We have seen that the late decision of the Supreme Court of the United States on the subject of the new possessions, recognized “an unrestrained possession of power on the ‘part of Congress.” We have seen that it even consents and declares that “the administration of government and justice according to ‘Anglo-Saxon principles, may for a time be impossible.”
We have seen that the court thus abandons not only the American, but even the Anglo-Saxon, principle of government; and places the United States upon the Roman, absolute, and monarchical principle solely.
And yet this is not a new position on the part of that court; nor is this principle new in decisions of the court. Nearly eleven years before this decision was rendered, the same court rendered a decision in which it took the same position, and declared substantially the same principles.
May 19, 1890, the Supreme Court of the United States rendered a decision in which “the unrestrained possession of power on the part of Congress”—the absolute power of Congress—was recognized, approved, and established. It declared the “full and perfect right” of Congress to repeal a charter, dissolve a corporation, and confiscate the property of such corporation, of its own free will and of its own motion, “independent” of any limitation of law set even by Congress itself, or of any violation of law or charter by the corporation. The exact words of the court are as follows:—
Congress, for good and sufficient reasons of its own, independent of that limitation [a previous act of Congress] and of any violation of it [by the corporation], had a full and perfect right to repeal its [the corporation’s] charter and abrogate its corporate existence, which of course depended upon its charter.
Than that, how could any power be more completely absolute? And that at the time the decision was recognized as establishing the power of Congress as absolute, is proved by the words of the Chief Justice in a dissenting opinion, as follows:—
In my opinion, Congress is restrained, not merely by the limitations expressed in the Constitution, but also by the absence of any grant of power, expressed or implied, in that instrument. And no such power as that involved in the act of Congress under consideration is conferred by the Constitution, nor is any clause pointed out as its legitimate source. I regard it of vital consequence that absolute power shall never be conceded as belonging, under our system of government, to any one of its departments.
Thus in 1890, by Supreme Court decision, was the independent and absolute power of Congress declared. Is it at all strange that, in 1901, by the same court, that independent and absolute power should have been confirmed and established?
In 1890 the right of Congress under this independent and absolute power to confiscate the property of a corporation, even without any violation of its charter by the corporation, was settled by the court’s making Congress “the sovereign authority” and “parens patriae”—parent of the country, or father of the people—corresponding to “the king” in Britain and other European countries, and to the emperor in Rome, upon the principles “found embedded in the ‘civil law of Rome, in the laws of the European nations, and especially ‘in the laws of that nation from which our institutions are derived”—Britain.
This at one stroke set aside the people as sovereign, and set up Congress as sovereign, as king, and as emperor, in place of the people. It swept away government of the people, and made government to be of a “royal” and absolute authority, as parens patriae, only lodged in “the legislature” instead of a sole royal person. The words of the court, stating this monarchical principle as the principle of the government of the United States, are as follows:—
It may be contended that, in this country, there is no royal person to act as parens patriae, and to give direction for the application of charities which can not be administered by the court. It is true we have no such chief magistrate. But here the legislature is the parens patriae, and unless restrained by constitutional limitations, the legislature possesses all the powers in this regard which the sovereign possesses in England.
In reply to this, the words of the Chief Justice, in his dissenting opinion, concurred in by Justices Field and Lamar, are as follows:—
Nor is there here any counterpart in Congressional power to the exercise of the royal prerogative in the disposition of a charity. If this property was accumulated for purposes declared illegal, that does not justify its arbitrary disposition by judicial legislation. In my judgment its diversion under this act of Congress is no contravention of specific limitations in the Constitution; unauthorized, expressly or by implication, by any of its provisions; and in disregard of the fundamental principle that the legislative power of the United States, as exercised by the agents of the people of this republic, is delegated and not inherent.
In reviewing that Supreme Court decision of May 19, 1890, the writer of this present article wrote of it, May 7, 1891, the following words:—
If this doctrine shall be maintained, so that it becomes a principle of American law, and shall become established as a principle of government here, then the revolution backward is complete; government of the people is gone; and that of a sovereign parent of the people is put in its place. Then the doctrine of the Declaration of Independence and of the Constitution of the United States is subverted, and the doctrine of sovereignty, absolutism, and paternalism is established in its stead. Then also Bancroft’s history, in the place above cited [Is it asked, Who is the sovereign of the United States?—The words “sovereign” and “subjects” are unknown to the Constitution], will need to be revised, so that it shall read as follows: “Is it asked, Who is the sovereign of the United States?—The legislature is sovereign and the people are subjects.”
And now experience has demonstrated that the doctrine and principle of that Supreme Court decision of May 19, 1890, has been maintained by both the court and the government, and has become in practise the established principle of the government; the Declaration of Independence and the Constitution have been deliberately repudiated; the Supreme Court, in 1901, has reiterated the principles of its monarchical decision of 1890; and, finally, the legislature of this republic of the United States has, in the year 1901, repeated, for the new possessions and tributary subjects, the action of the Legislature of the republic of Rome in B.C. 46–44 and 31 B.C.–23 A.D., for the whole empire-republic—it has lodged in one man “all military, civil, and judicial powers.”
Thus the sovereign power which in May, 1890, the Supreme Court transferred from the people to “the legislature,” was in February and March, 1901, transferred by that “legislature-sovereign” from itself to one man; for only a limited part of the jurisdiction of the United States, it is true, just now; but the principle and procedure once established, how long before it will be extended to more, and finally to all of this empire-republic? And thus a one-man power in the republic of the United States looms up apace, in exact repetition of the course of the republic of Rome; and that one-man power unrestrained, absolute; and this all made strictly legal by official acts and decisions of the legislative and judicial branches of the government itself.
Thus steadily as the march of time itself, and as swiftly as the rush of these hurrying times, is the republic of the United States marching over the course of the republic of Rome, even to the last item.
And the late decision of the Supreme Court of the United States, as well as the governmental course which it confirmed, is but the confirmation and logical continuation of the identical scheme of monarchical absolutism announced May 19, 1890, by that same court. There is nothing new in it.
These studies will be concluded next week, in the notice of another and kindred decision of the Supreme Court of the United States.
