*" DISSENTING OPINIONS "

OF

MR. JUSTICE BRADLEY.

BY THE LATE A. Q. KEASBEY, Esq,

OF NEWARK, N. J.

An interesting paper was read at the recent meeting of the American Bar Association, by Mr. Hampton L. Carson, of Philadelphia, entitled, "Great Dissenting Opinions." It may be found in the Albany Law Journal for August 25, 1894. It was a happy thought to recall in chronological order the important dissenting opinions of the justices of the Supreme Court of the United States upon questions of constitutional law. The writer justly says that these opinions, viewed in mass for the last hundred years, constitute in a certain sense the best exposition of the views of two contending schools of constitutional interpretation, and enable us to grasp the living principles underlying the struggle between the expanding empire of national federalism, and the shrinking reservation of State sovereignty. He takes up in their order the great cases, the names of which have become fixed in the memory of all students of our constitutional history, as the names of famous battle-fields become landmarks in the progress of the world. He brings before us in vivid array, Chisholm's Executors v. Georgia; Marbury v. Madison; Sturges

* New Jersey Law Journal, October, 1894.

v. Crowninshield; McCulloch v. Maryland; Cohens v. Virginia; Gibbons v. Ogden; Dartmouth College v. Woodward; Osborne v. U. S. Bank; Brown v. Maryland; Craig v. Missouri; Ogden v. Saunders; Charles River Bridge v. Warren Bridge; Genesee Chief v. Fitz Hugh; the License cases; the Passenger cases; Prigg v. Pennsylvania; the Dred Scott case; the Legal Tender cases; the Slaughter House cases and others.

These names in themselves recall to the mind of every student of our constitutional history the phases of the varied contests which have marked the development of our national jurisprudence, and it is as Mr. Carson says, "of infinite value to gaze on the most hotly-contested battle-fields, while it is ennobling to know how heroes fought in defense of causes which they held dear." Indeed some of these contests carried on in the quiet chamber of justice, in Washington, with no flare of trumpets or waving of banners, will be in the long future of more interest and importance than any waged on our actual battle-fields. We commend this scholarly paper to the general student of our history,as well as to the bar, as one of fascinating interest.

But the special object of this note upon it, is to allude to the part taken by our great New Jersey Justice of the Supreme Court, in the contests that occurred during the twenty years of his judicial service. In the leading constitutional cases, he wrote few dissenting opinions. Like Marshall, he was strong and masterful enough generally to carry the Court with him. Carson, in his paper, speaks of only one dissenting opinion of Marshall, in Ogden v. Saunders, and says that this was the only great dissenting opinion which

Mr.

occurred during his judicial career. And in the course of the paper only one dissenting opinion of Mr. Justice Bradley is alluded to, that which he read in the slaughter house cases, in which, with Mr. Justice Field, he urged, in energetic terms, that the fourteenth and fifteenth amendments were intended for whites as well as blacks; that they conferred on all citizens of the United States the fundamental rights of person and property usually regarded as secured in all free countries. But this was not the only dissenting opinion of Judge Bradley in matters of grave constitutional import. Indeed the very last opinion read by him, but five weeks before his death, was a dissenting one, and related to a branch of constitutional law, to which he had devoted his best powers throughout his judicial career-that of the scope of National authority in the matter of interstate commerce. To extend and secure this authority by judicial interpretation of the commerce clause of the Constitution had been his earnest effort in every case in which the question arose in any form. In a long line of decisions he had expressed his views with the logical power and persuasive earnestness which enabled Marshall to accomplish his great work. Only three years before his death, in his opinion in the Arthur Kill Bridge case, in the New Jersey Circuit, he had stated his views as to the scope of the commerce clause in their most advanced form. One hundred years before, the State of New York had granted to John Fitch, the exclusive right to navigate her waters with vessels "moved by fire or steam," and continued it to Robert Fulton and Robert R. Liv

ingston in 1803. Their assignee obtained an injunction from the Chancellor of New York to stop a Jerseyman

from running steamboats from Elizabethtown to New York City. But in 1824 the Supreme Court of the United States held the State law invalid, and Chief Justice Marshall laid down principles which have been reasserted in various forms and applied with increasing force to all instrumentalities of interstate intercourse in every phase of its development. In the Arthur Kill Bridge case these principles had been rudely assailed by the State of New Jersey in its turn, as New York had done a century before. Her legislature declared by joint resolution, that the waters of the Kill and the soil under them were hers by sovereign right, and that if the Congress should authorize a bridge, it would be a usurpation, and the sympathy of all sister States was invoked in the struggle of New Jersey for State rights. A law was passed also expressly forbidding any person or corporation to bridge any river dividing New Jersey from other States.

A law of Congress authorizing the Baltimore and New York Railroad Company to bridge the sound was passed, notwithstanding this State protest, and the company proceeded to do so. The Attorney General of New Jersey obtained an injunction and the work was stopped-as the New York Chancellor stopped Mr. Gibbons from running his steamboats, the Stoudinger and Bellona, from Elizabethtown to New York, in 1824. The case was removed to the United States Circuit Court, and this furnished Mr. Justice Bradley an opportunity to express his views on the subject of interstate commerce, and he did it with a vigor not surpassed by that of Marshall in Gibbons v. Ogden. He declared that "the power of Congress is supreme over the whole subject, unimpeded by State laws or