Chapter X: The France-America Committee of New York 261 (5)

The bar of the state was practically unanimous in urging the passage last year of the measure known as the Judicial Candidates Bill, which proposed that the names of judicial candidates should no longer be printed in the party column on the general and official ballot, but on a separate ballot, or in a separate column of the voting machines, without party designation in either case, to the end that candidates for judicial office might be voted for as individuals and not as members or candidates of any political party. There was then an excellent opportunity for the professed social reformers and labor leaders who are so vehemently assailing our judicial system to aid in a movement to eliminate from politics the election of judges. But it was not availed of. The bill was defeated. It had little support from the press and very little, if any, support from social reformers or the representatives of labor. It will undoubtedly be introduced again this year; it has been once more approved by the Association of the Bar of the City of New York, and it will probably be again approved by the state association and by the bar of the state at large. Let the labor organizations now assist and cooperate in procuring the enactment of this law, and help to secure the election of judges on their own merits and personal character apart from considerations of political service or the favor or support of political leaders or bosses, or of any particular class.

A few years ago in the city of New York an earnest attempt was made by the bar to secure the election of justices of the Supreme Court on a non-partisan and non-political basis. A committee of members of the bar nominated lawyers of the highest standing in their profession, of recognized ability and learning and of unimpeachable character. These nominees were defeated, and to that defeat the labor organizations greatly contributed. These organizations then gave no support whatever to the movement to secure a separation of the courts from politics, and they were quite indifferent to the nomination of men of the highest character and of the highest qualifications for judicial office.

The plain truth on this point may serve and be useful as an object lesson. The least competent and the least experienced of the justices of the Supreme Court in the county of New York and elsewhere throughout the state are generally those who have been nominated because they were endorsed by labor organizations or were supposed to be acceptable to them. Everywhere throughout the country it is said that whenever labor organizations dictate or control the nomination of judges, they select lawyers of inferior education and talents and not of superior character and independence. It is high time that this truth was well pondered by labor.

One of the real causes for the discontent with the administration of justice in our state courts, and particularly in the larger cities, is that judges are nominated and elected not because of their legal ability and personal character, but because of their party affiliations or their supposed friendship or sympathy for or inclination to favor one class as against another. If the personnel of our Court of Appeals and Appellate Divisions has thus far been kept uniformly high and pure, it is because of the constant efforts of the bar. If labor organizations and the people at large will now cooperate with the bar, who in this matter are the proper leaders of public opinion, there will be infinitely less occasion for complaints of delay or incompetency or partiality in the administration of justice. The multiplication of incompetent judges means the multiplication of the causes of delay, new trials, denial or miscarriage of justice, expense, discontent and suspicion. The cure for these evils is with the people themselves, and it will be brought about only when they shall insist upon the nomination and election of lawyers of learning, character and independence.

It must be plain to all who have studied the facts and reflected upon existing tendencies that during the past twenty years the amendments to the laws regulating nomination and election to public office have served to strengthen and perpetuate the control of political leaders and political machines. Many bills introduced and loudly acclaimed as reforms have in truth proved to be not reforms at all, but steps in the dark and backward.

Some of our correspondents blame the courts for the "law's delay," yet there is no defect in our system for which competent judges are less responsible. In most instances of delay in civil cases, the blame belongs to the lawyers. Nothing has done more to bring the administration of justice into disrepute than the practice of adjourning cases term after term and year after year on excuses which sometimes are not well founded. There need be no unreasonable delay even in the city of New York, and would not be, if lawyers were ready to try their cases when they are first reached on the calendars. The judges are constantly complaining of the dilatoriness of the bar. Another cause of delay is the practice of bringing suits and taking appeals for the purpose of coercing settlements. A higher sense of professional responsibility ought to be cultivated, and there should be some severe penalty or professional ostracism for lawyers who abuse the process of the courts of justice and disregard the ethics of their profession.

In like manner, in criminal cases the real cause of delay in nearly every case is the failure or inability of prosecuting officers to press their cases diligently; and the frequent change in the personnel of our officeholders is likewise a cause of much delay. Whenever one official succeeds another, the period during which the new incumbent is learning what occurred before he came into office and familiarizing himself with the pending cases is so much time lost. Greater permanency in the tenure of office of prosecuting officers would probably conduce to greater speed and greater efficiency in the enforcement of the law. Nor can it be doubted that many public officials and their assistants do not feel the same degree of responsibility for the prompt dispatch of public business that they would feel if representing private clients. The remarks of Mr. Justice Scott in the recent case of People _vs._ Turley are indeed timely, and should be commended to the attention of all prosecuting officers throughout the state. He used the following language: "There is much well-justified complaint at the present time of the slowness with which the criminal law is enforced, and especially of the great length of time which is frequently permitted to elapse between a conviction and the review of the conviction by the appellate courts. Among persons not conversant with the rules of criminal procedure, the courts are not unnaturally, but most unjustly, charged with a large share of responsibility for this condition. The blame rests elsewhere. The appellate courts are powerless to act until the appeal is brought before them by those charged with that duty. When the matter is brought up for a hearing, the delay is ended, and the appeal is invariably promptly decided. The present is a particularly flagrant case. The defendant was convicted in March, 1909, and was almost immediately released on bail pending an appeal, under a certificate of reasonable doubt. The record is not voluminous, and the questions of law involved are neither difficult nor intricate, and yet the defendant has been at large for three years and a half before the appeal is brought on for argument. Of course under such circumstances the defendant was quite satisfied and was in no haste to have his appeal argued. The duty to bring it on promptly rested, as it rests in every case, upon the district attorney, who had it in his power at any time to force a hearing of the appeal by moving to dismiss it. This court has never shown itself to be unwilling to support and cooperate with the district attorney in compelling appeals in criminal cases to be argued with all reasonable promptness. The remedy for unreasonable delays in the final disposition of criminal appeals lies in his hands."[53]

