372 THE POPULAR SCIENCE MONTHLY 



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. 4 



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 pro- 

 pensity." 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, pub- 

 lic 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 re- 

 covered 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 safe- 

 guarded, 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 well- 

 understood duty of the judges in some counties has been a jail sen- 

 tence 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 Col- 

 lege Case," The Independent, Vol. 67, 1909, pp. 392-97. 



