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duction and business, is that the Congress, not being able directly to prohibit men from doing what they have hitherto done, nor directly compel them to do what the majority desires, has created by statute a new standard of conduct or method of business procedure, put upon it the seal of congressional approval, and by taxation, or exclusion from the post or interstate commerce, made life miserable for those who refuse to square their lives in accordance with the legislative preference.
The preparation of the bar, as represented by judicial decisions or other published studies, for criticism of what is already a fair list of covert statutes, seems to indicate welcome rather than hostility.
A tax, however onerous or unjust, if laid secundum artem must be sustained, unless it is "plain to the judicial mind that the (taxing) power has been called into play not for revenue but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Constitution rests”; then it may be conceded " that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred.” 24
Just when abuse of a conferred power becomes the exercise of unconferred authority is indeed a puzzle, especially when the solution thereof seems to depend upon the discovery of some "principle of freedom and justice” itself protected by the Constitution and violated by the act, and when all courts must remember that annulment of statutes on "grounds merely of justice or reason or wisdom” constitutes the most far-reaching evil that could come to our system of government.25
The postal monopoly is apparently subject to no limitations save such as are imposed by malicious exercise of official power based on statutory authority, or by a statute's destructive or confiscatory effect on lawfully existing property rights.26 But no instance can be cited of plain statutory exclusion in respect of writings or articles
24 Per White, J., 195 U. S., at p. 64. 25 Atkin v. Kansas, 191 U. S. 207, 223 (1903). 26 Public Clearing House v. Coyne, 194 U. S. 497 (1903).
allied with an unpopular business being held unconstitutional; and the difference between unpopularity and malum prohibitum is very easy to extinguish.
So far as the commerce clause is concerned, it is now beyond peradventure that Congress may keep “the channels of interstate commerce free from immoral and injurious use” 27 to the extent of severely penalizing an excursion from one state to another by a man and his mistress. The comparative demerits of l'union libre and impairing national stamina by child labor are not unlikely to be gravely discussed in our highest court; that we may discover whether the channels of freight are as well entitled to be freed from goods produced by youthful overexertion as is passenger traffic from human bodies immorally used.
While the postal monopoly, the taxing power, and the commerce clause by no means exhaust the list of constitutional supports for indirection and insincerity in law-making, they furnish enough food for thought.28
To the exercise of most law-making powers, classification is necessary, and inequality has often enough been held to be an inherent attribute of classification; the process, when it is mere selection of victims (as it often is), has long furnished the most debatable ground of litigation. Standardizing morals, behavior, and business, and penalizing non-comforming persons and things, is in essence classification; and no more definite test of valid classification has ever been given than that it must be reasonable and based on matters “which in the nature of things furnish a reasonable basis for separate laws and regulations." 29
To be sure, “the simple decision of the legislature" has been refused recognition as such reasonable ground; 30 but the historic truth is stated in Atchison, etc. Co. v. Matthews, 31 by the admission that great diversity of opinion has existed on the subject, because
27 Caminetti v. United States (U. S. S. C., Jan. 15, 1917).
28 As a prop and cover for legislative activity the power of granting patents is worth some study, while tariffs could be adjusted with reference rather to manner of production than value of product. The Federal Farm Loan Act (39 STAT. AT L. 360) states that one of its presumably constitutional purposes is "to furnish a market for United States bonds.” This is a thought capable of growth.
29 Gulf, etc. Co. v. Ellis, 165 U. S. 150, 155 (1896).
174 U. S. 96, 105 (1898).
“to some the statute presented seemed a mere arbitrary selection; to others it appeared that there was some reasonable basis for classification."
It is not likely that the problems presented by actualities in legislation, not to dwell on possibilities, will be advanced for decision as questions of classification. Every effort will be made to avoid that quagmire. But the moment the word “arbitrary” is injected into controversy (and it cannot be avoided) an inquiry is started soluble only by struggle with the same inherent difficulties that have attended contests over regulation of working conditions by many states.32 The appeal to the courts against something complained of as arbitrary or unreasonable is usually based on the hope ihat some court will find it inexpedient – in the high sense of answering no necessity of the civilized requirements of the day.
