Part 19

England, political thought in the 13th and 14th centuries, 6-9, 18-19; taxation, 9, 16-18; courts, 10, 17, 76, 77, 103-107; class legislation, 11; acts of Supremacy and Uniformity, 32, 36-37; debt to Puritanism, 34-35; in the World War, 35, 261, 267-270; labor legislation, 79; protective tariff, 196; cost of living, 199, 200; board of trade, 200; union of legislative and executive powers, 227-228; state aid to parochial schools, 256. _See_ English church and Parliament.

Entick _vs._ Carrington, 104.

Equality before the law, 31, 35, 152, 161.

Europe, political ideas in the 13th century, 6; in 1620, 35; the great war, 35, 41, 267 sqq.; source of legislative schemes, 76; industrial competition with the United States, 196-197; high cost of living, 200.

Executive, and legislative power in England, 17; power limited by Magna Carta, 24-25; increase in power threatens despotism, 44, 223-224; shifting responsibility to the courts, 47; duty to uphold the Constitution, 171-172; sentiment against a third term, 186-188; now most powerful branch of the government, 220; should not exercise the lawmaking power, 227; control of foreign relations, 269.

Feather _vs._ The Queen, 104.

Federalist, quoted on judicial power, 71-72, 109.

Fifteenth amendment, 83, 110.

Fifth amendment, 19, 68.

Fitts _vs._ McGhee, 118.

Fitzwater _vs._ Warren, 138.

Five Knights case, 15.

Fourteenth amendment, 24, 36, 68, 110, 111, 169.

France, early charters of liberties, 5; _les lois fondamentales_, 7; legislative and executive powers, 76, 77, 227-228; forced loans, 164; French Revolution, 164; cost of living, 200; friendly relations with America, 261-266; in the World War, 261, 262-266; aid to American revolutionists, 262-264; treaty of alliance with America of 1778, 265.

France-America Committee, 261.

Fuller, Chief Justice, 46, 173.

Fundamental laws, idea revived by Magna Carta, 6-7; in Greece and Rome, 6; in France, 7; a controlling principle of American constitutions, 8, 73; idea abandoned in England, 9; theory may yet be applied by English courts, 11. _See_ Constitutions.

Gaynor, William J., 54, 55, 57.

Georgia, 89, 90, 95.

Glen Cove parochial school, 247, 259.

Government, origin and importance of separation of powers, 4, 13, 16, 17, 18, 227; depends more upon men than upon laws, 28, 206, 221; governmental powers derived from the consent of the governed, 30; government by the legislature preferable to government by the judiciary, 45, 46; the form may survive the substance, 46; constant extension of governmental functions, 74, 80, 120, 220; the American government different from others, 76, 161, 227; trend toward centralization in America, 176; local self-government essential, 177; need of trained experts, 220-221. _See_ Congress, Constitutional government, Democracy, Executive, Judiciary, Legislature, Minorities, Majorities, Representative government, and State governments.

Graduated taxation, general discussion, 159-177; exempts the majority and burdens the minority, 160, 163, 166; a means to break up large fortunes, 160, 169-170; may amount to confiscation, 163-166; necessarily arbitrary, 163; as forced loans in France, 164; Lecky's views, 164-165; McCulloch's views, 165-166; views of Leroy-Beaulieu, 166.

Great Britain, 10, 101. _See_ England.

Great Charter, _see_ Magna Carta.

Greece, fundamental laws in, 6; ancestor-worship, 27; Athenian democracy, 42, 75.

Gunter _vs._ Atlantic Coast Line, 96.

Habeas corpus, Writ of, the bulwark of personal liberty, 15, 16; its antecedent in Magna Carta, 15; in England, 15, 107; rendered effective by the courts, 77.

Hamilton, Alexander, 71, 74, 88, 161.

Hampden, John, 17, 34.

Hans _vs._ Louisiana, 95.

Hearn, Lafcadio, 28, 29n.

Henry VIII., 32, 36.

Holden _vs._ Hardy, 60.

Hunter _vs._ Wood, 119n.

Impositions, Case of, 17.

Income Tax cases, 173, 175.

Income Tax, 159, 173-175.

Inheritance Tax, 159-160, 167-173.

Initiative and Referendum, a menace to our republican form of government, 39, 193; origin in distrust of legislatures, 44; agitation for, 47, 204; in Australia, 81; a scheme of the Progressives, 204-209.

