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supreme court historical society yearbook: 1980
 


Populism and the Supreme Court

Alan F. Westin


(A dramatic and well-documented record of the laissez-faire constitutionalism of the Supreme Court in the 1890s was published in the Journal of Politics in 1953, Professor Westin, who went on the publish a number of perceptive studies of the Court, and the publishers of the Journal, have graciously granted permission to reprint portions of this graphic paper in the YEARBOOK. The Editor has made a necessary abridgement of the original article due to the limited space available for this reproduction.–ED.)

I. BACKGROUND TO DISENCHANTMENT

A. The Supreme Court and the Farmer's Debt Crisis. The literature of the protest movements from 1876-1896 reveals one constantly recurring theme–the farmer's public and private burden of debt. William A. Peffer, later Populist Senator from Kansas, wrote in 1889: "As the years came and went, and as private mortgages and municipal bonds increased in number, it required more wheat, more corn, more cotton, more cattle, more swine to meet maturing obligations . . . With the fall in values of products generally, the value of the dollar in debt grew correspondingly higher. . . the market value of everything but dollars, bonds and mortgages had fallen."'[1] Although the farmer had to speculate about the factors which produced low crop prices or scarce currency, he had no such problem of divination as to the municipal bond obligations. As the leading commentator on municipal law noted in 1890, "That such securities have any general value left is largely due to the course of adjudication in respect thereto by the Supreme Court."[2]

Possessing no railroad or canal but only a cabinet full of embossed shares in a corporation mortgaged dry by its promoters,[3] towns found themselves deep in bond-debt without the expected "increase in population and wealth" to "take care of the taxes."[4] A wave of repudiations shook Iowa, Kansas, Wisconsin, Missouri, and the southern states; legislatures passed acts forbidding municipalities to levy taxes to pay railroad subscriptions;[5] state constitutions were amended to prohibit further railway aid issues; and state courts worked overtime in rejecting the claims of bondholders who tried to enforce fraudulently procured issues. Behind these actions was the farmer, upon whom the major burden of local and state taxation fell under a land-focused system of taxes. Enforcing the bonds were large-income investors–men skilled in the litigatory arts–and suits upon railway aid bonds were soon being shunted into the federal courts, with ultimate resort to the United States Supreme Court.

There, setting a "face of flint against repudiation,"[6] the Supreme Court brushed aside its long settled policy of adopting state court constructions of their own constitution and laws, and held these bonds enforceable in over three hundred and fifty cases between 1870 and 1896. Viewing the problem as one of settling a loss between an "innocent issuer" and an "innocent holder," the Court ruled that a suit by a bona fide purchaser for value automatically barred defenses of fraud, misrepresentation, bribery, corruption, or failure of conditions, and ruled that the only defense open to the municipality could be an original lack of legal authority by the municipal officers to issue the bonds.[7] Coupled with this doctrine went a policy of accepting virtually at face value the "innocence" of suing bondholders, creating elaborate presumptions of innocence which prevented municipal attorneys from establishing that these suits were collusive.

Moreover, the Supreme Court adopted a vigorous policy of placing the machinery of the federal judiciary at the disposal of bondholders for enforcement and collection purposes. Thus the Court held that it could examine the city budget and manage municipal expenses in the interests of bondholders;[8] that taxes could be levied under a writ of mandamus from the federal court despite proof of diminished resources by the city;[9] and that the court could decide in its discretion that the community must pay a full assessment in one year rather than over a budget period based on the city's ability to pay.[10] As the desperate municipalities attempted to escape payment by creating new municipal corporations in place of the corporation legally responsible on the bonds,[11] or by having the state legislature dissolve the township and create a new town slightly different in area and population,[12] the Court continued its creative role by striking down such actions as "indirect repudiations."

In response, farmers organized "Taxpayers Associations" which attempted by coercion to prevent federal courts from selling municipal property to meet judgments in favor of bondholders.[13] Congressmen from debtor communities introduced bills to forbid suits against a municipality or public corporation in the United States courts, and to prevent "the unlawful removal of causes from the state courts to the United States Courts."[14] Under an old common law rule that a writ of mandamus abates with the death, resignation, or removal from office of the officer to whom the writ was directed, municipalities adopted a policy of rotating officers successively as federal writs were issued."[15]

The federal courts retaliated by imprisoning state officers who refused to levy taxes as ordered in bondholder judgments. As these incidents mounted across the country, popular indignation reached a fever pitch, dramatized in the famous Missouri Judges case in 1893.[16] There municipal bonds had been issued under clearly fraudulent conditions to a railroad corporation which had failed to build a single foot of road and had fled with the subsidy funds. The United States Circuit Court ignored the Missouri court ruling which invalidated the issue, and held the bonds to be commercial paper, negotiable and binding on the issuers. The court then directed a writ of mandamus to the county judges of St. Clair and Cass counties commanding them to levy sufficient taxes to pay the bond judgments. When the judges refused, the federal court committed them to a "common jail in Kansas City" for an indefinite period for contempt.

The 1890's thus found hundreds of farmer communities like those in Missouri "struggling under heavy loads of bond-taxes, levied twenty-five years ago, to aid railways of which not one foot has been built."[17] That justice might be blind at times, or that bad bargains might rise to haunt their makers, the farmers could accept. But that justice could deliberately blind itself to the farmer's picture of fraud, failure of consideration, "innocent holders," and false diversity of citizenship suits was too much for even the prestige of the Supreme Court to weather.

B. The Supreme Court's Treatment of Public Land Disputes. Weaver wrote in his Call to Action that "the blackest pages in the history of legislative, administrative, and judicial procedure in this country are undoubtedly connected with the railroad land grant system."[18] From the 1870's onward, a steadily losing battle was waged by the protest forces to reclaim millions of acres of public land made available to promoters of internal improvements who then defaulted on their projects. Here, as in the bond cases, the bitterest battles were those in which the "plunderers" received judicial shelter in the Supreme Court, and typical of these contests was the Wisconsin Reversion case."[19] Congress in 1856 had granted 2,400,000 acres of federal land to the state of Wisconsin, to be allotted by the state legislature for the purpose of stimulating railroad projects in that territory. The Act contained the stipulation that if the railroad was not completed within ten years "no further sales shall be made, and the lands unsold shall revert to the United States." The granting act of the Wisconsin legislature provided that only upon the completion of every twenty miles of railway did the company acquire full title to that section of land grant. Portions were quickly parceled out–the La Crosse and Milwaukee Railroad alone receiving 1,000,000 acres–and within seventeen years railroad companies had removed over 1,600,000 feet of valuable pine timber from their properties. Yet not a single road or part of a road had been built by these grant holders within the state as of 1873, fully seven years after the original reversion date set by Congress and two years after the extension date set by a second granting act of Congress in 1864.

