^9 7 C17 Cornell University Law Library THE GIFT OF /!kJ:r*::^:4'i:ri^^ pp. 197, 198, says: "In the uncertainty which for some half century attended the ultimate form in which the estates would rank themselves, two other classes or subdivisions of estates might have seemed likely to take a more consolidated form and to bid for more direct power than they finally achieved. The lawyers and the merchants occasionally seem as likely to form an estate of the realm as the clergy or the knights. Under a king with the strong legal instincts of Edward I., sur- rounded by a council of lawyers, the patron of great jurists and the near kinsman of three great legislators, the practice and study of law bid fair for a great constitutional position. Edward would not, like his uncle Frederick II., have closed the high offices of the law to all but the legal families, and so turned the class, as Frederick did the knightly class, into a caste; or, like his brother-in-law, Alfonso [33] the Wise, have attempted to supersede the national law by the civil law of Rome; or, like Philip the Fair, have suffered the legal mem- bers of his council to form themselves into a close corporation almost independent of the rest of the body politic; but where the contem- porary influences were so strong we can hardly look to the king alone as supplying the counteracting weight. It is perhaps rather to be ascribed to the fact that the maj ority of the lawyers were still in profession clerks; that the Chancery which was increasing in strength and wholesome influence, was administered almost entirely by churchmen, and that the English universities did not furnish for the common law of England any such great school of instruction as Paris and Bologna provided for the canonist or the civilian. Had the scientific lawyers ever obtained full sway in English courts, notwithstanding the strong antipathy felt for the Roman law, the Roman law must ultimately have prevailed, and if it had prevailed, it might have changed the course of English history. To substitute the theoretical perfection of a system, which was regarded as less than inspired only because it was not of universal applicability, for one, the very faults of which produced elasticity and stimulated progress and reform whilst it trained the reformers for legislation, would have been to place the development of the constitution under the heel of the king, whose power the scientific lawyer never would curtail but when it comes into collision with his own rules and precedents. The action of the Privy Council, which to some extent played the part of a private parliament, was always repulsive to the English mind; had it been a mere coimcil of lawyers, the result might have been still more calamitous than it was. The summons of the justices and other legal counsellors to parliament, by a writ scarcely distinguishable from that the barons themselves, shows how nearly this result was reached." Stubbs also says (p. 202) : "The national council as it existed at the end of the reign of Edward I. was a parliamentary assembly consisting of three bodies, the clergy represented by the bishops, deans, archdeacons, and proctors; the baronage spiritual and tem- poral ; the commons of the realm, represented by the knights of the shire and the elected citizens and burgesses; and in addition to all these, as attendant on the king and summoned to give counsel, the justices and other members of the continual council." The "barons" in early English history included the entire no- bility above the order of knights. There were Greater Barons (some with other titles) and Lesser Barons. See Stubbs, Vol. II, [34] pp. 191, 209; Vol. Ill, pp. 437, 440. The "barons," who in 1216 forced King John at JEliuinymede to agree to Magna Charta, in- cluded the higher nobility. See Ency. Brit, under "Barons." Political institutions were in a formative and chaotic state in those days. Green in his History of the English People (ch. II)' says: "In the earlier Parliaments each of the four orders of clergy, barons, knights^ and burgesses met, deliberated, and made their grants apart from each other. This isolation however of the Estates soon showed signs of breaking down. Though the clergy held steadily aloof from any real union with its fellow-orders, the knights of the shire were drawn by the similarity of their social position into a close con- nexion with the lords. They seem in fact to have been soon admitted by the baronage to an almost equal position with themselves, whether as legislators or counsellors of the Crown. The burgesses on the other hand took little part at first in Parliamentary proceedings, save in those which related to the taxation of their class. But their position