If a legislative chamber would act as a court, the first necessity is to eliminate its legislative character.  For example, the House of Lords in England has long discharged the duties of a tribunal of last resort for the empire, and with general approbation, but only because, when sitting as a court, the law lords sit alone.  Politicians and political influences are excluded.  Where political influences enter disaster follows.  Hence the infamous renown of political decisions in legal controversies, such as bills of attainder and ex post facto laws, or special legislation to satisfy claims which could not be defended before legitimate courts, or the scandals always attending the trial of election petitions.  The object of true courts is to shield the public from these and kindred abuses.

In primitive communities courts are erected to defend the weak against the strong, by correlating local customs in such wise that some general principle can be deduced which shall protect the civil rights of those who cannot protect themselves, against the arbitrary exactions of powerful neighbors.  In no community can every person have equal civil rights.  That is impossible.  Civil rights must vary according to status.  But such rights as any person may have, those the courts are bound to guard indifferently.  If the courts do not perform this, their first and most sacred duty, I apprehend that order cannot be permanently maintained, for this is equality before the law; and equality before the law is the cornerstone of order in every modern state.

I conceive that the lawyers of the age of Washington were the ablest that America has ever produced.  No men ever understood the principle of equality before the law more thoroughly than they, and after the establishment of this government a long series of great and upright magistrates strove, as I have shown, to carry this principle into effect.  Jay and Marshall, Story and Bradley, and many, many more, struggled, protested, and failed.  Failed, as I believe, through no fault of their own, but because fortune had placed them in a position untenable for the judge.  When plunged in the vortex of politics, courts must waver as do legislatures, and nothing is to me more painful than to watch the process of deterioration by which our judges lose the instinct which should warn them to shun legislation as a breach of trust, and to cleave to those general principles which permit of no exceptions.  To illustrate my meaning I shall refer to but one litigation, but that one is so extraordinary that I must deal with it in detail.

In 1890 the dread of the enhancement of prices by monopoly, as the Supreme Court itself has explained, caused Congress to pass the famous Sherman Act, which prohibited indiscriminately all monopolies or restraints of trade.  Presently the government brought a bill to dissolve an obnoxious railway pool, called the Trans-Missouri Freight Association, and in 1896 the case came up for adjudication.  I have nothing to say touching the policy involved.  I am only concerned with a series of phenomena, developed through several years, as effects of pressure acting upon a judiciary, exposed as the judiciary, under our system, is exposed.