the decision, rendered by
Justice Holmes, will show the ground of the reversal : " It
would be a dangerous undertaking for persons trained only
to the law to constitute themselves final judges of the worth
of pictorial illustrations, outside of the narrowest and most
obvious limits. At the one extreme, some works of genius
would be sure to miss appreciation. Their very novelty
would make them repulsive until the public had learned the
new language in which their author spoke. It may be more
than doubted, for instance, whether the etchings of Goya or
the paintings of Manet would have been sure of protection
when seen for the first time. At the other end, copyrights
would be denied to pictures which appealed to a public less
educated than the judge. Yet if they command the interest
of any public, they have a commercial value — and it would
be bold to say that they have not an aesthetic and educa-
tional value — and the taste of any public is not to be treated
with contempt. It is an ultimate fact for the moment, what-
ever may be our hope for a change. That these pictures
had their worth and their success is sufficiently shown by the
desire to reproduce them without regard to the plaintiff's
right."
These words sound almost subHme, but it must be ad-
mitted that they become ludicrous when used in connection
with a bill-board advertising circus dancing girls. And that
is the substance of Justice Harlan's dissent. "The clause
of the Constitution giving Congress the power to promote
the progress of science and useful arts, by securing for
limited terms to authors and inventors the exclusive use of
their respective work and discoveries, does not, as I think,
embrace a mere advertisement of a circus."
1 Bleistein v. Donaldson Lith. Co., 188 U. S. 239.
184 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
Self-incrimination. — In Twining v. New Jersey, 211 U.
S. 78, the court held that freedom from self-incrimination
is not one of those privileges secured to citizens by the due
process of law clause of the fourteenth amendment. In
dissenting Justice Harlan criticized the court's refusal to
determine whether self-incriminatory evidence had been de-
manded. A question of so much import, he said, should
not be decided unless it is necessary in order to decide the
case : " As a reason why it takes up first the question of the
power of a state, so far as the Federal Constitution is con-
cerned, to compel self-incrimination, the court says that if
the right here asserted is not a Federal right that is an end
of the case, and it must not go further. It would, I submit,
have been more appropriate to say that, if no ground what-
ever existed, under the facts disclosed by the record, to con-
tend that a Federal right had been violated, this court would
be without authority to go further and express its opinion
on an abstract question relating to the powers of the states
under the constitution."
But Justice Harlan further contended that if the court
had found that the right had been violated it should have
pronounced the act of the State unconstitutional, because,
in the first place, he believed that the privileges and im-
munities of citizens of the United States which were secured
against state action by the fourteenth amendment included
also those enumerated in the first eight; and in the second
place, even if this were not true, a proper interpretation of
the phrase " due process of law " includes freedom from
self-incrimination. In this connection he said : " In my
judgment, immunity from self-incrimination is protected
against hostile state action, not only by that clause in the
14th Amendment declaring that 'no state shall make or en-
force any law which shall abridge the privileges or immuni-
ties of citizens of the United States,' but by the clause, in
the same Amendment, ' nor shall any state deprive any per-
son of life, liberty, or property, without due process of law.*
No argument is needed to support the proposition that,
MISCELLANEOUS TOPICS I 85
whether manifested by statute or by the final judgment of a
court, state action, if liable to the objection that it abridges
the privileges or immunities of national citizenship, must
also be regarded as wanting in the due process of law en-
joined by the 14th Amendment, when such state action sub-
stantially affects life, liberty, or property."
The Insular Cases. — Justice Harlan did not render a sep-
arate dissenting opinion in the earlier of the Insular cases.
His concurrence in the dissent by Chief Justice Fuller in
Downes v. Bidwell, 182 U. S. 244, however, showed that he
was opposed to the differentiation made by the court, namely,
that which placed the power of Congress over the insular
possessions in certain respects above the Constitution of the
United States. The case of Hawaii v. Mankichi, 190 U. S.
197, contains the substance of his whole doctrine regarding
the relation of the United States to the newly acquired ter-
ritory.
The question at issue in Hawaii v. Mankichi was whether
the Constitution in full force had been extended to the
Hawaiian Islands by the joint resolution of Congress an-
nexing themi. The opinion of the court in this case was
very hotly opposed by Justice Harlan, Chief Justice Fuller,
and Justice Peckham. The majority opinion was rendered
by Justice Brown, and concurring opinions were submitted
by Justices White and McKenna. Thus it is seen that the
court was sharply divided.
The case came up for review from the United States dis-
trict court for Hawaii, which had discharged on habeas
corpus a man convicted of manslaughter because he had
been convicted by a verdict of only nine of the twelve
jurors. The decision of the lower court was that such con-
viction was not in accordance with the guarantee by the Con-
stitution of the United States of trial by jury, in that ac-
cording to the American law the jury must agree unani-
mously on their verdict. The laws of Hawaii allowed such
a procedure, and thus was raised the question whether the
Constitution of the United States extended with full force
1 86 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
over the Hawaiian Islands after their annexation to this
country.