Injunctions, as used to restrain state officers, 87-88, 97, 109-114; to restrain officers of the crown in England, 106-107; to restrain criminal proceedings, 117-119; to prevent the enforcement of unconstitutional state statutes, 120, 125, 127, 128; use in connection with strikes and labor disputes, 146-152, 212-217; New York practice, 148, 151-152.

Inquisition, Writ of, 14, 15.

Institutions, the slower their growth the more enduring they are, 1; English source of American institutions, 98, 266-267; the Roman Catholic church and American institutions, 249-250.

Intestate succession 167-169.

Ives case, 65-69, 153.

Jacobs case, 49-57, 153, 154.

James I., 17, 30n, 31n.

Japan, 27-29, 197.

Jefferson, Thomas, 186, 187, 189, 197, 205.

John, King, 4, 7, 12, 25.

Judges, qualifications, 13, 14, 70, 142, 243-245; bound by principles, rules and precedents, 46; not infallible, 47; duty to enforce the law, 128, 129, 209; selection and tenure, 139-142, 243-245; should be defended against unjust criticism, 69-70, 126-128, 157-158. _See_ Judiciary and Recall.

Judiciary, power to annul unconstitutional laws, 7-9, 25, 42 sqq., 70 sqq., 87 sqq., 109 sqq.; former dependence upon the crown, 10, 17; has no power over legislation in England and France, 11, 76, 77, 107; importance recognized in Magna Carta, 13, 14; defended against unjust criticism, 43 sqq., 130-158, 181, 193, 211-212; government by, 45-46; rules for determining the constitutionality of a statute, 45, 46, 52; charged with having usurped power over legislation, 45, 70, 81; examples of alleged abuse of power, 48-68; cannot control legislative discretion, 52; should avoid judicial legislation, 62, 135; necessity of defending against unfair criticism, 69, 70, 126-128, 158; must enforce the Bill of Rights, 77; control over executive and administrative officers, 103-107, 111, 114; necessity for confidence in, 126-128; the bulwark of liberty, 128, 226; independence of, 141, 142, 226; not responsible for delays, 142-146. _See_ Judges, Constitutional limitations, Injunctions, and Recall.

Judiciary, Federal, jurisdiction to enjoin state officers, 87, 108-110, 113, 117, 119; efforts to curtail power of, 88, 125; jurisdiction limited, 97; power to annul state laws a necessity, 108, 109, 112, 116, 124-129; compels the states to obey the Constitution, 113; power to enjoin criminal prosecutions by the states, 117-119; causes of dissatisfaction with, 126; oath of office of judges, 127; constituted as a bulwark of liberty, 128; assaults upon, 128, 146-152; issuance of injunctions in labor disputes, 213-217; power to punish for contempt, 215-217. _See also_ Supreme Court.

Jurisprudence, as a science, 13, 52.

Jury-trial, origin in Magna Carta, 15, 19-20; early history, 19-20; a right assured by the judicial power, 78; not in cases of contempt, 215.

Justice, political justice secured by Magna Carta, 1, 4, 13-15; the highest political liberty, 13; uniformity and certainty essential in its administration, 13; social justice, 43, 81-82; delays in its administration, 125, 126, 142-146.

Knisley _vs._ Pratt, 137, 155.

Labor, competition of foreign workmen, 196, 197, 198; conditions in 1896, 198-199. _See_ Master and servant.

Labor laws, in New York, 50, 56, 58, 59, 137, 156.

Labor unions, attitude toward the courts, 131, 140-141; some labor leaders, 131, 147, 212; opposition to injunctions, 146-152.

Labourers, Statute of, 79.

Langford _vs._ United States, 103.

Langton, Stephen, 5, 12.

Law, how to be administered, 13; wiser than those who administer it, 14; principle of the supremacy of the law, 14, 103-107, 111, 114; just and equal laws, 31, 35, 36, 37, 152; equality before the law, 35, 36, 161; growing disregard of, 43, 201; touches every individual, 85. _See_ Common law, Due process of law, Fundamental laws, Law of the land, Justice, Judges, and Judiciary.

Lawlessness, manifested in alleged reforms, 43; and in labor organizations, 150, 217; its growth in connection with the spread of socialism, 201.

Law of the land, a phrase wiser than those who wrote it, 5; the epitome of ancient and forgotten wisdom, 5-6; guaranteed by Magna Carta, 9, 18, 21, 22; the equivalent of "due process of law" (q.v.), 18; meaning, 18, 19, 21, 22; in American constitutions, 18-19, 23-24; in the Petition of Right, 23.

Lawyers, _see_ Bar.

