1J1..WR1HVW5WW:M I i ' 4 wwrrffci I & TV k. f'J . H" 1 lit : I' I . 1 (MV iVl'- . , ' U IV 1ft J'",, 8(- V it r The Commoner. ISSUED WEEKLY Kntcrcd at tho Postofflco at Lincoln, Nebraska, as second-class matter. WJIJ.IAH J.VJIYAK Itdltor and Proprietor XllCIIAlU) L. JIwcamt. AfEodatoICdltor CiiAiiLca W. UnYAN rubllfilier FdltorJnl ItooirTn and Uuslncii Cm co 824-320 South 12th Street One Year fl.00 Thrco jifontlin. .28 MLx Month CO Single Copy 95 In Clubs of Five or Sample Copies Prco. uoro, per year... ,7S Foreign Post. 6c Extra. SUBSCRIPTIONS can bo sent direct to The Com moner. Thoy can also bo sent tli: ug1 newspapers which havo advertised a clubbing rate, or through local agents, whero sub-agents havo boon appolnt d. All remittances should bo sent by postofllce monoy order, express order, or by bank draft on New York or Chicago. Do not send Individual checks, stamps or monoy. 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Address all communications to THE COMMONER, Lincoln, Nob. "PACKING THE SUPREME COURT" Foxcraft, Me., Sept. 27, 1911. Editor The Commoner: Replying to ths article in The Commoner for June 23, entitled, "Packing tho Supreme Court" A Reminder of 1908: I sincerely wish that every citizen of this country could (or would) "read, mark, learn and Inwardly digest" the contents of that article. Every thinking man and woman fully realizes that tho decision recently handed down hy the supreme court possesses unusual signi ficance, and that on the whole it is a dangerous precedent; hut what of those who do not think clearly of such matters? To them the decision is good; it fully serves its purpose; it relievos the common people from the oppression of tho great trusts. It is for such credulous people as these that tho articles in Tho Commoner seem to ho to he especially written, and to them these articles should ho useful and suggestive. The man muBt ho wilfully hlind or hopelessly pre judiced who does not get from a careful con sideration of the discussions in The Commoner the convicton that he is heing deluded right and left hy the regular daily papers; that the news in them is padded, pruned, and otherwise ren dered "safe and sane" before it ever reaches him; that conditions must be decidedly wrong when, in spite of the fact that ho is paying ever and ever higher prices for everything he eats, drinks and wears, he is calmly assured by these same papers that everything is for the best, and that to make any change whatever is to take a step downwards. Now, the thing that the average man fails utterly to see is that the supreme court of theso . United States haB come to be tho one great bul wark behind which tho guns of the interests are safely concealed until such time as the owners thereof desire to take from tho people yet an other of those rights which the people had sup posed wore forever granted to them by the con stitution. The guns are then flaunted defiantly in their face, and they are bidden to stand and deliver, while the judges, who are not nomi nally but actually the defenders of the people againBt corporate greed, stand silently by, or at best bid the robbers to be "reasonable" in their demands! As "if, forsooth, robbers were ever known to be reasonable! Perhaps theso Judges who stand by and see such things going on. are innocent, and believe that they have done The Commoner. their full duty by tho people, but It is hard in deed for those who stand at a distance and observe tho condition of affairs to believe that such is tho caso. If so, then our supremo court has failed utterly of its purpose, and should bo abolished. This we do not for a moment be lieve, and it behooves us as citizens of this commonwealth to educate ourselves to the pos sibilities of tho ballot box to eradicate these evils, and to do all in our power to expose these attempts of tho judges to betray the people. He who roads carefully the signs of the times can not help getting the impression that the courts of today havo a different attitude toward their office and toward the people than the judges of a generation ago. Justice Harlan fairly typifies the justice of that period a man to whom his office is a sacred trust, to be administered In the sole interest of those by whom ho was invested with it. If the citizens of this country realized as fully as they should the right relations be tween judges and people, there would bo a speedy readjustment of the relations which now exist, and wrong which originates in our courts would be far less prevalent. This, however, can not be as long as it is possible for the court to be packed in the interest of the trusts, with no hope of relief save the death of one of the judges, who, perhaps, will be suc ceeded by one worse than he. Mr. Bryan is doing a great work in his efforts to put before the people the facts behind these denials of justice to the citizens of this country. But ho is greatly weakened in these same at tempts by tho indifference of so many. If he is to be tho Moses to lead us out of our bondage, ho assuredly deserves and should freely receive the ungrudging assistance of as many as can find, it in their power to render him the help which must mean so much to him. He has, I believe, sounded the warning which shall finally bring victory In his Insistent demand for the recall' of judges. Only the fear of reprimand from the ones who are alone able to administer it will effectually crush out this injustice and corrup tion, and make our courts, and so our legisla tures, which to a great extent guide their con duct by considering the possible or probable action of the courts toward a piece of legisla tion, truly representative of the people. We wish Mr. Bryan every success in his work, and many of us, and an Increasing number, I trust, and believe, pledge him our support In his endeavors. With faith In the future, I am, yours very truly, CHAS. E. KENNEDY. "THE RULE OF REASON" Writing in the Indianapolis News, William A. Ketcham, one of tho great lawyers of In diana, a stalwart republican, and recently at torney general for that state, makes this in teresting comment on "The Rule of Reason:" The carefully considered elaborate opinion of the chief justice In the Standard Oil case, con curred in by seven of the associate justices to which Justice Harlan filed a vigorous, aggres sive, dissenting opinion, deserves considerably more than a passing notice, illustrating, as it does, how in the course of fifteen years, that which was recognized as the proper construc tion of the anti-trust act of 1890, has been repudiated. 