and

Legal Miscellany.

PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA. SUBSCRIPTION, ONE DOLLAR A YEAR. SINGLE COPY, TEN CENTS.

Copyrighted 1890. Entered at the Post Office at Philadelphia as second-class matter.

Vol. II.

May 15, 1890.

No. 5.

THE OPINIONS OF CHIEF JUSTICE WAITE.

While presenting a reproduction of the photograph of Chief Justice Waite, and that from which the marble bust will be copied, it will be interesting to consider some of the sentiments of the distinguished justice as they are found in the opinions of the Supreme Court of the United States.

In a case argued by the present Chief Justice as counsel, on behalf of the bank, the question of taxation of National Bank stock by the State, at the place where the bank was located and not where the owner of the stock lived, came up for decision. The contention of the State was sustained in an opinion which digressed into a discussion of equality of taxation. WAITE said: "Property is made the constitutional basis of taxation. This is not unreasonable. Governments are organized for the protection of persons and property, and the expenses of the protection may very properly be apportioned among the persons protected according to the value of their property protected." (Tappan v. Merch. Nat'l. Bk., 1873, 86 U. S. 490) This cautious mode of statement is highly com

mendable as from the same statements there are those who would infer a restriction upon the personal protection of the poor because of their poverty. This would be an enormous error, as the State must ever regard life (which is the foundation as well as the active agent of force) before property. In fact, property has no value in human affairs, without human life.

In answer to the general principle, that no man can be allowed to barter away his life, or freedom, or substantial rights, the Chief Justice distinguished the case of a corporation. The

court.

State had required a fire insurance company of another State, to sign an agreement not to remove suits to the United States Courts, as a condition of transacting business in the licensing State. The Chief Justice said: "A State has a right to exclude foreign insurance companies from the transaction of business within its jurisdiction. Such is the settled law in this * The right to impose conditions upon admission follows as a necessary consequence from the right to exclude altogether." The Chief Justice felt the weakness of this kind of argument, and endeavored to strengthen it by saying that the prohibition amounted to no more than the makof a foreign corporation, "pro tanto a citizen of that State." (Home Insurance Co. v. Morse, 1874, 87 U. S. 445) Justice DAVID DAVIS concurred with WAITE. The majority of the Court felt the embarrassment of the previous decisions which sanctioned the exclusion of foreign corporations and endeavored to retrieve their former error, by poining out that this was not a case of the rights of a citizen of another State, but of the jurisdiction of the United States Courts. This is a very specious kind of argument, for where is the sanctity of the jurisdiction of the courts. Is it not derived from that same Constitution which gives equal rights to citizens of every State, in each particular State? And for what purpose was jurisdiction in cases of suits between citizens of different States conferred upon special courts, if not to enforce these equal rights? The Chief Justice was fallacious and the Court were timid; the Court should have plainly said that corporations were citizens, with all the rights and privileges of living men. The ultimate effect in this particular class of cases would have been to simplify State taxation, and eventually would have called for control in the erection of corporations, just as in a little while the States must with greater unanimity settle upon such tests of citizenship as will be fair to their neighbors, as well as advantageous to the local political leaders.

This case became the foundation of Doyle v. The Continental Insurance Co., decided March 19, 1877, and reported in 94 U. S. 535. Justice BRADLEY wrote the dissenting opinion, with the concurrence of Justices SWAYNE and MILLER, the Chief

Justice apparently relying upon his former expression of sentiment, as well he might, because the majority of the court, except Justice BRADLEY, Soon yielded so far as to allow the State to revoke the license, though still denying the validity of the agreement not to remove a case from the State Courts to the United States Courts. The Supreme Court of the United States declared it to be an "inexact statement," that they thus indirectly sanctioned what the majority of the judges had directly forbidden. They saw no harm in the company keeping out, so long as the jurisdiction of the United States Courts was preserved.

The question was not yet finally settled, for the effect of the Fourteenth Amendment to the Constitution had not yet been declared. This was reserved for the case of The Fire Assosiation v. N. Y., decided November 15, 1886, and reported in 119 U. S. 110. Then every corporation of another state was made subservient to the whim of the State, save only such corporations as trasact inter state commerce.

