Court follows the election returns. As it was, it appears that Chief Justice Marshall succeeded in bringing a majority of the court to his point of view only by means of methods which in the light of to-day are so high handed and questionable that they would hardly be tolerated for a moment.[1]
The potency of the courts to protect property rights depends upon public opinion. Respect for the law is not always at a maximum in the country having the most laws. "It is not the existence of statutes," writes President Hadley, "which makes murder a crime; it is the growth of a public opinion which makes the individual condemn himself and his friends, as well as his enemies, for indulgence in that propensity." The chance of convicting prominent business men under the criminal section of the anti-trust act until recently has been so slim that it was not worth while to bring suit. During the disorders attending the strike of employees on railways centering at Chicago in 1894, public feeling ran so high that the injunctions issued by the federal courts were not vindicated until much of the irreparable injury forbidden by the courts had been inflicted upon the railways and those dependent upon their services. The damages which the railways have since recovered by suits at law for the destruction of property are but a tithe of the losses which they sustained, to say nothing about the losses inflicted upon the public at large. When toll pikes in Kentucky were in public favor, the right of property in them was secure. When they come to be regarded as a "relic of barbarism," the courts were powerless to protect them.
Prior to the Civil War, many counties in Missouri issued bonds to subsidize the building of railways. The bond issues were loosely safeguarded, and some counties in which no railroad was built were saddled with a heavy debt. The people in these counties naturally opposed paying the interest and the principal of the debt, and went so far in some instances as to elect judges of the county court pledged not to make the necessary tax levy. The bond-holders accordingly sought a remedy at the hands of the federal court in Kansas City, Missouri. But in a number of counties public opinion was so set that the orders of the federal court directing the county judges to levy the necessary tax have repeatedly failed to command obedience. One of the accepted and wellunderstood duty of the judges in some counties has been a jail sentence for contempt of court. In some cases the judges have taken to the woods as soon as elected. The Supreme Court has held that a federal judge can not himself or through any official appointed by him make a tax levy. The utmost that can be done is to order a county official to levy the tax needed to pay a judgment, and to punish failure to comply
- ↑ Jesse F. Orton, "Confusion of Property with Privilege; Dartmouth College Case," The Independent, Vol. 67, 1909, pp. 392-97.