was raised by the strifes of the reign of Edward the Second when their aid was needed by the baronage in its struggle with the Crown; and their right to share fully in all legislative action was asserted in the statute of 1822. From this moment no proceedings can have been considered as formally legislative save those con- ducted in full Parliament of all the estates. In subjects of public policy however the barons were still regarded as the sole advisers of the Crown, though the knights of the shire were sometimes consulted with them. But the barons and knighthood were not fated to be drawn into a single body whose weight would have given an aristo- cratic impress to the constitution. Gradually, through causes with which we are imperfectly acquainted, the knights of the shire drifted from their older connexion with the baronage into so close and intimate a union with the representatives of the towns that at the opening of the reign of Edward the Third the two orders are found grouped formally together, under the name of 'The Commons.' It is difficult to overestimate the importance of this change. Had Par- liament remained broken up into its four orders of clergy, barons, knights, and citizens, its power would have been neutralized at every great crisis by the jealousies and difficulty of cooperation among its component parts. A permanent union of the knighthood and the baronage on the other hand would have converted Parliament into the mere representative of an aristocratic caste, and would have robbed it of the strength which it has drawn from its connexion [35] with the great body of the commercial classes. The new attitude of the knighthood, their social connexion as landed gentry with the baronage, their political union with the burgesses, really welded the three orders into one, and gave that unity of feeling and action to our Parliament on which its power has ever since mainly depended." 6. See Warren's History of American Bar, p. 26. 7. Id.^pp. 4-18. 8. Id. p. 18. 9. McMaster in his History of the People of the United States describes this at length as follows (Vol. I, pp. 302, 803), speaking of Massachusetts: "The mere sight of a lawyer as he hurried along the street was enough to call forth an oath or a muttered curse from the louts who hung round the tavern. The reason is plain. During the years of the war the administration of justice had been almost wholly sus- pended. After the war, debts had increased to a frightful extent. The combination of these two circumstances had multiplied civil ac- tions to a number that seems scarcely credible. The lawyers were overwhelmed with cases. The courts could not try half that came before them. For every man who had an old debt, or a mortgage, or a claim against a Tory or a refugee, hastened to have it adjusted. While, therefore, everyone else was idle, the lawyers were busy, and, as they always exacted a retainer, and were sure to obtain their fees, grew rich fast. Every young man became an attorney, and every attorney did well. Such prosperity soon marked them out as fit subjects for the discontented to vent their anger on. They were denounced as banditti, as blood-suckers, as pick-pockets, as wind- bags, as smooth-tongued rogues. Those who, having no cases, had little cause to complain of the lawyers, murmured that it was a gross outrage to tax them to pay for the sittings of courts into which they never had brought and never would bring an action. "Meanwhile the newspapers were filled with inflammatory writ- ings. The burdens that afflicted the State were attributed to the attorneys. One paper repeatedly insisted that this class of men should be abolished. Another called upon the electors to leave them out of office, and to bid their representatives to annihilate them. The advice was largely followed. In almost every country town a knowledge of the law was held to be the best reason in the world why a man should not be made a legislator. But nowhere was this [36] feeling stronger than in the capital. In the representation of Bos- ton -was one place which her citizens had for many years past delighted to bestow on men whom eloquence and learning had raised to the first rank at the bar. That place had been successively filled by Pratt, by Thatcher, by Otis, and by Adams. It was now given to a man of less hateful calling." 10. Stubbs Constitutional History of England, Vol. Ill, p. 46. 11. Id. p. 267. 