Under impetus from the state Grange pressure, and spurred on by findings that Congress and the state legislatures had been bribed by applicants for these grants, the state of Wisconsin refused to let the railroad promoters remove further timber from the lands, maintaining that the complete failure of the railroads to build the lines reverted the property either to the United States or to the state of Wisconsin. The railroads replied by suing the state agent for cutting logs on their property, contending that the Congressional grants to the state of Wisconsin were absolute grants and that they had obtained full title from the state. When the case reached the Supreme Court, Justice Field held that even though the required completion date had not been extended past the 1864 provision, Congress's failure to take judicial or legislative action to enforce forfeiture of these lands showed that they were not meant to revert "automatically" to either state or national government. A public grant given for internal improvements on a specific limitation and with a fixed reversion date, was in the Court's conception, not sufficient Congressional intent to render reversion "automatic."

As similar scandals involving the Southern Pacific, Central Pacific, and Texas Pacific Railroads were uncovered, the Grange furor mounted, the United States government attempted to take the positive action required by the Court. In 1878, a suit was brought against the Union Pacific Railroad to declare void certain construction contracts, land grants, and income mortgages because of the failure of the road to fulfill specifications under which the original grant had been made.[20] Based upon the findings of a Senate Investigating (Wilson) Committee in 1872, the government alleged fraud by the Credit Mobilier Company in deliberately overcharging the United States for construction costs, appropriating illegal profits to the management, fraudulently marketing railroad bonds, and a long list of complicated, off-color maneuvers. The Supreme Court denied relief, however, on the astounding grounds that the United States had no interest in this case! Even though the Union Pacific may have failed to "display the gratitude which so much care called for . . ." said the Court, the United States was not the company, nor a stockholder in the company, nor a trustee, and not proceeding under its visitorial powers as the creator of these corporations, and thus, being merely a "creditor," the United States was not entitled to any relief from these frauds.[21] The government which had provided $27,236,512 in bonds and 12,000,000 acres of coal, timber, and mineral lands had no substantial interest in the manipulations of Morton, Macy, McCormick and Pullman, and could do nothing to prevent or redress their spoliation of the public domain.

Following similar holding in the lower courts, the Supreme Court in 1892 refused to allow forfeiture of 1,781,000 acres of timber and mineral land in Oregon given by Congress to various companies to pay for construction of military wagon roads,[22] and dismissed a United States suit to reclaim lands from the Des Moines Navigation and Railroad Company, which had received five acres of land on each side of the entire Des Moines River in Iowa conditioned upon their improving the navigability of that waterway.[23]

This line of decision soon raised furious protests from the farmers, who rebelled at the reckless disposal of rich soil, timber, and mineral lands for corporate rather than individual exploitation. The tempo of reaction to the Supreme Court's rulings can be seen in one sample state, Texas. In 1878 and 1880, the Texas Independent Greenback Convention and the Greenback Labor Party condemned donations to railroads and other corporations, and demanded ". . . repeal of all laws providing for sale of [public school lands] . . . other than to actual settlers, in quantities of not more than one hundred and sixty acres to any one purchaser."[24] As it became clear that forfeiture suits in the courts would not remedy the land grants frauds, the Greenback Party moved to a more radical program, stating in 1884:

we declare that in a true republican government the ownership of these sovereign properties cannot be transferred or alienated in unequal share without destroying the equal rights and sovereignty of the people . . .[25]

C. The Supreme Court and the Struggle to Control Railroads. As important to farmer-worker interests as the public debt and public lands was the problem of controlling railroad practices. With the Dred Scott case still a burning memory, the Supreme Court in 1876 had upheld the regulatory Granger laws as a valid exercise of state police power, declaring that "For protection against abuses by legislatures, the people must resort to the polls, not to the courts."[26] Yet twenty years later, in 1896, nothing was clearer in the Nation's constitutional universe than the fact that the states could not control the railroads under their police power, and that the railroads had resorted to the courts for protection with singular success.

To visualize this success story one need only consider three areas of railway regulation as treated by the Supreme Court: (1) state control of grain elevators; (2) state power over railroad rates; and (3) federal "removal" and "receivership" bars to state regulation.

1. State Control of Grain Elevators: During the 1880's, Farmer Alliance chapters set out to construct grain elevators in order to avoid oppressively high prices charged by elevator operators through their monopoly of storage facilities. This program required the signing of leases with the railroads to strips of property adjoining the tracks so that the elevators could be built close enough to load and unload grain from railway cars. Here the farmer's group met a solid wall of opposition–consistent refusal by railroads to lease rights-of-way in property which a few years previously had been donated to the railroad as a subsidy by the local community or the nation. In many cases this refusal was based on secret agreements between the railroads and private elevator operators, under which storage charges were maneuvered in order to control grain prices for speculative purposes. By thus discriminating in leasing agreements, the railroads were able to thwart the Alliance program, at least as long as the states did not step in to equalize the conflict.

That the state lacked constitutional power to arbitrate this power struggle was the thesis of the famous Nebraska Elevator case. The Missouri Pacific Railway had refused to lease any of their property to the Elmwood (Nebraska) Farmer's Alliance on the ground that the two privately owned elevators already operating were "adequate shipping facilities." The Alliance petitioned the State Board of Transportation, which investigated and found that the elevator operators had signed a restrictive charge agreement. The Board therefore found facilities to be "inadequate," ruled that the railroads' refusal to lease to the Alliance was an illegal discrimination, and ordered the Missouri Pacific to contract with the Alliance. On May 13, 1890, the Nebraska court, on petition from the Board of Transportation, gave the Missouri Pacific forty days in which to comply with the Board mandate, after which the Court would issue a writ of mandamus and itself execute the lease agreement. The railroad coolly sued out a writ of error to the United States Supreme Court. For six years thereafter the state was prevented from taking action, and when the Court finally delivered its decision in November of 1896, it ruled that the Board's order forcing the railroad to lease to the Alliance as it leased to other groups was a violation of the Constitution, a taking by the state of the private property of one "person" without his asprohibited by the due process clause of the Fourteenth Amendment.[27] Translated into the farmer's terms, this meant that the amendment passed to protect the newly emancipated Negro made impossible the prevention of railroad discrimination in lease agreements and marked the failure of farmer-owned grain elevator programs.

