that, when Americans talk about a government by laws, they really mean a government by lawyers. A solid truth lies behind the epigram. The Constitution of the United States being the supreme law of the land, any statute inconsistent with it cannot be law. If such a statute be relied on to support a disputed claim of right, and the parties to the controversy cannot agree that it is not law, that must ultimately be determined by the courts. All the higher courts are manned by lawyers. Their decisions therefore are the decisions of lawyers, and a government by laws that are expounded by lawyers is, in effect, a government by them. It is such, in another sense, because in the executive and legislative departments of both state and nation, the influence of lawyers has proved largely predominant. Statistics have recently been published showing that during a long period in the history of the United States eighty-nine per cent of the cabinet officers of the United States were of the legal profession. Most of our Presidents have belonged to it, and a very large proportion of the Governors of our states. The lawyers are always well represented in Congress and the state legislatures. The London Times recently stated that there are now 212 of them in the Senate of the United States and the House of Representatives. According to this, one out of every 640 lawyers in the United States is in one or the other house. In the body whose business it is to make laws, naturally those have the greatest influence who know best, or ought to know best, what are the laws already existing. The bar, then, in executive and legislative office, are in a position to confirm the authority of judicial decisions; and all their traditions and education tend to make them assume that what courts conclude as to any question is a finality. John Marshall found rules of action in the Constitution of the United States which a very large part of the people had not thought were contained there. During the life of a whole generation he kept finding such rules, and each thus took the place of a new section or article. In this way was developed the power of Congress to charter private business corporations; to control navigation within a state, when part of a voyage is out of the state; to govern the territories with little regard to the provisions of the Constitution concerning acts done in a state of the United States; and the right of the United States, by treaty, to dictate law to the states, as to the tenure of lands by foreigners. Meanwhile Congress moved more slowly in exercising its power to give the Constitution a practical exposition. In the main it kept within undisputed bounds, until the outbreak of the Civil War. One prominent exception was that in respect to commerce on the lakes, which Congress, in 1845, put on the same footing, as to federal remedies, as commerce on the sea. The Supreme Court, in upholding this Act at the expense of overruling one of its former decisions, held that admiralty jurisdiction in the United States was wider than that in England, and covered all waters navigable in fact, whether subject to the ebb and flow of the tides or not. Another, passed in 1842 (Rev. Stat., $753), in consequence of the McLeod Case, was one granting a summary remedy in the federal courts to one taken into custody under state authority, in violation of a treaty or the law of nations. The Civil War brought Acts authorizing the issue of legal tender currency; taxing the state banks of issue out of existence in order to make room for national banks; authorizing the President to suspend the privilege of the writ of habeas corpus; and making his orders a defence for any act of a military character done during the war. These were all measures designed to support the perpetuity of the Union against strong attack. But there soon followed legislation having no connection with the national defence. First came the Act of 1866, which put all interstate railroads, to a certain extent, beyond the control of a state government. This was the first substantial regulation by the United States of commerce by land. Interstate telegraphing received attention next. Unquestioned powers of the United States, which had long been suffered to lie dormant, were thus exercised, and the authority of the states so far forth displaced. Next came a far greater and deeper inroad upon it. In 1868 there was a radical revolution in our constitutional theories. Up to that time there were no guaranties of individual right for the enforcement of which, as against state action, there could be an appeal to the United States. By the Fourteenth Amendment to the Constitution of the United States such an appeal was given. This brought the states at once into subjection, to this extent, to an exterior sovereignty. Their police powers shrank correspondingly. The bounds of political independence and local autonomy were narrowed and a large portion of what had been the inherent sovereignty of each disappeared forever. This constitutional change of relations made it natural that statutory changes in similar lines should follow. They followed fast. In dividing the powers of commercial regulation between