ted Dorr rebellion, a dissent which has been termed by an able critic the reponse sans replique of juridical argument. He analyzes the nature of júdicial'power and pours forth an abundant flood of historical learning in relation to our domestic institutions and those of England.

The dissenting opinions of Mr. Justice Daniel have received separate treatment at the hands of Mr. Justice Brown, and it would be a task of supererogation to touch upon what he has already discussed so exhaustively and with masterly skill. It is noticeable also that Chief Justice Taney is to be included in the list of dissentients, and special attention should be paid to his opinions in the Wheeling Bridge case, 9 How. 647, and in the discussion of the boundary line between Massachusetts and Rhode Island. 12 Pet. 657. In the former he felt himself bound by the principles announced by Marshall in the case of Blackbird Creek Marsh Company, 2 Pet. 245, and could not perceive "how the mere grant of power to the legislative department to regulate commerce can give to the judicial branch the power to declare what shall and what shall not be regarded as an unlawful obstruction of a highway of commerce." In the latter he declined to take cognizance of what he regarded as a purely political question, lying beyond the reach of judicial authority.

- of declar

Upon the questions relating to the powers of the States and of Congress over slavery, the court, while substantially agreeing in the result reached in the famous case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, was divided in view. Story seized with avidity upon this the last opportunity in his long judicial career ing a State law unconstitutional. Prigg, a citizen of Maryland, had been indicted under a law of Pennsylvania for carrying off a fugitive slave by force, in defiance of the provisions intended to give effect to the State Constitution relating to fugitives from labor. It was held that the act was unconstitutional, because the Constitution of the United States, in providing that fugitive slaves should be given up, placed the remedy exclusively in Congress, and it was incompetent for the States to legislate upon the subject.

A most ingenious argument in support of the constitutionality of the act is to be found in the opinion of Mr. Justice McLean, an opinion which has been regarded by Mr. Justice Brown as the ablest of his efforts, and one which is to be viewed substantially as a dissenting opinion. McLean drew the distinction between the occupation by a State of a fragment of Federal power which has not been exercised, and subject to a notice to quit, and the exercise by a State of its inherent and sovereign power to protect its jurisdiction and the peace of

its citizens in any mode which its discretion shall dictate, which shall not conflict with a defined Federal power, and as neither the Constitution of the United States nor the act of Congress authorized the forcible abduction of a slave, he held that it was competent for the State to act.

We reach next, in the order of time, the immortal dissent of Mr. Justice Curtis, sustained in a separate opinion by Mr. Justice McLean, in the memorable controversy known as the "Dred Scott Case " (Dred Scott v. Sanford, 19 How. 393), happily of purely historical interest, but unhappily an instance of an effort on the part of the majority of the court to settle a moral and political question over which they had no technical jurisdiction, having sustained a plea to the jurisdiction filed in the lower court, and thereby ousted themselves from all right to discuss the question upon its merits. The action of the majority was a fatal blunder; the dissent of Curtis is the greenest leaf in the chaplet that crowns his brows.

The twenty-eight years during which Chief Justice Taney presided over the deliberations of the court present a striking contrast between the ability of Marshall to guide, to mould and to control the opinions of his tribunal, and the inability of his successor to keep the questions within measurable bounds. Taney, although unquestionably a lawyer of the very highest talents, and of the most abundant learning, as a man lacked the power and leadership of Marshall. Marshall's strength and vigor supplied warmth, and life, and sunlight to our constitutional system, while Taney was aptly described by Wirt as a man of moonlight mind· light of the Arctics, with all the light of day, without its glare." The phrase is striking and suggestive, and indicates the difference between the intellects of the two men.

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the moon

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and

I turn now to the period covered by the chief justiceship of Salmon P. Chase. The field is inviting, and the temptations to stray are numerous. pass over the somewhat elaborate dissent of Mr. Justice Nelson in the Prize Cases, 2 Black, 635, that of Mr. Justice Miller in Ex parte Garland and Cummings v. State of Missouri, 7 Wall. 700, with the remark that while they are all notable, they do not reach the full measure of greatness. I also pass over that class of cases in which the doctrine of a general commercial jurisprudence was established, in which it was held that the Federal courts were not bound by the judgments of the courts of the States where the cases arose. Gelpcke v. City of Dubuque, 1 Wall. 175; Meyer v. City of Muscatine, id. 384; Havemeyer v. Iowa County, 3 id. 294; Butz v. City of Muscatine, 8 id. 575; Township of Pine Grove v. Talcott, 19 id. 666. The series of dissents by Mr. Justice Miller is remarkable, but

inasmuch as they were wholly ineffectual, they pro- also to make all laws that would be proper and necduced no permanent impression upon our jurispru-essary for carrying into execution the foregoing dence.

