of liberty, private property and the pursuit of happiness no more sanction than that of an annual appropriation bill. Can it be that the power of a temporary majority of the electorate by a single popular vote to do away with rights secured to individuals, which have been inviolable for seven hundred years since the days of Magna Charta, approves itself to those who love liberty and who hold dear its sacred guaranties? Would we not in giving such powerful effect to the momentary impulse of a majority of an electorate prepare the way for the possible exercise of the grossest tyranny?

Finally, I ask what is the necessity for such a crude, revolutionary, fitful and unstable way of reversing judicial construction of the Constitution? Why, if the construction is wrong, can it not be righted by a constitutional amendment? The securing of that, it is true, is usually hedged about by checks and balances devised to secure delay, deliberation, discussion before a change of the fundamental law; but such amendments can be made, and if so, the effect of the decision can be reversed in respect to a new law by an amendment with express terms of authority to enact such a law. An answer made to this is that the same Judges will construe the amendment and defeat the popular will as in the first instance. This assumes dishonesty and a gross violation of their oaths of duty on the part of Judges, a hypothesis utterly untenable. If the meaning of the amendment is made plain, as it readily can be, of course the court will follow it.

I have examined this proposed method of reversing judicial decisions on constitutional questions with care. I do not hesitate to say that it lays the axe at the foot of the tree of well ordered freedom and subjects the guaranties of life, liberty and property without remedy to the fitful impulse of a temporary majority of an electorate.

Mr. Justice Miller of Iowa was one of the greatest jurists that ever adorned the Supreme Bench of the United States. Speaking for that great court in the case of Loan Association vs. Topeka (20 Wall. 655), in a case presenting the question of the constitutionality of a law imposing a general tax on all citizens to pay for a factory to be run and owned by a private company, after referring to the act as "an invasion of private right,' he said:

"It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic repository of power is, after all, but a despotism. It is true, it is a despotism of the many-of the majority, if you choose to call it so. But it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others,

whether it is not wiser that this power would be exercised by one man than by many.

"The theory of our Governments, State and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers.

"There are limitations on such power, which grow out of the essential nature of all free governments-implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.

"To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms."

Do not the words and illustrations of this case bring before us what we might expect from the exercise of the power of a popular majority to reverse a solemn judgment of a court in favor of an individual against a measure that, for the time being, seemed to the people something that would help all and yet which was plainly a trespass upon individual rights?

I agree that we are making progress and ought to make progress in the shaping of governmental action to secure greater equality of opportunity, to destroy the undue advantage of special privilege and of accumulated capital, and to remove obstructions to the pursuit of human happiness; and in working out these difficult problems we may possibly have, from time to time, to limit or narrow the breadth of constitutional guaranties in respect of property amendment. But if we do it, let us do it deliberately, understanding what we are doing, and with full consideration and clear weighing of what we are giving up of private right for the general welfare. Let us do it under circumstances which shall make the operation of the change uniform and just, and not depend on the feverish, uncertain and unstable determination of successive votes on different laws by temporary and changing majorities.

Such a proposal as this is utterly without merit or utility, and, instead of being progressive, is reactionary; instead of being in the interest of all people and of the stability of popular government, is sowing the seeds of confusion and tyranny.

The theories advanced by the so-called progressives have not been confined wholly to the initiative, referendum and recall. In a speech delivered in New York in March, 1912, William Michael Byrne, formerly United States Attorney for Delaware, advocated the taking away of the power of

appointment from the president. This radical reform did not cause the surprise it might have done in a calmer period. Mr. Byrne expressed the conviction that Federal judges, postmasters and all other officials of whatever nature should be elected by the votes of the community in which they were to serve.

PART II

(FIRST SECTION)

TRUST PROSECUTIONS, DECISIONS AND DECREES

As a satisfactory solution of the long neglected problem of curbing the trusts, hitherto involving national discontent, the American people in May, 1911, accepted the decisions of the Supreme Court of the United States decreeing the Standard Oil Company and its subsidiaries, and the American Tobacco Company and its subsidiaries, to be monopolies, conspiracies, and criminal combinations operating in restraint of foreign commerce and interstate trade, and ordering their dissolution.

This double finding coupled with the fact of the imposition of jail sentences upon the "Men Higher Up" in the Sugar Trust underweighing frauds, and the imposition of heavy penalties upon railroads and other corporations for violations of the anti-rebating laws, confirmed the repeated charges that the vast combines were really formed to destroy competition and exact large profits from consumers through the raising of prices and the reducing of wages by increasing the hours of labor of their employees.

Framed in accordance with the grant of power to Congress to regulate commerce contained in Article I, Section 8, Paragraph 3, of the Federal Constitution, which in the early days of the Republic proved serviceable in stopping industrial clashes between the States, the Sherman Law drafted by Senators Edmunds, Hoar, Evarts, Ingalls and George, and approved by President Harrison, July 2, 1890, has proven itself to be an equally salutary measure.

Far reaching and clear as were the Supreme Court decisions in the Standard Oil and Tobacco cases, there was little

tendency on the part of the other combines to obey them. There was no general submission by the "Captains of Industry" to the mandates of the court of last resort. A few of the smaller trusts, it is true, suggested voluntary dissolution, and the indicted members of the Window Glass Combine and the "Wire" and "Horseshoe Pools," entered pleas of nolo contendere and were punished by fines.

Their continued existence, threatened by additional dissolution suits and indictments, the manipulators of the vast and powerful combinations inaugurated a widespread agitation for the repeal or amendment of the Sherman law. To counteract this move President Taft sent this special message to Congress:

TO THE SENATE AND HOUSE OF REPRESENTATIVES:

This message is the first of several which I shall send to Congress during the interval between the opening of its regular session and its adjournment for the Christmas holidays. The amount of information to be communicated as to the operations of the Government, the number of important subjects calling for comment by the Executive, and the transmission to Congress of exhaustive reports of special commissions make it impossible to include in one message of a reasonable length a discussion of the topics that ought to be brought to the attention of the National Legislature at its first regular session.

In May last the Supreme Court handed down decisions in the suits in equity brought by the United States to enjoin the further maintenance of the Standard Oil Trust and of the American Tobacco Trust, and to secure their dissolution. The decisions are epoch-making and serve to advise the business world authoritatively of the scope and operation of the anti-trust act of 1890. The decisions do not depart in any substantial way from the previous decisions of the court in construing and applying this important statute, but they clarify those decisions by further defining the already admitted exceptions to the literal construction of the act. By the decrees, they furnish a useful precedent as to the proper method of dealing with the capital and property of illegal trusts. These decisions suggest the need and wisdom of additional or supplemental legislation to make it easier for the entire business community to square with the rule of action and legality thus finally established and to preserve the benefit, freedom and spur of reasonable competition without loss of real efficiency or progress.

The statute in its first section declares to be illegal "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations,”