The decision of the court in this case was based upon the
idea that the intention and not the letter of the law is the
law. " ' A thing may be within the letter of a statute and
not within its meaning, and within its meaning, though not
within its letter. The intention of the lawmaker is the law.'
. . . There are many reasons which induce us to hold that
the act was not intended to interfere with the existing prac-
tice, when such interference would result in imperiling the
peace and good order of the islands."
It is seen that the argument of the court was based upon
the meaning of the resolution, that is, whether it intended
to extend to the islands all of the privileges and rights se-
cured by the Constitution. This question Justice Harlan
said could not be raised. He contended that it is not for
Congress to say whether the Constitution is to operate in
territory which had been incorporated within the jurisdic-
tion of the United States. If it is constitutional for Con-
gress to admit territory by joint resolution, well and good,
but there is where the power of Congress stops. Any at-
tempt to allow in the territories acts which are unconstitu-
tional must be void.
He said : " In my opinion, the Constitution of the United
States became the supreme law of Hawaii immediately upon
the acquisition by the United States of complete sovereignty
over the Hawaiian Islands, and without any act of Congress
formally extending the Constitution to those islands. It
then, at least, became controlling, beyond the power of
Congress to prevent. From the moment when the govern-
ment of Hawaii accepted the joint resolution of 1898, by a
formal transfer of its sovereignty to the United States —
when the flag of Hawaii was taken down, by authority of
Hawaii, and in its place was raised that of the United States
• — every human being in Hawaii, charged with the commis-
sion of crime there, could have rightly insisted that neither
his life nor his liberty could be taken as a punishment for
MISCELLANEOUS TOPICS 1 8/
crime, by any process, or as a result of any mode of pro-
cedure that was inconsistent with the Constitution of the
United States. Can it be that the Constitution of the United
States is the supreme law in the states of the Union, in the
organized territories of the United States, between the At-
lantic and Pacific Oceans, and in the District of Columbia,
and yet was not, prior to the act of 1900, the supreme law
in the territories and among the people situated as were the
territory and people of Hawaii, and over which the United
States had acquired all rights of sovereignty of whatsoever
kind? A negative answer to this question, and a recogni-
tion of the principle that such an answer involves would
place Congress above the Constitution. . . .
" I am of opinion : i. That when the annexation of Hawaii
was completed, the Constitution — without any declaration
to that effect by Congress, and without any power of Con-
gress to prevent it — ^became the supreme law for that coun-
try, and, therefore, it forbade the trial and conviction of
the accused for murder otherwise than upon a presentment
or an indictment of a grand jury, and by the unanimous
verdict of a petit jury. 2. That if the legality of such trial
and conviction is to be tested alone by the Joint Resolution
of 1898, then the law is for the accused, because Congress,
by that Resolution, abrogated, or forbade the enforcement
of, any municipal law of Hawaii, so far as it authorized a
trial for an infamous crime otherwise than in the mode pre-
scribed by the Constitution of the United States; and that
any other construction of the resolution is forbidden by its
clear, unambiguous words, and is to make, not to interpret,
the law."
One other quotation will be to the point : " I stand by the
doctrine that the Constitution is the supreme law in every
territory, as soon as it comes under the sovereign dominion
of the United States for purposes of civil administration,
and whose inhabitants are under its entire authority and
jurisdiction. I could not otherwise hold without conceding
the power of Congress, the creature of the Constitution, by
1 88 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
mere nonaction, to withhold vital constitutional guarantees
from the inhabitants of a territory governed by the author-
ity and only by the authority of the United States. Such
a doctrine would admit of the exercise of absolute, arbi-
trary legislative power under a written Constitution full of
restrictions upon Congress, and designed to Hmit the sep-
arate departments of government to the exercise of only
expressly enumerated powers and such other powers as may
be implied therefrom, — each department always acting in
subordination to that instrument as the supreme law of the
land. Indeed, it has been announced by some statesmen
that the Constitution should be interpreted to mean, not
what its words naturally, or usually, or even plainly, import,
but what the apparent necessities of the hour, or the ap-
parent majority of the people, at a particular time, demand
at the hands of the judiciary. I cannot assent to any such
view of the Constitution. Nor can I approve of the sugges-
tion that the status of Hawaii and the powers of its local
government are to be * measured' by the resolution of 1898,
without reference to the Constitution. It is impossible for
me to grasp the thought that that which is admittedly con-
trary to the supreme law can be sustained as valid."
These sentiments were reasserted in dissenting in the
cases of Dorr v. United States, 195 U. S. 138, and Trono v.