I come directly to the greatest judicial debate of the century, not only because of its intrinsic interest and the fundamental character of the question involved, but because it displays in the most convincing manner the talents of the great jurists who participated in it, and vindicated their title to be regarded as among the ablest of the many distinguished men who have illustrated our national jurisprudence. I refer to the Legal Tender decis

ions.

Prior to 1862 no statesman or jurist had contended that Congress had, under the Constitution, the power of making any thing but gold and silver coin a legal tender. The acts of Congress of the 25th of February, 1862, 11th of February, 1863, and 3d of March, 1863, declared that the notes issued thereunder should be "lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports." Were these acts constitutional? Some sharp preliminary skirmishing had taken place in the cases of Bronson v. Rhodes, 7 Wall. 229; Butler v. Horwitz, id. 258; Bronson v. Kimpton, 8 id. 444; but the main battle was fought in the case of Hepburn v. Griswold, 8 id. 603, in which the further question was discussed, whether the acts of Congress in relation to legal tenders applied to debts

contracted before as well as after enactment. The opinion of the court was delivered by the chief justice, concurred in by Justices Nelson, Clifford, Grier and Field, and resulted in the distinct ruling that there was neither an express grant of legislative power to Congress contained in the Constitution to make any description of credit currency a legal tender in payment of debts, nor could this be done in the exercise of an implied power.

powers, and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof. He pointed out that although the Constitution prohibited any State from coining money, emitting bills of credit, or making any thing else than gold and silver coin a tender for payment of debts, yet no such prohibition was placed upon the power of Congress on this subject, while, on the contrary, Congress was expressly authorized to coin money and to regulate the value thereof, and of all foreign coin, and to punish the counterfeiting of such coin, and of the securities of the United States. He insisted that this latter clause, when fairly construed, conferred the power to make the securities of the United States a legal tender in payment of debts. In considering the scope of the words "necessary and proper," he declared that the necessity need not be absolute, nor the adaptation of the means to the end be unquestioned. He then pointed out that the power to declare war, to suppress insurrection, to raise and support armies, provide and maintain a navy, borrow money on the credit of the United States to pay the debts of the Union, and to provide for the common defense and general welfare, were all express powers, distinctly and specifically granted in separate clauses of the Constitution, and that when Congress was called on to devise some new means of borrowing money on the credit of the United States for the purpose of meeting the peril incident to a state of civil war, the Legal Tender Acts furnished instantly a means of paying the soldiers in the field and of filling the coffers of the commissary and quartermaster; that they further furnished a medium for the payment of private debts as well as public, and at a time when gold was being rapidly withdrawn from circulation, and the State bank currency was become worthless; that they furnished the means to capitalists of buying the bonds of the government; that they stimulated trade; revived the drooping energies of the country and restored confidence to the public mind. He therefore reached the conclusion that not only did the necessity in the constitutional sense of the term exist, but that the means adopted bore to the necessity a proper and constitutional relation. He also held that where there was a choice of means the se

The dissenting opinion of Mr. Justice Miller is his masterpiece. Indeed it ranks among the foremost dissenting opinions of the first century of the Supreme Court. The discussion went to the very roots of the question, and his analysis was searching and complete. He divided the provisions of the Constitution relating to the function of legislation into those which conferred legislative powers on Congress; those which prohibited the exercise of legislative powers by Congress and those which prohibited the States from exercising certain legis-lection rested with Congress, and not with the lative powers. He subdivided the first into positive and auxiliary powers, or, as more commonly called, the express and implied powers. The implied or auxiliary powers, he contended, were founded largely on the general provision which closed the enumeration of the powers granted in express terms by the declaration that Congress should have power

court; and that if the act to be considered was in any sense essential to the execution of an acknowledged power, the degree of that necessity was for the Legislature, and not for the court, to determine. He therefore expressed the opinion that Congress had acted within the scope of its authority, and that he must insist the law to be constitu

tional, and dissent from the opinion of the majority of the court. In this conclusion Justices Swayne and Davis concurred.

immeasurably in a true understanding of the principles which lie at the basis of the doctrines taught by the contending schools of constitutional inter

The whole question was again opened for the con-pretation. sideration of the court in Knox v. Lee and Parker v. Davis, 12 Wall. 457. The former decision in Hepburn v. Griswold was distinctly overruled, and it was held that the Legal Tender Acts were constitutional, and valid both as to contracts made

before and since their passage, the opinion of the court being delivered by Mr. Justice Strong, and concurred in in a most vigorous opinion read by Mr. Justice Bradley.