the United States and the states, Congress now began to take a larger and ever larger share. The Courts moved in the same direction, though more slowly. One effective mode of commercial regulation is by taxation. In 1872, the Supreme Court of the United States, speaking through the Chief Justice, unanimously held that taxation by a state for the privilege of doing interstate business there, was permissible. In 1888, the same court unanimously held that such a tax was not permissible, because it burdened what Congress had by its silence declared should be free to all.2 By a similar reversal of judicial opinion, the general power of Congress to lay taxes was, as to the right, extended, though by the effect of practical conditions, decreased. That power was given to Congress very unwillingly by most of the states, and only on the condition of uniformity, except as to direct taxes. Those, it was generally assumed, were to be confined to a few subjects, and in 1880 the Supreme Court of Osborne v. Mobile, 16 Wall. 479. Leloup v. Mobile, 127 U. S. 640. 2 the United States expressly held that these were only polls and real estate. But in 1895 the same Court decided that they also comprehended personal estate and the income from any kind of property. As Congress has unquestioned power to lay duties, imposts and excises, there would seem to be nothing on which it cannot lay its hand, except the means of sustaining the governments of the states. It follows that it can tax the property of citizens of a young and poor state in a proportion determined by the amount of its population, not by the value of what is subjected to the burden. Take, for illustration, a tax on all incomes of private individuals, in excess of $5,000, derived from investments. Such a state might have but a hundred citizens having such an income, while one of the older states might have five thousand, and the whole country a hundred thousand. If each of the two states described had an equal population, say of one-fiftieth of the population of the United States, and the total tax were $10,000,000, the capitalist in the young state would pay a fiftieth of the entire tax on all the hundred thousand, that is $2,000, while each of the capitalists in the older states would pay but $40. Enormous injustice would thus result; but the law would be quite within the powers of Congress. For the first eighty-three years of their history the United States never attempted to exercise the right of taking property for public use. They asked the state in which the property might be situated to take it, and repaid its cost. In 1872 came the first Act of Congress in which the right of condemnation was asserted.5 In the same year it was made a crime, punishable in the United States courts, to use the mails in aid of a scheme to defraud, and under this statute District Attorneys can draw indictments against the promoters of any corporation who, they think, are puffing its securities by false representations." Springer v. U. S., 102 U. S. 586, 602. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 579; 158 U. S. 601. ⚫U. S. Rev. Stat. 4580; 25 Stat. 873; Durland v. United States, 161 U. S. 306. The Interstate Commerce Act of 1887, followed up by the Sherman Act of 1890, has revealed powers which the United States have always possessed, but never before thought it wise to exercise. The Supreme Court has recently decided that cars on any railroad which constitutes part of a route of interstate commerce must be constructed and equipped in the manner required for such commerce, although in fact used only in commerce wholly confined to a single state." This looks towards a unification of all American commercial rules by sweeping them into the hands of Congress. Its power of taxation may also be used to further such a result. If a state engages in trade, though in an endeavor to better conditions of internal police, or from adopting principles of socialism, the United States can tax it, precisely as they would a private individual. Under a decision of the Supreme Court, pronounced in 1905, South Carolina was thus forced to pay license fees to the United States in the character of a liquor dealer.R The right to abrogate a franchise for cause naturally belongs to the sovereign granting it. It was, until recently, deemed to belong to that sovereign exclusively. But in cases in equity under the Sherman Act, the Courts of the United States, apparently assume that they can virtually dissolve a corporation, which constitutes a combination by which it has been violated, although its franchises came from a state. One of the prayers in the suit against the Steel Company is for such a dissolution. The Act does not give such jurisdiction in terms and, if it exist, it must be implied from a general power to prevent and restrain violation of its provisions.10 Proceeding in the same line, state corporations were made, in 1909, subject to an annual Federal tax, which is in substance a tax on their franchises. U. S. v. Southern Railway, October Term, 1911. South Carolina v. United States, 199 U. S. 437. • Hart v. Boston, Hartford & Erie R. R. Co., 40 Conn. 524, 530. 10 26 U. S. Stat. 209, Sec. 4. |