698

THE GREEN BAG

he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals be cause they sit, or claim the right to sit, in the same public coach on a public high way." There are in the South able and honest men, lovers of their country, and in the North besides, who do consider the eight millions of blacks a grave and imminent danger, who favor their separation until they are prepared for social equality, and who will not subscribe to the learned judge's lecture; and it is, at least, palpable, that when the Dissenting Opinion assumes the role of moral instruction, it will awake worse dissensions than those the eminent jurist so eloquently prophesies. If it is true that the effect of the Dissent ing Opinion is to unsettle the law, then it is obvious that the more admirable the opinion the more unfortunate will be its result. Who can read the opinion of Judge Curtis in the Dred Scott Case — calm, ju dicial, answering the arguments of the court with respect, and pressing his own with a keen regard for his duty to be fair at that great crisis — without wondering where, between the two, did indeed lie the right of that unhappy quarrel? From such admirable dissents countless others grow, and thus the evil propagates itself. In that case of Dred Scott, Justice McLean founds his own dissent in part on a dissenting opinion in a previous case of Scott's in the Missouri courts; and Justice Curtis places his dissent in part on the same dissenting opinion. Moreover, Justice Curtis's dissent in that case has furnished authority for Justice Field's dissent in the Slaughter house Cases. "The exposition," says he, "in the opinion of Mr. Justice Curtis, has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law." And so late as May, 1904, the Supreme Court quotes this dissenting opinion of Justice Curtis, as law, upon the power of Congress over acquired territory (Dorr v. U. S.,1

Unfortunately, the disproportion in num bers between the instruments and the subjects of judicial power is, and must be, very great. The prestige of the nine men who judge between the seventy-six millions must be upon the same huge scale as this dis parity. At any moment, these nine may be called upon to speak again on those old questions of North and South, White and Black, Nation and State, which at this mo ment, no less than fifty years ago, are de manding sure and calm solution. That there should be no difference among them at such a time is neither to be hoped nor indeed desired. But that they shall, whatever their differences may be, speak with the un wavering and undoubting voice of Law, with one voice and no more, we may indeed both desire and expect. " If," says Justice McLean, on a great occasion, "the great and fundamental principles of our government are never to be settled, there can be no last ing prosperity. The Constitution will be come a floating waif on the billows of popu lar excitement." Nor is the end of this matter, as we believe, far distant, in spite of the discouraging record recently main tained by the Supreme Court. Every great case in which a harmonious decision is ren dered furnishes encouragement. As we have said, no dissenting voice disturbed the ef fectiveness of the Beef Trust decision; and less than two months later, the last appeal in the Northern Securities controversy re ceived an equally harmonious settlement. In these important decisions we see indica tions that this pernicious practice commands no longer even the dubious favor it has for so many years enjoyed. At least one jus tice of the Supreme Court will assent to the strictures we have ventured to make. "I think it," says Mr. Justice Holmes, in the Northern Securities Case, "I think it use less and undesirable, as a rule, to express dissent." Surely this is well and wisely said. Los ANGELES, CAL., November, 1995.