12. See Warren's History, p. 25. The following is from an article, "The Ideal Lawyer," by Mr. Justice Brewer in "The Atlan- tic Monthly" for November, 1906 (XCVIII, p. 587) : "By an act passed in 1663 'usual and common attorneys' were excluded from seats in the General Court, as the Massachusetts leg- islature is called. In 1656 the following statute was enacted: " 'This court, taking into consideration the great charge resting upon the colony, by reason of the many and tedious discourses and pleadings in the courts, both of the plaintiff and the defendant, as also the readiness of many to prosecute suits in law for small matters, it is therefore ordered, by this court and the authority thereof, that when any plaintiff or defendant shall plead by himself or his attorney, for a longer time than one hour, the party that is sentenced or condemned shall pay twenty shillings for each hour so pleading more than the common fees appointed by the court for the entrance of actions, to be added to the execution for the use of the country.' " 13. Hallam, Vol. I, ch. VI, pp. 841, 842. 14. Hallam, Vol. I, ch. VI, p. 831. 16. HaUam, Vol. I, ch. VI, p. 842. 16. HaUam, Vol. II, ch. XIV, p. 278. 17. A Memoir of the Life of Peter the Great by John Barrow, p. 86. See also "The Lawyer: A Pest or a Panacea," by Francis M. Burdick, published in "The Green Bag," Vol. XVI, p. 226. 18. Sir Walter Scott, on the other hand, who read law four years and was made an advocate in 1792, depicted the fairness and judicial poise of lawyers, as, for instance, in the trial of Effie Deans [37] in "The Heart of Mid-Lothian." The French writers also show appreciation of the legal profession, especially of the "Notary," who in France is a combination of lawyer and business man. 19. Book IV, ch. V. 20. William Allen Butler, an eminent New York lawyer, in a lecture on February 8rd, 1871, before a law school in New York City, said (pp. 7-9) : "The literature of our mother tongue, reflecting the current opinions of each succeeding generation, is full of instances of coarse abuse or sharp satire directed against lawyers, by authors, wits, pamphleteers and penny-a-liners. It is curious to note that the current of invective has often set strongest against the Bar, at the very moment when it was doing its best and noblest work, in aid of social order or of the progress of the race. In the seventeenth century, just after Hampden and his noble band had fought in the Courts the battle of English liberty and constitutional law, the Press was issuing tracts with such titles as these: 'The Downfall of Unjust Lawyers/ 'Doomsday Drawing Near, With Thunder and Lightning for Lawyers' (1645, by John Rogers), 'A Rod for the Lawyers' (1659, by William Cole), 'Essay Wherein is Described the Smugglers', Lawyers' and Officers' Frauds' (1675). Congreve, about the same time, makes one of his stage characters say that 'a witch will sail in a sieve, but the devil would not venture aboard a lawyer's conscience.' Ben Johnson's epitaph on Justice Randall condenses in a couplet the popular estimate of the profession : " 'God works wonders now and then, Here lyes a lawyer, an honest man.' "Swift, somewhat later, in such pithy English as he alone could command, at the very time when Chief Justice Holt had just closed his noble career, and Lord Mansfield was beginning to win his great judicial fame, paints the profession as 'a society of men, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black and black is white, according as they are paid.' "Milton describes the lawyers of his day as 'grounding their pur- poses, not on the prudent and heavenly contemplation of justice and equity, which was never taught them, but on the promising and pleasing thoughts of litigious terms, fat contentions, and flowing [38] fees/ and his praise of Coke is offset by a censure of his brethren at the Bar." 21. See Address, pp. 13, 14), referred to above. 22. Address referred to above, p. 18. 23. Dalison's Rep. 20. That report is in Norman French. The following is a translation: Year 2 & 8 Philip & Mary Note: It was agreed, for law, that the King can make proclama- tion to his subjects, as a terror to the people, in order to put them in fear of his displeasure, but not so as to inflict other certain pen- alty, such as to forfeit their lands or goods, or to impose a fine, or to suffer imprisonment or other punishment; for no proclamation, in itself, makes a law which was not previously such, but only confirms and ratifies an ancient law, and by no means changes that, or makes further new divers precedents which shall be observed in spite of the Exchequer to the contrary; but the justices pay no regard to them. Whereof Take Notice! See year 31 Henry VIII, chap. 8 and year 35 Henry VIII, chap. 28, et seq. & 26 Henry VIII, chap. 2. 