Among the opinions of the United States Supreme Court delivered by Justice Harlan, the following may be mentioned as covering subjects of great im portance:

"Patterson v. Kentucky, 97 U. S. 501, 24 L. ed. 1115; Hough v. Texas & P. R. Co. 100 U. .S. 213, 25 L. ed. 612; Guy v. Baltimore, 100 U. S. 434, 25 L. ed. 743; Kirkland v. Hotchkiss, 100 U. S. 491, 25 L. ed. 558; Brooklyn City & N. R. Co. v. National Bank, 102 U. S. 14, 26 L. ed. 61; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417; Robb v. Connolly, 111 U. S. 625, 28 L. ed. 542, 4 Sup. Ct. Rep. 544; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252; New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 29 L. ed. 525, 6 Sup. Ct. Rep. 273; Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436; Continnental Wall Paper Co. v. Louis Voight & Sons Co. 212 U. S. 254, 53 L. ed. 497, 29 Sup. Ct. Rep. 280; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431. He also delivered elaborate dissenting opinions in Louisiana v. Jumel, 107 U. S. 711, 27 L. ed. 448, 2 Sup. Ct. Rep. 128; Antoni v. Greenhow, 107 U. S. 769, 27 L. ed. 468, 2 Sup. Ct. Rep. 91; and Hurtado v. California, 110 U. S. 538, 28 L. ed. 239, 4 Sup. Ct. Rep. 111, 292; United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; Standard Oil Co. v. United States, 221 U. S. at page 82, 55 L. ed. 654, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; United States v. American Tobacco Co. 221 U. S. at pages 192, 193, 55 L. ed. 698, 699, 31 Sup. Ct. Rep. 632."

At the October term 1883 of the United States Supreme Court certain cases were brought before that court, bringing into question the first and second sections of the civil rights acts, and in an opinion written by Mr. Justice Bradley those sections were held to be unconstitutional as applied to the several states. From that decision a dissenting opinion was filed by Justice Harlan from which I quote the following:

"I hold that since slavery, as the court has repeatedly declared (Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394; Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664, 3 Am. Crim. Rep. 515), was the moving or principal cause of the adoption of that Amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect

of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that Amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state."

In reference to the 14th Amendment he said, among other things, the following, quite applicable to modern-day conditions (Italics mine):

"To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be that some other race will fall under the ban of race discrimination. If the Constitutional Amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this Republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freeman and citizens, because of their race, color, or previous condition of servitude. To that decree-for the due enforcement of which, by appropriate legislation, Congress has been invested with express power-everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect." See Civil Rights Cases, 109 U. S. 36, 27 L. ed. 848, 3 Sup. Ct. Rep. 18.

On March 19, 1888, a decision was handed down by the United States Supreme Court in what was known as the Telephone Cases, 126 U. S. 531, 31 L. four of the seven justices sitting in that ed. 790, 8 Sup. Ct. Rep. 961, and in which case (Mr. Justice Gray not being present at the argument, and Mr. Justice Lamar not then being a member of the court) held in favor of the validity of the patent granted to Alexander Graham Bell, while Justices Field, Bradley, and Harlan, in a dissenting opinion (126 U. S. 572 to 577, 31 L. ed. 795, 797, 8 Sup. Ct. Rep. 974) written by Mr. Justice Bradley, held that Daniel Drawbaugh was the original and first inventor of the telephone, and

that therefore the patent granted to Bell was void. Drawbaugh was a poor blacksmith residing at Eberley's Mills, Cumberland county, Pennsylvania, and he was only able to make the fight against the Bell Company because of the financial backing of what was then known as "the People's Telephone Company," in a suit brought by the Bell Company on the 20th day of October, 1880, the People's Company having filed an answer in January, 1881, setting up that Drawbaugh was "the original and first inventor and discoverer of the art of communicating articulate speech between distant places by voltaic and magneto electricity," and that "long prior to the alleged inventions by Bell, Gray, and Edison, he (Drawbaugh), then and now residing at Eberley's Mills, constructed and operated practical working electric speaking-telephones at said Eberley's Mills, and exhibited their successful operation to a great number of other persons resident in his vicinity and elsewhere." As the following quotations from the dissenting opinion appear to be typical of the character and literary style exemplified in the dissenting opinions written by Justice Harlan, and at the same time appear to give due credit to the attainments of Mr. Bell, it is deemed proper to here quote certain selections from that opinion:

"Mr. Justice Field, Mr. Justice Harlan, and myself are not able to concur with the other members of the court, sitting in these cases, in the result which has been reached by them. Without expressing an opinion on other issues, the point on which we dissent relates to the defense made on the alleged invention of Daniel Drawbaugh, and applies to all the cases in which that invention is set up. We think that Drawbaugh anticipated the invention of Mr. Bell, who, at most, is not claimed to have invented the speaking telephone prior to June 10, 1875. We think that the evidence on this point is so overwhelming, with regard both to the number and character of the witnesses, that it cannot be overcome. As this is a question of fact, depending upon the weight of the evidence, and involves no question of law, it does not require an extended discussion on the part of those who dissent from the opinion of the majority-which is very ably drawn, and presents the case with great clearness and force. On the point mentioned, however, we cannot concur in the views expressed.

"We are satisfied from a very great preponderance of evidence, that Drawbaugh produced, and exhibited in his shop, as early as

1869, an electrical instrument by which he transmitted speech, so as to be distinctly heard and understood, by means of a wire and the employment of variable resistance to the electrical current."

"We are also satisfied that as early as 1871, he reproduced articulate speech, at a distance, by means of a current of electricity, subjected by electrical induction to undulations.corresponding to the vibrations of the voice in speaking a process substantially the same as that which is claimed in Mr. Bell's patent.

"In regard to the instrument in which the

principle of variable resistance was used, more

than seventy witnesses were examined, who either testified to having seen it and heard it, or established such facts and circumstances in relation to it as to put its existence and date

beyond a question. With regard to the in

strument in which electrical induction was employed to produce the requisite undulations, some forty or fifty witnesses were produced, many of whom saw it and heard speech through it, and others either saw it, or heard it talked about in such a manner as to fix the time when it was in existence.

"We do not question Mr. Bell's merits. He appreciated the importance of the invention, and brought it before the public in such a manner as to attract to it the attention of the scientific world. His professional experience and attainments enabled him to see, at a

glance, that it was one of the great discoveries

of the century. Drawbaugh was a different sort of man. He did not see it in this halo of

light. Had he done so, he would have taken

measures to interest other persons with him in it, and to have brought it out to public admiration and use. He was only a plain mechanic, somewhat better instructed than most ordinary mechanics; a man of more reading, of better intelligence. But he looked upon what he had made more as a curiosity than as a matter of financial, scientific, or public importance. This explains why he did not take more pains to bring it forward to public notice. Another cause of his delay in bringing his invention to public notice was, that he was ever indulging the hope of producing speech, at the receiving end of the line, loud and distinct enough to be heard across a room, like the voice of a person speaking in an ordinary

tone.

"It is perfectly natural for the world to take the part of a man who has already achieved eminence. No patriotic Briton could believe that anybody but Watt could produce an improvement in the steam engine. This principle of human nature may well explain the relative feeling towards Bell and Drawbaugh in reference to the invention of the telephone. It is regarded as incredible that so great a discovery should have been made by the plain mechanic, and not by the eminent scientist and inventor. Yet the proof amounts to demonstration, from the testimony of Mr. Bell himself, and his assistant, Watson, that he never transmitted an intelligible word through an electrical instrument, nor produced any such instrument that would transmit an intelligible word, until after