Lecky, W.E.H., 164.

Legislation, formerly not a panacea for all ills, 9; practical reforms needed, 44, 205-206; alleged social legislation, 49-54, 153, 154; particular legislation criticized as being arbitrary, crude, experimental, meddlesome, and oppressive, 52, 80, 82, 120-125, 163, 245; a rule of construction, 154-155; necessity for exact language, 208; great volume of statutes, 204, 208. _See_ Class legislation and Social legislation.

Legislature, taxation originally its chief function, 9; limitations upon, 43-46, 51, 70, 71, 78, 81, 124; corruption charged by social reformers, 44; abandoning constitutional questions to the courts, 47; duty to apply constitutional principles, 52; supreme in its sphere, 52; power to protect the public health, 59, 60. _See_ Constitutional limitations, Legislation, and Congress.

Leroy-Beaulieu, Pierre Paul, 166.

Liberty, Civil, guaranteed by Magna Carta, 1, 4, 5; Declaration of Independence, 4, 81; early charters of the French kings, 5; writ of habeas corpus its bulwark, 15, 16; conditions necessary for its perpetuation, 26, 36, 37; guaranteed by the Constitution, 51, 76; legislative interference with, 74, 80; of vital concern to everyone, 84; guarded by the common law, 98; its essence, 124; some political documents, 203; threatened by temporary majorities (q.v.), 211.

Liberty, Constitutional, Justice Story on, 25; in the custody of the American people, 26; the Pilgrim Fathers assist at its birth in America, 30.

Liberty, Religious, secured by the New York constitution, 12; idea of, in Magna Carta, 12, 13; established in America by the Pilgrims of Plymouth, 32, 34; our greatest blessing, 34; secured by the courts, 77-78; favored by non-sectarian public schools, 248; fostered in America by Protestants, 251, 259; formerly denied to Catholics in New York, 258; secured temporarily in New York by Governor Dongan, 259.

Lincoln, Abraham, 26, 191, 246.

Lottery case, 46.

Madison, James, 88, 186, 189, 197.

Magna Carta, general treatment, 1-26; marked our greatest political epoch, 1; saved England from despotism, 1; the source of representative government, 1-2, 16, 18; the foundation of liberty and justice, 1, 4; reissues and confirmations, 2, 3, 7, 8, 20, 22; extolled by the royal governor of New York, 2; crystallized and perpetuated English liberties, 2, 3, 5, 21; all Americans enjoy its privileges, 2, 3, 5; granted at Runnymede, June 15, 1215, 3; still on the English statute books, 3; a battle-cry against tyranny, 3, 11; modern criticism of, 3-4, 7, 8, 15, 19; the value of its traditions, 4-5, 26; based upon eternal truths and to endure forever, 5, 21, 203; established the rights of the individual as against the government, 6, 7; long regarded as an unalterable fundamental law, 6-10; limited the power of the king, 11, 12, 24-25; denounced by the Pope, 12; established the supremacy of the law, 14; translated and explained in the churches, 14; guaranteed the writ of habeas corpus, 15; separated legislative and executive power, 16; prevented taxation without the consent of parliament, 16-17; the law of the land, 18-22; jury-trial, 19, 20; supplemented by the statute of 1354, 22-23; justified revolution for cause, 25.

Majorities, Temporary, may yet be restrained in England, 11; arbitrary action, 40, 124; their alleged infallibility a dangerous doctrine, 43; the proposal to free them from all restraints, 43; their ever-changing opinions and desires as a rule of constitutional construction, 45-46; oppressive class legislation, 74, 78-79; need to be restrained, 75; exercise of the taxing power, 165; would overrule the courts, 211. _See_ Minorities.

Mallet, Monsieur, 262, 266.

Marbury _vs._ Madison, 8, 72, 100, 124.

Marshall, Chief Justice, his decision in Marbury _vs._ Madison, 8-9, 72-73, 100; on the Constitution, 21; on the suability of a state, 88; on the eleventh amendment, 93-94, 95; on restraining state officers, 113-114; on civil liberty, 124; on the duty of judges, 129; unpopular decisions, 210.

Martial law, as the alternative of injunctions, 151.

Master and servant, three common-law rules changed by Congress, 62-63, 68; the common law to be changed by the legislature, not by the courts, 68-69, 134-135, 137-138, 155; soundness of the common-law rules, 132-134. _See_ Workmen's Compensation.

Mayflower, 27, 29, 30, 32, 37.