United States, 199 U. S. 521. Since, however, the views
expressed in his opinions there were substantially the same
as those expressed in the case of Hawaii v. Mankichi, they
need not be discussed further.
Interstate Comity. — Though the question of interstate
comity is a broad one, the points wherein Justice Harlan
differed from the court have not been numerous. The case
of Chambers v. Baltimore and Ohio R. Co., 207 U. S. 142,
is the only one that needs to be considered. In this case
was involved the right of a citizen of Pennsylvania, the
widow of a fireman on the Baltimore and Ohio Railroad,
who was also a citizen of Pennsylvania, to sue in an Ohio
court. Suit had been brought in the lower court and dam-
MISCELLANEOUS TOPICS I 89
ages amounting to $3000 had been allowed. But this deci-
sion had been reversed by the supreme court of the State of
Ohio, on the ground that the plaintiff could not sue in the
Ohio courts because of a statute of Ohio which prevented
it. Whereupon the case was appealed to the Supreme Court
of the United States upon the ground that the statute was
in violation of the clause of the federal Constitution which
provides that " the citizens of each State shall be entitled to
all privileges and immunities in the several States."
The court upheld the statute on the ground that it did not
make any discrimination against citizens of other States.
" The courts were open in such cases to plaintiffs who were
citizens of other states if the deceased was a citizen of
Ohio; they were closed to plaintiffs who were citizens of
Ohio if the deceased was a citizen of another state. So
far as the parties to the litigation are concerned, the state,
by its laws, made no discrimination based on citizenship,
and offered precisely the same privileges to citizens of other
states which it allowed to its own."
Justice Harlan differed from the court in that it presumed
to interpret the statute for itself instead of considering the
law as it stood under the interpretation of the state court.
The state court had expressly said that if the plaintiff had
been a citizen of the State of Ohio the damages would have
been held valid. " That there may be no mistake as to the
decision, I quote the official syllabus of the present case,
which, by the law of Ohio, is to be taken as indicating the
point actually in judgment : * No action can be maintained
in the courts of this state upon a cause of action for wrong-
ful death occurring in another state, except where the per-
son wrongfully killed was a citizen of the state of Ohio! . . .
" In that view, if two persons, one a citizen of Ohio and
the other a citizen of Pennsylvania, travelling together on a
railroad in Pennsylvania, should be killed at the same mo-
ment and under precisely the same circumstances, in con-
sequence of the neghgence or default of the railroad com-
pany, the courts of Ohio are closed by its statute against
13
190 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
any suit for damages brought by the widow or the estate
of the citizen of Pennsylvania against the railroad company,
but will be open to suit by the widow or the estate of the
deceased citizen of Ohio, although by the laws of the state
where the death occurred the widow or estate of each de-
cedent would have, in the latter state, a valid cause of ac-
tion. . . .
"With entire respect for the views of others, I am con-
strained to say that in my opinion, so much of the local
law, whether statutory or otherwise, as permits suits of this
kind for damages where the deceased was not a citizen of
Ohio, is unconstitutional."
Thus it is seen that Justice Harlan would have been more
strict than the court was in its interpretation of the clause
of the Constitution which secures interstate comity. There
is also seen another instance of his desire to secure legal
remedies to the individual.
Labor Legislation. — Under the head of labor legislation
it is necessary to refer to some cases which are not primarily
concerned with constitutional law. From Justice Harlan's
dissents from these cases may be gathered a general impres-
sion of his attitude regarding the relation of the Constitu-
tion to labor reform.
The case of New England R. Co. v. Conroy, 175 U. S.
323, presents a very interesting dispute between Justice
Harlan and the court as to the meaning of a fellow-servant.
Justice Harlan contended that the conductor should have
been looked upon as the representative of the railroad com-
pany on the trains, and that all of his subordinates were re-
sponsible to the company through him, when by pronounc-
ing the conductor a fellow-servant with a brakeman the
Court exempted the railroad company from damages which
a jury had granted. " In my judgment," he said, "the con-
ductor of a railroad train is the representative of the com-
pany in respect of its management, all the other employees
on the train are his subordinates in matters involved in such
management, and for injury received by any one of those
MISCELLANEOUS TOPICS I9I
subordinates during the management of the train by reason
of the negligence of the conductor the railroad company-
should be held responsible."
Again, in Baltimore and Ohio Southwestern R. Co. v.
Voigt, 176 U. S. 498, when the Supreme Court declared
that an express messenger could not be termed a passenger,
and hence could not receive damages for injuries sustained
in a wreck, Justice Harlan dissented. He contended that
such persons ought not to be excluded from that class of
persons who could recover damages for injuries received
while working on trains. He said : " I am of opinion that
the present case is within the doctrines of New York C. R.