24. Darcy v. Allen (The Case of the Monopolies), 11 Coke, 84 b (44 Eliz., i.e. 1602), holding that a grant by the Crown of the sole making of cards within the realm was void. The decision was by Chief Justice Popham, speaking for the court. Coke, as Attor- ney-General, had argued in support of the grant. The court said: "This grant is primae impressionis, for no such was ever seen to pass by letters patent under the great seal before these days, and therefore it is a dangerous innovation, as well without any prece- dent, or example, as without authority of law, or reason." 25. Judge Rogers says: "It is well understood that in Great Britain sovereignty resides in the Parliament, and that it can change the Constitution at its pleasure." Introduction to "Constitutional History as Seen in American Law," p. 10. Judge Cooley says: "When the government, whatever the form, grants a constitution, it necessarily remains supreme over it. Quite emphatically has this been true of all unwritten constitutions. Fun- damental laws which derive their origin from prescription must assume the existence of a government which is in possession of [39] sovereign powers, and whose laws, therefore, from time to time enacted, must from the very fact of this sovereignty be supreme. The constitution of England is no exception to this rule: it is and must be in subordination to the Parliament, and the Parliament may at any time exercise the power to enact laws in modification of its principles. The 'omnipotence of Parliament' is thus seen to be not a figure of speech merely, but a potential reality." Lecture, pp. 81, 32, published by Henry Wade Rogers. 26. Judge Henry Wade Rogers points out that this principle is purely American and without precedent in history. Introduction to Constitutional History as Seen in American Law. Judge Rogers there says (p. 10): "There was no precedent in ancient or modern judicial history, before these cases were decided, which warranted a court in asserting such a principle, and it was difficult for men trained under the English system of jurisprudence to conceive the idea that a mere court should assume the prerogative of setting aside a law enacted by the legislature and approved by the executive." 27. Quoted in Carson's History of the Supreme Court, p. 15. 28. It is claimed that the rich man has an advantage over the poor man in litigation. This rarely happens. Wealth today is in corporations and in litigation between a poor man and a corporation the poor man has the advantage. 29. The only court that can be compared with the Supreme Court is the Privy Council of the House of Lords in England. The Privy Council in the year from October 1, 1920, to October 1, 1921, decided 63 cases. The Supreme Court of the United States in the year from October 1, 1920, to October 1, 1921, decided 228 ceises with written opinions. Mere numbers do not always mean much, but no one will seriously question the character of the decisions of the Supreme Court. The great difference between the two courts is that the Supreme Court protects the public from usurpations of government while the Privy Council has no power so to do. More- over, the Supreme Court bases its decisions not merely on its own precedents, but also on the comparative jurisprudence of forty-nine States and on the English precedents, while the English courts base their decisions on English precedents alone. 80. Quoted by Carson, pp. 14, 15. [40] 31. 1 Cranch, 137. 32. 1780 — New Jersey — See Holmes v. Walton, referred to in State V. Parkhurst, 4 Halsted (9 N. J. L.) 444.. There has been considerable controversy as to the accuracy of this date, 1780, but John A. Hartpence of the New Jersey Bar sends the writer con- clusive proof of the correctness of that date in the shape of a copy of an order entered in the Supreme Court of New Jersey a!t the September term, 1780, rendering the decision in that case. See also 23 N. J. Law Journal, 164. Hence the statement in Carson's His- tory of the Supreme Court (p. 120) that the "palm" must be awarded to Virginia instead of New Jersey is an error. 1782 — Virginia — Com. v. Caton, 4 Call. 5; also in Case of the Judges, 4 Call. 135 (1788), and Kamper v. Hawkins, 1 Va. Cases 20 (1793). 1786 — Rhode Island — Trevett v. Weeden (not published). 1788 — Massachusetts — See Warren, p. 265. 1792 — South Carolina — Bowman v. Middleton, 1 Bay 252. Bev- eridge's Life of Marshall, Vol. Ill, Appendix C, fully reviews the above decisions and others of later date on the same subject. 33. Beveridge in his Life of Marshall, Vol. Ill, pp. 1-100, gives a graphic account of the fiery debate in Congress on this whole subject. 34. Fletcher v. Peck, 6 Cranch, 87. The celebrated Dartmouth College Case (4 Wheat. 