A number of important murder cases will be readily recalled where years have elapsed between the conviction of the accused and the argument in the Court of Appeals. Not only does this unnecessary delay deprive the judgment of conviction of much of its effect as an example and deterrent precedent, but in cases of reversal and new trials evidence is sometimes lost, and the guilty thus escape. In the latest reported murder case from New York county, People _vs._ Lustig,[54] the defendant was convicted of murder in the first degree in June, 1910, but the appeal was not brought on for hearing in the Court of Appeals until June 14, 1912, when it was decided and reversed within two weeks after the argument, viz., on June 29, 1912. In the meantime, as we are informed, material witnesses had disappeared, and the defendant is now at large on his own recognizance, and probably will not be tried again!

Another case of apparently inexcusable delay is People _vs._ Koerner.[55] The crime of murder was committed in September, 1896. The defendant was indicted within a month thereafter, and was convicted of murder in the first degree on March 1, 1897. The appeal was argued in the Court of Appeals within four court months, on October 22, 1897, and the judgment was reversed on November 23, 1897. The case was then re-tried, and resulted in a judgment of guilty of murder in the second degree on March 15, 1898. The records of the courts show that the appeal from this judgment was not brought on for argument in the Appellate Division until December 12, 1906, and then resulted in an affirmance by that court on January 11, 1907, and that the appeal was not argued in the Court of Appeals until February 19, 1908, when the judgment was affirmed without opinion in less than three weeks!

Yet for the delays in these and similar cases the courts are criticized and their administration of criminal justice intemperately assailed by the press and other critics, notwithstanding the diligence of the judges in disposing of appeals when duly presented for their consideration.

It may be true that the pressure of innumerable cases compels the district attorney in New York county to delay the argument of appeals; but the remedy is to provide him with additional competent assistants and certainly not to indulge in indiscriminate criticism or unfounded abuse of the courts, or to resort to panaceas of reform in criminal procedure, which too often only multiply technicalities, deprive the individual of necessary protection, and create more or less confusion.

I shall now ask attention to the subject of injunctions in connection with strikes. I shall not argue the proposition that strikers in industrial controversies, or labor and labor organizations should not be above the law, or a law unto themselves. I assume that this is still a self-evident proposition in this state and may still be taken for granted. History certainly teaches us that in a free country no class can safely be released from the duty of obeying the laws, and that if disobedience be permitted in favor of the laboring classes, the industrious, honest and law-abiding laborer will be the worst sufferer in the long run. Nor will time be taken to point out that no civilized community can long permit any class to maim, or murder, or destroy property, or violently prevent others from earning their living, in order to coerce compliance with the demands of that class.

There would, of course, never be occasion for the use of injunctions in labor disputes if there were no threats of violence and no danger of injury to persons or property. If the labor organizations of this country will now earnestly, effectively and sincerely cooperate with the bar in the endeavor to put an end to violence and riots, which are the unfortunate but apparently inevitable attendants of every protracted modern strike, there will no longer be any occasion for condemning the courts on account of the issuance of injunctions, for there will then be no necessity for injunctions.

One aspect of the injunction problem is emphasized in the correspondence now submitted, and should be dealt with here. It is the matter of giving notice to the defendants before an injunction order is granted. Recently, when the United States Supreme Court adopted its new rules, including one as to injunctions, Mr. Gompers and other labor leaders loudly proclaimed that they had secured a great victory. Thus, Mr. Gompers is reported in the "Literary Digest" of November 16, 1912, as calling the new rule a reform and "a step in the right direction, and one of the things labor has long been fighting for." But, as every one familiar with the subject well knows, there is nothing in the new rules that materially changes the pre-existing practice in regard to injunctions. The authoritative treatises on federal equity procedure by Mr. Foster and Mr. Street conclusively show this. No case has been cited to us and we have found none where the defendants enjoined were not granted by the courts as much facility in moving to dissolve or modify injunction orders as is provided for in the new rule. The learned and impartial editor of the "New York Law Journal" well said in the issue of December 11, 1912: "The only portion of the new procedure which has attracted the attention of the daily press is the rule regarding preliminary injunctions. This, however, is no more than an adoption of good New York practice, and, indeed, of good equity practice everywhere, viz.: that no _ex parte_ injunction shall go out except as a stay-order to show cause why a preliminary injunction should not issue."

