The same identical gate has been in use for thirty years in various parts of the Union. With the addition of "friction wheels" or "rollers,"

or "pivot wheels" (as they are indifferently called), this gate was on exhibition and sale in many of the western states in 1863. In fact, the patent for the friction wheels obtained in that year was attached to the gate and publicly exhibited, no claim being made for a patent upon the gate, but only upon the attachment. The gate itself consists of battens nailed upon the ends and near the center of four or five boards which forms the gate, with the posts so placed that after it is pushed a sufficient distance to make it balance on its center, it can be opened, its center acting as the pivotal point. The balancing principle for which the patent was obtained was first discovered by two of the descendants of Father Adam, in their youthful days, when they balanced a pole or board across a log or a fence, and, seated, one on each end, enjoyed a game of seesaw. The little boy who built a pig-pen years before the great intellect of Teel forged the idea, made the same kind of a balance gate for it. The man or boy of past generations who desired to make a cheap gate, instinctively made a _Teel Gate_. Yet some ten years ago the mighty intellect of Teel forged the idea, produced a model and forwarded it to the patent office. The _Scientific_ (?) _Examiner_, who decides upon the merits of all inventions, who, if he had traveled and observed the common farm gate in many parts of the country, must have seen the gate in actual public use, issued to Teel letters patent, which are safely and securely held until the new western country is settled and this cheap gate is in general use, when he and his agents and a.s.signees appear and demand _royalty_. He has been given an exclusive monopoly for the making, selling, and using a gate that is not new in any of its principles. By this fraud of the applicant and the incompetence of the examiner, the farmer is forbidden to use the old invention of a cheap gate until he pays a bounty to a patentee. The law for the protection of discoverers and inventors is prost.i.tuted, and the people compelled to pay out their money without consideration.

The same state of facts exists with respect to many other patents. Men travel over the country, examine all machinery and farming implements, not for the purpose of making new or useful discoveries or improvements, but for the purpose of learning whether they cannot so contrive as to collect royalty from others for an invention long in use, but for which the inventor had not asked or received a patent. Add this monopoly of patent rights to the other monopolies now cursing the country, and the need of a speedy reform, or the alternative of poverty and bankruptcy among the producing cla.s.ses, becomes still more apparent.

This patent right monopoly is, in a great measure, owing to the want of proper care and knowledge in the department of the patent office, where the only pre-requisite for the granting of letters patent for almost anything, where the application is not contested, is a model and the patent office fee. The effect of this free and easy course in the department is to bring into disrepute the really valuable invention and discovery, and to impose upon the people useless burdens.

CONCLUSION.

REFORMATION OR REVOLUTION.--A RADICAL CHANGE DEMANDED IN THE ADMINISTRATION OF PUBLIC AFFAIRS.--CONCLUSIONS OF THE AUTHOR.

FIRST. We have sought to call the reader's attention to some of the monopolies existing in our land, and to show their power and influence with the government, and their control of the commercial and agricultural interests of the country. It now remains for us to direct his attention to the effect of these monopolies upon the people and prosperity of the country. No country in the world has been as bountifully supplied by the Creator with all the means to make a nation prosperous and happy as ours. It is vast in extent of territory. Its soil is rich, and most of it new. Lying in all lat.i.tudes, it produces fruits of every climate. The husbandman is a.s.sured of an abundant crop.

All agricultural and horticultural pursuits are rewarded with large growths and bounteous harvests. Our sh.o.r.es are washed by oceans, which afford us highways, over which we can avail ourselves of the markets of the world; while flowing through the agricultural portions of our common country are our great rivers, upon whose waters the produce and manufactures of the land are transported to market. Our great lakes furnish us an outlet for the surplus product of the great west. Our sixty or seventy thousand miles of railroad traverse our country in all directions, reaching from the Atlantic to the Pacific, and spreading like a net-work from the lakes to the gulf. Our mines produce immense yields of the precious metals, while our hills and mountains are full of iron, coal, and lead. Petroleum flows in quant.i.ties which should add largely to the wealth of our common country. Our timber is not excelled by that of any growth in the world. Our lands are rich in fertility, and poor only in price. The Creator has done for us all that could be desired to make us prosperous and contented. Our government is, or was intended to be, based upon the will of the people. Our const.i.tution recognizes no royal rulers, no lords, no t.i.tled gentry. Under it we are all equal. They who administer the laws are selected by the people. In contemplation of law, all are equal--all are free and independent. With all these blessings and advantages we ought to be the happiest and most prosperous people on the earth. Peace, plenty, and contentment should reign supreme throughout the land. What are the facts?

Throughout the entire length and breadth of our land, mutterings and complainings are heard. From the farmers, the mechanics, and laborers alike, the complaint is heard, "We cannot pay our taxes and support our families;" "Our wages will not enable us to buy the necessaries of life, because of the large duties laid upon them;" "Our farm products will not pay taxes, charges for transportation, and other burdens imposed upon us, and leave us any margin;" "We had better let our lands lie idle than to attempt to cultivate them." These and like complaints are heard from the laboring and producing cla.s.ses. Nor are their complaints without cause. Another interest has arisen in the land--it has become all-powerful. This interest penetrates the remotest portions of the country. It calls upon the laborer, the operative, the mechanic, the farmer, and all private citizens, for a division of the products of their labor. It enters the halls of legislatures and of congress, and demands, and not unfrequently purchases, special privileges and powers.

It visits the executive department of the government, and there secures special favors. It stalks boldly into the courts of the country, and _there_ procures unjust decisions in its interest. It indeed places its own men upon these _seats of justice_, that the judiciary of the country may not fail to support its aims. It has already obtained complete control of the finances of the country. It has corrupted legislatures and congressmen, until the law-making power has become a party to schemes of robbery and plunder. By corrupt legislation and _ex parte_ judicial decisions, it has destroyed all the old republican landmarks, overridden the provisions of the const.i.tution, and subst.i.tuted for the government prepared for us by our forefathers an oligarchy that rules the land and holds the people at its mercy, and their property as its lawful booty. This great oppressor of the people is the railroad corporations and their a.s.sociates, of which we have been treating.