518 — 1819) applied this same principle of law to a statute impairing a college charter. The general effect of this Dartmouth College Case in protecting property is felt to this day, but the particular effect as to corporate charters was quickly neutralized by the States reserving the right to amend or repeal charters. As pointed out by the New York Court of Appeals in Lord V. Equitable etc. Soc, 194 N. Y. 212, 221 (1909), this reser- vation "was the result of public alarm and protest caused by the decision of the supreme court of the United States in the celebrated Dartmouth College case, decided in 1819. . . . As soon as it was realized that the principle of the decision applied to the charters of all corporations and placed them forever beyond the power of legis- lation, the situation caused great anxiety throughout the nation. It was felt that danger threatened the public welfare when a thing created by law was placed beyond the control of law. The deter- mination became general that if existing charters were stronger [41] than the state, no future charters should be, and action followed accordingly along the line suggested by Mr. Justice Storey in his concurring opinion in the Dartmouth College case, that if a state wished to alter charters it must reserve the right to do so. In this state as in others the feeling was almost universal that there never should be another corporation with powers beyond the control of the legislature." 35. Martin v. Hunters Lessee, 1 Wheat. 304; Cohens v. Vir- ginia, 6 Wheat. 264 (1821). 36. Beveridge in his Life of Marshall portrays all this. It is a book that no lawyer can a£ford not to read. It is to be hoped that he will compress the four volumes into one, so as to place it within the reach of all, with a little less criticism of Jefferson, inasmuch as Beveridge himself shows how the lower federal judiciary needed curbing at that time (Vol. Ill, pp. 23-49). 37. Little V. Barrene, 2 Cranch 170; Cooley's Constitutional Law, p. 157. On the other hand the courts have no power to enjoin the President from putting into effect an act of Congress, even though it is alleged to be unconstitutional. State of Mississippi y. Johnson, 4 Wall. 475 (1866). 38. 106 U. S. 196. 39. That same question was involved in a suit instituted by the writer associated with Judge Hughes, in behalf of a submarine cable company against the Postmaster-General who had taken possession of submarine cables by order of the President, carried into effect after the armistice had been signed in the recent war, under author- ity of a Joint Resolution of Congress passed prior to the armistice. The lower court held that the case was not justiciable^ An appeal was taken and argued, and then over night the Postmaster-General hastily returned the cable lines to their owner and hence the Supreme Court did nothing more than declare that the case had become moot, and so reversed the decision of the court below and put an end to the suit. Commercial Cable Co. v. Burleson, 250 U. S. 360 (1919). 40. Grote's History of Greece, Part II, ch. II, pp. 343, 345. And Grote remarks that had there existed a federation "of tolerable wisdom and patriotism, and had the tendencies of the Hellenic mind been capable of adapting themselves to it, the whole course of later Grecian history would probably have been altered; the Macedonian Kings would have remained only as respectable neighbors, borrow- ing civilization from Greece and expending their military energies upon Thracians and lUyrions ; while United Hellas might even have maintained her own territory against the conquering legions of Rome." Id. p. 336. 41. "The principal conquests of the Romans were achieved under the republic." Gibbon, Vol. I, ch. I, p. 2. The republic produced men, the empire produced stagnation. 42. 2 Dallas Rep. 419. By Art. XI of the amendments to the Constitution this jurisdiction of the federal courts was withdrawn. 43. Cooley on the Federal Supreme Court, edited by Henry Wade Rogers, p. 50. 44. Id. p. 47. 45. Id. p. 48. 46. Civil Rights Cases, 109 U. S. 3 (1883). 47. Bailey v. Drexel Furniture Co., 42 Sup. Ct. Rep. 449 (1922). 48. The Tenth Amendment to the Constitution reads as follows : "The powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The first eight amendments to the Constitution apply only to the federal government and not to the States. Barron v. Baltimore, etc., 7 Peters 243 (1833). The various state constitutions, how- ever, contain very similar restrictions on state governmental powers. 