they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency of policy; I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted."

Again, in Plessy v. Ferguson (163 U. S. 537) he dissented, with equal vigor, from the decision which sustained the constitutionality of an act of the legislature of Louisiana requiring railway companies carrying passengers in their coaches in that State to provide equal, but separate, accommodations for the white and colored races.

"The sure guarantee of the peace and security of each race," he wrote, "is the clear, distinct, unconditional recognition by our Governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race. State enactments regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing the equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can properly be regarded as one, is scarcely worthy of consideration, for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the

purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting."

In Hodges v. United States (203 U. S. 1) he dissented from the decision of the majority that the Fourteenth and Fifteenth Amendments to the Constitution operate solely on state action and not on individual action, and that the remedy for wrongs committed by individuals on persons of African descent is through state action and state tribunals, subject to supervision of this court by writ of error in proper cases; and that, consequently, the United States District Courts have no jurisdiction under the Thirteenth Amendment or §§ 1978, 1979, 5508 or 5510, Revised Statutes, of a charge of conspiracy made and carried out in a State to prevent citizens of African descent, because of their race and color, from making or carrying out contracts and agreements to labor.

He protested against the decision in Hurtado v. People of California (110 U. S. 516), that the words "due process of law" in the Fourteenth Amendment do not necessarily require an indictment by a grand jury in a prosecution by a State for murder, contending that "due process of law," within the meaning of the National Constitution, does not import one thing with reference to the powers of the State and another with reference to the powers of the general Government.

"My brethren concede," he wrote, "that there are principles of liberty and justice lying at the foundation of our civil and political institutions which no State can violate consistently with that due process of law required by the Fourteenth Amendment in proceedings involving life, liberty or property. Some of these principles are enumerated in the opinion of the court. But for reasons which do not impress my mind as satisfactory they exclude from that enumeration the exemption from prosecution, by information, for a public offense involving life.

"It is said by the court that the Constitution of the

United States was made for an undefined and expanding future, and that its requirement of due process of law in proceedings involving life, liberty, and property must be so interpreted as not to deny to the law the capacity of progress and improvement; that the greatest security for the fundamental principles of justice resides in the right of the people to make their own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives by information, which suggests that the State which adopts it has entered upon an era of progress and improvement in the law of criminal procedure."

He concurred with the majority of the court in De Lima v. Bidwell (182 U. S. 1), in holding that territory (in this case Porto Rico) acquired by the United States by cession from a foreign power is not "foreign country" within the meaning of the tariff laws. But in Downes v. Bidwell (182 U. S. 245) he was one of the justices who agreed with the Chief Justice in dissenting from the conclusion that, after its cession to the United States by Spain, the island of Porto Rico was not a part of the United States within that provision of the Constitution which declares that "all duties, imposts, and excises shall be uniform throughout the United States."

In Hawaii v. Mankichi (190 U. S. 197), again dissenting from the majority of the court, he maintained that, after the annexation of Hawaii and before the passage of the act of Congress providing a government for that territory, a conviction for manslaughter upon an indictment not found by a grand jury and by the verdict of nine only out of twelve jurors, in accordance with the laws of Hawaii in force at the time of annexation, could not be legal.

But if he was strong and vigorous in dissent, he was equally so in voicing the conclusions of the majority of the court. The vigorous line of opinions dealing with the power of the Federal Government over interstate

commerce are the best examples of the strength of his convictions and the lucidity of his reasoning in constitutional exposition. In them the principles of Marshall's interpretation of the Constitution were fully recognized and applied. In the Lottery Case (188 U. S. 321), he demonstrated the proposition that legislation, under the power to regulate commerce among the several States, may sometimes properly assume the form or have the effect of prohibition, and that Congress, under this power, might prohibit the carriage of lottery tickets from one State to another. In Minnesota v. Barber (136 U. S. 313), he wrote the decision holding to be unconstitutional a statute of the State of Minnesota which prohibited the sale in that State of fresh beef, veal, pork, etc., for human food, unless the animals from which taken should have been inspected within that State before being slaughtered. In a series of forceful opinions, the last of which was written at the very close of his life, he upheld the right of corporations to engage in interstate commerce without interference or restriction by state authority. These opinions illustrate the surprising freshness and vigor of JusTICE HARLAN's mind. In Western Union Telegraph Company v. Kansas (216 U. S. 1), and in Pullman Company v. Kansas (216 U. S. 56), it was held that the right to carry on interstate commerce is not a privilege granted by the States, but a constitutional right of every citizen of the United States; that the Congress alone can limit the right of corporations to engage therein, and that no State may impose, as a condition of carrying on interstate commerce within its borders, a tax of a given percentage of all the capital of a corporation, represented by its business interests and property, everywhere, within and outside of the State; that a corporation organized in one State and doing an interstate business, is not bound to obtain the permission of another State to transact business within its limits, but can go into the latter for the purpose of interstate business, although subject to reasonable legal

regulations for the safety, comfort, and convenience of the people, which do not, in a real substantial sense, burden or regulate its interstate business, nor subject its other property and interests, outside of the State, to taxation. In the case of the International Textbook Company v. Pigg (217 U. S. 91), he applied these principles, in a most interesting and lucid manner, to the case of a Pennsylvania corporation engaged in furnishing instruction, by correspondence with students in various States.

"It is true," he said, "that the business in which the International Textbook Co. is engaged is of a somewhat exceptional character, but, in our judgment, it was in its essential characteristics, commerce among the States within the meaning of the Constitution of the United States. It involved, as already suggested, regular and practically continuous intercourse between the Textbook Co., located in Pennsylvania, and its scholars and agents in Kansas and other States. That intercourse was conducted by means of correspondence through the mails with such agents and scholars. While this mode of imparting and acquiring an education may not be such as is commonly adopted in this country, it is a lawful mode to accomplish the valuable purpose the parties have in view. Intercourse of that kind, between parties in different States-particularly when it is in execution of a valid contract between them-is as much intercourse, in the constitutional sense, as intercourse by means of the telegraph'a new species of commerce,' to use the words of this court in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9."

While always asserting with vigor the supremacy of Federal control over interstate commerce, he yet wrote the opinion of the court in the case of Hennington v. Georgia (163 U. S. 299), holding valid statutes of the State of Georgia which forbade the running of freight trains on any railroad in that State on Sunday, upon the ground that, while such legislation affected interstate commerce