than the terrible attempt by a judge to destroy the integrity of the organic law by construction, with deliberate intent to make law or to increase federal power? Yet our President and his chief secretary encourage this very form of treason, insidious and horrible, and there neither is nor can be any penal statute against it.

Do not misunderstand me. There is a difference between these latest day propositions and the application of an undoubtedly granted power to a new condition. If the federal government had been granted expressly or by fair and honest implication power over a given subject matter, no change of phrase in that subject matter can balk the application of the power. The power over interstate commerce, for example, could not be limited because human invention had brought into existence steam railways as instrumentalities of commerce. But it remains true that in construing the organic law the duty of the judge lies in holding to the old maxim, "Ita lex scripta." Nor is it necessary to enter into the formerly mooted question as to whether this construction should be narrow or broad, strict or liberal. What we want is an honest and sincere construction of the real words and the real intent and the real purpose "nought extenuating nor setting down aught in malice." Otherwise construers of law become makers of lawjudges become legislators.

I am one of those who believe that infinite damage has been done by the study and popularity of Hon. James Bryce's book, "The American Commonwealth." It is almost impossible for an Englishman to understand our system based upon the underlying theory of a written constitution. The Constitution of Great Britain. is a thing of construction, or evolution, of growth by judicial construction, growth by changing opinion. Parliament has unlimited power, subject to certain fundamental natural rights of the individual which, broadly stated, are "the inherited rights of free born Englishmen." Mr. Bryce, therefore, in dwelling with apparent pleasure upon the fact that the Constitution of the United States might be changed by judicial construction (changed now, mark you, not developed) was acting very naturally for one of his environment and training. He could not appreciate the horror in the mind of a real American,-really in love with the institutions. of his own country,-for the very thing which he dwells upon with a tolerant, if not a favorable eye.

I shall not say much more, however, about judicial usurpation, because there has not been as much usurpation by that branch of the government, either attempted or consummated, as by the other two. Upon the whole, our judiciary has rather preserved the constitution from popular passion and impulses, from party spirit and sectional hate, and as Congress and the executive grow wilder, it sets aside from year to year a larger and larger proportion of their acts. During the entire period before the Civil War it had set aside only two or three general acts. Just how many multiples of that number have been declared unconstitutional since I cannot now say, but we have grown accustomed to the Supreme Court's checking up Congress and the President every now and then, and the prayer of every good American is that it may do so "more and more unto the perfect day."

Yet the judiciary has made some apparently queer decisions lately. In Mankichi's case, which came up from Hawaii, there had been no indictment nor any unanimous verdict of twelve men—in our constitutional sense a jury verdict-against the prisoner, and yet the Supreme Court affirmed the case upon the ground that the laws of Hawaii when annexed to the United States had not required an indictment and had made provision for a jury that did not find a verdict by unanimity. Upon what principle the court arrogated to itself the right to say just what fundamental constitutional principles should go with the constitution to Hawaii simultaneously with the annexation, and which of those fundamental notions should remain behind, to go later or not at all, presents a curious study.

The gradual growth of injunctions in federal courts constitutes the chief thing to complain of in connection with that branch of our government. Originally the equitable right of injunction was issued when the law remedy was inadequate or the damage irreparable and did not apply to crimes. In Lennon's case, however, men were actually enjoined for refusing to haul cars of a railroad and for leaving the employ of a railroad, while under the charge of a receiver appointed by a federal court, on the ground that their quitting the employment "crippled the railroad's operation," and I believe, if I remember correctly, also upon the ground that it interfered with interstate commerce. This injunction was issued in

spite of the thirteenth amendment, which forbids "involuntary servitude except for crime."

If everything that can be construed to be an interference with interstate commerce is to be taken as a just ground for an injunction, a man who shoots another riding on a ticket from Philadelphia to New Orleans would, so far as I can see, subject himself to federal penalties instead of being simply tried for murder, according to the laws of the state of the place where he committed the murder. Even when United States penal statutes exist, where a man can be arrested upon affidavit and rendered harmless, the federal courts still issue injunctions.