49. Cooley on Constitutional Law (p. 143) says that "in the division of powers between States and nation, the larger portion, including nearly all that touched the interests of the people in their ordinary business relations and in their family and social life, were reserved to the States. All that related to the family and the domes- tic relation, the administration and distribution of estates, the forms of contract and conveyance, the maintenance of peace and order in the States, the punishment of common-law offences, the making provision for education, for public highways, for the protection of personal liberty and liberty of worship, — all these powers were [43] ■withheld from the jurisdiction of the federal government, and re- tained by the States, and their retention was calculated to give to the body of the people a larger interest in a proper administration of state authority than in that of the nation." It may be added that the police power was retained by the States and no police powers were granted to the federal government. So also the granting of charters to local corporations and to munici- palities and the regulation of quasi public corporations in their in- trastate business was retained by the States. 60. McCulloch v. Maryland, 4 Wheat. 316 (1819), where a tax was levied by a State on a local branch of the Bank of the United States. 61. Weston v. City Council of Charleston, 2 Peters 449 (1829) ; Bank of Commerce v. New York City, 2 Black 620 (1862); The Banks v. The Mayor, 7 Wall. 16 (1868). Cooley, Constitutional Law, 3rd ed., p. 61 ; Cooley, Taxation, 3rd ed., pp. 129, etc. United States V. Railroad Co., 17 Wall. 322 (1872); Pollock v. Farmers L. etc. Co., 1.57 U. S. 429, 459 (1895); Mercantile Nat. Bank v. New York, 121 U. S. 138 (1886). A State may tax bonds owned by its citizens issued by another State, one state being foreign to another in this respect. Bonaparte v. Tax Court, 104 U. S. 592 (1881). A State, however, cannot require one of its own corpora- tions to deduct a tax from the interest on its bonds owned by non- residents. Case of the State Tax on Foreign-Held Bonds, 15 WalL 300 (1872); Railroad Co. v. Jackson, 7 Wall. 262 (1868). In- heritance taxes are different, the tax being on the privilege of transmittal and not on the property transmitted. Hence a federal inheritance tax may cover State bonds. Plummer v. Coler, 178 U. S. 115 (1900), and a State inheritance tax may cover federal government bonds. Murdock v. Ward, 178 U. S. 139 (1900). 52. 37 Cyc. L. & Proc. p. 880. The federal government can no more tax the income on state and municipal bonds than a state may tax the income on federal bonds. In fact, such a tax would prac- tically be a tax on the bonds themselves, because whatever the rate of interest the issuing price would be less with the tax than without it and the difference would be the same as a tax on the bonds them- selves. This, of course, pertains to future issues. An amendment to the Constitution is now proposed to allow the federal government to tax income from State bonds. The States are unlikely to consent [44] because (1) it would merely increase the rate of interest on State and municipal bonds and make a gift of that increase to the federal government; (2) the States would demand reciprocity, i.e., the right to tax income on federal bonds. Even reciprocity would be inequality. For instance, the income tax in New York State may be 8%; the federal income tax runs up to 60%. The people wish less public expenditures and less taxation, instead of more. Exemption of State bonds from the federal income tax enables and encourages the States to issue bonds for motor truck roads, thereby rendering the public less dependent on the railroads — ^very important in an emer- gency. 63. Munn v. Illinois, 94 U. S. 113 (1876) and various other cases in that same volume. 64. Chicago M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418. 65. Covington etc. Bridge Co. v. Kentucky, 164 U. S. 204 (1894). Judson on Interstate Commerce, 3rd ed. §§24-42. 66. Railroad Comm. of Wis. v. C. B. & Q. R. R., 42 Supr. Ct. Rep. 232 (1922), the court saying: "Commerce is a unit and does not regard state lines, and while under the Constitution, interstate and intrastate commerce are ordinarily subject to regulation by different sovereignties, yet when they are so mingled together that the supreme authority, the Nation, cannot exercise complete effective control over interstate commerce without incidental regulation of intrastate commerce, such incidental regulation is not an invasion of state authority or a violation of the proviso. . . . The aflSrma- tive power of Congress in developing interstate commerce agencies is clear. In such development, it can impose any reasonable condi- tion on a State's use of interstate carriers for intrastate commerce, it deems necessary or desirable." This decision also held that not even a contract between a state and a railroad company as to intra- state passenger rates was any defense. 