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.
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