The power to inflict punishment for indirect contempts,-constructive contempts,-contempts committed not in view of the court, punishments which carry deprivation of liberty and deprivation of property without a jury trial is another abuse. These things encourage a spirit of anarchy. Every man, if possible, ought to have a trial by jury. Injunctions are issued by one judge on ex parte hearing, on mere affidavits without notice even to the defendant and on reference of questions of fact to one referee. Upon such evidence as that and upon such findings of fact as that the enforcement of state laws, passed deliberately by state legislatures and approved by state executives, is enjoined. The plea generally is that the state law is "confiscatory." Of course when upon a hearing properly had after due notice to both sides, and a proper investigation of the facts, state legislation is found to be really confiscatory, it must be set aside by permanent injunction as conflicting with the Constitution of the United States. But that is not the question here. The question is whether the temporary restraining order issued ex parte upon mere affidavits and so-called ascertainment of fact by a master in chancery, very little acquainted with the subject matter and very little able to judge of it, should prevail, to annul a state statute.

Let us notice a tendency to usurp federal power under the treaty clause. Calhoun says that treaties are the supreme law of the land "provided such regulations (in treaties) are not inconsistent with the constitution." I quote Calhoun because he went further than almost anybody in maintaining the plenary power of the federal government to regulate our intercourse with foreign powers. If the treaty attempt to treat concerning some subject

matter, the regulation of which is not delegated to any branch whatsoever of the federal government, then that treaty is "inconsistent with the constitution," as being inconsistent with the purpose for which the federal government was formed. If it attempt to treat of some subject matter the regulation of which is delegated to any branch, I care not which one, of the federal government, I admit the plenary power of the federal government. That the treaty can give an alien equal rights with the citizen, even within a state concerning a subject matter that the federal government would otherwise not control, I do not doubt; but that it can give him. superior privileges to a citizen I deny. If by treaty with Japan, for example, California can be forced to admit Japanese, or by treaty with China it can be forced to admit Chinese, to the same schools with white children, then by treaty with Haiti or Santo Domingo negroes from those islands could be admitted to the same schools with white children in Mississippi, let us say, where native-born negroes, citizens of the United States, cannot attend white schools.

The President in a Massachusetts speech is quoted as saying: "States rights ought to be preserved when they mean the people's rights, but not when they mean the people's wrongs." In God's name who is to say what are people's rights and what are people's wrongs? If I undertook to answer the quesion I should say the people themselves. And then if I were asked further-how they were to say it or have said it, how they were to draw the line or have drawn it, how they were to prescribe the people's rights and proscribe the people's wrongs-I would say through the fundamental organic law,-the Constitution of the United States, and in the constitution of the several states, which are the prescribing voice of the people themselves. "Thus far and thus far only shall any governmental authority over man ever go."

We are running mad. The latest proposition is to have a law for federal registration of automobiles, on the ground that automobiles do sometimes travel over state lines! It is proposed by the President to charter, and by Mr. Bryan to license, corporations chartered by the states, to enter into interstate business. The President's latest astounding proposition is to leave a branch of the executive government to distinguish between good trusts and bad trusts, mark out one for a license to do business and another for

anti-trust law. What a campaign contribution breeder that would be! How the combinations and trusts-the present substantive law being cunningly retained-would run over one another in contributing to the campaign funds of whichever party was in power in order to bias the executive department of that party in finding them good and not bad!

I have referred once before to administrative usurpations of federal power as the most dangerous because most insidious and least seen by the average citizen. I wish that some of you, who have time to do it, would study the case of Ju Toy, a Chinaman, reported in 198 U. S. This man was born in the United States, went to China on a visit and came back; was sentenced to deportation as an alien by the immigration commissioner, whose sentence was affirmed by the Secretary of the Treasury. In some way the poor devil managed to communicate with a lawyer and to avail himself of habeas corpus proceedings. The referee found Toy's statement that he was born in America to be true. The case finally got to the Supreme Court. That court decided that the question of fact as to whether he was or was not a native-born citizen of the United States had been decided by an administrative tribunal authorized to try it, and that that finding was final and conclusive. In other words, that it made no difference whether, as a matter of fact, Toy was a natural-born citizen or an alien, he was banished, and that was all there was to it!

It is not alone in connection with this case that the courts have held that they could not question the conclusions reached by executive and administrative tribunals, and that no appeal to any court would lie, but in other matters as well. The power reposed in the Post Office Department, although it has not as yet been as seriously abused as it may be, is a power out of which the destruction of the entire principle of the freedom of the press may flow. The department may to-morrow, if it choose, cut off the "New York Times," or the "North American Review," or "Collier's Weekly," from the right to be transmitted through the mails under a fraud. order. If it chose there would be no appeal to any court. It could, furthermore, if it chose, refuse by a fraud order to permit any mail to be delivered to either of them, or to me, or to you. It could do this upon the report of detectives in the department, and perhaps the first we would hear of it would be missing our mail.