The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-04-11

to restrict the power to punish for con-
tenpt, in Gods name has 1t not the
right TO limit the power of injunction
which has been so greatly abused by so
many federal judges?' He admitted the
truth of Mr.. Spooners contention as 10
the decision in the Debs case, but as
serted that Congress, feeling that the
courts were going too far had passed the
law giving the right of trial by jury IN
certain contempt cases. Taking up author-
tiles quoted by Mr. Spooner Mr.. Bailey
asserted that the opinion of Justice Sto-
rev frequently injected into the debate,
was merely an essay and not judicial
decision. Passing from this the Texas
senator criticised severely Mr.. Spooners
quotations from the opinion of Justice
Baldwin in ex parte Crane A serious
mistake was made by Mr.. Spooner. said
Mr. Bailey. in that he quoted Justice
Baldwin as having handed down dis
senting opinion. The decision of the court
was handed by Justice Marshall. but,
Mr. Bailey said, if the Wisconsin senator
had quoted all of Justice Baldwin's views
he would have found the acknowledge
ment that she did not lay down the doc
trine of the court
Taking up number of other citations
by Spooner, the Texas senator said: II
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 Mr.. Spooner had misled the
Senate.
Cannot AnnuI Legislation.
Mr.. Bailey entered into an elaborate
argument to show that the courts can
not annul legislation because of inferen-
tial constitutional limitations.
1.-THE time was never so unfortunate
as now for the revival of the doctrine
of arbitrary power on the part Of the
courts declared the speaker, referring
to Mr.. Spooners speech. He spoke of
the division of authority among the va
rious branches of the government, but
said that he could not follow those utter
ings of recent years which seem to pro-
coed on the theory that there should be
no restrictions upon the judiciary.
"This'' he said lis the first govern
ment that ever conferred upon the judic
larry 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 l would not trench
! upon their power; would hold myself
| unworthy If l permitted them to en-
roach upon mine.'
! Referring to Mr.. Knox's quotations from
! the text of a book of jurisdiction, he
said:
THE senator forgets that they were
| discussing the law as it is, and that it
! is as It Is. because Congress Wills it so.
! the point being that the legislative
/ branch is supreme on the aw-malSing and
court regulating functions
Wants to Decide Right.
Happily the senator from Pennsylva-
MIA reduces the whole question TO our
| point when he says Congress can say
when. but not how the judicial power
shall speak," Mr. Bailey continued, and
| then said he was willing to accept that
| view He did not want the courts to
decide a question until they were able
to decide it right. He declared that both
Mr.. Knox and Mr. Spooner had miscon-
| ceived the theory under which Congress
establishes the inferior courts, saying
that If so disposed. Congress could to-
day disestablsh every one of the in
/ ferior courts. He did not agree with Mr..
( Spooner that such course would be
( anarchy, because the state courts would
be left. Congress might, he argued, de-
clare war against every nation of the
| globe, and while there was no doubt that
\ the people would scourge the Congress
that would do so, still there was no doubt
| of the congressional power. So 1t was
| with the right of Congress regarding the
| courts.
1.-THE power to create and the power to
| destroy must include the power to limit.
| The senator from South Carolina has
been pressing this point as cornfield
lawyer" he said. and the constitutional
| lawyers have never yet been able to
| satisfactorily answer his contention"
| In support of the plea that the legis-
| lative is not curtailed. he called atten-
| ton to the fact that with reference to
| the inferior courts, no limitation is put