Railroad and other corporations, brokers, and stock-jobbers, have obtained such complete control over the government, the people, and the financial and commercial interests of the country, that they who depend upon agricultural pursuits, or upon their labor, for a support, are deprived of those G.o.d-given rights which formed the base of our political superstructure.

Formerly, the people, through the ballot box, governed the country; they were sovereign. In this republic no rival power existed, and it was our boast that our people were free and independent. Our fundamental law is still the same. In theory, our people are still sovereign; in fact, most of their sovereignty has been legislated from them. Statutes are enacted compelling the people to divide their hard-earned substance with private corporations without any consideration; and the highest courts of the country have affirmed the const.i.tutionality of these laws. The freedom and equality which was our national boast have disappeared, and instead thereof the people are ruled by cruel and oppressive task-masters, who are fostered and supported by legislatures and courts in their united purpose of controlling the country. These oppressions have been endured by the people, with but feeble efforts to regain their rights, until the alternative is presented of organized resistance or absolute ruin.

Throughout the length and breadth of our common country, the laboring and producing cla.s.ses are struggling for the necessaries of life, whilst those who own and manage the corporations of the country have firmly grasped and now control the financial and commercial interests of the country, and are ama.s.sing princely fortunes and rolling in wealth. To stay the course of their oppressors, and get back some of their rights, the laboring cla.s.ses are organizing, and demanding of their employers such compensation as will enable them to supply the common necessaries of life. They demand that their wages shall be increased in proportion to the increased cost of living, occasioned by special grants and privileges bestowed upon corporations and monopolies; that instead of being treated as va.s.sals of the despots who now rule the country and control the government, that their rights as freemen shall be recognized.

The operatives and mechanics are banding together for the same purpose.

They are all seeking, in the same degree, to counteract the evil effects of the grants and privileges conferred upon monopolies. The farmers, who, as a cla.s.s, have always been deemed the most independent in the country, are so impoverished by these monopolies that they have been compelled to band together for mutual protection. No choice was left them. The bestowal of such great powers and special privileges upon corporations presented the alternative of utter financial ruin, or united and combined efforts on the part of the people, to check the great and growing power which now is fattening upon their toil and industry. While under ordinary circ.u.mstances, all cla.s.s organizations are attended with some bad results, yet when any interest becomes so powerful as to oppress all others, when it has such strength that it can defy all ordinary attempts at reform, then any and all organizations having for their object the correction of abuses, the restoration of the rights of the people, the destruction of an oligarchy that has already obtained such power in the land as to subvert the very nature of free inst.i.tutions, is not only right, but its objects are patriotic. Though the organization may have for its object the protection of a single interest, the correction of a single abuse, the restoration of a single right, it benefits all cla.s.ses who suffer like oppressions. It is fortunate that while the grants of great bounties and special privileges to corporations have resulted in great wrongs and oppressions to the people generally, they have also been the means of effecting organizations that will eventually restore to the people those rights which in our government are considered as inalienable. When the agriculturalists of the whole country become united in their demands for redress, neither the state legislatures, the congress of the nation, or the courts, will dare to disregard their demands. Numbering more than all who are engaged in other pursuits, being a majority of the whole people, when their united voice is heard it will not be an "uncertain sound." It will command obedience. Grants of bounties and privileges to corporations have depressed and sometimes destroyed other great interests to the injury of the people, and divided the people into cla.s.ses, one cla.s.s representing the capital and corporate interests of the country, and the other, comprised of the laboring and producing cla.s.ses; but this special legislation has also resulted in bringing to the front the great agricultural population, who possess the power, by united action, of restoring to the people their lost rights, while corporations shall enjoy equal rights with other interests, shorn of their power granted to them by corrupt and interested legislation and partial decisions of courts. This legislation and these decisions we have reviewed in preceding pages. It now remains for us to express our views upon the policy rendered necessary by the grave situation of the country.

SECOND.--_The Const.i.tutional Right and Duty Resting upon the People to Repeal all Cla.s.s Legislation._--While we do not claim to possess more knowledge than other men, and while our views as to the means to be employed for remedying the evils under which we now suffer may be erroneous, we shall venture to present them with the hope of aiding the efforts now being made to arrest the rapid concentration of the whole political, commercial, and financial interests of the country, in corporations and other monopolies. We must not lose sight of the fact that under our const.i.tution the people are sovereign; that the will of the majority expressed as provided by the fundamental law is supreme; that all the rights, privileges, and powers possessed by man in his normal state, are retained by the people, save such as they have transferred to the different departments of the government, state and national; that these rights, not so transferred, can be a.s.serted and enforced as occasion requires; that when those entrusted with the administration of the government transcend or abuse the powers delegated to them, and by so doing deprive the people of the rights they possess under the const.i.tution, the people are fully justified in resorting to whatever means may be necessary for the restoration and protection of those rights. In pursuing these necessary measures of relief, no injury is done to a minority, or to any individual, for the foundation on which our republic rests is equal and exact justice to all men, and the equality of all men before the law. All acts of legislatures, and all decisions of courts, which deny to the citizen, or to any cla.s.s of citizens, or to a particular trade, occupation, business, or profession, the same privileges and protection granted to others, or which grant to any cla.s.s of citizens or to corporations privileges which infringe upon the rights of others, are abuses of power and a.s.sumptions of authority not delegated by the people to the government, or to any department of it. It follows that any attempts of congress or legislatures to confer upon any corporations grants of power which enable them to override the rights reserved by the people, transcend the authority with which such legislatures are clothed, and are not binding upon the public. As agents, they have exceeded their power, and their acts do not bind their princ.i.p.als. If an agent acts under special authority, his acts, within the scope of his authority, are binding upon his princ.i.p.al; but if he violates his instructions, and attempts to make a contract not warranted by his letter of attorney, his acts have no binding force upon his princ.i.p.al. The same is true of those men who are elected and appointed to fill the different offices in the government. The const.i.tution is their letter of attorney. They are bound by it. When they act outside of their instructions, as contained in that instrument, their acts are void. This will be conceded. Even members of railroad companies will not controvert this proposition. The real point is, Who is to decide when an act is in conflict with the const.i.tution? The answer is, the courts, for such is the law. When complaint is made of usurpations of corporations, we are told that they are only exercising the privileges conferred upon them by law; that the courts have decided in their favor, and that from these decisions there is no appeal; nor can any redress be obtained, because the question has been settled in their favor by the highest power in the land--the supreme court of the United States.