The case most often cited by labor leaders is known as the Debs case growing out of the Pullman strike at Chicago in 1894. If any fair-minded critic of the courts will take the trouble to read the unanimous, patriotic and inspiring opinion of the Supreme Court of the United States in the Debs case,[56] or what ex-President Cleveland wrote on the subject in his book on "Presidential Problems," published in 1904, he will at once realize that the issuance of the injunction order and the subsequent punishment of Debs and his associates for deliberately and defiantly disobeying it were both proper and necessary.

For nearly twenty years and since the Debs case in 1894-1895, the labor leaders, agitators and demagogues of the country have been assailing the courts and denouncing "government by injunction" on the pretense, among others, that the judges denied the defendants in that case any opportunity to be heard, when as a matter of fact, they had the fullest notice and opportunity to be heard, but deliberately elected to disobey and defy the court. Indeed, in no jurisdiction is it true that a defendant is denied the right to a hearing upon the matter of an injunction against him, and the sub-committee has been unable to learn of a single case in which a judge has refused to give the defendant a hearing either upon an application to grant or continue an injunction, or to set one aside. A permanent injunction order is never granted without notice to those affected and an opportunity to be heard; nor is even a temporary restraining order issued without notice of hearing unless the danger of irreparable injury from delay be very grave, and then the order is made returnable at the earliest practicable date, so as to afford the defendants an opportunity to be promptly heard. If a temporary restraining order should be granted improvidently on insufficient papers and upon an _ex parte_ application, it is well known that the order may be and frequently is vacated immediately on the _ex parte_ application of the defendants. Most lawyers are familiar with such cases. The fact is that laboring men have always been afforded a hearing and a day in court in connection with injunction orders, and that no man has ever been punished for contempt by an American court without due notice to him and full opportunity to present his excuse or defense. Indeed, were any man punished without notice and opportunity to be heard, the order for his punishment would be without jurisdiction and utterly void.

I may add that the lawless and violent among the members of labor organizations will not in the end gain any real liberty or advantage for the laboring classes, even if they succeed in abolishing the writ of injunction in labor disputes and with it the power of the courts to punish disobedience as a contempt of court. Destruction of property and assaults upon peaceful workingmen cannot permanently be tolerated in any civilized community. Sooner or later, the government must afford protection in one form or another; otherwise chaos, anarchy and barbarism are inevitable. If injunctions cannot be issued to restrain the violent and protect the property of the innocent and law-abiding citizen, simply because he is an employer or property owner, then resort will finally have to be had to the club of the policeman or the bayonet of the militiaman or regular. It is no use blinking this certainty. That was plainly the alternative presented by the Pullman strike; and President Cleveland then wisely preferred the orderly and peaceful procedure of a court of justice to the police power of the army. Under military rule, the laboring man may receive no hearing at all, and martial law with its arbitrary practices and despotic power will have to be substituted for the regular procedure of impartial courts of justice acting upon full notice to all affected and affording full opportunity to be heard.

The New York Code of Civil Procedure in sections 602-630 has long protected the rights of a striker as adequately as any other system of procedure, state or federal, domestic or foreign, and even better than the recent rule of the United States Supreme Court, which some labor leaders are acclaiming as a boon. Lest we forget, it may be useful to recall the exact language of section 626, which has been the statutory law since 1895. It is as follows: "Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge or justice who granted the order, or who held the term of the court where it was granted; or to a term of the appellate division of the supreme court. It cannot be made without notice, to any other judge, justice or term, unless the applicant produces proof, by affidavit, that, by reason of the absence or other disability of the judge or justice who granted the order, the application cannot be made to him; and that the applicant will be exposed to great injury, by the delay required for an application upon notice. The affidavit must be filed with the clerk; and a copy thereof, and of the order vacating or modifying the injunction order, must be served upon the plaintiff's attorney, before that order takes effect."

As is well known to all lawyers, a restraining or injunction order is never granted by a state or federal court in New York without notice to the defendants except when proof is submitted to the judge by affidavit or verified complaint which shows that, unless the defendant be immediately enjoined, irreparable loss or damage will result to the applicant before the matter can be heard on notice. If the court has sworn proof thus submitted to it that the defendants are threatening immediate injury to person or destruction of property, it is the duty of the judge--and may it ever be the duty of every American judge--to issue an injunction without delay, for delay in such a case would in most instances work a complete denial of justice.