2. State Power Over Railroad Rates: The farmer's regulatory legislation also attempted to control rate discriminations and preferences, and this phase of their program was ruled upon in Wabash, St. Louis, and Pacific Railway Co. in 1886.[28] An Illinois statute had made it unlawful for a railroad corporation doing business within the state to charge different rates for carrying passengers or freight of the same class for a similar distance. Upon showing that a railroad line had charged fifteen cents per hundred pounds of goods for a trip greater in distance than that for which they charged another shipper twenty-five cents per hundred pounds, the corporation was convicted in the Illinois courts and the conviction sustained by the Illinois Supreme Court as to the portion of the discriminatory overcharge which was exacted within the state of Illinois. The United States Supreme Court reversed, holding that the states have no power to regulate railroad transportation rates within their boundaries when such railways are part of an interstate system.

Having thus overthrown the Granger cases for all practical purposes, the Court went on to consolidate its doctrine, declaring unconstitutional in Chicago, Milwaukee and St. Paul Railway Co. vs. Minnesota"[29] a state statute which made conclusive the transportation charges recommended by the Minnesota Railway and Warehouse Commission. According to the Court, the final word on the reasonableness of rates rested not with expert commissions but with the judiciary, and the state could not thus cut off the corporation's resort to the federal courts for a rate review.

3. Federal 'Removal" and 'Receivership" Bars to State Regulation: Less spectacular than the elevator and rater decisions, but of critical importance to corporate interests, were the rulings of the Supreme Court broadening the avenues of escape for railroads into the receptive atmosphere of the lower federal courts.

In the Removal cases,[30] the Supreme Court held that suits against a railroad chartered by the United States were suits "under the laws of the United States" and could be removed by the corporation from the state to the federal courts. Then the court decided that any judicial question between the state and a railroad company which was a "citizen" of another state by primary incorporation was a suit between "citizens of different states" and similarly removable to the federal courts.[32] As we have seen, these doctrines had the effect of giving railroads a factual immunity from state control because of the property bias of the federal judiciary. Recognizing this, the National Farmer's Alliance Convention in 1888 at Des Moines, Iowa, resolved:

The proposed plan of making foreign corporations subject to state Courts in the States where they do business and depriving them of their power to remove these cases to the United States Courts meets approval.[33]

In 1892, People's Party support was rallied behind H.R. 493, a bill requiring that a "corporation doing business in any other state than that in which it is incorporated shall not bring a suit against a citizen of that state in the Federal courts." According to the American Law Review, this measure was a popular reaction to "a great fraud upon the jurisdiction of the state courts which has resulted from the Federal seizure of jurisdiction upon the casuistic pretense that a corporation is a citizen."[34]

Under the second of these procedural moves, the "Receivership" doctrine,[35] the Supreme Court broadened even further the corporation's immunity from state control. A railway corporation could on its own motion petition for appointment of a receivership under the equity powers of the federal court. If the Court granted the railroad's petition, it would designate a receiver, usually a director of the railroad, and the administration of the road would thereafter be outside the regulatory control of the state,"[36] exclusively under the direction of the federal court. In state after state these receiverships were extended, until the issue exploded into national prominence with the Memorial of the General Assembly of South Carolina to the Congress of the United States in the Matter of Receivers of Railroad Corporations and the Equity Jurisdiction of the Courts of the United States.[37]

In South Carolina, then under the agrarian-focused administration of Governor Tillman, sheriffs who attempted to levy on receiver-held railroad property to satisfy overdue state taxes had been imprisoned by the federal courts under heavy bail. Governor Tillman met this action with a special message to the state legislature, in which he noted that one-half of all the railroads in South Carolina were held in federal receivership and were thus being nursed outside the taxing and police powers of the state; and that of the 165,000 miles of railroad in the United States, fully 33,000 were similarly insulated under court management, thereby placing in federal immunity $1,300,000,000 worth of railroad property."[38]

Following the Governor's speech, the South Carolina General Assembly drew up its now famous Memorial, a long document protesting the fact that ". . . the laws of a state are set at naught by the creature of a creature of an Act of Congress–a railroad receiver of a federal court . . ."[39] The legislature further protested police immunity achieved under the federal judiciary's paternal shelter; and warned that the people could not long endure the galling sovereignty thus given to railroad corporations.

II. ON THE EVE OF CRISIS

Early in June, 1880, Senator David Davis of Indiana, formerly an Associate Justice of the United States Supreme Court, had a private conference with General Weaver, in which Davis warned him that a transformation was taking place on the Supreme Court bench, a "corrupting influence . . . of corporate power."[40] Davis confided that "corporations were maturing their plans to gain complete control of the Supreme Court," to overthrow the Legal Tender Decision, the Thurman Act concerning the Pacific Railroads and the Grange decisions of 1876.

Increasingly, the Populist elements came to realize that the courts were being lost, that they were becoming active partisans and blocking social reform. Farmer attempts at political action in the Granges, the Greenback-Labor Party, and the Farmer's alliances were being stalled by the complicated procedure and maddening delays in federal courts. Even more fundamentally, the protest groups were faced with a supreme Court concept of property rights which ran directly counter to their reform programs, as well as a general conservative bias in the federal judiciary which was beyond their ability to affect by popular processes.

As the Populists came to understand their grievances, the judicial process became increasingly an issue of the Party.

William Peffer lamented that "Money controls our legislatures, it colors our judicial decisions . . ."[41] and Governor Pennoyer of Oregon put among his "governmental abuses and derelictions for which the two old parties are responsible" the "unsurped interference by the federal judiciary with the States, with their laws and tribunals."[42] Farmer's Alliance newspapers in Nebraska branded the Supreme Court our "American Bastille" and complained that corporations were packing the bench.[43]The famous St. Louis platform of the People's Party began its ledger of indictments with the charge that: "Corruption dominates the ballot box, the legislatures, the Congress, and touches even the ermine of the bench."[44]

Beyond this general criticism came an attempt to meet directly the challenge of the reconstructed federal judiciary. The State Populist Party in Iowa called for an elective United States Supreme Court, holding office for a definite term, with subordinate federal courts subject to the same control through the vote. The Illinois and Kansas Alliances passed similar resolutions, and in Kansas the alliance candidate elected to the twenty-eighth judicial district of the state under a non-partisan election system refused to foreclose mortgages and declined to punish officers of his court for disobeying mandates of the United States Supreme Court. John P. Steele stated that the Farmer's Mutual Benefit Association stood for periodic election of federal judges with no more than a nine-year term, since "If this is not the people's government, whose government is it? If it is the people's government, who should choose their officers?"[45]

The stage was thus set for the judicial eruptions of 1895 and the Presidential campaign of 1896. The Supreme Court had laid the foundation for its grand role, and every actor was in his place.