To this general rule of determining controverted questions there must be some exceptions, unless we concede that supreme power is vested in the courts, and that the const.i.tution clothes them with all the attributes of despotic governments. We have shown that judges of courts are governed and controlled by the same influences which influence other men; that they are not infallible; that their decisions are influenced by surrounding circ.u.mstances; that education, a.s.sociation, and habits of life, have an important bearing upon their minds, and not unfrequently warp their judgments, and it is not treason to say that decisions of state and federal courts prove that they are as liable to change their views as are the majority of the people. The supreme power must have a permanent lodgment somewhere. If it remains with the people, it does not vest in the supreme court, and that court is but the agent of the people, and acts for them when it decides upon the validity of a statute, or defines the rights and duties of the people. Under our form of government, certain rights and powers are conferred upon the general government; these are all such as are necessary for our existence as a nation; they are limited, and should be strictly construed, because all powers and rights not expressly conferred upon the general government, "are reserved to the states or to the people." The states being sovereign, their power is superior to that of the general government, save in those matters surrendered to it. Hence, the state governments have a general, expressed, and implied jurisdiction in all matters not surrendered, and state const.i.tutions are to be liberally construed.

But over and above the powers vested in the general and state governments, that G.o.d-given right of self-protection remains with the people. This right they have never surrendered to legislatures or to courts. If by the action of the legislature, or of congress, or of the courts, the rights reserved to the people can be abridged, denied, or destroyed, then we do not live under a republican, but are the subjects of a despotic, government. If congress were to enact a law providing that one-tenth of the annual income of each inhabitant in the land should be paid to railroad corporations, and the supreme court of the United States should decide the act to be const.i.tutional, if it be true that there is no appeal from these decisions, and that as good citizens of the government we are obliged to accept them as valid and binding, there could be no redress. This doctrine of submission we do not indorse. Such a decision would cause the people to resort to the powers and rights retained by them, and to make use of whatever means they possessed to reverse or destroy the force and effect of such a decision.

They would be justified in resorting to nature's first law to rid themselves of so unjust a decision. While no such law has been pa.s.sed, and no such decision has been made, laws have been enacted, and their validity affirmed by the courts, which are paving the way for the destruction of the civil and political rights of the people, and the centralization of all power in the general government. By a series of legislative enactments and decisions of courts, special privileges have been conferred upon railroad companies antagonistic to, and destructive of, the rights of the people. How are these rights to be restored? These questions will now claim our attention.

All laws granting to railroad or other corporations organized for pecuniary profit, special and exclusive privileges, which encroach upon the rights of the public, should be repealed. The most prominent argument against repeal exists in the doctrine that railroads are public highways, and that a charter granted to a railroad corporation by the legislature is in the nature of a contract, and is therefore irrepealable. By the constant and persistent a.s.sertion of these propositions, and by frequent adjudication of the questions, candor compels us to admit that the current of judicial decisions supports this doctrine. Yet as the ancient dogma of tyrants, "The king can do no wrong," does not obtain in this country, we beg leave to call in question the soundness of this doctrine. If railroads are public highways, there can be no question as to the right of legislatures to exercise the same control over them that they a.s.sert in regard to common public roads. If they are public, private parties cannot have the exclusive control of them; nor can the legislature grant away the rights of the public by exclusive charters to private parties, for the reason that the legislature (the department of government that enacts all statutes) cannot, by the enactment of a statute, take from the whole people one of the rights belonging to them and confer it upon a private corporation. The legislature has no power to enact a statute declaring a foundry, or mill, built by an individual or a company with private capital (the absolute t.i.tle vesting in such party) to be a public foundry or mill. If such a statute were enacted, it would not change the t.i.tle to the property, nor would it prevent the owner from using and enjoying it as his own, exclusively. Whether it be called public or private would not change the nature of the ownership or convert the interest into public property. No matter by what name it might be called, it is still private property. The same is true of railroads.

They are built and owned by private corporations; are under the control of their owners, who retain for their own use the earnings of their roads. If these roads are public highways, then the legislature, acting for the public good, occupies the anomalous position of granting charters to private parties to construct public highways, and to own them after their construction. The supreme court of the United States, and the courts of some of the states, have decided that they are public highways, and, according to the usual custom, these decisions are to be received as final.

