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owner would not have been deprived of his property by due process of law. If, for instance, it costs a railroad two cents to carry a passenger a mile, and the state permits it to ask only one cent a mile, the stockholders are deprived of part of their property, because they are thus prevented from getting any income from it. But if the state compels them, as common carriers, to continue business, they are directly deprived, every day, for the benefit of the public using the trains, of a part of their capital, because the operating expenses eat up the capital. Experience has already shown that this kind of oppression does not belong merely to the realm of empty speculation. Public opinion has indulged in highly exaggerated ideas of the profits of railroads, and under the pressure of this public opinion some most dubious experiments have been tried. On the other hand, railroads, elevator companies, and similar corporations, often have a practical monopoly, by which they can oppress, and have in fact oppressed, the public in a way most hurtful to the common weal. The state is therefore warranted in interfering by law to prevent this. A reasonable legal protection for the public against improper profits, when free competition provides no, or at least no sufficient, protection, will not be regarded as a taking of property in the sense of the constitution. As to railroad companies, it has already become very evident that, from other points of view as well, a more thorough state control than formerly may rightly be demanded. Free competition has caused far greater evils than monopoly. The so-called railroad wars not only injure the stockholders, but often lead to catastrophes for the bondholders (who are prac-, tically unprotected), and throw the whole business system of the country out of gear. These continually increasing evils have reached such a point that, in my judgment,
public opinion will declare with growing emphasis in favor of the doctrine laid down by the supreme court, in spite of the no small danger that its application will be marked with mistakes and misuse at the outset. Ways and means of preventing and curing inistakes and abuses can certainly be found. Many of them will be prevented by the steady growth in public favor of civil service reform, which deprives the public offices of the character of “spoils,” of party rewards for party services, and so exerts a strong influence in giving the better elements of the people once more the preponderance in legislative bodies. This will bring about a deep-seated change in the legal systems of the individual states. On certain points, in reference to which the principles of laisser aller have hitherto had absolute sway, these principles will be gradually narrowed down. Nevertheless, the fundamental character of all the institutions of the country, the customs and ways, the entire body of thought and feeling of the people, still give ample assurance that stateinterference, even if carried too far in this or that particular, will not degenerate into its opposite, that is, into state-control of society.
Other decisions of the federal supreme court, such, for instance, as the Slaughter Ilouse cases, already mentioned, show the same tendency in another direction. They do not involve so much the establishment of a new principle as the creation of a check upon the attempts to restrict, unfairly, an already recognized principle on the ground of the fourteenth amendment. The attempt was made to interpret the guarantee of equal protection by the laws in a way which sought on the one hand to make out of this guarantee a strait-jacket for the lawgiving power at the expense of the common wcal, and on the other hand to subject certain sides of social life to a
pressure opposed to the prevailing condition of affairs and simply intolerable. In the name of legal equality efforts were made to limit the police power of the states in a way which would have made a proper care of the public good impossible in many cases. So, too, in the name of legal equality efforts were made to enforce social equality for the negroes. Both views were based on radical tendencies. The states retained the freedom of action they need. On the latter point, it is certain that even to the negroes themselves and even in the former slave states this result was of great value. The whites are not constantly excited against them by having their society forced upon them daily and hourly in railroads, steamboats, hotels, schools, etc.; and still the principle of republican equality is preserved, because the colored people are not treated as inferiors; they get what they pay for; but the law does not require the fact to be ignored, that they are another race, whose complete social amalgamation with the whites would run counter to nature, and therefore in the interest of both races should not be sought.
$ 85. ARRESTS, SEARCH WARRANTS AND SEIZURES. The fourth amendment corresponds to the principle of English law which has found its popular formula in the proud phrase: “My house is my castle.” Every man is to be protected against arbitrary acts of the public powers. These must be entrusted with sufficient authority to arrest criminals and to remand them; but they cannot use force to find out whether there is good cause for a judicial inquiry. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated." The second clause (connected with the first by an “and") sets forth what conditions must be fulfilled in order to justify searches, seizures and arrests. It is not expressly stated that these can take place only under a warrant, but this is evident because this clause is simply explanatory of the former. Such an invasion of individual rights without a warrant is not permissible; and, too, quite a number of conditions must be fulfilled in order to give a warrant legal force. These conditions are that probable cause must be shown by oath or affirmation for its issuance and that the warrant itself must clearly describe the place to be searched, the person to be arrested, or the objects to be seized. This latter provision was directed against the so-called general warrants (since abolished) of England, which without such specifications authorized the making of arrests, searches and seizures. The police may of course, without a warrant, in the legitimate discharge of their duties, demand and force admission into a house and make arrests. When a crime has just been committed, this power to arrest without a warrant belongs to every man. The person so arrested must, however, be brought at once before a competent court or magistrate. If any search or seizure has been made without a full compliance with the conditions of this amendment, the person making it is always required to prove that the case is one in which the public interest required this to be done.
$ 86. CRIMINAL JUSTICE. The fifth, sixth and eighth amendments treat especially of the legal safeguards and benefits which must be given a person accused of crime. The sixth amendment is simply an amplification of the third paragraph of the second section of the third article of the constitution. The provision that the trial of all
1 A law which authorized revenue officers to require a merchant to produce his books and papers in order that they might satisfy themselves that the tax-laws had not been evaded has been held constitutional by the courts. This decision may be all right, but the law has led to the grossest abuses.
crimes shall be by jury is enlarged by the guarantee of a speedy and public trial. Inasmuch as some of the states had been divided into two judicial districts, it is moreover provided that the trial shall take place, not only in the state, but also in the judicial district, in which the crime has been committed. Besides this, the accused must be informed of the nature and cause of the charge; must be confronted with the witnesses against him; is entitled to compulsory process for witnesses for the defense and also to the assistance of counsel.' The word “jury' means the common-law jury of twelve men, who must give a unanimous verdict. If they cannot agree a new jury must be drawn. According to the act of June 8, 1872, when a jury is being impaneled, in cases of treason and other capital crimes, the accused is entitled to twenty peremptory challenges (that is, may reject twenty jurors without giving any reason) and the United States to five; in other felonies the corresponding figures are ten and three; and in all other cases three jurors may be set aside by each party. The fifth amendment provides that no person shall be held to answer for a capital or “otherwise infamous crime” except "on a presentment or indictment of a grand jury.” In a presentment the grand jury acts upon its own knowledge without any indictment having been presented to it, and the indictment must afterwards be supplied by the court. In indictments the grand jury does not act on its own initiative, but on an indictment submitted to it for its decision. It is admitted that the expression “ infamous crime” is a technical one, but the definitions are neither sufficiently clear nor entirely harmonious. This is, however, to a certain extent,
1 In England, persons accused of crime were not entitled to the assistance of counsel until the passage of the act of 1836.
2 Brunner, in the supplement to the second edition of Desty's Con