ustice himself thought
harsh. To this statute the Supreme Court gave a harsh construction, as
the Chief Justice had more than once pointed out, when he was still an
associate upon the bench. From a series of these decisions an appeal had
been made to Congress, and the Senate, in the report from which I have
quoted, had sustained the construction given to the statute by the
majority of his brethren with whom the Chief Justice differed. Since the
last of these decisions, however, the complexion of the bench had been
considerably changed by new appointments, much as it had been after
Hepburn _v_. Griswold, and an opportunity seemed to be presented to
conciliate every one.

In any other country than the United States, a chief justice so situated
would doubtless have affirmed the old precedents, permitting himself, at
most, to point out the mischief which, he thought, they worked. Not so a
lawyer nurtured under the American constitutional system, which breeds
in the judge the conviction that he is superior to the legislator. His
instinct, under adequate pressure, is always to overrule anything
repugnant to him that a legitimate legislative assembly may have done.
In this instance, had the case been one of first impression, nothing
would have been easier than to have nullified the Sherman Act as an
unreasonable exercise of the Police Power, as judges had been nullifying
statutes of which they disapproved for a couple of generations
previously; but the case was not one of first impression. On the
contrary, the constitutionality of the Sherman Act had been so often
upheld by the judiciary that the Chief Justice himself admitted that so
long as Congress allowed him to use his reason, these "contentions
[were] plainly foreclosed." Therefore, for him the path of least
resistance was to use his _reason_, and, as a magistrate, to amend a
statute which Congress ought to have amended, but had _unreasonably_
omitted to amend. Such was the final and logical result of the blending
of judicial and legislative functions in a court, as they are blended
under the American constitutional system. Nor is it unworthy of
remark, that the Chief Justice, in abstaining from questioning the
constitutionality of the act, expressly intimated that he did so
because, by the use of his reason, he could make that reasonable and
constitutional which otherwise might be unreasonable and
unconstitutional. The defendants pressed the argument that destroying
th