The courts having declared them public corporations does not change the facts in the case. The facts still remain. The roads are owned and controlled by private corporations. The t.i.tle cannot be taken from them arbitrarily. The companies receive the earnings of the roads, and every fact contradicts the decision of the courts. If the courts were to decide that a crow was white and _not_ black, we would acknowledge the binding force of the decision, and admit, that by virtue of the decision, the crow _is_ white. But when we look at the _fact_, we would still insist that, notwithstanding the decision of the courts, the crow is as black as it was before the decision was made. If the courts were to decide that common highways were railroads, as a matter of law we would accept the decision as final; but as a matter of fact we would know that they were common highways. Railroads, owned and controlled by private parties, are not public highways. If railroads are public highways, then the other position, that the charters granted to railroad companies are irrepealable, is not tenable--for the reason that the legislature possesses full power to alter, amend, or repeal all laws enacted for the benefit of the public. Public highways are public property as much as public buildings, court-houses, school houses, asylums, and other inst.i.tutions created for the use and benefit of the public. The legislature does not possess the power to vest in a company the exclusive right to build and own any of these public buildings. If a charter were granted for any such purpose, it could not be claimed that it was in the nature of a contract between the state and the company, absolutely binding upon all future legislation; that the company had acquired, by virtue of its charter, rights that neither courts nor future legislatures could disturb. Or suppose that a private company should obtain a charter for constructing and owning all the highways within a certain township or county, would it be contended that future legislatures could not alter or repeal the charter? If railroads are public highways, the companies constructing them must be subject to the same laws and decisions that apply to all other matters of like public character. Their charters are at all times under the control of the legislative authority, and subject to be altered, amended, or repealed.

Being the component part of the government, of a public nature, the doctrine that private parties can acquire rights in the nature of a contract that cannot be disturbed without their consent is not tenable.

Whether railroads are to be considered as private property, or as public highways, they are subject to the control of the legislature--because, under the const.i.tution, the power to create corporations by charter, with absolute powers, does not exist. If the converse of this is true, then legislatures could, by conferring special privileges upon individuals and corporations, deprive the public of all attributes of sovereignty, and place the entire government in the hands of individuals and companies. The const.i.tution has conferred no such power upon any department of the government. If such power is conferred, the const.i.tution, instead of being the paramount law as intended--establishing the rights of the people, controlling legislative enactments, defining the powers of the different departments of the government, and guaranteeing protection from unjust and oppressive laws, and decisions of courts--is instead but an instrument to be used for the enslavement of the people. The power to grant to private parties a monopoly of any of the rights belonging to the whole people, or to confer upon these private parties such exclusive privileges as will infringe upon or take from the public, the rights that naturally attach, or belong to, the whole people, was never conferred upon the legislature of the state or nation. If legislatures have entered into contracts with corporations, under which the rights belonging to the people are transferred to such corporations, they have exceeded the power vested in them, and the charters granted, so far as they infringe upon the rights of the public, are null and void. The plea, that a repeal or amendment of such charters would destroy vested rights, has no force, because the power to make such grants or contracts is wanting.

Nor does the plea, that innocent third parties would suffer, add any strength to the position. The corporations are the parties with whom these innocent parties contract, and to whom they must look for the fulfillment of their contracts. All acts of legislatures, granting to railroad or other corporations, rights belonging to the whole people, are subject to the control of future legislatures, and are repealable.

The only purpose for which a railroad charter should be granted is to subserve the public interest. For this purpose the legislatures possess the power to confer upon corporations such rights and privileges as are necessary to enable them to have continued being, and to transact business, but reserving at all times the right to control them and reform abuses. Good faith on the part of railroad companies requires of them fair and honest dealing with the people. Adopting the idea that the public was to receive great benefit from the construction of railroads, large grants of lands, subsidy bonds, local munic.i.p.al subscriptions, donations of money, and direct taxation, in different localities, have been afforded the different companies for the purpose of aiding in the construction of their roads. The benefit the public was to receive, and which the companies agreed to afford, was the only consideration expected by the people. This consideration the public has never received. We have shown the course pursued by railroad companies, in constructing their roads, watering their stock, and selling their bonds, and the oppressions practiced by them to force from the people the means for declaring dividends on fict.i.tious stock, and to pay the interest on the immense amounts of bonds issued and sold to the different corporations. a.s.suming that their charters are contracts between themselves and the states, they defy all efforts made by the people to arrest their extortions. Our government being inst.i.tuted for the protection and benefit of the whole people, they possess the power, and it is their right, to amend or repeal all laws that deny or abridge their own rights. Railroad companies should be compelled to reduce their stock to the actual cost of constructing their roads, and the rates of charges for the transportation of freights and pa.s.sengers should be fixed by statute at such rates as would afford a fair dividend upon the capital actually invested. The public should not be compelled to pay interest or dividends on stock or bonds issued in excess of the actual cost of the roads. The property of railroad companies should be taxed by the same rules, and at the same rate, as the property of individuals. A general supervision of all railroad corporations throughout the country should be exercised by the respective state authorities. It may be said: "All this is proper, but how will you accomplish it? All efforts heretofore made in that direction have been defeated in the different legislative bodies, or by the decisions of the courts." We are compelled to admit that if future attempts at reform are to be measured by past efforts, the prospect is not flattering. When relief bills have been introduced into legislative bodies they have generally failed. Railroad men have been able to defeat almost every attempt at reform. The idea seems to have obtained in all legislative bodies that the men who built railroads were self-denying; that they were philanthropists; that for the purpose of developing the country, of affording speedy and cheap transportation to the eastern markets of the products of the west, they were sacrificing their personal comfort and wealth; and that the least the people could do was to extend to them a helping hand--to grant them local aid, to exempt them from taxes, to a.s.sist them in procuring the right of way, and, instead of enacting laws to protect the people from the abuses of railroad corporations, statutes should be enacted to prevent any interference with the corporations, and allowing them extraordinary privileges. Men who were elected to the legislature under pledges to favor the pa.s.sage of statutes for the protection of the people against the encroachments of corporations, were found enlisted in their favor, and these monopolies, instead of being restricted in their powers, have continually received additional favors and privileges.

When the people have appealed to the courts for redress, they have met with defeat. Lengthy decisions have been written and published, setting forth the great benefit of railroads, instructing the people that railroad charters are contracts, and that unless courts decide in favor of railroad companies "innocent third parties," who have purchased railroad bonds, will sustain loss. Thus, through the legislative and judicial departments of the government, the people are reduced to a state of va.s.salage, with railroad corporations as their masters and rulers.

