New-York tribune., 1906-04-11
HAS NOT SURRENDERED
Continued from first page.

from the first have regarded the federal judiciary
as a menace to state rights.
Senator Hale. in the course Of the debate. de
clared himself convinced by the arguments of the
Senator from Texas. improving the occasion to ob-
| tain from Mr.. Bailey renewal of his declaration
| in favor of the broadest possible court review
| amendment.
REPLIES TO KNOX AND SPOONER.
Mr.. Bailey made an elaborate argument to show
that the courts cannot annul legislation because of
inferential constitutional limitations. The time was
| never so unfortunate for the revival of the
! doctrine of arbitrary power on the part of the
| courts. he declared referring to Mr. Spooncr's
| speech. He spoke of the division Of authority
among the various branches of the government, but
said he could not follow those utterances of recent
years which seem TO proceed on the theory that
| there should be restrictions the judiciary.
This. he said lis the first government that
conferred the judiciary the power to annuI legs
| laton- God knows that ought 10 be enough power
| 10 confer on any nine men; ninety. they
| are nine. l would not trench upon their power;
would hold myself unworthy if 1 permitted them
| to encroach mine"
| Referring to Mr. Knoxs quotations from the text
books on Jurisprudence he said: "The Senator for
gets that they were discussing the law it is and
that II is it is because Congress wills it So the
point being that the Legislative branch of the gov
| ernment is supreme in the lawmaking and courts
| regulating function.
/
| duces the whole question TO point when he
| says Congress can say when. but how. the
| judicial power shall speak" Mr.. Bailey continued
| and then said he willing to accept that view.
| He did not want the courts to decide question
until they were able to decide it right Does the
| Senator agree that?" he asked, and he replied
to the question himself by saying that Mr.. Knox's
speech gave sufficient evidence of his position
| He declared that both Mr.. Knox and Mr.. Spooner
| had msconceived the theory under which Con-
| {Dfa hat
| If so disposed Congress could to-day dsestablsh
| every one of those courts. He did not agree with
| Mr. Spooner that such would be anarchy.
! because the state courts would be left. Congress
might. he argued declare against every nation
| on the globe and while there was no doubt that
the people would scourge the Congress that would
| do So still there doubt of the power So 1t
| was with the right of Congress regarding the
| courts.
! THE power to create and the power to destroy
must include the power limit The Senator from
South Carolina has been pressing this point as
cornfield lawyer he said, and the constitutions
lawyers have yet been able satisfactorily to
| answer his contention" In support of the plea
that the legislative authority is not curtailed, he
called attention to the fact that with reference to
the inferior courts no limitation is put Congress
| as to their number their Jurisdiction their
power.
| HALE AGREES WITH BAILEY
Mr.. Hale interrupted with the suggestion that
Congress must have the same power in the anoi-
ion of inferior that it has in creating them
| my mind runs with the Senator's on that point,
he said Il believe that the power TO create and to
destroy rests wholly with Congress" He had not
however, enjoyed what the Senator had said re-
garding the arraying of the ninety men nero
against the nine men of the Supreme Court He
desired, therefore. to ask Mr.. Bailey whether he
wished by anything he had said to commit himself
against the broadezt final review by the Supreme
Court.
Mr. Bailey said he had been misunderstood add
ing that he had only intended to say that in a
matter of judgment ninety men were to be con-
suited rather than nine Before concluding he
would. he said. give his opinion the question of
final decision by the Supreme Court
Along with decisions by the courts he quoted the
text writer Conkling, saying that the circuit
courts possess power not conferred By Con-
gress" and when Mr.. Spooner evinced an interest
in the book. Mr Bailey remarked; He wrote and and
lived before the Senator from Wisconsin and the
Senator from Pennsylvania delivered their remark
He Quoted a case decided by Chief Justice Mar
shall involving law suspending The writ & OF habeas
issue WI writ of habeas Corpus except on the
thority OF a written law. And yet he said, the
a Limitation on the injunction power CT the courts
As mater Of practical i,S o ne e. SAID s
10000 shippers for the difference in rate 1 in case OF
He asserted thas in more than one decision the
have no Inherent junction as contended by Mr..
the statement that Congress had Withheld juTis-
dicton. How in the name Of common sense can
sub3ec AND mot Withhold within judicial poWeP
asked. in further support OF his contention that
diction'' are used interchangeably by the courts
CONGRESS AND THE COURTS.
IF" he said "the President is commanded by a
statute TO perform a certain duty. he does not
consider the authority is given directly by the
constitution. The constitution is the source of all
power but II is a dead letter unless Congress
hreathes into it the breath Of life. He declared
that even the courts have no power to execute
their own judgments without specific authority
O'NeiU i'm support of tho, contention And yet. in
the face of such a decision Senators contend that
suspend all Judgment until it is ready to render
a final one he declared
doctrine that when d court has jurisdiction over a
| question its power cannot be limited. ne addeu
He declared that in this case the court had gone
further than he had gone because the power OF .
court issue execution on us own Juo5Iheht Is
the most essential Of all powers I,l Ms i9ck 9
I am sustained the authority or statutes as oIu
as tho Republic a9d on b th sTsh the greatest
Chief Justices and long me or asS9GdaIeS;
| may well be content with my pnc.GSog"S' p+ n
Mr. Bailey said he had 10 intention or attaChilS
the courts, but he had known some courts t' 20 49,
guilty OF abuses hence II was necessary 70 isi Pc
limitations on all of them. Moreover, the man IDl
duties the judges would prevent tlslE satlE soJs @
| He contended that commissioners as competent as
the judges of the courts could ne fooc i nnsI to
some OF the federal judges know coo save the
Republic"
REVIEW BY SUPREME COURT.
Coming to the consideration Of Mr.. HaleS ques-
ton relative 10 the nnal decision OF rate cases oS
the Supreme Court of the United States MI Baliey
said that he did believe that the courts W.