Co. V. Lockwood, and that the judgment should be affirmed
upon the broad ground that the defendant corporation
could not, in any form, stipulate for exemption from re-
sponsibility for the negligence of its servants or employees
in the course of its business, whereby injury comes to any
person using its cars, with its consent for purposes of trans-
portation. That the person transported is not technically a
passenger and does not ride in a car ordinarily used for
passengers is immaterial."
This natural sympathy for the employee or laborer, which
was evidenced in the two cases just mentioned, came out in
full force in his dissent from Lochner v. New York, 198 U.
S. 45. Here the Supreme Court held invahd a law of New
York which attempted to limit the hours of employment of
bakers to ten hours a day. The court declared that such
legislation was " an arbitrary interference with the freedom
to contract guaranteed by the 14th Amendment which can-
not be sustained as a valid exercise of the poHce power to
protect the public health, safety, and morals, or general
welfare." In a somewhat lengthy dissent from this case
Justice Harlan undertook to prove by quotations from
various sociological and medical authorities that the trade
of a baker had a tendency to shorten the lives of those en-
gaged in it.
192 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
He dissented again from the case of Howard v. Illinois
Central R. Co., 207 U. S. 463, when the court declared un-
constitutional the federal employers' liability act of June 11,
1906. While he did not think that this act could apply to
intrastate commerce, he contended that it should have been
declared effective for injuries which could be shown to have
occurred in interstate commerce.
CHAPTER VIII
Judicial Legislation
It is particularly interesting to note the fact that the first
and last dissenting opinions which Justice Harlan delivered
were on the subject of judicial legislation. And there is no
marked difference in the tone of these opinions, except that
the first contained the firmness and positiveness of a middle-
aged man, while the last contained the uneasiness and solici-
tude of an old man. In the first was a clear and definite
respect for legislation as it read, in the last was a spirited
condemnation of society for looking to the court to correct
legislation. While the first was directed only to the court,
the last was broader and contained a sting for any one who
desired to extend the power of the court beyond its duly
recognized judicial power. The first case was that of United
States V. Clark, 96 U. S. 37, the last cases were the Standard
Oil Company and American Tobacco Company decisions,
221 U. S. I and 106. Many times between these are found
reassertions of the same sentiment.
Discussion of Cases. — The case of United States v. Clark
will bear emphasis not only because it stands in direct rela-
tion to our subject, but also because it was Justice Harlan's
first dissenting opinion. The case came up from the court
of claims of the United States. A man named Clark, who
was paymaster in the northern army during the Civil War,
claimed that he had been robbed of the sum of $15,978.87.
The questions at issue were whether Clark could be allowed
to testify in his own behalf as to the amount stolen, and
whether he was excluded from the court of claims anyway
because he had waited too long to bring suit.
The first point made by the counsel for the United States,
namely, that the plaintiff could not be allowed to testify in
his own behalf, was easily overruled by asserting that though
193
194 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
the claimant'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. /., ' 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 opiijion 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
JUDICIAL LEGISLATION I 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 sufficiently 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
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 sufficienlT.
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-
JUDICIAL LEGISLATION 1 97
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 ver^
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.
198 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
The cases cited by the court fall far short of sustaining the
proposition that the court may reject the plain, obvious
meaning 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, deHberately 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
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
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
Harlan 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
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
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 ewdent 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
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
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 — a
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
JUDICIAL LEGISLATION 20$
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 reHef 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
* United States v. Jung Ah Lung, 124 U. S. 621.
206 CONSTITUTIONAL DOCTRINES OF JUSTICE HARLAN
no such protecting care. If there was any real exigency, it
was that condition which the phrase "restraint of trade"
described. The pubHc feeHng 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, 75.
Behring 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-^1.
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, Mifflin 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
Johns Hopkins Studies, 38
(note).
Johnson and Higgins, brokers,
114.
Jury trials, 61-68.
Knight, E. C. Co., 92.
Labor legislation, 190-192.
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, 7i-
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, 103-105.
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.
SinR-ewald, 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.
Wickersham, Attorney General,
12 (note).
Wilson Bill, 86, 87, 89.
VITA
Floyd Barzilia Clark was born September ii, 1886, in
Chesterfield County, Virginia. He attended Windsor Acad-
emy, Windsor, Virginia, and entered Richmond College in
the fall of 1903, receiving the degree of A.B. in 1907 and
of A.M. in 1908. Since graduation he has attended the
University of Chicago, summer session 1909; Columbia
University, summer session 191 3; and the Johns Hopkins
University, sessions 1911-12, and 1913-14. During 1908-9
he was principal of the Dunnsville High School, Dunnsville,
Virginia, and during 191 2-1 3 of the Churchland High
School, Churchland, Virginia. From, 1909 to 191 1 he was
instructor in English at the Georgia School of Technology,
Atlanta, Georgia.
At the Johns Hopkins University he was holder of a
Hopkins Scholarship, 1911-12, and of a University Schol-
arship, 191 3-14.
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