474 THE POPULAR SCIENCE MONTHLY 



long as public opinion favors private property, laws governing bequest 

 and inheritance similar to those which exist at present will be continued 

 in force. But if public opinion ever turns in disgust from the existing 

 economic system, convinced of the practicability as well as of the desira- 

 bility of socialism, a change in the laws governing the descent of prop- 

 erty will be one of the easiest methods of approach. 



In the third place, the position of the federal courts is not impreg- 

 nable. Save only the Supreme Court, Congress has power to abolish 

 them. This was actually done in 1801 in the case of the "midnight 

 judges." More recently the existence of the Commerce Court has been 

 threatened. There is no way, moreover, of compelling a recalcitrant 

 Congress to make appropriations for the federal courts, and if so dis- 

 posed the President by failing to appoint or the Senate to confirm could 

 permit even the Supreme Court to die a peaceful death. Jefferson, 

 Jackson and Lincoln showed that a Supreme Court decision is not bind- 

 ing on a coordinate department of the government. The constitution 

 expressly makes the appellate jurisdiction of the Supreme Court subject 

 to such exceptions and regulations as Congress shall make. On one 

 occasion Congress limited the appellate jurisdiction of the court with 

 a view to preventing it from declaring an act of Congress unconstitu- 

 tional. This action was upheld by the court itself. 35 It is well known 

 also that Congress can pack the court by increasing its membership. 

 Professor Goodnow aptly remarks "that almost all of the great powers 

 which the federal courts possess are theirs only because of the fact that 

 their exercise of these powers has as a whole been satisfactory to the 

 people of the United States." 36 



IV 



The main reliance of property owners does not lie in constitutions 

 and courts, but in not violating the sense of fair play. The desire for 

 property is well-nigh universal, and, so long as a fair and open field is 

 maintained, the sense of injustice will have little chance to take root, 

 and the army of property owners, both actual and potential, together 

 with their natural allies among those without property, will be too 

 numerous to be dispossessed. The danger to property does not lie so 

 much in the minds of wily agitators, in the ignorance or depravity of 

 the common man, or in the envy which the poor bear toward the rich 

 as in closing the door of opportunity to the struggling and aspiring 

 masses. So long as a man could homestead a piece of land, there was no 

 social problem such as exists to-day. No self-respecting class whose 

 necessities condemn it to a life of barely requited toil can be expected to 

 rest content without at least the hope of something better. There is no 



35 Goodnow, op. cit., p. 345. 

 as Ibid., pp. 343-344. 