As judicial comment now stands, if any step in the accomplishment of organized human design requires the employment of means per se subject to federal burdens or regulation, or constitutionally capable of federal encouragement or protection, the action of Congress in barring or aiding that step cannot be judicially set aside (no matter what ulterior purpose is plainly seen) without recourse to those rules of reason or expediency to which courts are more and more being driven. That method of decision makes every case one of fact, and yet under our system produces as precedents the opinions on those facts of a jury of judges, who in all good conscience are necessarily actuated or dominated by mental attitudes or predilections based on heredity, environment, and education, as all other juries are. This is truly a most unsatisfactory result from a juridical standpoint.
In practical operation these covert statutes are missionaries of centralization, and tend increasingly to destroy our inherited theories of local rule. A conscientious judge will of his own motion, and a careless one must on the defendant's motion, instruct juries that the federal crime of which they may find an accused guilty is not perpetrating a swindle, or selling decomposed matter for food, or poisoning the world with opium — but merely mailing or receiving a letter which of itself is harmless enough, or transporting
32 “Due Process of Law and the Eight-Hour Day," 21 Harv. L. REV. 495, is a careful study by Judge Learned Hand of some of these difficulties, which have certainly not grown smaller since that essay was written.
a can of lies across an artificial boundary line, or failing to pay a grotesque tax, as the case may be. Juries listen to the perfunctory charge on this head with open grins, but devote themselves conscientiously to considering exactly what Congress wanted them to decide, and rather enjoy the cleverness of the indirection.
This is a species of intellectual dishonesty anything but conducive to straight thinking and fair acting. How far the push for national management will take us along these tortuous paths is a serious question to which those lawyers who think of anything beyond their instant case would do well to give thought. Our present apparatus of statutes, decisions, and habits do not assist clear vision, nor make for a governmental system which legally and intellectually is straightforward and direct. If the result long ago sought by glorifying the “general welfare” preamble can be as nearly accomplished by indirection as now seems probable, and is certainly possible, it would be in the interest of common honesty that Congress at once receive full authority to reach the goal directly, and not as now by the back stairs.
Charles Merrill Hough. UNITED STATES CIRCUIT COURT OF APPEALS,
NOVA METHODUS DISCENDAE DOCENDAEQUE
JURISPRUDENTIAE EVERY century or two, during the past millennium, a new
method in the teaching of Law has appeared, to supplant or to modify the hitherto accepted system. The new method may not have been, in an absolute sense, an advance. Progress is always relative, — relative to the conditions and needs of the time. New conditions require changed methods. And so, in the ripeness of time, some new method has arisen, to supply an apter tool for newly felt needs.
ON THE CONTINENT About the time when Abelard was revolutionizing the methods of Theology at Paris, IRNERIUS was setting a new ensample for Law at Bologna, somewhere at the end of the 1100's.
After two centuries, when the possibilities of his method had been exhausted, the next universally accepted method was that of BARTOLUS, whose fame gave currency, in the 1300's, to the maxim “Nemo bonus jurista nisi Bartolista.” 2
After another two centuries the Humanist doctrine, led by AlCIAT, pointed the way again to a new method; the older one had outlived its usefulness. This time the congenial soil was France; and, under CUJAS and others, the "mos Gallicus" came to supplant the "mos Italicus.” To fulfill its destiny, another two centuries were required.
Meantime legal science was springing up in Germany; and the reception of Roman Law there, achieved in the 1500's, offered a fresh field for the struggle between the old and the new methods.
1 There is an impressive modern fresco, idealizing this famous teacher and symbolizing his work, on the ceiling of the Palazzo del Podestà at Bologna. No portrait or sculpture of his features is extant.
2 Tribute has been paid recently to some of his achievements by my distinguished classmate Beale's volume, BARTOLUS ON THE CONFLICT OF Laws, transl. 1914; TREATISE ON THE CONFLICT OF LAWS, 1916, § 26; and the six hundredth anniversary of his birth was celebrated in 1914 by the universities of Italy.