Mayflower Compact, main treatment, 27-41; its interest to Americans, 29, 30, 31, 40; called the first written constitution, 30; text as preserved by Governor Bradford, 30n-31n; its covenant for just and equal laws, 31, 35-37; initiated republican government, 31, 40.

Minorities, English courts may yet have to protect, 11; their protection entrusted by the founders to the courts, 25, 43, 75, 76, 78; secure under representative government, 40; threatened by the short ballot, 223. _See_ Judiciary.

Monroe, James, 186, 189, 197.

Morality, a condition of social welfare and individual happiness, 250, 252; taught in Catholic schools, 250, 255. _See_ Constitutional Morality.

Natural rights, a cardinal principle of Magna Carta, 6.

New York city, tobacco workers in tenements, 49-57; board of health, 50; death-rate, 51; tenement-house conditions, 55-57; courts, 141, 142; parochial schools, 254, 257.

New York state, constitution, 12, 19, 23, 24, 49, 258; Court of Appeals, 50, 57, 65, 80, 138, 139, 141, 145, 146, 154-156, 212; Bar Association, 75, 131, 140; conflicts with the federal courts, 87; practice as to injunctions, 148, 151-152; population, 204, 234; religious denominations, 256.

North Carolina _vs._ Temple, 95.

Officers, Public, responsibility of, 14, 103-106, 111, 114, 226; fair criticism desirable, 47; greater permanency of tenure advocated, 143; their selection important, 221; in New York, 222-224.

Osborn _vs._ U.S. Bank, 112-114.

Parliament, and Magna Carta, 3; its power formerly limited, 7, 8, 10; its supremacy, 9-11, 17-18, 76-77, 107; formerly believed to exist to uphold Magna Carta, 10, 25; its consent to taxation necessary, 16; parliament of 1265 developed from the _commune consilium_, 16; prototype in parliament of Simon de Montfort, 18; labor laws, 79; statute on the Petition of Right, 101.

Parties, Political, essential to free government, 206, 238-242; should follow the representative principle, 207; effect of initiative and referendum upon, 207; corruption not cured by primaries, 236, 238; party government, 238-242.

People _vs._ Koerner, 145.

People _vs._ Lochner, 57-58, 153.

People _vs._ Lustig, 145.

People _vs._ Turley, 143.

Perkins, James Breck, 263, 264.

Persecution, Religious, in 16th and 17th centuries, 33-34; by Puritans in Massachusetts, 33; often really political, 33n, 34; in England, 36-37; of Catholics in America, 258-259.

Petition of Right, relation to Magna Carta, 15, 23; procedure under, 99-102.

Phelps, Edward J., 26n.

Pilgrim Fathers, debt of America to, 29, 32, 34, 35; framed first written constitution, 30; their tolerance, 32, 33; their relation to the Puritans, 32, 34; hated by both Puritans and Cavaliers, 32; separated Church and State and established religious liberty, 32, 34; their experiment in communism, 37-39; established representative government in America, 39; military preparedness, 41. _See_ Mayflower Compact.

Plymouth colony, government of, 23, 37, 39; Governor Bradford's annals of, 30n; freedom from religious persecution, 33; absorbed by Massachusetts in 1691, 37.

Poindexter _vs._ Greenhow, 112.

Police power, exercised by the legislature, 60; its just exercise not hindered by the courts, 81-82; very comprehensive, 211.

Precedents, their value in the law, 22; judges bound by, 46; danger of establishing, 52.

Primary elections, _see_ Elections.

Progressive party, 183, 204, 211, 217.

Prohibition, Writ of, 107.

Prosecuting attorney, his work, 143, 144, 146.

Prout _vs._ Starr, 110.

Public service corporations, legislative oppression of, 120; right of appeal to the courts, 121-126; regulation necessary, 126.

Puritans, their relation to the Pilgrims, 32, 34; their views, 32-33; our debt to them, 34; their influence in England, 34-35.

Quakers, 33n.

Quo warranto, Writ of, 107.

Railroads, oppressed by legislation, 120, 121, 123.

Recall, a menace to our republican governments, 39, 193, 205-207, 209-211; agitation for, 47; applied to judicial decisions, 211.

Referendum, _see_ Initiative.

Religion, growing disrespect for, 201; impracticable to teach it in the public schools, 248; the foundation of our social order, 250-252; should be taught systematically to school children, 252-254, 256; religious denominations in the United States, 255-256. _See_ Liberty and Persecution.

