The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-04-11
ON COURTS POWERS.
MAKES FORCIBLE SPEECH ~ SEN
ATE on TIE RATE BILL.
Ills Argument That Congress Has Power
to Limit Matters the Courts Can Com
slider Converts Hale and Others A
Great Audience Held for Four Hours.

four hours to-day Senator BeilcT Of TcXas,
the recognized leader of his Democratic
associates, held h close and respectful
attention Of the Senate by the delivery Of a
prepared speech on the railway rate bill.
lt was one Of the greatest oratorical and
legal efforts Of the young Texans career.
just at the close Of his address Mr.. Bailey
was interrupted by Senator Hale of Maine
d member of the opposite political faith
who paid a remarkable tribute to MIR.
BAiley's ability as an e%xpounder Of the law
and the Constitution and confessed himself
az In agreement with the Texans views on
the subject Of the prohibition Of injunction
proceedings to prevent rates fixed by the
Interstate Commerce Commission from
becoming effective.
Mr.. Bailey is a graceful and forceful
speaker and his power OF oratory was at
tested by the fact that few who were in the
Senate chamber when his address wasbegun
left there before he had concluded. Nearly
every Senator was in his seat, the spaces
back of the last row Of desks were crowded ,
mostly with members Of the House of
Representatives, and the galleries were not
only thronged to their fullest capacity, but
many who could not obtain admittance TO
them gathered around the entrance await
ing a chance to get in.
When Mr.. Bailey finished his four hour
argument the galleries applaudsd loudly
and kept 1t up 80 long that e-President
Fairbanks was on the point OF having
somebody move that the Senate go into
executive session. Senators and others
on the floor crowded around Mr.. Bailey
and shook his hand warmly for five minutes
after he had concluded.
II ~ Tk,z,oLou1 xla .naoob NJ Dotlo, ,-,
Interrupted only by brief suggestions
from Senators Spooner and Knox, whose
previous arguments against the right OF
q Congress to limit the exercise OF authority
by inferior courts he sought to controvert,
M by senator Hale, with his tribute to
Mr.. Bailey's logic.
Mr.. Bailey did not discuss the merits
Of the pending Hepburn bill, but devoted
II his entire speech to a defence OF his amend
mem to prohibit courts from issuing in
functions to suspend rates fixed by the
Interstate Commerce Commission.
Mr.. Bailey's NEST significant statement,
however, was that he was in favor Of giving
Il the judiciary the broadcast authority 10
review the rate fixing order OF the Inter-
state Commerce Commission. He held
Il that the review by the courts would be
II expedited il the rate hxed was not sus-
pended by injunction.
In his declaration Of unrestricted judicial
reviewing power he came into line with
the majority OF the Republican Senators
and dealt a severe blow to the Republican
radicals who ave been depending upon
the Democrats for the necessary assistance
4 to secure the adoption Of an amendment
limiting the reviewing authority Of the
courts to determining whether a rate fixed
was constitutional or whether the COM
mission in fixing it had exceeded IT'S legal
authority.
Mr.. Bailey prefaced his rema rks' by say
ing that when he first proposed his amend
nlent to the Hepburn bill limiting the power
4 OF the Federal courts to issue preliminary
& b. jun ctions suspending the orders of the In
( terstate Commerce Commission, he was met
\ by the question whether the power of Con-
gress over courts Of equity was different
from the power it exercised over courts Of
law. This contention had been aban-
doned.
Referring to Mr.. Spooner's distinction
between judicial power ard the jurisdiction
Of ths courts, Mr.. Bailey said Mr.. Tillman
q had been justified, as any other layman
would be, in finding fault with the lawyers
10 the Senate for splitting hairs, at would
be far better to lead the people into the
clear sunlight of jur %0rudenoe, " said the
Texas Senator.
Mr.. Bailey read the authorities to show
that there is no distinction between the
judicial powers of the Government and the
Jurisdiction of the courts in a question like
THAT now before the Senate"
But admitting, said Mr.. Bailey, that there
\ was a distinction: then, according to the
\ reasoning of the Senators from Wisconsin
and Pennsylvania, when Con gross ga va
1 the courts certain jurisdiction the courts
( gould 60 further and exercise all the powers
& given by the Constitution. In other words,
said Mr.. Bailey, "a part is greater than the
Whole"
This was a doctrine correct neither In
logic nor in law, and if it prevailed it would
fbe necessary TO rewrite the law books and
the school books.
As an example of the power of Congress
I oyer the Federal courts, Mr.. Bailey cited
The McArdle case of Reconstruction days,
Wherein the Suprems Court held that it
4had jurisdiction over and appeal from a |
denial Of a writ of habeas corpus. Before
the court had announced it's decision on the
merits of the case Congress, however,
lad passed an act repeating the act of 1867
(which gave the court jurisdiction.
Although vetoed by the President, Con- I
Gress passed the bill over his veto. 1t
became a law and the Supreme Court was
a~thereupon compelled to dismiss the case
without passing on its merits. This, Mr..
Bailey declared, was certainly a clear
example of Congress asserting it's power
10 limit the jurisdiction Of the courts. 1t
was the duty Of the Federal courts. he
maintained, not to make the law, but to obey
law Of Congress-.
Mr.. Bailey referred to the action of Con-
gress In abridging the power Of the courts
10 punish for contempt, especially mem
Eioning the act Of 1881 which, he said, was
passed because of the acts of one Judge
Pack Of Missouri. II Congress could pass
an act to cure the abuses OF one Judge. in
fGod's name could il not enact a statute to
oover abuses Of elhe courts generally?
He also quoted from the act passed as a
result Of the courts decision in the Debs
case, in which contempt of court was defined
he direct and indirect. and the means of
furnishing each were provided, That act, he
declared, was due to the fact that the power