The Montgomery advertiser., 1906-04-11

it's right to deny the courts the right |. to issue writs of injunction. but It has | asserted its right to deny to them the privilege of Issuing the great writ or liberty, the writ of habeas corpus. ne | said. and quoted an act of f794 in sup- port of the assertion, calling attention | to the fact that some of the author | of the constitution had as members or l Congress participated in that legisia- | tion. He referred to the McCarsie case of 1867, which he said, had been taken from the Supreme Court, on the evening of the decision by an act or Congress depriving that court Of Juris- diction in such cases.
 "The Senator from Wisconsin speaks of anarchy" he exclaimed. If he wants an example of anarchy he will find it in the McCargle case"
 The Duty of the Courts. Mir. Bailey then undertook to show that Congress has exercised the power to abridge the right of the courts to punish for contempt or to issue writs of mandamus. asserting that the courts have no inherent power and that it
 is the duty of the federal courts not to make the laws for Congress, but to
 obey the law that Congress makes for them."
 "If,", he added, Congress has the right to restrict the power to pun
 
 not the right to limit the power of in- junction which has been so greatly abused by so many federal judges."' He admitted the truth of Mir. Spooner contentious as to the decision in the Debs case, but asserted that Congress. feeling that the courts were going too far, had passed the law giving the right of trial by jury in certain con- tempt cases.
 Taking up authorities quoted by Mir. Spooner, MT. Bailey asserted that the opinion of Justice Storey, frequently injected into the debate, was merely an essay and not a judicial decision. Pass- ing from this, the Texas senator criti- cised severely MT. Spooners quotations from the opinion of Justice Baldwin in exparte Crane. A serious mistake was made by MT. Spooner, said MT. Bailey. in that he quoted Justice Baldwin as having handed down a dissenting opin- ion. The decision of the court was handed down by Justice Marshall, but
 Mir. Bailey said if the Wisconsin senator had quoted all of Justice Baldwin's views, he would have found the ac- knowledgement that he did not lay down the doctrine of the court" Taking up a number of other cita- tions by MT. Spooner, the Texas sena- tor said: T propose to take out the asterisks the senator from Wisconsin has put into these opinions"
 He then quoted portions of opinions that had been omitted and charged that
 MT. Spooner had misled the Senate. InferentiaI Limitations. MT. Bailey entered into an elaborate argument to show that the courts can not annul legislation because of il- ferential constitutional limitations. "The time was never so unfortunate as now for the revival of the doctrine of thn nf courts" declared the speaker. refer ring to MT. Spooner's speech. He spoke of the division of authority among the various branches of. the government. but said that he could not follow those | utterings of recent years which seem | to proceed on the theory that there l should be restrictions upon the judi ciary. ..g- "This," he said, "is the first govern ment that ever conferred upon the judi ciary the power to annul legislation. God knows that ought to be enough power to confer upon any nine men we are ninety; they are nine. I would hold myself unworthy if I permitted them to encroach upon mine.' Referring to MT. Knox's quotations from the text of a book of jurispru- dence, he said;
 "The senator forgets that they were discussing the law as 1t is, and that it is as it is because Congress wills 1t SO,
 the point being that the legislative branch Is supreme on the law making and court regulating functions. Happily, the senator from Pennsyl- vania reduces the whole question to | one point when he says Congress can
 say when, but not how, the judicial pow CT shall speak," MT. Bailey continued, and then said he was willing to ac-
 
 courts to decide a question until they were able to decide it right. He declared that both MT. Knox and MT. Spooner had misconceived the theo- ry under which Congress establishes
 the inferior courts, saying that if so disposed Congress could today discs
 tablish every one of the inferior courts.
 He did not agree with Mir Spooner that
 such course would be anarchy, be-
 cause the state courts would be left
 Congress might, he argued, declare war
 against every nation of the globe, and
 while there was no doubt that the peo-
 pie would scourge the Congress that
 would do so still there was no doubt of
 the congressional power. So 1t was
 the courts.
 TilIman Unanswered.
 "The power to create and the power to destroy must include the power to limit The senator from South Caro- lima has been pressing this points as a cornfield lawyer" he said, and the constitutional lawyers have never yet
 been able satisfactorily to answer his | contention"
 In support of the plea that the legis-
 lative authority is not curtailed, he called attention to the fact that with | reference to the inferior courts. no limitation is put upon Congress as to
 their number, their Jurisdiction or their
 power.
 MT. Hale interrupted with the sug-
 gestion that Congress must have the
 power in the abolition of inferior | courts that it has in creating them He
 had not. however. enjoyed what the
 Senator had said regarding the array
 ing of the ninety men here against the
 nine men of the Supreme Court. MT. Bailey explained that he had ter of judgment ninety men were to
 be consulted rather than nine. He quoted a case decided by Chief Justice
 Marshall involving a law suspending
 the writ of habeas corpus in which he said that the courts cannot issue a
 writ of habeas corpus except upon
 the authority of a written law And yet" he said. the Senators tell us
 that Congress has no power to put a
 limitation on the injunction power of
 the courts"
 As a matter of practical convenience. he said. a railroad company can better
 afford to sue 10000 shippers for the
 difference in rates in case of final de-
 cree favorable to it than 10000 ship
 pers can afford to sue the company.