A representative chamber reaches its conclusions touching “preponderant opinion” by a simple process, but the influences which sway courts are obscurer,—­often, probably, beyond the sphere of the consciousness of the judges themselves.  Nor is this the worst; for, as I have already explained, the very constitution of a court, if it be a court calculated to do its legitimate work upon a lofty level, precludes it from keeping pace with the movement in science and the arts.  Necessarily it lags some years behind.  And this tendency, which is a benefit in the dispensation of justice as between private litigants, becomes a menace when courts are involved in politics.  A long line of sinister precedents crowd unbidden upon the mind.  The Court of King’s Bench, when it held Hampden to be liable for the Ship Money, draped the scaffold for Charles I. The Parliament of Paris, when it denounced Turgot’s edict touching the corvee, threw wide the gate by which the aristocracy of France passed to the guillotine.  The ruling of the Superior Court of the Province of Massachusetts Bay, in the case of the Writs of Assistance, presaged the American Revolution; and the Dred Scott decision was the prelude to the Civil War.

The capital essential of justice is that, under like conditions, all should fare alike.  The magistrate should be no respecter of persons.  The vice of our system of judicial dispensation is that it discriminates among suitors in proportion to their power of resistance.  This is so because, under adequate pressure, our courts yield along the path of least resistance.  I should not suppose that any man could calmly turn over the pages of the recent volumes of the reports of the Supreme Court of the United States and not rise from the perusal convinced that the rich and the poor, the strong and the weak, do not receive a common measure of justice before that judgment seat.  Disregarding the discrimination which is always apparent against those who are unpopular, or who suffer under special opprobrium, as do liquor dealers, owners of lotteries, and the like,[30] I will take, nearly at random, a couple of examples of rate regulation, where tenderness has been shown property in something approaching to a mathematical ratio to the amount involved.

In April, 1894, a record was produced before the Supreme Court which showed that the State of North Dakota had in 1891 established rates for elevating and storing grain, which rates the defendant, named Brass, who owned a small elevator, alleged to be, to him in particular, utterly ruinous, and to be in general unreasonable.  He averred that he used his elevator for the storage of his own grain, that it cost about $3000, that he had no monopoly, as there were many hundred such elevators in the state, and, as land fit for the purpose of building elevators was plenty and cheap, that any man could build an elevator in the town in which he lived, as well as he; that the rates he charged were