Notwithstanding this gloomy outlook, the people still retain sufficient power to correct the evil and to recover their const.i.tutional rights.

The country is now divided into two parties. One party is composed of the people, strong in nothing but numbers, and the determination to battle for their rights. The other side is composed of corporations, stock-jobbers, brokers, and capitalists, whose strength consists in the organization and consolidation of their interests, their control of the finances of the country, and of the different departments of the government. The lines dividing these parties are clearly and distinctly marked. Their interests are conflicting. The people now demand such legal enactments as will restrict extortionate charges by railroad companies, and compel them to pay their just share of taxes for the support of the government. Legislators being elected for short terms, being frequently called upon to render an account of their official acts to their const.i.tuents, if the people are united and persistent, it will not be difficult to procure the pa.s.sage of such statutes as will compel railroad companies to deal fairly and honestly with the public. To effect reform, and obtain redress, the aid of another department of the government must be obtained, to-wit: the courts of the country.

THIRD.--_The People have a Precedent for a Pledged Judiciary._ In treating of the courts and their decisions, we are venturing upon grounds that will subject us to criticism. The decision of a court of last resort upon controverted questions is generally received as final.

In questions of const.i.tutional law, or when the rights of the public or of private parties are involved, the final decisions of our highest tribunal are accepted by general consent, as the supreme law of the land.

We look upon the judges of courts as men possessing superior legal sagacity, and upon their decisions as embodying the highest wisdom. The congress of the nation, or the legislatures of states, composed in part, at least, of men of extensive legal knowledge, who have made the science of government a life long study; who have carefully and critically examined the provisions of the const.i.tution; who have full knowledge of the mischief to be remedied, or the rights to be enforced, carefully digest, prepare, and after full discussion in their respective bodies, enact a law which they believe will accomplish the intended purpose, and at the same time contravene no provision of the const.i.tution. An attempt is made to enforce the law, and a question arises as to its const.i.tutionality, or its meaning and effects. The court is appealed to.

On this bench are sitting three, five, seven, or more judges. After argument, this court, by a majority of one, decides the law unconst.i.tutional, giving to it an interpretation which defeats the object for which it was enacted. The minority of the court dissent from the opinion of the majority, and set forth at length the reasons for such dissent. The fact that five judges concur in the majority opinion and four dissent makes the decision of one man the supreme law of the land. It annuls acts of congress and state legislatures, and makes the opinions and decisions of four members of the court concurring with a majority of congress of no avail. One man's opinion is the law for the whole people. This we have shown in the action of the supreme court in the legal tender cases. Now it is not considered out of place to criticise the acts of congress or of legislatures, or the motives and influences that govern and control those bodies in the enactment of laws; yet it is looked upon as almost treasonable to refuse to accept the decisions of courts as good law, or to discuss the motives and influences leading to these decisions. In 1869 the supreme court of the United States, by a majority of one judge, decided that treasury notes were not legal tender for pre-existing debts. In 1871 the same court, by a majority of one, decided that they were a legal tender for all debts, public or private, save when there were special exceptions. So in other questions in the United States courts, and in the courts of the states, it has sometimes happened that the law of the land has been changed by the change of one or two judges. In Iowa this is demonstrated in the decisions of the supreme court upon the questions whether the legislature could authorize the levy and collection of a special tax to aid in the construction of railroads. We refer to these matters to show that judges are not infallible, and that sitting as courts, they are apt to differ as to the law and facts of the case. Instances are not wanting when judges have been appointed and elected because of their views upon certain questions, and when with the changes of the _personnel_ of the court, its final decisions have been reversed, thus making the supreme law of the land depend upon the election or appointment of one man to the bench. The argument to be drawn from this is, that no such sanct.i.ty surrounds the court or judges as forbids a scrutiny of their decisions or the motives prompting them. But it is said, if you discuss the motives underlying judicial decisions, you will debase the judiciary of the country; that candidates for the bench, like those for legislative or executive offices, will be selected because of their views respecting certain interests and questions that may come before them for judicial determination, and, like legislators they will be appointed or elected because these views harmonize with those of certain cla.s.ses or interests. The answer to this is, that as a general rule, judges are now appointed or elected because of their political views. In almost every instance the man who is elected or appointed accords in his political views with the majority, and indeed, men have been nominated and elected, or appointed, as judges of courts because of their publicly expressed opinions on some particular subject. The decisions of courts upon const.i.tutional and other questions change frequently. The most important interests and rights of the people under the const.i.tution and laws of the country have been differently decided by the same court of last resort in both national and state tribunals. The const.i.tution has been declared to mean one thing at one time, and a directly opposite meaning has been given to the same clause at another term of the same court, with but a few months intervening. An elasticity has been given this instrument neither contemplated by its framers, nor calculated to increase respect for it, or for the judiciary of the country. While we would not advocate the policy of candidates for judicial offices pledging themselves upon any question that may come before them for a decision, we claim that the people should exact from every candidate a pledge to "support, protect, and defend the const.i.tution," to abstain from the dangerous practice which now obtains of construing the fundamental law of the land in favor of particular interests, and to abstain from judicial legislation. More danger to the liberties of the people is to be apprehended from the courts, than from any other source.

The const.i.tution is inelastic, unchangeable, save by amendment in the manner provided. No court should disregard it, nor warp its meaning. If the rules of construction practiced of late are to be continued, its sanct.i.ty is destroyed, and its provisions are no more binding than those of a statute. It is the duty of courts to interpret the const.i.tution, but not to supply its (to them) seeming defects, or to override its plain provisions. We all feel a deep interest in the election of legislators, for the reason that all are to be affected by the laws enacted, but we seem not to realize to its full importance the fact that all laws pa.s.sed by congress or a state legislature are liable to be declared null and void by the courts; that the interpretation and construction of statutes belong exclusively to the courts; that the men elected to judicial positions, under the const.i.tution, are clothed with a power superior to that of the legislative and executive departments of the government; that by a single decision the supreme court of the state, or of the nation, can suspend or annul a statute which has been in force for years, or that an interpretation of the const.i.tution, long acquiesced in, can be reversed and a new meaning given to it. Yet these are facts, and from these decisions there is no appeal. The courts may change their opinions upon const.i.tutional questions at every term, and the nation must receive their decisions as the supreme law.