III. THE THREE-PRONGED ATTACK OF 1895

"The Constitution intended . . . to prevent an attack upon accumulated property by mere force of numbers."[46] The demand for a tax upon incomes received its initial formulation and impetus from third party movements during the 1880's and 1890's. It had been a Democratic-Populist coalition in Congress which had added to the 1894 Tariff Act a provision taxing at two percent all incomes over $4,000; and the conservative press plainly considered the income tax a "pet measure of a half-Populist administration."[47]

Although Senator David Hill of New York had challenged the constitutionality of the tax rider in the floor debates, this attack was regarded merely as a political tactic, since from 1796 constitutional theory, governmental practice, and the vital nature of Congress's revenue needs had supported the tax in unequivocal Supreme Court opinions.

The entire nation was startled, therefore, when the Supreme Court held that the tax was invalid as to income from real estate and municipal bonds [sic][48] and, on rehearing, decided that the entire income tax law was unconstitutional.[49] Choate's impassioned argument to the bench against the "communistic, socialistic, populistic" tax, and the widely known fact that the pivotal judge had shifted at the last moment from support of the law to a vote invalidating it made the case a topic of heated discussion in every bank, barbershop, and barroom in the Nation. The dissenting justices were judicially violent in their opinions. Harlan termed the ruling a "judicial revolution" and a "disaster" subjugating the people to "the dominion of aggregated wealth,"[50] and Justice Brown warned that the decision might be "the first step toward the submergence of the liberties of the people in a sordid despotism of wealth:"[51]

In all quarters the ruling was received as a class-oriented decision. Editorialized the New York Herald Tribune, "Thanks to the Court, our government is not to be dragged into communistic warfare against rights of property and the rewards of industry . . ."[52] The Tribune collected opinions from twenty leading newspapers (both Democratic and Republican) and a dozen bankers that the decision was the "beginning of the downfall of Populism," and a major blow to the People's Party. According to Senator David Hill, Cleveland's "deal" with the Populists had been defeated, no income tax would ever be passed by the national government, and "the battle has been fought and won."[53]

From the Populist camp came a joinder of battle. Senator Butler filed S.R. 351, a joint resolution for an amendment to the Constitution to authorize collection of an income tax. M. W. Howard in his book The American Plutocracy (1895) attacked the concept that "it is unconstitutional for these men who have grown wealthy off the toil and life: blood of others, to pay a miserable, beggarly two per cent on their incomes above four thousand dollars."[54]

The most fundamental attack came from Governor Altgeld, who declared that "The Supreme Court has come to the rescue of the Standard Oil kings, the Wall Street people, as well as the rich mugwumps." Altgeld saw the decision as "radically defective in a number of particulars"; however, it should have contained a "panegyric on the majesty of the law and the exact character of eternal justice" as well as a "Stinging rebuke to the growing discontent of the times." Still, Altgeld saw the decision as suggesting "a most important question to the American people." The judges of the Supreme Court wear black gowns, he noted,

... to impress the people with their infallibility. Now as these gowns are not very thick, and as some people might be able to see through them and be unpatriotic enough to question the justice of having to bear the burdens of government while the rich escape, and as there is a danger that some of these men may doubt the infallibility of the Court, would it not be well to have each judge wear two gowns for a while, until the storm blows over?"[55]

The storm, however, was just beginning.

The coup de grace was struck by the Supreme Court on January 21, 1895, in United States vs. E. C. Knight Company, popularly called the "Sugar Trust cases"[56] The American Sugar Refining Company through contract agreements had brought out four competing Pennsylvania sugar producers, thereby gaining complete control over 98 per cent of the sugar output in the United States. The government indicted E. C. Knight Company, one of the Pennsylvania concerns, for violating the Sherman Act section which forbade "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states." Despite the fact that the district court had found the purpose of such contract to be the attempt "to obtain a greater influence or more perfect control over the business of refining and selling sugar in this country," the Supreme Court held the Sugar Trust to be innocent of any violation of the Sherman Law. According to the Court, the conduct of the sugar companies was not the conduct "intended" by Congress to be regulated; this was "manufacture" only "indirectly" affecting commerce–a matter for state regulation and beyond the authority of the national government to deal with under its interstate commerce power. Furthermore, even if this were commerce, the corner on 98 per cent of the national sugar production would not "necessarily" be a monopoly in restraint of trade, since the justices saw no theoretical reason why other companies could not enter the sugar business in the future if they so desired.

Justice Harlan's dissent pointed out that no amount of verbiage could disguise the fact that this was an arrangement which controlled the price of all the refined sugar in the United States, and that this was a "combination" by the Act. Harlan pointed out the dangers of this ruling when he asked,

Suppose another combination organized for private gain and to control prices, should obtain possession of all the large flour mills in the United States; another of all the grain elevators; another of all the oil territory; another of all the salt-producing regions; another, of all the cotton mills; and another of the great establishments for slaughtering animals and the preparation of meals.[57]

These combinations were clearly a matter for national control, concluded Harlan, and he wrote:

I cannot assent to that view . . . that the general government is . . . placed by the Constitution in such a condition of helplessness that it must fold its arms and remain inactive while capital combines under the name of a corporation, to destroy competition. . . .[58]

As William Howard Taft wrote twenty years later in his book, The Anti-Trust Act and the Supreme Court, "The effect of the decision in the Knight case upon the popular mind, and indeed upon Congress as well, was to discourage hope that the statute could be used to accomplish its manifest purpose and curb the great industrial trusts."[59]

"[To] tribunals. . . is committed the determination of questions of right and wrong between individuals, masses and states."[60] Defeated at the bar of the Supreme Court in the trust and income tax cases, United States Attorney-General Olney turned the government's attention from defending laws he "believed to be no good"[61] to preparation for the prosecution of Eugene Debs, in which, Olney said, his interest was much greater.[62]

