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

tons and there was no effOfI at applause
until the close of the discussion when
there was spontaneous burst of hand
olapping in the galleries which the vice
president was unable for a time to check.
The close attention given throughout
the four hours was all the more marked
in view of the legal character of the ar
gument
Power to Deny Rights.
Mr.. Bailey set out 10 establish the
soundness of his contention that congress
has power to deny to the inferior United
States courts the right to suspend the
order of the Interstate commerce COM
mission pending the final disposition of
cases arising under the proposed law.
This he undertook to do by citing in
Vulnerable decisions of the courts and
quoting many other authorities. The
citations were interspersed with his com
ment Mr.. Hale announced his willing
ness to accept the anti-suspension
amendment and expressed confidence that
IL Mr.. Bailey would on the other hand,
agree to broad court review there would
be comparatively little difficulty in
reaching an agreement on the bill. In
response MIR. Bailey said that he did not
believe that review by the courts could
be denied under the constitution.
Bailey Early in Seat.
Mr.. Bailey was early in his seat and
while awaiting the disposal OF ;llc routine
business occupied himself in conference
with his colleagues. That he was to deal
WITH the question from legal point of
view was made evident by the large num-
Der OF law books which occupied his and
adjoining desks,
The morning business occupied 20 min
utes time and when it was disposed of,
Mr. Bailey took the floor. He Immediate
ly entered on the discussion OF n.s propo-
sitlon looking to the withdrawal of the
power of the inferior courts to suspend
the orders of the interstate commerce
commission, referring to the contention
that there would be a distinction between
the power of congress in cases of equity
and law.
"If," he said. congress can destroy
proceedings in equity, it can destroy pro-
ceedings at law" This. he said, had been
conceded by his opponents, as had also
been the point that the inferior courts
derived their power from acts of con-
gress, and not from the constitution di
rect. These concessions left as the only
point the distinction between the judicial
power of the United States and the juris-
Mr.. Knox and Mr.. Spooner contend.
Point Is Too Fine.
As for himself he considered this a very
fine point, fine. indeed, that he felt 1t
would go far to justify Mr.. Tillmans
characterization of the refinement of the
law He did not consider the point ma
terally. but said that If material in any
connection it did not apply in the pending
legislation. He then entered upon defini-
ton of the two terms and after quoting
many authorities declared that they show
that there is practically no difference in
meaning between them. 1T is difficult"
/ he said. ito believe that intellects, like
those of the senators from Wisconsin and
Pennsylvania, can contend for such an
absurdity as they do contend for in hold
ing that when Congress confers any power
on court it confers all power on them. y
Referring to quotations made by Mr..
Spooner In his argument to show that
the power OF temporary injunction could
not be taken from the circuits courts Mr.
Bailey declared that as given they are
calculated to deceive. Up to this point
there had been no interruption Of the
speaker. Mr. Spooner had occupied him
self In taking copious notes as If intend
ing to postpone any reply until the con-
cluson of Mr.. Baley's remarks. AT this
juncture he rose, however, with a smile
of qualification on his face.
oh said Mr.. Bailey. lit is Well 1t is
well that the senator should smile now.
for he will find before ! am through that
he cannot smile
Mr. Spooner simply remarked that in
the case quoted, revenue case there
was an adequate remedy at law and Mr..
Bailey responded: $50 we will do in this
act"
Mr.. Knox Interrupts.
An interruption by Mr.. Knox soon fol-
lowed He challenged the correctness of
an Inference drawn by the Texas senator
from a construction by the supreme court
Of an act creating the Dawes commission
for the five civilized tribes of Indians.
Mr. Bailey said that in that act Congress
had inserted a provision deprivng the
courts of the right of suspending the conf
missions order. Mr.. Knox said the in
hibition had been put on the territorial
courts, which cannot exercise the judi
| cial power of the United Statse. but Mr..
Bailey declared that there was no such
| Limitation, no courts being excluded.
"The congress has fonly asserted its
| right to deny the courts the right to
! insure writs of injunction. but it has as
serted its right to deny to them the privi-
| lege of Issuing the great writ of liberty,
| the writ of habeas corpus" he said and
| quoted an act of 1898 in support of the
| assertion. calling attention to the fact
| that some of the authors of the constitu-
| ton had as members of Congress partici-
! pated in that legislation. He referred to
the McCargle case of 1867 which. he said,
/ had been taken from the supreme court
| on the evening of the decision by an act
| of Congress depriving that court of juris-
| diction in such cases.
| "The senator from Wisconsin speaks OF
! anarchy" he exclaimed, "if he wants and
| example of anarchy he will find it in the
| McCargle case"
Duty to Obey Laws.
| Mr. 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 man
damus 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