his patent had been. issued; whilst, for years before, Drawbaugh had talked through his, so that words and sentences had again and again been distinctly heard. We do not wish to say a word depreciatory of Mr. Bell. He was original, if not first. He preconceived the principle on which the result must be obtained, by that forecast which is acquired from scientific knowledge, as Leverrier did the place of the unknown planet; but in this, as in the actual production of the thing, he was, according to the great preponderance of the evidence, anticipated by a man of far humbler pretensions. A common astronomer, by carefully sweeping the sky, might have been first in discovering the planet Neptune; whilst no one but a Leverrier, or an Adams, could have ascertained its existence and position by calculation. So it was with Bell and Drawbaugh. The latter invented the telephone without appreciating the importance and completeness of his invention. Bell subsequently projected it on the basis of scientific inference, and took out a patent for it. But, as our laws do not award a patent to one who was not the first to make an invention, we think that Bell's patent is void by the anticipation of Drawbaugh."

Mr. Albert H. Walker, in his work on the "History of the Sherman Law" (copyrighted in 1910), on pages 301 and 302, briefly reviews the work of the late Justice Harlan in connection with the decisions interpreting and enforcing that law by the Supreme Court as follows:

"The senior Associate Justice of the Supreme Court is Justice Harlan, who has been an eminent member of that tribunal nearly thirty-three years. He has participated in the hearing of every one of the seventeen cases relevant to the Sherman law which have yet been decided by the Supreme Court, except the Bement Case. He delivered the opinion of the Supreme Court in the Northern Securities Case and in the Continental Wall Paper Case, in each of which the accused combination was held to be illegal; and he concurred in each of the other eight cases in which similar decisions were rendered; and he dissented from the decision which was rendered by a majority of the Supreme Court in favor of the defendants, in each of four of the seven cases in which the defendants, though accused thereof, were not found guilty of violating the Sherman law. His contributions to the literature of the Sherman law, in the two cases in which he delivered the opinion of the Supreme Court, and in the four cases in which he dissented, are extensive and learned and eloquent arguments in support of the validity and value and comprehensive scope of that statute. No one who is acquainted with the general subject, and who reads those contributions, can fail to conclude that Justice Harlan may be expected to give his vote in the Supreme Court in favor of deciding the Standard Oil Case and the American Tobacco Case against those defendants."

Mr. Walker's expectations as to the position likely to be assumed by Justice Harlan in the decisions in the Standard Oil Case and the American Tobacco Case, then pending before the Supreme Court, were fulfilled, but Mr. Justice Harlan again found it necessary to file vigorous dissenting opinions in order to consistently follow his previous record.

In his disenting opinion in the Tobacco Trust Case, 221 U. S. at pages 192 and 193, 55 L. ed. 698, 699, 31 Sup. Ct. Rep. 632, Justice Harlan says:

"By every conceivable form of expression the majority in the Trans-Missouri and Joint Traffic Cases adjudged that the act of Congress did not allow restraint of interstate trade to any extent or in any form, and three times it expressly rejected the theory, which has been persistently advanced, that the act should be construed as if it had in it the word "unreasonable" or "undue." But now the court, in accordance with what it denominates the "rule of reason," in effect inserts in the act the word "undue," which means the same as "unreasonable," and thereby makes Congress say what it did not say, what, as I think, it plainly did not intend to say, and what, since the passage of the act, it has explicitly refused to say. It has steadily refused to amend the act so as to tolerate a restraint of interstate commerce, even where such restraint could be said to be "reasonable" or "due." In short, the court now, by judicial legislation, in effect amends an act of Congress relating to a subject over which that department of the government has exclusive cognizance. I beg to say that, in my judgment, the majority in the former cases were guided by the "rule of reason," for it may be assumed that they knew quite as well as others what the rules of reason require when a court rules to ascertain the will of Congress as expressed in a statute.

.

"Let me say also, that as we all agree that the combination in question was illegal under any construction of the antitrust act, there was not the slightest necessity to enter upon an extended argument to show that the act of Congress was to be read as if it contained the word 'unreasonable' or 'undue.' All that is said in the court's opinion in support of that view is, I say with respect, obiter dicta, pure and simple.