Olney had obtained a conviction of Debs and other officers of the American Railway Union in the United States Circuit Court for Illinois, for violating an ex parte injunction which forbade the Pullman strikers from "hindering, obstructing or stopping any of the business" of the railroads operating in the Chicago yards. On a note of superb irony, the Supreme Court upheld this conviction on May 27, 1895[63]–the first successful criminal prosecution based upon the Sherman Act. The Supreme Court thus struck down not the oil trust, or the sugar or beef or steel trusts, but the union trust, the "conspiracy and combination" by the railroad workers "to secure unto themselves the entire control of the interstate industrial and commercial business of Chicago and the other communities along the lines of road of said railways"; the attempt by Eugene Debs to prevent "any independent control or management" of the Pullman empire. In a veritable parody of its decision in the Knight Case, the suddenly virile Court found new lodes of constitutional power for the United States, boasting that "The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails,"[64] and ruled that the action of the American Railway Union was "clearly" an obstruction. In its closing paragraphs, the Supreme Court lectured the American worker:

We yield to none in our admiration of any act of heroism or self-sacrifice, but it is a lesson which cannot be learned too soon or too thoroughly that under this government of and by the people, the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the cooperation of a mob.[65]

At least five governors charged, in their official messages, that the federal courts have flagrantly usurped jurisdiction, first, to protect corporations and perpetuate their many abuses, and second, to oppress and destroy the powers of organized labor."[66] From Chicago came a fierce blast from Altgeld, in which he stated that the Debs case "marks a turning point in our history, for it established a new form of government never before heard of among men, that is, government by injunction."[67]

In Congress, People's Party members moved to take these issues to the electorate. Representative Boatner of Louisiana introduced a bill "to limit the power of judges of the courts of United States to punish for contempts of court." Senator Peffer filed S.237 "to protect the rights of parties defendant in certain injunction cases." Senator Call in S. 1729 moved "to prevent the oppressive exercise of judicial power in the Courts of the United States," and after a spirited debate between Senator Allen and Senator Hill, a Senate Resolution was passed ordering an investigation of the Supreme Court's contempt ruling in the Debs case.

The Supreme Court had thus completed its work for 1895. In three swift decisions, it had convinced the Populists that it stood as a stubborn barrier to social change. As one conservative spokesman expressed it, glowingly, "In times of political upheaval, of sectional animosity, of communistic uprising, the nine quiet men who spend their lives away from the political field, free from the necessity of demagogery, constitute . . . the very sheet anchor of the institutions of our land."[68] How long this anchor could be permitted to drag along the bottom became a vital public issue as the election year of 1896 arrived.

IV. THE SUPREME COURT AS A CAMPAIGN ISSUE IN 1896

When the Democratic Convention convened in Chicago in July 7, 1896, the vast hall was drenched with heat, but every convention rumor predicted that things would get even hotter once the proceedings got under way. This was to be rough-and-tumble fight between the silver and radical Democrats on the one hand and the old line Cleveland men on the other. Everyone was ready for a barrage of oratory on the "money question," "bunco dollars," and the "pernicious machinations of Wall Street and Lombard Street." But few observers were ready for the attack on the sheet-anchor, the august tribunes, the injection of a shout, "No government by judges" to accompany the cry of "No cross of gold."

The Convention's opening address was delivered by Temporary Chairman John W. Daniel, Senator from Virginia, on the morning of July 7. Daniel wasted no time in raising the Court Issue.

So far as revenue to support the Government is concerned, the Democratic Party, with but a slender majority in the Senate, was not long in providing it, and had not the Supreme Court of the United States reversed its settled doctrines of a hundred years, the income tax incorporated in their tariff bill would long since have supplied the deficit.[69]

This was the warming-up process. At the morning session on the eighth, Governor J. S. Hogg of Texas let loose a full-scale blast, branding the Supreme Court an instrument of Republican corporate power and a threat to the working man. Said Hogg:

The protected class of Republicans proposes now to destroy labor organizations ... proposes through Federal courts, in the exercise of their unconstitutional powers by issuance of extraordinary, unconventional writs, to strike down, to suppress, and to overawe those organizations.[70]

Already an undercurrent of astonishment was felt in the hall at the introduction of the federal judiciary and the Supreme Court into the convention oratory. When the first draft of the platform was read by Senator James K. Jones (Arkansas) for the Committee on Resolutions and Platform, the battle began in earnest, for under its section of the income tax appeared the following:

But for this decision of the Supreme Court, there would be no deficit in revenue under the law passed by a Democratic Congress in strict pursuance of the uniform decisions of that Court for nearly one hundred years, that Court having in that decision sustained constitutional objections to its enactment which had previously been overruled by the ablest judges who have ever sat on that bench.[71]

Furthermore, asserted the plan:

We declare that it is the duty of Congress to use all the constitutional power which remains after that decision, or which may come from its reversal by the Court as it may hereafter be constituted, so that the burdens of taxation may be equally and impartially laid, to the end that wealth may bear its due proportion of the expense of the government.

In a later section, the platform added:

We especially object to government by injunction as a new and highly dangerous form of oppression by which Federal judges, in contempt of the laws of the states and rights of citizens, become at once legislators, judges and executioners. . . .[72]

The conservative press was horrified by the platform, by the suggestion that constitutional verities might change with shifts in the Court's personnel. The Tribune considered the Democratic Platform as an "anarchistic attack on the federal judiciary"[73] and Harper's Weekly wrote that "It is because their programme is one of spoliation that Mr. Bryan and his mentor Governor Altgeld want free riots and a Supreme Court that will obey the passions of the multitude."[74] Everyone recognized the mark of the Populists on the phrasing of the issues, and could recall the authorship by Trumbull, Lloyd, and Altgeld of the "government by injunction" charge. The Richmond (Virginia) Times (Democrat) stated it would not support these men "who avow a purpose to overturn the courts–the palladium of an orderly government," and the Leavenworth (Kansas) Times (Republican) concluded that "There is more in the Chicago platform than the clamor for unlimited silver coinage. There is the old spirit of secession and rebellion against the Constitution."

When the silver-tongued orator rose the next day to make his famous speech to the assembled delegates, he concentrated heavily on this issue of the Supreme Court and the income tax. Bryan declared to the convention:

They say we passed an unconstitutional law. I deny it. The income tax was not unconstitutional when it was passed. It was not unconstitutional when it went before the Supreme Court for the first time. It did not become unconstitutional until one judge changed his mind, and we cannot be expected to know when a judge will change his mind. (Applause, and cries, "Hit 'em again")[75]

As to the press attack on the anti-Court planks, Bryan made it clear that the Court was not above criticism, and that the doctrines of the Court would be an integral part of the Democratic campaign.