If our system of equal laws impartially administered is to endure, the courts must continue to shield and protect the individual by means of injunction orders, and they should not be deprived of the power of exercising one of the most beneficent remedies afforded by any system of laws and one indispensable to the due and satisfactory administration of distributive and equal justice.

Some typical examples of misrepresentation of our courts by leaders of public opinion will be recalled in connection with the Tenement House Tobacco case, the Bakers case, the Ives case, and other cases involving so-called social legislation.[57]

When Mr. Roosevelt's statements in regard to the Tenement House case were recently challenged by four lawyers, including Senator Root, Mr. Milburn and Mr. Marshall, as being inaccurate and likely to mislead the voters of the state, he made no correction whatever, but urged the people to accept his statements and those of a settlement worker instead of the record of the case before the Court of Appeals. This incident will serve to show the difficulty of combating such inaccurate statements, which are given the utmost publicity by the press throughout the country, whereas the refutation is generally ignored. A report of Mr. Roosevelt's public comments, when his attention was called to his manifestly incorrect statement of the decision in the Tenement House case, quotes him as saying:

"I am informed that these four gentlemen attacked the statements as being contrary to both the facts and the law. The first was the case of the tenement-house cigar manufacturers. Now I will read to you what is said by one of the women who knows the conditions of tenement-house life as few other women, and as hardly any man, knows them, by Florence Kelly in a book called 'Some Ethical Gains through Legislation,' and I cordially commend to Mr. Root and his associates who signed his protest to study that book and to ponder what is meant by the word 'ethical' in connection with legislation. Of the Jacobs case, to which I referred, Mrs. Kelly says: 'To the decision of the Court of Appeals in the case In re Jacobs is directly due the continuance of the tenement manufacture and of the sweating system in the United States and its present prevalence in New York.' That is the statement of a woman who, as regards knowledge of tenement-house conditions, knows so much more than those four great corporation lawyers that her little finger is thicker than their loins when you come to study what they know and what she knows of the subject of which they have ignorantly presumed to speak."

And yet all that these lawyers did was to point out the inaccuracy of Mr. Roosevelt's statements as to what the courts had held, and to suggest that this inaccuracy would be demonstrated by reference to the records of the courts, which are open to all who care to take the trouble to ascertain the truth.

It should be recalled in connection with any fair and candid consideration of the Tenement House case that the constitutional convention of 1894 had ample opportunity to change the rule in that case if it had then been thought to interfere with the attainment of "social justice." Although the subject was called to the attention of the convention, it was deemed advisable to make no change. The rule is reasonable and well-settled in the interpretation of constitutions and it was well known to the distinguished members of that convention that "where a clause or provision in a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another constitution, it will be presumed that the construction thereof was likewise adopted."

Another judicial decision denounced by Mr. Roosevelt a few days before the last election is the Knisley case discussed above. Speaking of this case, he told his audience, and through the press told the whole country, that "the Court of Appeals threw out the case and declared the law unconstitutional on this ground: that the legislature could not interfere with the liberty of that girl in losing her arm.... The trouble was that they knew law but didn't know right, and still more, as I have stated, that they had arrogated to themselves the right that the people should have--the right to decide what the common sense and justice of the people demand." Yet there was not one word anywhere in the record or in the opinion of the Court of Appeals which suggested that the act was unconstitutional or that the legislature did not have full power to change the common law rule in such cases and make the employer liable to his injured workmen or workwomen if he failed to comply with a statute prescribing guards or other protection for employees. The most superficial investigation would have disclosed the fact that the Court of Appeals has never intimated in any case that such a statute would be unconstitutional, and that in the Knisley case it neither had before it nor decided any question concerning the constitutionality of an act of the legislature.

Shortly before the election, Mr. Roosevelt caused to be published in the "Saturday Evening Post" of Philadelphia, under the title of "The Deceitful Red Herring," the following statement: "Our platform demands an eight-hour law for women in industries.... But the Court of Appeals of New York has said that the ten millions of people of my state have not got that right if they wish to exercise it. In New York the people did not ask for an eight-hour day--asked for only a ten-hour day for women. Then the Court of Appeals said that under their interpretation of the Constitution the small sweat-shop keeper or the big factory owner may work haggard women twelve, fourteen or sixteen hours a day, if he chooses, and we cannot stop it."

As a matter of fact, however, as the slightest investigation would have disclosed, the New York Court of Appeals had never decided anything of the kind. Moreover, there was in our state when Mr. Roosevelt published this statement a statute limiting the hours of labor for women to nine hours per day and fifty-four hours per week,[58] and for thirteen years prior to the recent amendment there had been a statute limiting the hours of labor of women to ten hours per day and sixty hours per week. These statutes had been regularly enforced for years, and their constitutionality had never been even questioned, so far as I have been able to ascertain.

