Obviously two questions were presented for adjudication:  The first, which by courtesy might be termed legal, was whether the fixing of prices by statute was a prerogative which a state legislature might constitutionally exercise at all; the second, which was purely political, was whether, admitting that, in the abstract, such a power could be exercised by the state, Illinois had, in this particular case, behaved reasonably.  The Supreme Court made a conscientious effort to adhere to the theory of Hamilton, that it should, in emergencies like this, use its judgment only, and not its will; that it should lay down a rule, not vote on the wisdom of a policy.  So the judges decided that, from time immemorial, the fixing of prices in certain trades and occupations had been a legislative function, which they supposed might be classified as a branch of the Police Power, but they declared that with this expression of opinion their jurisdiction ended.  When it came to asking them to criticise the propriety of legislation, it was, in substance, proposing that they should substitute their will for the will of the representatives of the people, which was impossible.  I well remember the stir made by the case of Munn v.  Illinois.[27]

Both in and out of the legal profession, those in harmony with the great vested interests complained that the Court had shirked its duty.  But these complaints soon ceased, for a movement was in progress which swept, for the moment, all before it.  The great aggregations of capital, which had been accumulating ever since the Charles River Bridge Case, not long after Munn v. Illinois attained to a point at which they began to grasp many important prerogatives of sovereignty, and to impose, what was tantamount to, arbitrary taxation upon a large scale.  The crucial trial of strength came on the contest for control of the railways, and in that contest concentrated capital prevailed.  The Supreme Court reversed its attitude, and undertook to do that which it had solemnly protested it could not do.  It began to censor legislation in the interest of the strongest force for the time being, that force being actually financial.  By the year 1800 the railway interest had expanded prodigiously.  Between 1876 and 1890 the investment in railways had far more than doubled, and, during the last five years of this period, the increment had been at an average of about $450,000,000 annually.  At this point the majority of the court yielded, as ordinary political chambers always must yield, to extraordinary pressure.  Mr. Justice Bradley, however, was not an ordinary man.  He was, on the contrary, one of the ablest and strongest lawyers who sat on the federal bench during the last half of the nineteenth century; and Bradley, like Story before him, remonstrated against turning the bench of magistrates, to which he belonged, from a tribunal which should propound general rules applicable to all material facts, into a jury to find verdicts