Following this Democratic onslaught, the People's Party Convention in St. Louis, on July 24, was almost an anticlimax. The two sections of the Populist platform dealing with the Supreme Court were almost identical with the statements of the Democrats. These read:

Seventh: We demand a graduated income tax, to the end that aggregated wealth shall bear its just proportion of taxation, and we regard the recent decision of the Supreme Court relative to the in-come tax as a misinterpretation of the Constitution and an invasion of the rightful powers of Congress over the subject of taxation.[76]

Under their "Miscellaneous" section, the People's Party declared:

The arbitrary course of the courts in assuming to imprison citizens for indirect contempt and ruling by injunction should be prevented by proper legislation.

When Bryan delivered his speech of acceptance for the Democratic nomination in New York City on August 12, 1896, he dealt again with the Court issue, since it had been seized upon by Mark Hanna as "warfare against the courts," a blow at the "integrity and independence of the judiciary," and a "Covert Threat to Pack the Supreme Court of the United States." Bryan answered in defense of the Democrats' platform:

Our critics even go so far as to apply the name Anarchists to those who stand upon that plank of the platform. . . . Not only shall I refuse to apologize for the advocacy of an income tax law by the National Convention, but I shall also refuse to apologize for the exercise by it of the right to dissent from a decision of the Supreme Court.[77]

Two weeks later, former President Benjamin Harrison delivered a major Republican campaign address before a mass meeting in Carnegie Hall. Harrison declared:

In my opinion there is no issue presented by the Chicago convention more important or vital than the question they have raised of prostituting the power and duty of the national courts and national Executive. Tariff and coinage will be of little moment if our constitutional government is overthrown.[78]

Harrison went on for the remainder of his speech to lash the Chicago "frenzy" under which "government by the mob was given preference over government by the law enforced by the court decrees. . .

Warned Harrison:

I cannot exaggerate the gravity and the importance and the danger of this assault upon our constitutional form of government; [upon] the high-minded, independent judiciary that will hold to the line on questions between wealth and labor, between the rich and poor. . . .[79]

The Philadelphia Press (Republican) applauded vigorously, stating it was useless for Bryan to deny he is an anarchist when the platform he proudly endorses proposes "to pollute the stream of Federal law at its source by making partisan changes in the Supreme Court." The New York Evening Post (Independent) said Harrison "showed that the intention of the Chicago convention was to make judicial decisions on purely legal and Constitutional questions matters of party determination, and that the inevitable end and finish of such a course must be overturning of liberty."

The Supreme Court had by this time become a major concern at the Democratic Convention in Chicago, had been mentioned prominently as a cause of defection by the rump Democrats, and was developing into a constant stump-issue as the campaign of 1896 wore on. A keen observer suggested in a letter to the Tribune that the attack on the Supreme Court probably stemmed from a fear on the part of free silver-men as well as Populists that the Supreme Court would declare a silver law to be unconstitutional."[80] The August issue of Bankers' Magazine reassured their subscribers that the silver cause could not be won at the polls "as long as special gold contracts are upheld by the Supreme Court of the United States," and the editors stated that the Court "as now constituted" would certainly declare a Congressional silver act unconstitutional.[81]

As the campaign heat grew in intensity, the Supreme Court plank of the Democrats and Populists received increasing attention. Harper's Weekly on September 12 published a front page cartoon of "A forecast of the Consequence of a Popocratic Victory to the Supreme Court of the United States." (See cartoon in Yearbook 1976.) Amid the smoking skull and daggers of Anarchy, a big "50 cent Bunco Dollar," a torn, falling Constitution, and the scowling busts of Guiteau, Spies, Fisher, and Lingg sat the fierce justices: a diabolic Altgeld, Tilman with his pitchfork in hand, "King Debs," General Coxey, "Bloody Bridle Waite," and a first-clenching Pennoyer. "Gold Clause Stewart" was pictured with his feet upon the bar, and in the extreme right-hand corner of the cartoon, draped over the court desk, was a long black beard representing General Weaver.

On September 21, Attorney-General Harman issued a statement to the press criticizing Bryan's support of the Chicago platform in its denunciation of the Debs case. The issue of ''government by injunction'' was taken up in hundreds of newspapers, articles, speeches, and pamphlets, and the editors of the Literary Digest, in collecting samples of these opinions declared that "No plank of the Chicago platform seems to have aroused more radical differences of opinion . . ."[82] than the injunction plank. When Chauncey Depew delivered a major address before an immense "sound-money" audience in the Chicago Coliseum on October 9, he said the monetary issue was fundamentally linked with the Supreme Court question. Depew thundered against the "wild career of constitutional and economic changes" being advocated and stated that

There are two places in this country where all men are absolutely equal: One is the ballot-box and the other is the Supreme Court. Bryan proposes to abolish the Supreme Court and make it the creature of the party caucus whenever a new Congress comes in, because it decided the income tax to be unconstitutional.[83]

Replies from the anti-Court spokesmen were not lacking. Horace L. Traubel wrote in the Conservator (Philadelphia) that "Even supreme courts may be summoned to the tests of the higher courts of conscience. The court of final resort is not this court of august judges but that court of the personal soul which passes upon the court at Washington. If the Washington court stands between man and his liberties, between any man and the justice that belongs to him . . . it is all folly to pretend that it is the buttress of law and order."[84]

Governor Altgeld devoted his Cooper Union speech in New York City on October 17 to defending the Court plank, stating that "The Supreme Court cannot by mere decision upon a constitutional question rob the people of the powers of self-government . . ."[85] and he was quickly answered by the fiery new Republican orator Theodore Roosevelt who roundly condemned these denunciations of the Court by Altgeld to a delighted audience in Chicago.[86] In Pennsylvania, the state People's Party resolved:

We disapprove of the way in which our courts have in recent years too frequently taken sides in favor of capital and corporations against the laboring and producing classes. All citizens and all legal interests should be absolutely equal before the law. We depend upon an upright judiciary to be absolutely impartial in the dispensing of justice, regardless of the wealth or poverty of those applying for justice.[87]

Perhaps the most spectacular single campaign event was a letter suddenly issued by Archbishop Ireland of St. Paul Minnesota. Circulated profusely by the Republicans, and setting off violent reactions in the press, the letter attacked Bryan and his program, stating that "The monetary question is, indeed, a secondary issue in this campaign; the primary issue being the spirit of socialism that permeates the whole movement."[82] Specifically, the Catholic prelate highlighted the Court stand of the Democrats, warning that

The personification of law and of social order in America is our courts, and the promise of safety to our free institutions is the prompt obedience of the people to those courts . . . And now, the courts are to be shorn of their power... [by a program] bourne in hands of reckless men, [who] may light up in the country the lurid fires of a "commune"!

