The Washington herald., 1911-01-10

| acceptahility to his associates and to the public
at large" Q26 L. 5. ArT1-D.
MIR. Waite's successor to fully earn a like
| ercnmium. He peculiarly well fitted to the
discharge Of those duties As the presiding officer
and Spokesman Of the court during his long in
cIIn.bency. his gentle diSuifed bearing and kindly
crpsiderate for him the sympathetic
appreciation Of the bar and the respect and afec
tiof Cf bis associates
Campbell wrote of Lord Edon: Among hin
Qualifications for the Judgment seat must be reck
oned his fine temper and delightful manners.
These attributes in Judge arc entirely con-
sistent with the possession OF discriminating In
teect clear perceptions. ard decisiveness "f char
acter. They terd to the preservation OF that rea
ton Of cordial respect which must exist between
bench and bar in order that the court may get
from the bar the advantage of clear. temperate.
candid statement. and the bar may feel assured
Of ratient hearing and thorough comprehension by
the cuurt. The life Of justice Of this court Is
Of unremttinS toll. The creation OF the Cir
c7Iit Courts Of Appeals in 1921. afforded it but
temporary relief Only by the most ardnoB labor
has the court hen able To keep ably abreast
Federal power has brought upon its dockets- The
Jcriod Of Chief JusC, Fuller's inc-Imbcncy was one
Of unprecedented national growth. Even the twenty
years following the civil war did not give rise to
the great number and variety Of new questions
which have been pressed upon the court since the
year 1888
questions resulting from industrial growth. Of
which the income tax law. the bankruptcy law OF
1895 the acts concerning carriers in interstate COM
mcrce: the law against unlawful trusts and monopo-
lies. the meat and oleonargarine laws. the Chinese
exclusion acts, and other immigration and natural
iza:ion laws illustrative. have required this
court tn construe and apply with patient study and
statesmaniike comprehension the principles OF the
Federal Constitution in the effort to preserve
inviolate the dual nature of our governmental
system: not hesitatins to assert the paramountey
Of the national government over those subjects
where the Constitution declares it to be supreme.
nor check tine uSlrpation by Federal authority Of
those powers which. not being expressly by mpli
cation delegated to the general government. are
reserved ITO the States respectively to the peo-
pie The with Spain made world power
and brought to the decision of this court novel
questions to the relations of our government to
territory acquired by conquest purchase In
dealing with all If these great questions, Chief
Justice Fuller played no inconsiderable role. Dur
ing his twenty-five years Gf service he wrote SO
opinions of which but 9 expressed the views Of a
minority Of the crurt. He wrote the opinion Of
the court in the BerinS Sea cases lin re Cooper,
1E3 L. s.. 470. in the first arising under the
Sherman antitrust law ~. S. Knight. l56 U. s..
u. and in of the latest-the socaed Danbury
hatters' lowe Lawlor. as u. $. Ip. in the
income tax cases tPollock VS.. Farmers Loan and
Trust Co.. Isl U. s.. 10: 15s L. s., coll in Kan
sas vs. Colorado (lS L. S. 1857 in the aris-
ing under the first safety appliance law johnson
VS.. southern Pacific CO.. 1856 u. s.. n. and in the
contempt proceedings against the sheriff of Chatta-
nooga. Tenn. and his deputies u. 5. vs. Shipp,
2l5 L. s.. 5sel.
He wrote dissenting opinions in In re Ncaslc Q35
U. s.. u. the in which it held that pc
titioner. deputy United States marshal IIsti-
fed in killing assailant of justice of this court
whom he had been detailed to protect from violence
in the case Of Mormon Church United States
Q36 L. s., u. where he denied the power Of Con-
ress to enact the law Of February 10. 1887 repeal
ing the charter Of the Mormon Church. and direct
ing legal proceedings to be taken to wind up its af
fairs and dispose of its property; in the Chinese
exclusion case Fone iue Ting vs. United States
Qfe U. s., 66. and in the Of United States
VS.. Wong Kim Ark ue u s, sis), where the
court held that child of Chinese parents. born in
the United States. became at birth citizen Of the
United States; in the lottery case Css U. s.. SID
in the insular cases Dooley United States (ls3
u s., 15D in Hale vs. Henkel t20l U. s.. 49,. and
he concrred with Mr. Justice White in his dissent
in the Northern Securities case C1ss U. s.. 1917.
It is difficult to select from the great volume
Of Chief Justice Fullers contributions to the work
of this court those of his opinions which best
illustrate the extent Of his learning and the na-
ture of his acumen without unduly extending these
remarks
Chief Justice Fuller's opinions arc all charac
terized By a simple lucdity Of statement and a
directnes OF reasoning free from subtlety. His
mind naturally tended to resist the broadening ap
plication of Federal control over subjects which
until recent years had been left entirely to State
regulation
in my opinion he wrote in the Mormon Church
case tl6 U. s.. /. 81. Congress is restrained
not merely by the limitations expressed in the
Constitution but also by the absence Of any grant
Of power. expressed implied. in that instru
ment. I regard it Of vital consequence that
absolute power should never be conceded as be-
longing under our system Of government to any one
Of its departments. The legislative power of Con-
eess is defeated and not inherent. and is there
fore limited. I agree that the power to make
needful rules and regulations for the Territories
necessarily compfehends the power to s0pTress
crime: ard it Is immaterial though that crime
assumes the form of religious belief or creed.
Congress has the power to extirrate poygamy in
any Of the Territories. by the enactment OF
criminal code directly to that end; but it is not
and confscate tho property Of persons. individuals
or corporations without ONCE. found because they
have been guilty Of criminal practices.
The doctrine OF cy pres Is one Of constrnc-
tion. and not uf administration. BY 1t . fund de-
voted 10 particular charity Is applied to eognste
purpose. and II the purpose for which this prop
erty wD accumulated was such a. has been de-
p,ication to purpcO - nearly q possin'e 70
ssmbling that denounced. Nor Il there here any
counterpart In 'Coogessioal power To the exer-
eiss Of the Fpyal psero9ative 10 the disposition Of
charity. the property was sccnmulAfed for
purposes declared Illegal. that does not justify its
arbitrary disposition By judicial LEGISLATION. In my
judment. its diversion under this act of Congress
Consfitutiou; unauthorized. expeesay q BY impli-
ieation. BY any Of its provisions: and in disregard
Of the fundamental principle that the legislative
power a The. United States - exercised by the
assats u the people ot this republic h delegated
and not inherent-"
/, 1hs .CAisf Justics wrote the opi1hous of the
comt = dscidine . nnmhef q controversies b.
u q. q, =: Vkenia N WEI Svhehh. - o. 4.
- R&w6ufG2 - Neiufuinna - o.. - n 81