We have said that the const.i.tution is inelastic. It must remain so for the protection of the rights of the people. If courts can change its meaning as occasion requires, the will of the court and not the const.i.tution, is the supreme law of the land. The decisions of courts, in the recent conflicts between railroad corporations and the people, and upon the legal tender question, demonstrate that the will of the court is already the supreme law of the land. One of the questions in the determination of which the courts have subst.i.tuted their will for const.i.tutional law, relates to the authority of state governments to aid in the construction of railroads. The const.i.tution of Iowa prohibits the state from partic.i.p.ating in or becoming a stockholder in any private corporation or any corporation created for profit. Counties are, necessarily, a part of the government; their creation and organization are a necessity in the administration of the state government. While the state is prohibited from aiding in the construction of railroads, the courts have said that the const.i.tution does not prohibit counties from subscribing stock to railroad corporations and creating onerous debts in payment therefor. In other words, while the const.i.tution forbids any partic.i.p.ation on the part of the state, as a state, in the construction of railroads, it is no violation of the fundamental law for the inferior branches of the state government to become stockholders in the same corporations. Though the whole state is forbidden to aid in the construction of railroads, by dividing the state into counties, it is no violation of the fundamental law for these counties to aid in their construction. No one doubts that it was the intention of the framers of the const.i.tution to protect the people against the evils of oppressive burdens always resulting from a partic.i.p.ation of the public authorities in the construction of railroads. The question of the authority of counties to subscribe stock to railroads, in Iowa, has often been before the courts. The decisions have been numerous, but not unanimous or uniform. At no time has the supreme court of the state by unanimous decision held that the power existed; but on several occasions the court has united in deciding that the power did not exist, the const.i.tutionality of such right depending entirely upon who were elected judges. Thus the fundamental law, which can only be changed by amendment in the manner provided, has been held to permit or forbid public aid in building railroads, as suited the peculiar views of the men who had been elected judges. What was const.i.tutional one day was unconst.i.tutional the next. The decision of the men who happened to occupy seats upon the supreme bench, has been the supreme law, and not the const.i.tution. On the question of voting local aid to railroads the supreme court decided that the act of the legislature authorizing such aid was unconst.i.tutional. In one year from that time the same supreme court, three judges concurring, decided that the law was const.i.tutional, the reason of this variance being that in the interim two judges had retired from the bench and two new ones been elected in their place.

Here, again, the will of the men who happened to be elected changed the meaning of the const.i.tution. The same curious history has been enacted in many other states. When men who are interested in railroads, or who desire that the public should aid in their construction, occupy seats on the bench of the supreme court, the const.i.tution is construed to allow such aid, and where the judges are opposed to the allowance of such aid, they decide the const.i.tution does not authorize, but forbids it. In each case the fundamental law is interpreted to suit the peculiar views of the judges who occupy the bench, until it has ceased to have any binding effect. With this state of facts, known to all men, it is not strange that the people now demand pledges from men who aspire to judicial station. When state const.i.tutions are made to mean anything or nothing, as suits the men whose duty it is to interpret them, and when laws are p.r.o.nounced const.i.tutional or unconst.i.tutional, as caprice or the interests of corporations may prompt, "nature's first law, self-preservation," demands that those who aspire to become judges of courts should be controlled by the const.i.tution rather than by their personal views as to what it should be; and that they should be fully committed and pledged to abstain from judicial constructions of the const.i.tution which abridge the rights of the people and increase the power of corporations. While the decisions of the state courts have tended to abridge the rights of the people and increase the already too great power of corporations; while they have, in fact, decided that, under the const.i.tution, a citizen can be compelled to bestow a part of what he possesses upon railroad corporations without an equivalent, the greatest danger to the liberties of the people and the perpetuity of republican government is to be apprehended from the supreme court of the United States. It possesses, under the const.i.tution, unlimited jurisdiction upon all matters arising under the const.i.tution and laws of the United States, but not the same general jurisdiction that appertains to state tribunals. Yet, as under the const.i.tution it is a court of last resort, and its members hold their offices for life, it is independent of the people. Not only so, but it cannot be called to an account by any department of the government, state or national. It possesses powers superior to all other departments of the government; it rises above all law, and becomes a law in itself. Its decisions being final, the whole people must accept them as the supreme law of the land. No matter how oppressive, or unjust, or absurd, the whole government and people must accept these decisions as the highest law and authority in the land.

These facts, taken into consideration with some of its recent decisions in favor of railroad corporations and other monopolies, raise the question whether we are now governed by const.i.tutional law or by the edicts of the supreme court, promulgated in the guise of judicial decisions.