November finally arrived, the polls were opened, the votes counted and the results of the election made public. The press comment on the day after the election reveals even further how important a part of the campaign the Court had been. The Rochester (New York) Post-Express declared that "The continental verdict means that the Supreme Court is to continue to be one of the very bulwarks of our institutions, safeguarded against any and all attempts to soil its ermine."[83] The Indianapolis (Indiana) News termed the election "a determination on the part of the people everywhere to maintain the dignity and supremacy of the courts.[84] The Seattle (Washington) Post-Intelligencer (R) applauded the defeat of the movement to debase our currency and "the really more dangerous threat to the perpetuity of our national institutions involved in the proposals to subvert the courts and to withdraw from the national government the power to enforce its own laws."[85] The New York Press exulted, "Never again in our time or in our children's time will the right of the Federal Judiciary to interpret or of the Federal Executive to enforce Federal laws be questioned,"[86] and a similar breath of relief appeared in the New York Herald. (I)[87]

The campaign of 1896 was thus the second in the great "anti-Supreme Court" campaigns of American party politics, matched only the furor in 1860 over the Dred Scott decision and to be equalled again only by the struggle for "recall" in 1912. By 1896, the discontent with the Court which had been reserved to the Populist forces had been transferred to the "Popocratic" coalition, and the conservative elements of the

Democratic Party had been forced to bolt the Democracy. The Supreme Court had fallen from its position as a venerated, inviolate tribunal and had emerged as a personal villain in the minds of millions of citizens.

V. THE FRUITS OF SUPREME COURT POLICY

The fact that the Supreme Court became a major issue of the People's Party and, through its agitation, of the Democratic Party, is itself highly significant. The intensity with which a large segment of the population resists Supreme Court opinions is a useful standard for testing the conceptions of judicial review and constitutional limitation being used by the Court. Beyond this index of workability, however, the record of the Supreme Court in the Populist era provides many insights into the impact of a Supreme Court on our political and economic processes.

First, the development by the Supreme Court of constitutional interpretations denying state power to control corporations, through legislation, helped to turn the focus of progressive forces from local or state-based organizations to the national arena and the People's Party. As Granger and Farmer's Alliance groups saw their hard-won regulatory statutes invalidated by an agency far off in Washington, and as these groups were told by the Supreme Court that their problems were matters for national legislation, it was a natural reaction for the progressive elements to move toward nationally focused efforts. At the same time, much of the breakdown of "non-partisan" farmer and labor organizations can be traced from the same development, since the influence which a nonpolitical organization could exert at the state level was difficult to apply nationally.

Second, the legally defensible but insensitive decisions of the Supreme Court in the municipal bond cases revived in the most direct way the anti-legal tradition which had been a farmer-debtor heritage since Shay's Rebellion, the Whiskey Rebellion, and the Jacksonian period. As in the earlier cases, this disenchantment with "law" and courts and lawyers forced the farmer to seek redress through political activity. In this way, by breaking into farmer patterns of group action and imposing upon farmer communities debt burdens which could not be endured, the Supreme Court assisted the impulsion of the farmer into politics, and, ultimately, radical politics.

Third, the Supreme Court stimulated the strength of the Populist movement by convincing large segments of the nation that the entire government was in the hands of the "plutocrats," that they had no voice in their government, and that only a fundamental change in the relations of property to people could remedy the situation. Traditionally, faith in the ballot and the legislative process have been a deterrent to radical activity in the United States. Thus, when progressive forces were told by the Supreme Court that they could not enact an income tax law, that their Sherman Act did not apply to the sugar trust, that guardianship of property rights permitted federal courts and the Supreme Court to intervene in labor disputes in favor of corporations, and as these forces foresaw that their basic currency reform of free silver was likely to meet a similar fate, the foundations were laid for a violent break with traditional social protest. In 1895, the most respectable agency of American government, an agency beyond the reach of ordinary political processes, was dedicated to private property, "due process" of law, and Herbert Spencer's Social Statics. In this position as Seneschal of the Status Quo, the Supreme Court strengthened the radical character of the People's Party, weakened the influence of its moderate leadership, and aided it immeasurably in capturing the Democratic Party.

Fourth, by severely limiting the possibility of social and economic reform at the popularly accessible legislative level, the Supreme Court gave capitalist forces in the United States a vital period of protected incubation. This cutting off of popular control of corporations and monopoly at the state level in 1880's and at the national level in the 1890's, sheltered corporate development in its most vulnerable moments – the years of expansion and consolidation. Through this protection, the Supreme Court affected the distribution of wealth in the Nation, the class stratification of the population, and the developing relationships between individuals and government in a rapidly centralizing social system. It would be an error to assign too great a causative function to the Supreme Court alone, but the Court's contribution as a master sculptor of American society is too often minimized. Since the Populist movement was an attempt to resist the development of a monopoly-capitalist society in which the farmer and the worker could neither compete successfully nor retain their former status, the Supreme Court by sheltering corporations was in fact as much of a midwife to the Populist revolt as the sugar trust, the railroads, or the debt crisis.

Endnotes

  1. Peffer, "The Farmer's Defensive Movement," The Forum, VII, (December, 1889), 464, 465; cf, John D. Hicks, The Populist Revolt (Minneapolis: The University of Minnesota Press, 1931), p. 35.

  2. John Forrest Dillon, Commentaries on the Law of Municipal Corporations (4th ed.; Boston: Little, Brown, and Company, 1890), p. 580. Judge Dillon was formerly Chief Justice of the Iowa Supreme Court and a judge of the United States Eighth Judicial Circuit.

  3. Professor Hicks points out that railway promoters would make their profits from the cash subsidy paid by the municipality or state, unload the bonds on eastern investors, and then capitalize the paper railroad for two or three times its value, making collapse almost inevitable. Hicks, op cit. p. 29.