Immediately after the publication of this article in the "Saturday Evening Post," a communication was addressed to the publisher by a well-known and reputable member of the New York bar, Mr. Alfred E. Ommen, pointing out the misstatement in regard to the Court of Appeals and conclusively showing its error; but this important periodical, with perhaps the largest circulation of any American weekly, saw fit to leave uncorrected this untrue and grossly misleading statement, and it has not yet withdrawn it, and probably never will do so.

Such is the tenor of the criticisms of the courts to be found in public speeches and in all forms of publication. They find constant repetition in the press, and carry the authority of distinguished leaders of public opinion and of men who at the present time have the ear and the confidence of the people. The statements of such men are naturally accepted as accurate and true. Who would believe it possible that any such statements as the above could be made by an ex-President of the United States unless they were true? As the draft of this report is being revised, an advertisement proclaims a renewal by Mr. Roosevelt of his attack on the courts, and a new assailant and critic appears in the person of Mr. William Randolph Hearst, who seems desirous to emulate Mr. Roosevelt in his abuse of the courts. The press at large continues to give the fullest publicity to all attacks on the courts and little or no space to any refutation of them. The judges are being misrepresented and assailed on all sides. They cannot defend themselves. The bar at large so far has seemed indifferent; and in the great forum of public opinion judgment is going by default.

If these misleading criticisms are not refuted, and the courts are not defended, they may bend before the storm of undeserved censure and the clamor of the crowd. There is grave danger that the judges will be unconsciously intimidated and coerced by this abuse. Indeed, some recent decisions are ominous. Is it not then fit and proper that the members of our profession should charge themselves specially with the task of defending the courts and placing the facts before the people? The bar associations of the country will never be called upon to render a greater service to the profession and to the community at large than that of stemming this tide of misrepresentation and intemperate abuse, and of restoring confidence in the learning, impartiality and independence of our judges, in the justice of their decisions, and in the necessity of their enforcing constitutional restraints.

FOOTNOTES:

[Footnote 50: Read as a supplement to the report of a committee appointed by the New York State Bar Association submitted at the thirty-sixth annual meeting of the Association held at Utica, January 24, 1913.]

[Footnote 51: 148 New York Reports, p. 372.]

[Footnote 52: 206 New York Reports, p. 355.]

[Footnote 53: 153 N.Y. Appellate Division Reports, p. 674.]

[Footnote 54: 206 New York Reports, p. 162.]

[Footnote 55: 154 New York Reports, p. 355; 117 N.Y. Appellate Division Reports, p. 40; and 191 New York Reports, p. 528.]

[Footnote 56: 158 United States Reports, p. 564.]

[Footnote 57: See discussion _supra_, pp. 48-70.]

[Footnote 58: See the New York Labor Law, sec. 77.]

GRADUATED OR PROGRESSIVE TAXATION[59]

The recent message of the President to the Congress has strikingly brought to the attention of the American public the subject of graduated or progressive taxation upon inheritances and incomes. Acting upon the suggestions contained in the message, bills providing for such taxes have already been introduced in the House of Representatives. Amendments to the Constitution have also been proposed, one of which is to authorize Congress to tax inheritances amounting to or exceeding $50,000 and to levy an income tax without apportionment. The pending bills provide that successions of $10,000 and under and incomes of $4,000 and under are to be wholly exempted from the proposed taxes. The proposed graduated scales are to run from three-quarters of one per cent. on inheritances or successions over $10,000 and not exceeding $25,000 up to twenty-five per cent. on inheritances or successions exceeding $30,000,000, and from two per cent. on incomes exceeding $4,000 per annum and not exceeding $8,000 up to six per cent. on all incomes over $64,000. It is also suggested that Congress by means of such taxes should seek, not merely to raise revenue for the support of the national government, but also to solve social problems by breaking up fortunes assumed to be swollen to an unhealthy size and thus bring about a redistribution of wealth.

In considering these proposed measures, it should be borne in mind that, if they or any similar propositions become laws, the result will be--and such undoubtedly is the intention--to exempt the majority of property owners from this form of taxation and to cast the burden upon a very small minority. It should also be realized that this proposed progressive taxation, particularly as to inheritances, is conceded to be only a first step, and that increases in the scale of progression are contemplated and will certainly follow. Indeed, the President declares that "at first a permanent national inheritance tax ... need not approximate, either in amount or in the extent of the increase by graduation, to what such a tax should ultimately be." As the states have full power to levy taxes on inheritances and at the present time are deriving probably as much as $10,000,000 per annum from this source, it must be manifest that, if the scale adopted by Congress be high, the resources of the states will be correspondingly curtailed. In case of conflict, national taxes would take precedence over state taxes. We should also bear in mind that the power to tax is the strongest of all governmental powers, that it involves the power to destroy, that it generally knows no limitation except the discretion and moderation of the lawmakers, and that of all powers it is the one most liable to abuse.