Representative government, foundation laid by Magna Carta, 4, 16, 18; synonymous with the republican form of government guaranteed by the Constitution, 31, 39, 75, 76, 227; first established in America by the Pilgrims, 31, 39, 40; a development from democracy, 39; menaced by modern political nostrums, 39, 43, 204-211, 228, 245-246; the form may survive the substance, 46; depends upon the electorate, 206; involved in nominating conventions, 225 sqq.; contribution of English-speaking race, 226.

Republican form of government, _see_ Representative government.

Republican party, campaigns, 178 sqq.; principles, 217-218; New York convention of 1914, 234.

Revolution, American, 25, 162, 262-266.

Roman Catholic church, parochial schools, 247-260; sacrifices for education, 247, 254; attitude toward public schools, 248-249; teaches character, good citizenship and morality, 250, 252, 253, 255, 256; increasing strength in the United States, 256; formerly persecuted in America, 258-259.

Rome, 6, 27, 44, 168.

Roosevelt, Theodore, 56-67, 121, 153-156, 159-160, 183-189, 209, 213-215.

Root, Elihu, 75, 153, 176, 185, 194.

Separation of powers, _see_ Government.

Shintō, worship of, 27-29.

Ship-Money, Case of, 17.

Short ballot, _see_ Elections.

Sixteenth amendment, 83, 83n.

Socialism, tends to destroy religion, morality and law, 201; opposition of Socialists to the courts, 211. _See_ Communism.

Social reform, as class legislation, 43; practical reform can be effected by electing legislators of character and ability, 44; not to be accomplished by exalting the legislature at the expense of the courts, 44, 45, 84, 140; not impeded by the courts or our constitutions, 56, 68-69, 81-82, 135, 137, 155.

Standish, Myles, 33, 41.

State governments, American, reserved powers of the states, 61, 62, 177; suability of a state, 87 sqq.; theory of immunity from suit, 98; prohibitions against, 110; compelled to obey the federal Constitution, 113; state officers are suable, 114; conflicts with the federal courts, 117-128; right to regulate inheritances, 160, 167-172; governmental functions, 172; threatened by primaries, 246.

Strikes, use of injunctions to suppress, 146-152, 212-215; Pullman strike of 1894, 148, 151, 215-216.

Supremacy and Uniformity, Acts of, 32, 36-37.

Supreme Court, Federal, some important decisions, 8, 57, 60, 61, 62, 72, 89, 93, 95, 96, 100, 101, 113, 173; view of due process of law, 21-22; attacks upon, 63, 64, 68; jurisdiction of suits against states, 93 sqq. _See_ Judiciary.

Taft, William H., 184, 190-193, 217-218.

Tariff, doctrine of protective, 193-201; non-partisan commissions, 194, 218; free trade favored by the Democrats, 195, 198; act of July 4, 1789, 196; evils of Democratic legislation, 198, 199; not responsible for the high cost of living, 199.

Taxation, the chief legislative function in the 13th and 14th centuries, 9, 16; provisions in Magna Carta, 16; control of parliament over, 16, 17; early controversies in England, 16-18; and representation, 16-17, 162-163; essentially a legislative function, 17; inheritance tax, 159-160, 167-173; income tax, 159, 173-175; power to tax is the power to destroy, 160; conflict of state and federal, 160; should be equal and apportioned, 161; taxing power liable to abuse, 161; proportional taxation, 161-163; federal rule of apportionment, 173-174; excise tax, 173. _See_ Graduated taxation.

Tenement case, _see_ Jacobs case.

Throop, Governor, 221.

Truth, indispensable even in political discussions, 69; trite truths often the most valuable, 202; eternal, 203.

Turgot, Baron de L'Aulne, 264.

Unconstitutional laws, American doctrine based upon the statute of 1369, 7, 8, 11; doctrine formerly recognized in England, 7-10; English courts may yet annul, 11; examples, 49, 57, 61, 65, 122, 123, 137, 209; Hamilton's views, 71-72; cannot always be annulled by the courts, 170-171. _See_ Constitutional limitations.

United States of America, termed a government of laws and not of men, 124; population, 204; debt to France, 262-266; treaty of alliance with France, 265; policy of neutrality in European wars, 268-270; foreign relations in the hands of the President, 269.

United States _vs._ Lee, 101.

United States _vs._ O'Keefe, 100.

Vassal _vs._ Massachusetts, 90.

Washington, George, 35, 186, 187, 189, 197, 263, 268.

Willcox _vs._ Consolidated Gas Co., 122.

Wilson, Woodrow, 195, 198, 217, 241.