Chief Justice Chase pronounced a most elaborate dissent, in which he again traversed the ground covered by his opinion in Hepburn v. Griswold, and insisted that the error of the minority judges in that case was in urging as a justification of legal tenders considerations pertaining to the issue of United States notes. He insisted further that the law violated an express provision of the Constitution and the spirit, if not the letter, of the whole instrument; that inasmuch as the fifth amendment provided that no person should be deprived of life, liberty or property without compensation or due process of law, the acts, by operating directly upon the relations of debtor and creditor, violated that fundamental principle of all just legislation that the Legislature should not take the property of A. and give it to B. He also insisted that the acts impaired the obligation of contracts.

Justices Clifford and Field also dissented, the opinion of the latter being a most able and exhaustive discussion of the whole financial policy of the government, asserting that it was plain that the policy of maintaining a fixed and uniform standard could not be carried out, and that a fixed and uniform metallic standard of value throughout the United States could not be maintained so long as any other standard was adopted which of itself had no intrinsic value, and was forever fluctuating and uncertain. He admitted that the measure was passed in the midst of a gigantic rebellion, and that patriotic men who adopted it did so under the conviction that it would increase the ability of the government to obtain funds and supplies, and thus advance the national cause; but he declared that, sitting as a judicial officer, and bound to compare every law enacted by Congress with the greater law enacted by the people, and being unable to reconcile the measure in question with that fundamental law, he could not hesitate to pronounce it, in his judgment, unconstitutional and void.

The

Another question of profound and lasting importance, involving the construction of the thirteenth, fourteenth and fifteenth amendments, arose in the famous Slaughter-House Cases, 16 Wall. 36. They grew out of an act of the Legislature of Indiana passed after the close of the civil war, by which regulations for the maintenance of a slaughterhouse were fully and completely detailed. butchers of New Orleans considered this monopoly an invasion of their personal rights. The opinion of the majority of the court, delivered by Mr. Justice Miller, put a more limited interpretation upon the amendments, and particularly the thirteenth, than had been expected, and it was held that the law in question was a police regulation for the health and comfort of the people, entirely within the power of the State Legislatures, and unaffected either by the Constitution or the amendments.

From this opinion Justices Field and Bradley dissented in the most energetic terms, holding that the amendments were intended for whites as well as blacks; that they conferred upon all alike, if born in the United States or naturalized citizenship of the United States, and of the privileges and immunities of citizens which the States were offering to abridge, were not merely those arising out of the Constitution itself, but all those fundamental rights of person or property usually regarded as secured in all free countries.

The dissenting judges did not question the power of the States over all matters of internal concern, nor did they in any respect attempt to impair, or wish to impair, the full exercise of any authority which the States had ever exercised, or claimed to exercise over their internal affairs. They did not assert that the fourteenth amendment gave any such authority to the United States, or to their courts. What they did claim was that in the exercise of the powers of the State there should be no unjust or practical discrimination against any classes or persons, giving to some rights and privileges denied to others in like condition. They insisted that in the exercise of the police powers the rule of equality should prevail. They admitted that the State of Louisiana had the right to require the slaughtering of cattle to be done outside of the limits of New Orleans, but they considered that that was a very different thing from giving, in connection with the regulation, to seventeen persons, for twenty-five years, the exclusive right of preparing animal food for market within a district of eleven hundred and forty-five square miles, embracing a population of over two

No one can read the dissenting opinions in these cases without feeling that he has been placed in possession of all that can be urged in support of both sides of the question, and that he has gained | hundred thousand souls.

The impulse imparted by the Slaughter-House | ing issues no less grave than the nature, extent and Cases on the lines of moderation was maintained limitation of the judicial powers of the United under the firm yet temperate presidency of Chief States, and they contended that the Federal courts Justice Waite a period of conservative recreation had no criminal jurisdiction except such as was against the extreme views engendered by our civil expressly conferred by an act of Congress in purwar. To the surprise as well as disappointment of suance of a constitutional grant. many, it was held that the thirteenth, fourteenth and fifteenth amendments added nothing to existing the constitutionality of the Legal Tender Acts ing rights, but simply furnished additional guaranties for such as already existed.