Let us look at a few of these decisions, now in full force as the law of the land. In the construction of railroads, counties, cities, and towns have a.s.sisted by subscribing stock and levying taxes to pay such subscription. State courts have decided that under the const.i.tution and laws of the states such subscription was unconst.i.tutional, illegal, and void. The power to afford such aid to railroad companies was derived from state statutes, pa.s.sed by virtue of the power presumed to be conferred by the const.i.tution. Following precedents which had been established and recognized from the organization of our government, the decisions of the state courts should have been final, and binding upon the courts of the nation. Yet the supreme court of the United States, by a bare majority of one, in violation of all precedent, a.s.sumed power not conferred upon it by the const.i.tution of the United States, annulled state const.i.tutions, disregarded state laws, and reversed and refused to be bound by the decisions of state courts. The will of one man, who happened to occupy a seat upon the supreme bench, is made the supreme law of the land, not by virtue of any provision of the const.i.tution, but by trampling upon the rights of states and the people. When it is remembered that their decisions were made in favor of corporations, and that their effect was to compel the people to contribute a part of their substance to help build up and strengthen monopolies, which have proved to be oppressive task-masters, we are justified in saying that the fundamental law of the land has been misinterpreted and the rights of the people sacrificed. We a.s.sert that no provision of the const.i.tution can be shown that even indirectly authorizes taxation to aid in the construction of railroads owned by private corporations. The idea is at war with every principle of right and justice. When the supreme court of the nation a.s.sumed to decide in favor of such authority, it occupied the position and a.s.sumed the prerogative of an absolute monarch. The supreme court of the United States was as much bound by the decision of the state courts upon questions arising under state const.i.tutions and laws as were the courts of the states by the decisions of the federal courts upon questions arising under the const.i.tution and statutes of the United States. The adoption of a different rule will subvert the principles of our government, and, as a necessary result, the will of the supreme court will become the supreme law of the land.

We might give other instances wherein the federal courts have overridden state tribunals without warrant of law and in disregard of state rights; but we pa.s.s to another question which is now engrossing public attention, and upon which the supreme court has recently made a decision. The question whether railroad corporations are public or private has been before the supreme court. The court has pa.s.sed upon it, and decided that railroads are public highways; but it has not yet decided that railroad corporations are public. No question connected with railroads is of more importance to the people. If they are public highways, then the legislatures of the states have full control of them, and the roads are as much a part of the public or common property of all the people, to be used as occasion requires, as are common highways.

Then the right to levy and collect taxes to aid in their construction, or to wholly construct them, cannot be questioned. The supreme court of the United States, in a very recent case appealed from the state of Wisconsin, has decided that, for the purposes of taxation, railroads are public highways. The opinion was delivered by Justice Strong, and is ingenious as well as unique. We desire to call the reader's attention to some portions of it, for the purpose of showing how the rights of the people are protected by the judiciary of the United States. The opinion p.r.o.nounced by Justice Strong fully ill.u.s.trates the fact that a.s.sociation and education will influence the decisions of judges as well as those of other men; and while we impute no improper motives to the judiciary of the nation, we say that this decision disposes of some of the rights of the people, supposed to be fully protected by the fundamental law, with as little hesitation as would be manifested by an inferior court in a case involving only the plainest legal points. The court says:

"The legislature cannot create a public debt, or levy a tax, or authorize a munic.i.p.al corporation to do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the money of a citizen and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute."

That this is good law, all will admit; but what shall we say of the following, copied from the same opinion:

"To justify the court in arresting the proceedings and declaring the tax void, the absence of all _possible public interest_ in the purpose for which the funds are raised must be clear and palpable--so clear and palpable as to be perceptible by every mind at the first blush."

It is decided by the supreme court of the United States, that if there is any "possible public interest" in the purposes for which a tax is levied, then such levy of tax is const.i.tutional, and this decision is to be received as the supreme law of the land. Is this good law? The public has an interest in toll-bridges, plank roads, ferries, manufacturing companies, and many other enterprises prosecuted and controlled by private corporations and individuals--are these all so connected with the administration of the government as to be proper objects of compulsory contributions for their support? The man who crosses the bridge pays toll; the party driving over the plank road does the same; the ferryman exacts fare--and all receive it, not for the benefit of the public, but for their own private uses. Yet the public have an interest in them. Are they public corporations? Suppose the legislature of the state should, by statute, declare them public corporations, under what provision of the const.i.tution is found the power to tax the people for their construction while they are owned and controlled by private parties? Stage coaches and steamboats are owned by private parties; they are common carriers, subject to be regulated and controlled by law; the public have an interest in them; the legislature can prescribe rules and regulations to be observed by them in the prosecution of their business as common carriers. Can the people be compelled to pay taxes for their support? No distinction exists between common carriers by water or by land over ordinary highways and railroad companies as to their rights and duties when the public are concerned, except that railroads cannot be built until the companies building them have procured the right of way. Private companies own the roads; they sell and mortgage them; they receive all the profits, and control them in their own interest. If a tax can be levied to aid in building railroads owned by private parties, then taxes can be levied in amount sufficient to build the entire road. If the decision is sound, its results will prove most disastrous.

The people will be compelled to build the roads for private corporations, and, after they are built, pay toll or fare for the privilege of using them. The people pay for the roads, yet they do not own them, and have no interest in them, or right to use them except upon payment of such sums as the private corporations owning them may choose to demand. We insist that no such power is vested in the legislatures or in congress. If the power does exist--if the people can be compelled to build railroads for private corporations--in the language of a distinguished judge of the state of New York, "It is legal robbery, less respectable than highway robbery, in this: that the perpetrator of the latter a.s.sumes the danger and infamy of the act, while this act has the shield of legislative responsibility." The effect of this decision is to make railroad companies a component part of the government, to draw more clearly the line between the people and the combination of monopolies that now control the country. When the court of last resort in the nation comes boldly to the front, and by an edict (for it cannot be treated as a judicial decision) declares that unless there is an "absence of all possible public interest, so clear and palpable as to be perceptible by every mind at first blush," the power to levy and collect taxes in aid of railroads owned and controlled by private corporations exists, the people have reason to fear that the interests of railroads and not the const.i.tution of the country is the paramount law. But says the court, "That railways, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for pa.s.sage and transportation have had an existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railway.