  4. A famous Kansas editorial in the Belle Plaine News had declared: "Too much cannot be spent this year if properly applied. Let the bugaboo of high taxes be nursed by old women. Do all you can for Belle Plaine regardless of money, and let the increase of population and wealth take care of the taxes." Hicks, op. cit. p. 28.

  5. See Seibert v. Lewis, 122 U.S. 284 (Mo. 1887), subsequent repeal of the taxing statute; Ralls County Court v. United States, 105 U.S. 733 (Mo. 1881), statute passed--after a bond issue--took away the power to levy taxes to meet the bond obligation. Both cases held the state action invalid.

  6. Dillon, op. cit., p. 580.

  7. Humboldt Township v. Long, 92 U.S. 642 (1875). The Supreme Court held in this leading case that construction of a railroad through the township was not a condition upon which payment was rested, despite the fact that the bond read:

    8. "This bond is issued for the purpose of subscribing to the capital stock of the Fort Scott and Allen County Railroad, and for the construction of same through the said township . . . and for the payment of said sum of money and accruing interest thereon, in manner aforesaid, upon the performance of the said condition [sic] the faith of the aforesaid Humboldt township, as also its property, revenue and resources is pledged."

    See Dillon, "The Law of Municipal Bonds," 2 Southern Law Review (N.S.) 437 et seq. (1876); cases n. 9 supra.

  8. Mayor of City of New Orleans v. United States ex. Rel. Stewart, 1 C.C.A. 148, 49 F. 40 (La. 1891).

  9. City of Galena v. Amy, 5 Wall. 705 (Ill. 1866); The Court considered "vicious" the argument that refusal to pay "an honest debt" is justifiable because of the debtor's distress or diminished resources. Rees v. City of Watertown, 19 Wall. (Wisc. 1873).

  10. East St. Louis v. Amy, 120 U.S. 600 (Ill. 1887); Commissioners v. Loague, 129 U.S. 493 (Tenn. 1889); United States ex. Rel. Baer v. City of Key West, 78 F. 83 (Fla. 1896).

  11. Barkley v. Levee Commissioners, 93 U.S. 258 (1876); Broughton v. Pensacola, 83 U.S. 266 (1876).

  12. Mobile v. Watson, 116 U.S. 289 (Ala. 1889).

  13. Findlay v. McAllister, 113 U.S. 104 (1885).

  14. H. R. 5215, 7 Cong. Rec. 4835, 45th Cong. 2nd Sess. (1878).

  15. See United States v. Boutwell, 17 Wall. 604 (1873); Rees v. Watertown, 19 Wall. 107 (1873).

  16. "Message of Governor Stone to Missouri Legislature," (1893).

  17. Tracy, "Rise and Doom of the Populist Party," The Forum, XVI 242; w. Scott Morgan, History of the Wheel and Alliance (Fort Scott Kans.; T. H. Rice and Sons, 1889), p. 576.

  18. Weaver, op. cit., p. 151.

  19. Schulenberg v. Harriman, 21 Wall. 44 (1874).

  20. United States v. Union Pac. R.R. Co., 98 U.S. 569 (1878).

  21. Ibid., p. 620.

  22. United States v. California and Oregon Land Co., 148 U.S. 31 (1892); United States v. Dallas Military Rd. Co., 148 U.S. 49 (1892).

  23. United States v. Des Moines Navig. & Ry. Co., 142 U.S. 510 (1892).

  24. Ernest William Winkler, Platforms of Political Parties in Texas (Austin, Texas: The University of Texas, 1916), pp. 181, 188, 200.

  25. Ibid., p. 225.

  26. Munn v. Illinois, 94 U.S. 113, 134 (1876).

  27. Missouri Pac. Ry. Co. v. Nebraska, 164 U.S. 403 (1896).

  28. 118 U.S. 557 (1886).

  29. 134 U.S. 418 (1890).

  30. Thomas Edward Watson, Political and Economic Handbook (5th ed.; Atlanta: Telegram Publishing Co., 1916), p. 292.

  31. Ibid., pp. 300-01.

  32. Texas and Pac. Ry. Co. v. Kirk; 115 U.S. 1 (1885).

  33. Polk, "The National Farmer's Alliance," in Allen, op. cit. p. 398.

  34. "Congress and the 'Tramp Corporation'." 26 American Law Review 412 (1892).

  35. Wabash R.R. v. Central Trust Co., 22 F. 272, 29 F. 623 (1884); Quincy, Missouri, and Pacific R.R. v. Humphreys, 145 U.S. 82 (1892). See Thompson, "The Court Management of Railroads," 27 American Law Review 31 (1893), attacking the Supreme Court position.

  36. 24 American Law Review 663 (1890).

  37. 28 American Law Review 161 (1894).

  38. 28 American Law Review at 171-72.

  39. Ibid., at 193.

  40. Weaver, op. cit., pp. 83-85.

  41. Peffer, op. cit., p. 54.

  42. "The New Political Party," 153 North American Review 220 (1891) at 222.

  43. Barnhart, op. cit., p. 139, citing "Farmer's Alliance" for February 7, 1891.

  44. Hicks, op cit., Appendix E, p. 436.

  45. Allen, op. cit., p. 423.

  46. Pollack v. Farmer's Loan Co., 157 U.S. 429, 582-83 (1895).

  47. New York Herald Tribune, Editorial, Jay 21, 1895, p. 6, col. 2.

  48. Pollock v. Farmer's Loan Co., 157 U.S. 429 (1895).

  49. Ibid., 158 U.S. 601 (1895).

  50. Ibid., at p. 685.

  51. Ibid., at pp. 686, 695.

  52. May 21, 1895, p. 6, col. 2.

  53. New York Herald Tribune, May 21, 1895, p. 3, cols. 1, 2, and 3.

  54. M. W. Howard, The American Plutocracy (1895), p. 153.

  55. Live Questions, 1899, ed. Pp. 464-65; quoted in Harry Bernard, Eagle Forgotten: The Life of John Peter Altgeld (New York: 1938), p. 336).

  56. United States v. E. C. Knight, Co., 156 U.S. 1, 16 (1895).

  57. 156 U.S. at 45.

  58. 156 U.S. at 43.

  59. William Howard Taft, Taft, The Anti-Trust Law and the Supreme Court, (New York: 1914), p. 60.

  60. In re Debs, 158 U.S. 564, 598 (1895).

  61. Olney to Straw, January 22, 1895, Olney Papers in Library of Congress, Cummings a