From the time of the Declaration of Independence to the present hour, the distinctive feature of the American system of government has been equality before the law, not merely equality of rights but equality of duties and equality of burdens. Equality has been demanded in all things including especially taxation. The few exceptions in taxation, particularly in times of war, do not affect the general rule that has been followed. The courts have declared that according to American ideals "common justice requires that taxation, as far as possible, should be equal." Experience has shown that the only effectual protection against injustice and discrimination in taxation lies in the observance of some rule of equality and apportionment; and, although it is true that absolute equality is not always attainable, nevertheless an approximation to equality should be regarded as indispensable. As Hamilton said, "The genius of liberty reprobates everything arbitrary or discretionary in taxation." And Judge Cooley in his famous work on "Constitutional Limitations" said: "It is of the very essence of taxation that it be levied with equality and uniformity, and to this end, that there should be some system of apportionment. Where the burden is common, there should be common contribution to discharge it. Taxation is the equivalent for the protection which the government affords to the persons and property of its citizens; and as all are alike protected, so all alike should bear the burden, in proportion to the interests secured."[60]

In proportional or equal taxation, whereby every property owner contributes toward the expenses of the common government according to the amount of property he owns or inherits, or according to the income he enjoys, we find a perfectly safe and consistent rule and a definite and logical principle upon which to work. Proportional taxation subjects to the burden of government fairly and equally all property owners without distinction and without discrimination. Nothing is left to mere discretion or to the play of arbitrary and irresponsible power, and no class is likely to be unjustly singled out or discriminated against. Where property is as generally distributed as it is in this country, a proportional tax ordinarily reaches in one form or another a majority of the constituents of those who vote the taxes, and the sense of responsibility to these constituents operates as a conservative force and as a check upon unfair and unjust taxes, as well as upon improvident and extravagant expenditures. A proportional tax generally creates a large body of tax-paying voters whose property interests impel them to watch their representatives closely and to hold them to strict accountability. We then have taxation in its practical operation going hand in hand with representative responsibility, which was the cardinal principle for which our War of Independence was fought. A legislator who is conscious of the fact that a large, if not a controlling, number of his constituents will feel the burden of any tax he votes, is necessarily more careful, more prudent, more economical and more inclined to be just than if no such sense of responsibility exists.

On the other hand, where the great majority of voters are to be exempted from taxation, and where, accordingly, they will feel that they have no personal interest in governmental expenditures, they will be likely to take little or no pains to see that there is a fair apportionment of taxes which others must pay, or any economy in governmental expenditures for which others must provide. Their sense of justice and civic duty will become blunted. It will follow that, if the lawmakers are at liberty to enact laws which exempt the great majority of their constituents from taxation and cast the burden and expense of government on the few rich, frequently less than two or three per cent. of the voters in their respective districts, there will exist no practical restraint upon expenditure, but, on the contrary, every temptation to extravagance, wastefulness and injustice.

A graduated or progressive tax is necessarily arbitrary, for there is no definite rule or principle to apply to the scale. The rate, reasonable at first, may ultimately become confiscatory. There is nothing to check or stop the ascending scale. One act of injustice will lead to another. The appetite will grow and produce fresh injustice. If a tax of twenty-five per cent. on large fortunes now seems to some but a moderate beginning, where will the tax stop, and who is to determine what is or is not reasonable and beyond what point a legislative body shall not go? A few advocates of progressive taxation have already suggested fifty per cent. as a maximum applicable to the so-called surplus of large fortunes, but others more radical and less responsible may readily advocate a tax of one hundred per cent. upon the surplus they regard as superfluous or unhealthful. There is, indeed, no limit to the possible ascent in the scale of progression, and no power to prevent abuse and oppression on the part of temporary and irresponsible majorities. The rich would then be completely at the mercy of mere numbers.

During the French Revolution, the experiment was tried under the name of compulsory loans. These loans finally absorbed fifty per cent. of such incomes as the majority of the legislative assembly saw fit to consider as _abondants_, and one hundred per cent. of all incomes which they thought were _superflus_.

The late W.E.H. Lecky, one of the most eminent historians of our day, wrote as follows of progressive taxation in his work on "Democracy and Liberty": "When the principle of taxing all fortunes on the same rate of computation is abandoned, no definite rule or principle remains. At what point the higher scale is to begin, or to what degree it is to be raised, depends wholly on the policy of governments and the balance of parties. The ascending scale may at first be very moderate, but it may at any time, when fresh taxes are required, be made more severe, till it reaches or approaches the point of confiscation. No fixed line or amount of graduation can be maintained upon principle, or with any chance of finality. The whole matter will depend upon the interests and wishes of the electors; upon party politicians seeking for a cry and competing for the votes of very poor and very ignorant men. Under such a system all large properties may easily be made unsafe, and an insecurity may arise which will be fatal to all great financial undertakings. The most serious restraint on parliamentary extravagance will, at the same time, be taken away, and majorities will be invested with the easiest and most powerful instrument of oppression. Highly graduated taxation realizes most completely the supreme danger of democracy, creating a state of things in which one class imposes on another burdens which it is not asked to share, and impels the state into vast schemes of extravagance, under the belief that the whole cost will be thrown upon others."