67. Where a state commission has reduced the intrastate rate of a railroad so as to discriminate in favor of points within the state as against points outside of the state, the Intrastate Commerce Com- mission may order that railroad to abolish the discrimination by lowering its interstate rate, or by partly lowering its interstate rate and partly raising its intrastate rate, or by raising the intrastate rate alone. Houston etc. Ry. v. United States, 234 U. S. 342 [45] (1914). See also American Express Co, v, Caldwell, 244 U. S. 617 (1917), and Illinois Central R. E. Co. v. Public Utilities Comm., 245 U. S. 493 (1918). 68. Gibbons v. Ogden, 9 Wheat. 1 (1824). 69. Wabash etc. Ry. Co. v. Illinois, 118 U. S. 667 (1886). 60. Fifth Amendment. 61. Sinking Fund Cases, 99 U. S. 718 (1878); United States V. Northern Pacific Ry. Co., 266 U. S. 51 .(1921). But the rule is otherwise as to contracts between individuals. Legal Tender Cases, 79 U. S. 467 (1870), at p. 647, and see dissenting opinion at p. 580. "Due process of law" under the Fifth Amendment ap- plicable to Congress does not give "equal protection of the laws," the same as under the Fourteenth Amendment applicable to the States, in matters of taxation at least. La Belle Iron Works v. United States, 256 U. S. 377 (1921), at pp. 392, 393. Chief Jus- tice White in Brushaber v. Union Pacific R. R. Co., 240 U. S. 1 (1916), said (p. 24): "So far as the due process clause of the Fifth Amendment is relied upon, it suffices to say that there is no basis for such reliance since it is equally well settled that such clause is not a limitation upon the taxing power conferred upon Congress by the Constitution; in other words, that the Constitution does not conflict with itself by conferring upon the one hand a taxing power and taking the same power away on the other by the limitations of the due process clause," subject, however, to there being no arbi- trary confiscation of property by a gross disregard of classification producing gross inequality. This reasoning would seem to render Congress irresponsible in other directions also and is not very convincing. 62. Art. I, section 10. 63. Hoke V. United States, 227 U. S. 308 (1913), where the court said that Congress in exercising its power over interstate com- merce "may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations." 64. Part I, ch. 16, p. 801. 65. Macaulay's Life and Letters. Trevelyan, 2d Ed., Vol. 2, Appendix. [46] 66. De Tocqueville says (Part I, ch. 16, p. 804) : "The more we reflect upon all that occurs in the United States, the more shall we be persuaded that the lawyers, as a body, form the most power- ful, if not the only counterpoise to the democratic element. In that country we perceive how eminently the legal profession is qualified by its powers, and even by its defects, to neutralize the vices which are inherent in popular government." He further says the American lawyers are "a sort of privileged body in the scale of intelligence," of which they are well aware and that they have "a certain contempt for the judgment of the multitude," and that "they, like most other men, are governed by their private interests and the advantages of the moment"; that "in a commimity in which lawyers are allowed to occupy, without opposition, that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic." He also says (p. 300) : "The profession of the law is the only aristocratic element which can be amalgamated without violence with the natural elements of democracy, and which can be advantageously and permanently combined with them." He further says (pp. 805, 306): "As the lawyers constitute the only enlightened class which the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies, and they conduct the administration; they consequently exercise a powerful influence upon the formation of the law, and upon its execution. . . . The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time, and accommo- dates itself to all the movements of the social body; but this party extends over the whole community, and it penetrates into all classes of society; it acts upon the country imperceptibly, but it finally fashions it to suit its purposes." De Tocqueville's statement that the American bar has contempt for the judgment of the plain people is incorrect. Whatever may have been the situation in 1835 when De Tocqueville wrote, that certainly is not the situation today. American lawyers know that in every great national emergency and on every great national ques- tion, the intuitions and instincts of the plain people have found the right way; and where they (the plain people) had no leader they produced one out of obscurity, such as Lincoln the lawyer, and when diplomacy failed they produced soldiers whose valor has not been surpassed since Caesar conquered Gaul. [47] \y ■ ■•-' \ •■'•■'■•■■ ^V\; ^