The San Francisco call., 1906-04-11
BAILEY QUOTES
LAW IN SENATE
FOur-HOur Speech on the
Rate Bill Holds Atten-
tion of His Colleagues
CONGRESS VS.. COURTS
Texan Would Make Com
merce Commission Inferior
to Supreme Tribunal Only

10 supreme 1f1DuldI OHIy
WASHINGTON. April 1O.-For more
than four hours today Bailey held the
undivided attention of the Senate with
a speech in reply to Spooner and Knox,
and just before its conclusion there
was a significant suggestion from
Hale, indicating the possibility OF an
understanding and early vote on the
railroad rate bill
The day was one Of the most no
table in the history Of the Senate.
Very few Senators were absent at any
time during the day, and every seat in
the galleries-public. private executive
and diplomatic-was held by it's Occu-
pant with marked tenacity The close
attention given throughout the four
hours was all the more marked in view
Of the legal character of the argu-
ment
Bailey set out with one end in view,
this being the soundness of his con-
tention that Congress has power to
deny TO the inferior United States
courts the right to suspend the order
OF the Interstate Commerce Commits
sion pending the final decision Of cases
arising under the proposed law. This
he undertook 20 DO by citing innumer-
able decisions of the court and quoting
many other authorities. These cita-
tions were interspersed with his COM
ment.
Hale announced his Willingness to
accept the anti-suspension amendment
and expressed confidence that If
Bailey would on the other hand agree
70 a broad court review there could be
comparatively little difficulty in reach
s,-rr
sponse Bailey said he did not believe
that review by the courts could be
denied under the constitution.
BAILEY ANSWERS SPOONER.
Referring TO quotations made by
Spooner in his argument to show that
the power Of temporary injunction
could not be taken from the Circuit
courts, Bailey declared that, as given,
they were calculated to deceive
Spooner interrupted to remark that,
in the case quoted, a revenue case,
there was an adequate remedy al
law and Bailey responded, 80 will
there be in this act"
Bailey undertook TO show that Con-
gress had exercised the power to
aDridge the rights of the courts TO
punish for contempt or to issue Writs
Of mandamus, asserting that the courts
had no inherent power and that lit is
the duty Of the Federal courts not to
make the law for Congress, but to
obey the law that Congress makes for
them"
II" he added, Congress has the right
to restrict the power to punish for con-
tempt. IN Gods name has IL not the right
10 limit the power Of injunction which has
been so grossly abused by so many Fed
eraI- Judges
CONGRESS GREATER THAN COURTS.
Bailey entered into an elaborate argu-
ment to show that the courts cannot an
nul legislation because Of inferentiai con-
stitutiOnal limitations. He spoke Of the
division Of authority among the various
branches Of the Government, but said
that he could not follow the utterings Of
recent years, which seem to proceed on
the theory that there should be no restric-
tiOns upon the judiciary.
This he said, lis the first Government
that ever conferred upon the judiciary
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 not trench upon their
power; I would hold myself unworthy if
] permitted them to encroach upon mine"
Referring TO Knox's quotations from the
textbooks on Jurisprudence. he said that
'the Senator forgets that they were dis
cussing the law as II is. and .Aat it is as
II is because Congress wills il So" the
point being that the legislative branch of
the Government is supreme in the law
making and court-reg gulating function.
Hale interrupted with the suggestion
that Congress must have the same power
In the abolition of inferior courts that It
has in creating them
My mind runs with the Senator'S on
that point" he said. II believe that the
power to create and TO destroy rests who'll
ly with Congress"
He had not, however, enjoyed what the
Senator said regarding the arraying the
ninety men here against the nine men of
the Supreme Court He wished, therefore,
10 ask Bailey whether he wished by any
against the broadest final review of the
Supreme Court.
TEXAN EXPLAINS HIS POSITION.
Bailey said he had been naisunder-
stood, adding that he had only intended
10 say that in matter Of judgment nine
" men were TO be consulted rather than
nine.
He asserted that in more than one
decision the Supreme Court had held
that the inferior courts had no in
herent functions" as contended by
Knox. lie quoted an opinion in which
was made the statement that Congress
had withheld jurisdiction.
How in the name of common sense
can Congress withhold from a court
jurisdiction Of a subject and not with
hold judicial power?" he asked, to fur
ther support his contention that the
phrase judicial power" and the word
jurisdiction" Were used interchange
ably by the courts.
If" he said. the President is COM
manded by a statute to perform a GER
tain duty he does not consider the an
thority is given directly by the consti-
tuition. The constitution is the source
OF all power, but it is a dead letter un-
less Congress breathes into II the
breath of-ljfe."
He declared that even the courts had
no power TO execute their own fudg
nents without specific authority from
Congress, and quoted the case of Fink
VS.. O'Neill in support Of the conten-
tion.
And yet, in the face Of such a deci-
sion, Senator's contend that Congress is
incompetent 10 require the court 70
cpcpeud All Judgment until ff &c 49, A.