In McCulloch on "Taxation," for fifty years the standard treatise in England on the subject, the following language is used: "It is argued that, in order fairly to proportion the tax to the ability of the contributors, such a graduated scale of duty should be adopted as should press lightly on the smaller class of properties and incomes, and increase according as they become larger and more able to bear taxation. We take leave, however, to protest against this proposal, which is not more seductive than it is unjust and dangerous.... If it either pass entirely over some classes, or press on some less heavily than on others, it is unjustly imposed. Government, in such a case, has plainly stepped out of its proper province, and has assessed the tax, not for the legitimate purpose of appropriating a certain proportion of the revenues of its subjects to the public exigencies, but that it might at the same time regulate the incomes of the contributors; that is, that it might depress one class and elevate another. The toleration of such a principle would necessarily lead to every species of abuse."

The well-known French political economist and scientist Leroy-Beaulieu in his works, _Traité d'Economie Politique_ and _Science des Finances_, discusses at length the whole subject of graduated or progressive taxation, and condemns it as vicious in theory and unwise and unjust in practice. Among other things he says: "Progressive taxation constitutes actual spoliation. It violates, besides, the rule, established by all civilization, that taxation ought to be imposed with the full consent of the taxpayer; for, it is quite clear, that in this case, it is the mass of the voters who relieve themselves of the heavy weight of the tax and cast it upon the few, and these few do not consent, even tacitly, to the excess with which the government wishes to burden them. When the rate of the tax is equal for all, we can consider that the vote for the tax by the legislature carries with it the implied acquiescence of all the assessable; otherwise not.... Every system of progressive taxation, however attenuated, is iniquitous and dangerous."

And the same conclusions have been reached by a number of other distinguished French scholars and statesmen, among whom may be cited Thiers, Beauregard and Stourm.

The right of the states to levy progressive and unequal taxes on inheritances and testamentary dispositions is frequently sought to be upheld upon the theory that the power of our legislatures over successions to the property of decedents is unlimited, that the right to succeed is a mere statutory privilege, and that our lawmakers may arbitrarily grant or withhold that privilege at their will and discretion. It is, however, far from established that any such arbitrary and unrestrained power is vested in our state legislatures as that of denying wholly the right of inheritance or of testamentary disposition, or of discriminating in the regulation or grant of the privilege. The power to regulate the exercise of any right does not necessarily imply the power to deny it altogether. All rights of property as well as of personal liberty are subject to reasonable regulation, but this does not involve the power absolutely or arbitrarily to destroy such rights. The right of inheritance by children was not originally the creation of statute law at all, although the contrary is often assumed. It was a customary right long before the Conquest and prior to any statute of which we have record. It is treated by legal historians as "our common law of inheritance." In the latest authoritative history of the English law, that by Pollock and Maitland, the authors say that "in calling to our aid a law of intestate succession, we are not invoking a modern force," and that "the time when no such law existed is in strictest sense a prehistoric time." We find that it was a right already established in every one of the thirteen original states at the time the national government was founded; that it has always existed in civilized countries, so far as we have any knowledge; that it was recognized in the Twelve Tables as a right among the Romans; that it was a right long before among the Egyptians, and that it pervades the Mosaic law. A distinguished writer declares it to be the general direction of Providence itself. And Chancellor Kent said that "nature and policy have equally concurred to introduce and maintain this primary rule of inheritance in the laws and usage of all civilized nations."

The power of testamentary disposition undoubtedly developed as a limitation upon the right of inheritance and in order to prevent escheat for want of heirs. But however originating or evidenced--whether in old customs or in the practice of _post-obit_ gifts--the right has been recognized from time immemorial. As Blackstone said in his "Commentaries," "in England this power of bequeathing is coeval with the first rudiments of the law, for we have no traces or memorials of any time when it did not exist."

Whatever may be the general language to be found in some judicial decisions, and whatever may be the extreme power of our state legislatures in the abstract, it is hardly conceivable that any state would attempt to escheat or confiscate all the property of decedents to the exclusion of children and near relatives, or that it would wholly deny the right of testamentary disposition. At any rate, if escheat or confiscation were ever decreed, it would have to be by laws applying equally to all decedents, and not merely to a selected class. The guaranties of the fourteenth amendment would prevent any discrimination.

But, however unlimited the power of the states may be in this regard, there can certainly be no doubt that it was not the intention of the framers of the Constitution of the United States to delegate to Congress the power to regulate successions to the estates of decedents or the privilege of testamentary disposition or inheritance. No one has yet seriously claimed that any such authority is within the legitimate sphere of the national government as contemplated by its founders. The power of regulating successions to the property of decedents was reserved to the states, and the courts would undoubtedly hold that any direct attempt on the part of Congress to regulate successions as such, or the ownership or transfer of property, was in excess of its powers. In dealing with successions, therefore, Congress can only exercise the power of taxation.