"These views are fully discussed in the dissenting opinion delivered in the Standard Oil Case" (221 U. S. 82, 55 L. ed. 654, 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734). In his dissenting opinion in the Standard Oil Case at page 83, he says:

"All who recall the condition of the country in 1890 will remember that there was everywhere, among the people generally, a deep feeling of unrest. The nation had been rid of human slavery,-fortunately, as all now feel, but the conviction was universal that

the country was in real danger from another kind of slavery sought to be fastened on the American people, namely, the slavery that would result from aggregations of capital in the hands of a few individuals and corporations controlling, for their own profit and advantage exclusively, the entire business of the country, including the production and sale of the necessaries of life. Such a danger was thought to be then imminent, and all felt that it must be met firmly and by such statutory regulations as would adequately protect the people against oppression and wrong. Congress therefore took up the matter and gave the whole subject the fullest consideration."

"Guided by these considerations, and to the end that the people, so far as interstate commerce was concerned, might not be dominated by vast combinations and monopolies having power to advance their own selfish ends, regardless of the general interests and welfare, Congress passed the anti-trust Act of 1890 in these words (then quoting sec. 1 of the act, 26 Stat. at L. 209, chap. 647, Comp. Stat. 1913, § 8820)."

For more than twenty years Justice Harlan was a lecturer on constitutional law at the Columbian (now George Washington) University, in Washington, D. C. No lecturer has ever yielded a greater influence on a law-student body.

"To hear him was to love him." To him the Constitution was like unto a Bible,a sacred thing. The writer remembers well on one occasion when he touched upon a popular constitutional question the students burst into tumultuous applause. With his typical worried and disapproving expression on such occasions, he rapped for order, saying:-"Come, come, I am not delivering a political speech." The thousands who have heard him lecture on this subject will remember how it annoyed and worried him to be interrupted by applause. It has been well and truthfully said of Justice Harlan than when on the bench no justice was more serious or dignified, and when off the bench or in civil life, none more democratic or cordial. He was a great man physically as well as mentally, as many of this world's greatest men have been; to his very striking and commanding presence was united the genial manners of his old Kentucky home.

During his service on the bench, a magazine writer described him as follows:

"He is a sort of living, breathing, dominating incarnation of pure Americanism, an inspired Apostle of Law, Morality, and Order. It has been well said of him that he goes to bed at night with the Bible in one hand and the Constitution in the other. His full seventy-three inches of commanding body; his gray eagle of a face, surmounted by a massive dome of a head; his enormous voice, which has the ring of a deep toned bell,-all combine in a compelling and unforgetable presence."

Associate Justice Harlan died in Washington on October 14, 1911, at the age of seventy-eight, after an illness of less than a week, and at the time of his death was the oldest member of the United States Supreme Court, and his term. of service had been exceeded by only two justices in the history of the court,Chief Justice Marshall, after whom he was named, and Associate Justice Stephen J. Field.

During the term of his service twenty Supreme Court justices were appointed by successive Presidents, and, including the eight who were on the bench at the time of his appointment, Justice Harlan had been associated with twenty-eight served since the foundation of the govjustices out of the sixty-five who had

ernment.

As a Man, a Soldier, a Lawyer, a Justice, and a Statesman, he left a record without a blemish, a character without few, of any, members of the bar or of reproach, and a reputation which but the bench, have attained. Justice Harlan seems to have adopted and to have carefully followed the following words

of Abraham Lincoln:

"I am not bound to win, but I am bound to be true.

"I am not bound to succeed, but I am bound to live up to what light I have.

"I must stand with anybody that stands right; stand with him while he is right, and part with him when he goes wrong."

Like Abraham Lincoln, his fame and worth will grow and become accelerated with the flight of time and the onward march of progress, and he will ever be revered as one of the true "Immortals of the Law."

Odb, Billman