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to be invalid, such judment shall not affect, impair, or invalidate the remainder thereof, out shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered."

I think this is as wrong as can be, and very much wish that the Committee could be persuaded to substitute a section reading substantially as follows:

"In the event that any clause, sentence, paragraph, or part of this act shall be held unconstitutional by the Supreme Court of the United States in adjudicating a lawsuit, the enforcement of the particular portion of this act so called in question shall be suspended until further action by Congress or by the people of the United States, or until the Supreme Court in a subsequent case reconsiders and reverses its ruling, and the remainder of the act shall be enforced regardless of the adjudication. In the event that the adjudication shall be made by any other court the enforcement of the act and all of its provisions shall nevertheless be continued as against all persons not entitled to the benefit of the adjudication as parties to the lawsuit."

I am now trying to get the proposed amendment of the Constitution of this State relative to the legal effect of precedents made a legislative regulation of judicial procedure. See enclosd copy of my letter to the State Board of Statutory Consolidation, dated yesterday.

Sincerely yours,

S. B. Clarke.

§10. Letter from Mr. Caffey.

January 20, 1916.

Dear Mr. Clarke:

I am very glad to have your letter of the 19th instant, commenting on section 23 of the Lever bill for the re-enactment of the United States cotton futures act. I had read the editorial in the New York Times of the 18th instant, which you enclosed.

The provision objected to is not new. For instance, you will find exactly the same wording in section 29 of the Federal Reserve Act of December 23, 1913 (38 Stat. 251), and in section 26 of the Clayton Anti-Trust Act of October 15, 1914 (38 Stat. 730). It has repeatedly been used in State legislation; an illustration of this is section 8 of the Act of July 19, 1907, passed by the legislature of Alabama (Alabama Laws, 1907, page 488; Vol. 3, Code of Alabama, 1907, sec. 7377).

The Lever bill merely incorporates a legislative declaration for which there is already precedent in both Federal and State laws. My understanding of the theory of it is this: it endeavors to eliminate a difficulty, which courts have expressed in their opinions, in ascertaining what was the legislative mind, when they have to determine whether a portion of a statute which they declare unconstitutional is so far separable that the remainder may be permitted to stand. The editorial in the Times is replete with misstatements as to detail and I think has attributed to the author of the Lever bill a motive which he never entertained for a moment. The purpose is diametrically opposite to that attributed to Mr. Lever; his effort is to aid, rather than to curb or diminish the power of the courts.

Would not your proposed substitute have the same effect as section 23 of the Lever bill, and an additional effect? It strikes me, upon the very cursory consideration I have given to the matter, that the clause you propose would have the identical effect of Mr. Lever's clause; and have a further effect, which might be desirable-.

The bill is pending before the House Committee on Agriculture. I anticipate that a Committee like that would feel that it is inadvisable to attempt, In a statute like this, to depart from a policy of legislation already established by Congress. In other words, it would be deemed impracticable, in the course of consideration of the re-enactment of the Cotton Futures statute, to bring before Congress a new issue that might prove to be controversial.

I have read with great interest your letter to Judge Rodenbeck, which you enclosed. I am entirely in sympathy with what you say. It is very certain that the force-of precedent has been carried much too far by the courts of this country. It is also true that much of the criticism and discontent, to which the courts are now subject, is misdirected and founded upon misunderstanding.

I should like very much to have your opinion of the Times editorial after you have considered the facts I have brought to your attention above.

The House Committee on Agriculture has recently reported a bill for the enactment of a law regulating the warehouses in this country, the constitutionality of which is dependent upon the welfare clause of the Constitution. Within a few days I shall send you a copy of the bill and the Committee's report on it. I should like to know what you think of the legal question there involved.

Faithfully yours,

Francis G. Caffey.

{11. Letter to Mr. Caffep.

January 22, 1916.

Dear Colonel:
Your letter says:

"Would not your proposed substitute have the same effect as section 23 of the Lever bill, and an additional effect? It strikes me, upon the very cursory consideration I have given to the matter, that the clause you propose would have the identical effect of Mr. Lever's clause; and have a further effect, which might be desirable."