Yet it is urged that, as Congress has the power to tax successions, it may under the guise of exercising that power regulate inheritances and thereby break up large fortunes and force a redistribution of wealth. In other words, the argument is that Congress may, under the cover or pretense of a tax law, accomplish indirectly an object which, for want of power, it could not accomplish directly, although the accomplishment of this object would constitute a deliberate encroachment upon the reserved rights of the states.

There is great danger in this view, and it opens the door to abuse by Congress of the power of taxation. If a federal statute purports on its face to be a tax measure, and in fact to some extent operates to that end, the courts cannot ordinarily set it aside, even though the motive for its enactment be to accomplish an object not entrusted to the national government. The jurisdiction of the courts is limited. Legislation which seeks to effect illegitimate ends cannot always be nullified. The power of Congress to levy a graduated inheritance tax as a revenue measure would be practically unlimited unless, in the particular instance, the law were so extravagant, and its unconstitutional object so plain, as to establish beyond doubt an unauthorized purpose. It is not within the province of the judicial power to determine whether a given tax which raises revenue is reasonable or unreasonable, or to inquire into the motives of Congress in enacting the law. The courts might not, therefore, be able to set aside an inheritance tax law passed by Congress even if it absorbed fifty per cent. or more of successions, although it might be quite apparent that the real object of the law was to invade the province of the states and to regulate inheritances in clear violation of the spirit of the Constitution.

Nothing could be better calculated ultimately to undermine our whole system of constitutional government than the idea that the courts alone are the guardians of the Constitution and that Congress may rightfully enact any statute which the courts cannot properly nullify. The truth is that the duty of preserving and defending the Constitution in all its integrity is vested in Congress and the President far more than in the courts, and that if Congress and the President do not observe the restraints and limitations imposed by the Constitution, Congress may pass many statutes which are unconstitutional in substance but which the courts cannot set aside. It is often urged that all questions of constitutionality should be left to the courts and not be passed upon by Congress or the President. The true doctrine, however, is that Congress should not enact and the President should not approve any statute which they, as the agents and representatives of the people, are not satisfied seeks to accomplish a legitimate end within the scope of some power delegated to Congress and not reserved to the states or to the people. They should first determine, as their oath of office requires, whether, according to their best judgment, the act is or is not constitutional. It was the distinct intention of the framers of the Constitution, and they so provided in express words, that every member of Congress, every senator and every representative, should be bound by oath or affirmation to support the Constitution, and that the President, especially, should be charged with the duty of preserving, protecting and defending it to the best of his ability. This duty extends not only to the letter but to the spirit of the Constitution. It will be a lamentable exhibition of a lack of what may well be termed constitutional morality if, in the debates on the pending measures, we shall again hear the suggestion that objects concededly outside the scope of any power delegated to the national government may nevertheless be accomplished indirectly by means of a federal inheritance tax, in violation of the reserved rights of the state governments.

If, in framing an inheritance tax law, Congress will bear in mind that the regulation of successions to the property of decedents is a matter solely within the jurisdiction of the states and ought not to be usurped by the federal government, the object of raising revenue alone may lead to fair and reasonable taxes levied impartially upon all who should be called upon to pay for the support and maintenance of the common government whose protection they enjoy. It would then, perhaps, be better appreciated that the states have important and extensive governmental functions to perform; that they need inheritance taxes for the support of their governments, schools, charities, police and public improvements, and that any heavy federal succession taxes would embarrass and cripple them. It is, of course, one thing to resort to a federal inheritance tax as a temporary war measure, when patriotism inspires ready acquiescence and willing sacrifice, and quite a different thing to establish such a tax as a permanent method of raising national revenue in times of peace and prosperity when the effect may be to withdraw that source of revenue from the states.

The subject of federal income taxes remains to be considered. There is no doubt that any state may levy income taxes. Nor is there any doubt that, under the federal Constitution as it now stands, Congress may levy an income tax provided it be apportioned according to population as required in regard to all direct federal taxes. There is also no doubt that Congress, by means of an excise tax, may reach income derived from any business or profession, and that any such tax, being essentially an excise tax on business, need not be apportioned but need merely be uniform throughout the United States. For example, a tax on the earnings of railroads and manufacturing businesses could be levied without apportionment, and it would produce a large revenue. It would also have the advantage of tapping income at the source. A tax by Congress on lands and personal property as such would, no one disputes, be a direct tax and subject to the rule of apportionment, and a tax on the income of property is in substance and practical and legal effect the equivalent of a tax on the property itself.

As Chief Justice Fuller said in the Income Tax cases: "The acceptance of the rule of apportionment was one of the compromises which made the adoption of the Constitution possible, and secured the creation of that dual form of government, so elastic and so strong, which has thus far survived in unabated vigor. If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property."[61]