1. In 1892 tho United States filed a bill m equity against the Trans-Missouri Freight as sociation et al., asking, among other things, an injunction against the carrying out of an agree ment alleged to be in violation of tho Sherman act as a conspiracy in restraint of trade. The bill was dismissed, 53 Fed. 440, from which an appeal was taken to the circuit court of appeals. 2. Over a vigorous dissenting opinion this decree was affirmed, the court holding that the act of 1890 must be construed In connection with the common law as prohibiting only contracts- that were in unreasonable restraint of trade and commerce, 58 Fed. 68. 3. From this an appeal was taken to the supreme court of the United States, whero tho judgment was reversed In 1896, tho court hold ing In definite and specific terms that the act yof 1890 prohibited all contracts in restraint of trade and denying the contention that contracts that woro reasonably in restraint of trade were pormissiblo. Eminent counsel, including Lloyd W. Bowers, John F. Dillon, James C. Carter and E. J. Phelps appeared for the appellees, thus insuring a full and complete presentation of the questions Involved. Tho opinion was pro nounced by Justice Peckham and concurred in by tho chief justice and Associates Justices Har lan, Brewer and Brown, all of whom havo slnco died except Justice Brown who has since retired .VOLUME 11, NUMBER 37, from the bench, and Justice Harlan. Justice White dissented in a vigorous opinion, in which the doctrine of "reason" and "reasonableness" wore brought prominently to the front. In this dissent Justice Shiras, who retired in 1903 Field, who retired in 1897, and Gray, who died in 1902, concurred. A vigorous petition for rehearing was filed in this case, which was however, denied. (See 171, U. S., pp. 573-4.) 4. In 1896, the United States filed a bill in equity in the southern district of New York against the Joint Traffic association to enjoin violations of the interstate commerce law, which was dismissed, 76 Fed. 895, and on appeal this decree was affirmed, 89 Fed. 1020, from which an appeal was taken to the supreme court. 5. Upon this appeal, 171 U. S. 505, the prin ciples laid down in the Trans-Missouri Freight association case were adhered to and reaffirmed, October 24, 1898, the chief justice and associate justices, Harlan, Brewer, Brown and Peckham, uniting in the opinion, while Associate Justices Gray and Shiras concurred in the dissenting opinion of Justice White who again in his dissent ing opinion reiterated his doctrine of "reason" and "reasonableness" with respect to con tracts in restraint of trade, Justice McKenna not participating. The government was represented by Solicitor-General Richards, the attorney-general, Mr. Griggs, not participating, while tho appellees were represented by such eminent counsel as Mr. Carter, Mr. Ledyard, Mr. Phelps and George F. Edmunds, so that it could not bo said that the railroads were not amply repre sented. 6. After these decisions were rendered an effort was made in congress to amend the act so as to embody in it the doctrine of "reason ableness," but upon its being pointed out that this might have the effect of rendering nuga tory the criminal parts of the statute as heing indefinite and uncertain, the effort to amend tho act failed and it stood as it had been construed by the supreme court in the Trans-Missouri and Joint Traffic association cases and has ever since so remained unamended and unmodified. 7. In Northern Securities company vs. United States, 193 U S. 197, Justice White again dis sented, the chief justice and Justice Peckham (who had united in the Trans-Missouri and tho Joint Traffic association decisions) and Justice Holmes, who had not been on the bench when those cases were decided, united In the dissent. 8. From this time forward it was the ac cepted doctrine of the supreme court, of tho lower courts of the United States and of con gress, by acquiescence and inaction when tho opportunity was afforded it for fifteen years to amend the acts of 1887 and 1890 if it conceived the construction given to them by the supremo court was an erroneous one, or not in accord with the intention and purpose of congress. 9. In the meantime the Standard Oil and tobacco trust cases found their way to the su preme court on decrees adjudging them to bo in violation of the anti-trust act and also mean while the personnel of the supreme court had radically changed. By death and retirement, seven of the nine judges who participated in the Trans-Missouri decision; six of the eight who participated in the Joint Traffic association de cision and four of the nine who took part in the Northern Securities decision had disappeared from the bench, and in their places were Justice McKenna, who went on the bench in 1898. Mr. Holmes, in 1902;. Mr. Day, in 1903; Mr. Lur ton, in 1909; Mr. Hughes, in 1910; Mr. Lamar and Mr. Van Devanter, in 1911, and Associate Justice White had been promoted and was the chief justice and so it was practically a new bench, so far as personnel was concerned, that heard the arguments and the rearguments In the Standard Oil and tobacco trust cases. The law except as amended by the law mak ing power or In rare and occasional Instances when courts aro constrained to overrule previous decisions, Is or should be tho same, no matter who might occupy the bench for the time being. If the construction of a statute formally settled by repeated decisions, solemnly made upon full consideration, fully acquiesced in by the law making power for a period of fifteen years with full knowledge of such construction, given to it by the highest court of the land or tho world is to be overturned because forsooth, a capable and gifted associate justice has become the chief justice and has found as his associates now raw material upon which' ho can with effect work, what Is to become of the rule of "stare decisis or the certainty of the law? Dissenting opinions never constitute the law; "on the contrary, quite tho reverse," but they not . inferquently emphasize and particularize what the decision really means. Mr. Justice -ir ,it