690

THE GREEN BAG

DISSENTING OPINIONS BY WILLIAM A. BOWEN "TT would certainly be a subject of regret J. that the conclusions of the court have not been assented to by all of its members, if I did not know from its history and my own experience how rarely it has happened that the judges have been unanimous upon constitutional questions of moment, and if our decision in this case had not been made by as large a majority of them as has been usually had on constitutional questions of importance." — MR. JUSTICE WAYNE, in the Dred Scott Case.

When, on the thirtieth day of January, 1905, the Beef Trust Case was decided by the Supreme Court of the United States without a dissenting voice, a chorus of praise and wonder greeted the auspicious event. This is significant : we are led to infer that little harmony obtains among the members of that court; and such is, indeed, the case. At the October Term (1904), among some 203 reported decisions, the astonishing rec ord discloses 100 dissents. Seventeen of these are in the form of more or less elabo rate dissenting opinions. In 8 of the cases, four of the nine justices dissent in each; in 12 of them, three justices in each; in 7 of them, two justices in each; in 18 of them, one justice in each. The preceding term (October, 1903) bears a similar distinction for discord. Ninetyfour dissents appear in the 203 reported cases, of which sixteen were dissenting opinions. Four of the nine justices' dissent in each of 5 cases; three in each of 9; two in each of 19; one in each of 9. This is sufficiently amazing. It is the less so, however, when the history of the Dissenting Opinion in this country is con sidered, especially in the light of human prepossession for the past. Its career could not have begun earlier. In 1792, in the

first case requiring deliberation -which came before the new Supreme Court of the United States (Georgia v. Brailsford, 2 Dall. 403), every justice had and insisted upon his own views, and filed his separate opinion. At the first hearing, the court decided that an injunction should be granted to stay pay ment of a bond to its owner, a British subject, from whom the state of Georgia claimed to have confiscated it, until it should be determined to whom the bond belonged. But Justices Johnson and Cushing thought differently; each filed his dis senting opinion; and thus was Judicial Dis sent started upon its career. A year later, when the matter came up again on a mo tion to dissolve the injunction, the Court thought it ought to be dissolved; not so, however, Justices Iredell and Blair. They had concurred before, but now they filed dissenting opinions, protesting vigorously against the dissolution of the injunction. Evils, once grounded, persist rather by good nature than by ill. Abuses are more readily condoned than created. With that good-natured deference to the past which distinguishes the law above all other sciences, the precedent our early great ones made has been, in accordance with the principle we have just noticed, duly fortified and multi plied. When Taney came into his seat, he found the Dissenting Opinion already en trenched; "it has," he says in a great case, in 1838, having then occupied his place but a year — and there is a note of apologv and excuse in the words which cannot fail to be observed — "it has, I find, been the uniform practice in this court, for the justices who differed from the court on constitutional questions, to express their dissent. In conformity to this usage, I proceed to state briefly the principle on which I differ." What authority this usage now has and