This is a correct interpretation of the intended meaning of my proposed substitute for Section 23. The main objection I have to Section 23 as now framed is that it is constitutionally wrong in declaring or assuming that the legal effect of a decision of a Court in a lawsuit, that an Act or part of an Act of Congress is unconstitutional is an adjudication binding other persons than the parties to the lawsuit, or in other words that the legal effect of the decision is to bind everybody, including Congress and the Executive, or in other words that the courts have supreme legislative power. Congress never ought to have taken, and never ought to take again, such a position as that. On the contrary Congress ought, as I think, to take measures at once for disabusing the minds of judges and lawyers of the idea that the courts have any other function than to adjudicate each lawsuit when it is reached for decision according to the truth of fact and law as they then see the truth, regardless of all past errors. In this way Congress may easily, without stirring up any bad passions or rousing the people to turbulence, check the insidious encroachments upon the functions of Congress and State legislatures which our courts are silently making from day to day— encroachments which the judges themselves, who are almost universally loyal and high-minded men, do not perceive because they are blinded by the stare decisis habits of thought to which they have been disciplined, but which are flatly inconsistent with the departure from English tradiditions and practices made by the American colonists when they established their independence and substituted written constitutions as their supreme law in place of the vague and storm-engendering unwritten constitution of England.

The Times' editorial criticisms of Section 23 of the Cotton Futures bill seem to me to be entirely misconceived and valueless.

I shall be very glad indeed to see the warehouse bill and report.

Sincerely yours,

S. B. Clarke.



§ 12. The way in which the discontent has manifested itself hitherto is by. public criticism, often harsh and bitter, and sometimes impugning the bona fides of judges; and by the political agitation and organization of voters for grave constitutional changes, such as the recall of judges and the recall of decisions and the abolition of the power of courts to inquire into the constitutionality of statutes for the purpose of adjudicating law suits.11

§ 13. The subject of the criticism and agitation has usually been the refusal of courts, on constitutional grounds to enforce statutes which limit freedom of contract and other individual rights of liberty and property for the purpose of safeguarding the not less important common rights of the people and their paramount collective or corporate rights.

§ 14. That our Legislatures have constitutional power to limit individual rights for such purposes has never been questioned and is indisputable.

§ 15. If there be any absolute constitutional limitation of the power it still remains to be discovered. Does anybody doubt that our Legislatures may constitutionally exact the most extreme sacrifices of the properties and the liberties and the lives of individual men to meet the conditions of a flood, famine, earthquake, pestilence, conflagration, riot, rebellion or hostile invasion; and reasonable sacrifices to meet the conditions of crime, insanity, arrested development, ignorance, sloth, destitution, vagabondage, quackery, perverted and degenerate habits, corruption of morals, fraudulent and covinous practices, debasement of the coinage, debasement of market standards of value, knavish accountings, a rack-rented tenantry, usuries, mortmains, primogenitures, entails, monasteries and other incorporated and unincorporated perpetuities, peonage, grossly oppressive contracts, monopolistic cornerings of the neces

u See platforms of the Progressive and Socialist parties and the Report of the Committee on the Duty of Courts to Refuse to Execute Statutes in Contravention of the Fundamental Law, presented to the New York State Bar Association at its Annual Meeting January 14, 15, 1916, and signed by Henry A.

Forster, 76 Wiliiam street, New
York City; Everett P. Wheeler, 27
William street, New York City;
Charles H. Beckett, 135 Broadway,
New York City; Frederick D. Col-
son, State Educational Building, Al-
bany, N. Y.; Everett V. Abbot, 45
Cedar street, New York City.

saries of life or of banking and credit facilities, or of the sites, materials, instruments and facilities of production, transportation, communication and trade; and, generally, to meet the conditions of all sorts of contrivances for promoting a manifestly unfair, unjust and dangerous distribution of property and concentration of its ownership and power in a few hands? Certainly in the great majority of cases the constitutional limitation of this legislative power is not absolute, but is strictly related to the existence and exigency of facts inimical to the general welfare. If facts of that nature do not exist the legislature is without power to abridge individual rights. If such facts do exist the legislature has power to enact laws abridging individual rights so far as may be necessary and proper for counteracting the effect of those facts.

§ 16. Plainly, therefore, the question of the constitutionality of a statute abridging individual rights is not one of pure law to be determined by a mere inspection and interpretation of the statute. The question cannot be answered till it is known whether there are any facts inimical to the general welfare, and, if so, in what degree they harm or menace the general welfare. In whom does the Constitution vest the power of deciding whether facts of that kind exist, and, if so, in what degree they harm or menace the general welfare? Plainly in the legislature. The power to decide these matters must be lodged somewhere, and inasmuch as the Constitution has not vested it in either the executive or the judiciary, it must necessarily belong to the legislature.

§ 17. In ascertaining and determining the existence of such states of fact the legislature is not limited by the Constitution to any particular mode of proceeding. It does not have to give a hearing to anybody except its own members and the chief executive. It does not have to proceed upon the sworn testimony of witnesses having personal knowl

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