In Juillard v. Greenman, 110 U. S. 421, establish

in time of peace, the capstone was placed by Mr. Justice Gray upon the majestic column representative of national power, attaining a dizzy height to which

even the boldest architect of the Constitution had never raised his eyes. Mr. Justice Field alone dis

marked by vigorous and emphatic reasoning. He contended that the decision of the court would breed many evils, and that hereafter no restraint could be imposed upon unlimited appropriations by the government for all imaginary schemes of public improvement if the printing press could not furnish the money that was needed for them.

In United States v. Reese, 92 U. S. 215; United States v. Cruikshank, id. 542; Strouder v. West Virginia, 100 id. 303; Virginia v. Rives, id. 313; Ex parte Virginia, id. 339; Ex parte Siebold, id.sented in an opinion replete with learning and 391; Neal v. Delaware, 103 U. S. 370, and the Civil Rights Cases, 109 id. 3, there is the fullest discussion of the scope and meaning of the Post Bellum Amendments, and the most exhaustive examination of the nature of our government and of the relation of the Federal government to the States. The dissenting opinions of Mr. Justice Field in Ex parte Virginia, of the same judge and Chief Justice Waite in Neal v. Delaware, and particularly of Mr. Justice Harlan in the Civil Rights Cases are worthy of the closest examination. They are splendid arguments in support of equality of protection under the laws and protests against narrow and artificial views. The utterances of Mr.. Justice Harlan are the most notable that have ever

fallen from his lips. He contended that the true meaning and purpose of the fourteenth amendment was to secure direct legislation by Congress in favor of the citizens operating directly upon them, not limited to State action either by legislative act or judicial or executive interference. The amendment was aimed at class tyranny, and was not limited to the colored race, which was denied by corporations and individuals wielding public authority rights fundamental to their freedom and citizenship. He predicted that at some future time it might be some other race that fell under the ban of race discrimination, and that if the constitutional amendments were enforced according to the intent with which, as he conceived, they were adopted, there could not be in this republic any class of human beings in class subjection to another class with power in the latter to dole out just such privileges as they might choose to grant.

On the other hand, when a new and copious source of Federal power was opened in Tennessee v. Davis, 100 U. S. 257, in which it was shown by Mr. Justice Strong that it was no invasion of State sovereignty to withdraw from State courts into Federal courts the trial of prosecutions for offenses against the criminal laws of a State whenever the defense presented an offense arising out of an act of Congress, Justices Clifford and Field dissented, characterizing it as an amazing proposition, involv

In 1882 the conflagration which had been kindled by Iredell's dissent in Chisholm's Executors v. Georgia, and smothered by the eleventh amendment, again broke forth. Could a State be sued? Could repudiation be successfully accomplished? Was there no redress for the injured creditor of a sovereign State? In Louisiana v. Jumel, 107 U. S. 711, and its sister decision of New Hampshire v. Louisiana, 108 id. 76, it was held that the meaning of the amendment was too clear to admit of evasion. Justices Field and Harlan dissented in words of extraordinary power, and their views afterward obtained a partial victory in the Virginia Coupon Cases, 114 U. S. 270.

Some interesting dissents by Justices Strong and Field are to be found in the Granger Cases (Munn v. Illinois, 94 U. S. 113), and those which involved the most constant and strenuous discussion of the commerce clause, indicating the enormous increase and expansion in the business interests of the country. Wilton v. State of Mississippi, 91 U. S. 275; Henderson v. Mayor of New York, 92 id. 259; Robbins v. Shelby Co., 120 id. 409; Gioucester Ferry Co. v. Pennsylvania, 114 id. 176; Western Union Telegraph Co. v. Massachusetts, 125 id. 530; Leloup v. Port of Mobile, 127 id. 640; et id omne Of these the most memorable is the cclegenus. brated "Original Package Case" (Leisy v. Hardin, 135 U. S. 100), in which the judgment of Chief Justice Taney in the New Hampshire License Case was distinctly overruled. Chief Justice Fuller, after reviewing every decision relating to the commerce clause from the time of Gibbons v. Ogden down to the present day, reached the conclusion that the grant of power to Congress to regulate commerce among the States was exclusive, and that