Clearly it could not, unless taking land for such a purpose was taking land for public use. The right of eminent domain nowhere justifies the taking of property for private use. Yet, it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such road, making compensation to the owner. What else does the doctrine mean if not that building a railway, though it be built by a private corporation, is an act done for a public use. And the reason why the use has always been held a public one is that such a road is a public highway, whether made by the government itself or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from legislative grant." If the court had been employed as the attorneys of the parties seeking to collect the tax, no more ingenious or partisan argument could have been made for the claimants than is presented in this opinion. As a finishing argument in favor of the taxing power, the court says: "Whether the use of a railway is a public or a private one depends in no measure upon the question who constructed it or who owns it." The court decides that railroads are used for public purposes; that the right of eminent domain attaches to them; that, being used for public purposes, and having the right of eminent domain, they are public highways; and, being public highways, taxes may be levied upon the people to aid private parties in constructing them. We have quoted enough of this decision to give the reader an idea of the train of reasoning resorted to by the court to support the theory that railroads owned and controlled absolutely by private parties are public highways, and that the people may be taxed to build and maintain them. If the supreme court of the United States possessed the power under the const.i.tution to pa.s.s upon the const.i.tutionality of the law of the state of Wisconsin, we would be compelled to accept this decision as the law of the case; to acknowledge that as a question of law private railroads were public highways; yet, as a matter of fact, we would still have to insist that they remained private roads, over which the public could ride or ship freight upon making compensation to the owners, just as they could ride or ship freight upon a steamboat or common road wagon upon paying the required amount to the owner or master. While legislatures grant to railroad companies the right to appropriate the lands of others in procuring the right of way, upon making compensation therefor, no part of the price for this right of way is paid by the government or the public. It is paid by the companies building the roads. We are not prepared to admit that the grant of this privilege to railroad companies makes them a part of the government, or that it clothes them with any of the attributes of sovereignty. Taxes can only be levied for public purposes, for the support of the government, and for the benefit of the public. The compulsory payment of taxes to private corporations cannot be supported upon any other basis than of our government being a despotism and not a const.i.tutional republic. We have before referred to the action and decisions of the supreme court on questions arising between the people and corporations, and only refer to it here for the purpose of showing the necessity of reform. The action of the courts shows that, whatever may have been their intention, they have departed from old constructions of the const.i.tution; that judicial legislation has superseded const.i.tutional restrictions and limitations, and that the personal views of the judges const.i.tuting a majority of the court have become the supreme law of the land.

Another noticeable fact is that the recently appointed judges are the most prominent in this new departure. We make the a.s.sertion that the supreme court of the United States does not possess the power under the const.i.tution to overrule or disregard the decision of a state court upon questions arising under state laws and const.i.tutions. No paragraph, line, or syllable, of the const.i.tution of the United States confers this power upon the supreme court, save when the state law or const.i.tution contravenes some provision of the const.i.tution of the United States, or some statute pa.s.sed in aid of const.i.tutional provisions. If the reader will examine the decisions from which we have been quoting, he will find that the rights of the states and of the people, expressly guaranteed by the const.i.tution, have been, by a bold and unwarranted a.s.sumption by the United States supreme court, obliterated. The decision of the supreme court of a state, whose decision was final and binding upon the supreme court of the United States, has been overruled and declared null and void, not by virtue of any const.i.tutional right vested in the United States court, but by an a.s.sumption of power making the will of that court the supreme law, and placing corporations beyond the control of the states granting them their charters. The fact that the reason upon which the decision is based appears in the nature of an apology for the decision, while const.i.tutional rights are lost sight of, proves the truth of our a.s.sertion, that judges of courts are subject to influences that control other men, and that the interest of monopolies and not the const.i.tutional rights of the people has a controlling influence in the highest court in the nation. It also demonstrates the fact that no thorough reform can be effected until the const.i.tution of our common country shall control the decisions of the courts.

In proof of the facts that the decisions of the supreme court of the United States are not always controlled by the const.i.tution, let us again refer to the legal tender decisions. Here again, the opinion of a bare majority of the court (five of the judges concurring and four dissenting) establishes the law for forty millions of people, and does violence to both the letter and spirit of the const.i.tution. Under the const.i.tution the power to coin money and regulate its value is vested in congress. The states are prohibited from coining money, and from making anything but gold and silver coin a tender in payment of debts. The letter of the const.i.tution does not deny to congress the power to issue paper money and make it a legal tender; but when we take into consideration that the power is denied to the states, the conclusion is irresistible that the power was intended to be denied to the general, as well as to the state governments. While as a war measure the power might be exercised, it certainly could not be in time of peace. Being one of the extraordinary powers vested in congress in time of war, rising above the const.i.tutional restriction, if we may use the expression, governed by the law of necessity, the power should not be enlarged by judicial interpretation, nor should the plain letter of the acts of congress pa.s.sed as war measures be made to extend beyond its express provisions.

When the highest court in the nation decided that the legal tender act was ultro-active in its operations, that court decided, in effect, that under the const.i.tution congress possessed the power to annul contracts made between private citizens, that one might legally take from another a part of his property without compensation. While that court has uniformly decided that bonds obtained from counties, cities, and towns fraudulently, and without consideration, must be paid, it decides that a retroactive statute may be pa.s.sed which takes a man's property without consideration; and that congress, without any such power being conferred by the const.i.tution, can subst.i.tute a new standard of values. Not only that congress can do this, but that the legal tender act extended beyond its plain reading, and made paper money, a thing that is of no intrinsic value, a legal tender for debts generally; that this paper was the standard of values, and that coin, gold and silver, were but articles of commerce, the value of which was fixed by this new paper standard. If one not learned in the law had been called upon to interpret the const.i.tution he would have arrived at a different conclusion. If ten years ago one learned in the law had been called upon to interpret the meaning of the const.i.tutional provision above referred to, he would, without hesitation, have decided that such an act was unconst.i.tutional.

If the eminent jurists who graced the supreme bench at any time since the organization of our government had been required to decide as to the validity of the statute, or to construe its terms, or declare its meaning, a realizing sense of the obligation resting upon them, and of the danger of violating the provisions of the const.i.tution, would have deterred them from making such a decision. When, in the winter of 1869, the question was before the court, upon careful examination Chief Justice Chase, who was the author of the stat