In 1874 the court was called upon (Minor v. Happersett, 88 U. S. 162), to decide whether women could exercise the right to vote under the provisions of the Fourteenth Amendment to the Constitution of the United States. That amendment had been adopted in 1868, as part of the reconstruction measures and not for the aid of woman suffrage, or any other desirable change. When the Chief Justice came to write the opinion. he took the same line of judicial thought which was taken by TANEY in the Dred Scott case; that is, he showed that contemporary understanding had always excluded women from voting. It is true that the wisdom of experience had changed the tone of the opinion, for we read that "our province is to decide what the law is, not to decide what it should be." This is unexceptionable, standing alone, but unfortunately it is usually accompanied by such worship for an historic document that the very change, which the court cannot make, is depreciated in the legislative body which has the power of amendment, on the untenable ground of the unknown danger of any change. Aside from the question of woman suffrage, the opinion broadly concludes, as the expression of an unanimous Court, "that the Constitution of the United States does not

* * *

*

*

confer the right of suffrage upon anyone." This decision is destined to be reversed, or rather, is in process of reversal, for the same Court, without dissent from the Chief Justice, when speaking by Mr. Justice MILLER, declared, “ that a government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous and powerful branch of the Legislature is elected by the people directly, has no power, by appropriate laws, to secure this election from the influence of violence, of corruption, and of fraud, is a proposition so startling as to arrest attention and demand the gravest consideration. If it has not this power, it is left helpless before the two great natural and historical enemies, open violence and insidious corruption. "It is only because the Congress of the United States, through long habit and long years of forbearance, has, in deference and respect to the States, refrained from the exercise of these powers, that they are now doubted. * * * It is not correct to say that the right to vote for a member of Congress does not depend on the Constitution of the United States. * * The States in prescribing the qualifications of voters for the most numerous branch of their own Legislatures, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualification for voters for those, eo nomine." (Exparte Yarbrough, (1883), 110 U. S. 651.) The decision of Judge WAITE is then briefly distinguished by saying that the phrase " The Constitution of the United States does not confer the right of suffrage on anyone," should be read with the" alone" inserted, for the right to vote for members of Congress, is positively declared a few sentences further on, to be fundamentally based on the Constitution.

*

In 1875, the question of suffrage came up again and the. decision of the Supreme Court was such as to leave little protection for a voter, unpopular "on account of race, color or previous condition of servitude." Of the majority of the Court, WAITE took one view and CLIFFORD another; the former again declaring of the Fifteenth Amendment, as he had of the Fourteenth, that it "does not confer the right of suffrage on any one." Hence a law protecting the voter

which Congress had enacted in language so broad as "to cover wrongful acts without, as well as within the constitutional jurisdiction," could not be so construed as to "operate only on that which Congress may rightfully prohibit and punish," and the indictment of the election officers for refusing to receive and count a vote, failed. CLIFFORD took the merely technical view that the indictment did not aver a tender of the tax, for the non-payment of which the vote was refused, but merely averred an offer to pay any sum which might be due, and a refusal. (U. S. v. Reese, 92 U. S. 214.) The meaning of the Chief Justice was not quite so severe as might be inferred; as subsequently explained in Board of Supervisors v. Stanley (1881), 105 U. S. 305, there was no intention to generally deny the principle that part of a statute may be good and part void, but "it is not within the judicial province to give to the words used by Congress, a narrower meaning than they are manifestly intended to bear." This saves the legal principle though it sacrifices an act which the dissenting judge (HUNT) thought to have but one manifest meaning. The Court being divided into three sections, did not feel the influence of a strong leadership.

Pausing here for the present, the eminent conservatism of the Chief Justice must be apparent. And this accords with the common declaration of all American judges, that the court interprets, the legislature makes law. This theory receives severe shocks from time to time, when the court is projected, by a previous course of decisions, into an interpretation of law where logic departs from common understanding, Judges, generally, have too much pride of position and habit of exercising their own judgments, to yield to popular interpretation, even though years have elapsed and innumerable transactions occurred. Still they do recognize that Common Error, at times, makes the unwritten law. And of this, an instance appeared in the Dred Scott case, and, as above, in the Woman's Suffrage case. JOHN B. UHLE.

(To be continued.)