Smith Act

“ In fact, the Smith Act was patterned on the New York Criminal Anarchy Statute, Penal Law, McK.Consol.Laws, c. 40, § 160 et seq. Commonwealth v. Nelson, 377 Pa. 58, 86, 104 A.2d 133, 147. The original text of the Smith Act is set out in the hearings before Subcommittee No. 3, supra, and the New York Act may be read in Gitlow v. People of State of New York, 268 U.S. 652, 654-655, 45 S.Ct. 625, 626, 69 L.Ed. 1138. Further evidence of congressional notice of state legislation may be found since the passage of the Smith Act. S.Rep. No. 1358, 81st Cong., 2d Sess., p. 9; H.R.Rep. No. ”

“ The defendants were convicted under § 3 of the Smith Act for conspiring to violate § 2 of that Act, which makes it unlawful
to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence. ”

“ Thus, the Court engages in extended discussions as to whether the people involved will ever want to do the things the Act says they cannot do and whether they will ever object to doing the things the Act says they must do, suggesting, among other things, that the members of the Communist Party may never object to providing the evidence needed to send them to prison for violating the Smith Act; that they may never protest because they are forced to give up the tax deductions that other people receive; that they may be willing to stamp all the Party's mail as coming from an evil organization ”

“ Smith, whose intelligence and Americanism no one can dispute, in his celebrated letter on the school question,24 from which the above phrase is taken, adds: “A lawyer than whom there is no abler in the land, and who is as eminent for integrity as for ability, writes me: ‘I am against the government's being permitted to do anything which can be entrusted to individuals under the equal regulation of general laws.’ ” How few of the “Evangelicals” would be willing to act on this correct interpretation of our Constitution? ”

“ For even Marshall himself a few years later, as attorney in the case of Ware v. Hylton, which involved the validity of an act of the legislature of Virginia, appears to have defended the opposite view before the United States Supreme Court. In that case he said:
"The legislative authority of any country can only be restrained by its own municipal constitution: this is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution." ”

“ The other view is that governmental power should be very strictly limited. Both the Smith Act and the Subversive Activities Control Act are based upon the view that officials of the Government should have power to suppress and crush by force critics and criticisms of governmental officials and their policies. ”

“ When the sovereign or chief exercised his judicial authority in his own person, how much soever he might abuse it, it must have been scarce possible to get any redress, because there could seldom be anybody powerful enough to call him to account. When he exercised it by a bailiff, indeed, redress might sometimes be had. If it was for his own benefit only that the bailiff had been guilty of any act of injustice, the sovereign himself might not always be unwilling to punish him, or to oblige him to repair the wrong. ”

“ In our opinion, the claim that the United States must be made a party is without foundation. Under the act of 1894 (supra) the circuit courts are given jurisdiction to try and determine any action of this nature, involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty, 'and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him. ”

“ Smith was, on the declaration of independence, a citizen of the United States; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case. ”

“ United States
Pursuant to the provisions of the act of 1824, for the adjustment of land claims in the state of Missouri, John Smith T. filed his petition in the district court on the 3d of October 1827, claiming a confirmation of his title to ten thousand arpents of land in that state, in virtue of a Spanish concession to James St Vrain, a resident of Louisiana, legally made before the 10th of March of 1804 by the proper authorities. He alleged that his claim was protected by the treaty between France and the United States for the cession of Louisiana ”

“ It has not only deprived the people of the power to make the interpretation of the Constitution and the trend of legislation conform to the public sentiment of the times; it has even taken from them all effectual power to prevent changes which they do not want, but which the judiciary in the exercise of its exclusive right to act as the guardian and interpreter of the Constitution may see fit to make. Under our system, then, the people do not have even the negative power of absolute veto which they possess wherever they control a coördinate branch of the legislature. ”

“ Not only in the Constitution itself was no distinction made between laws and treaties in relation to the power of the judiciary, but the same is true of the Judiciary Act of September 24, 1789, which provided that where the highest court in a state in which a decision in the suit could be had decides against the validity of "a treaty or statute of, or an authority exercised under, the United [Pg 121] States," such judgment or decree "may be re-examined, and reversed or affirmed in the Supreme Court [of the United States] on a writ of error." ”

“ In the second place, it must be remembered that the Federal judiciary in assuming the exclusive right to interpret the Constitution has taken into its keeping a power which, as we have seen, was not judicial in character when the Constitution was adopted, and is not even now considered judicial in any other important country. In declaring a legislative act null and void it is exercising a power which every sovereign law-making body possesses, the power to defeat any proposed legislation by withholding its assent. ”

“ The Court held in passing that the mere existence of federal admiralty jurisdiction does not per se bar the states from legislating for the protection of its fisheries, a proposition which no one can doubt. It is apparent that the issue now before us, interpretation of the Judiciary Act, was not presented to the Court nor decided by it in the Smith case. The Court in the instant case treats Smith v. Maryland as a holding for a proposition which can flow from it only by accident. ”

“ Crowninshield, the court, in deciding a State insolvent or bankrupt law to be valid till Congress acts, says, 'It is not the grant of a power to the Union, but its exercise, that ousts the State of jurisdiction.' This, it is believed, cannot be true of an exclusive power. If such a power is granted to the Union, the State must necessarily be divested of it, whether Congress acts or not. The State is at the mercy of Congress, and helpless till it chooses to act. ”

“ To hinder, besides, the farmer from sending his goods at all times to the best market, is evidently to sacrifice the ordinary laws of justice to an idea of public utility, to a sort of reasons of state; an act or legislative authority which ought to be exercised only, which can be pardoned only, in cases of the most urgent necessity. ”

“ Doubts may exist as to the true construction of an instrument in the minds of its framers, and to obviate those doubts, additional, if not unnecessary, provisions may be inserted. This remark applies to the Constitution in the instances named, and in others.
A concurrent power in the States to regulate commerce is an anomaly not found in the Constitution. If such power exist, it may be exercised independently of the federal authority.
It does not follow, as is often said, with little accuracy, that, when a State law shall conflict with an act of Congress, the former must yield. ”

“ Recovery was resisted upon the ground that although Smith was in actual possession of the lands under deed from Reinhart, they belonged to the United States and were unlawfully in the vendor's possession when so conveyed without bona fide claim or color of title, contrary to the Act of Congress approved February 25, 1885 (23 Stat. at L. 321, chap. 149, Comp. Stat. 1916, § 4997) ”

“ On December 19, 1893, his successor, the defendant Hoke Smith, decided that these lands were not swamp and overflowed lands, and that the State had no claim to them as such, and therefore directed the Commissioner to "cause all decisions, recommending or holding for cancellation entries or declaratory statements, upon the ground that the lands in contest were granted to the State of Oregon as swamp and overflowed lands by the act of March 12, 1860, to be set aside and annulled, and the cases reinstated; and all contests based upon said ground alone to be dismissed." ”

“ And now one nation speaks forth the word which all are struggling to utter, and soon every eye is turned upon France,—the theatre on which the new act in the drama of human history is to be acted; where freedom and right are once more to become realities; where man, no longer a mere appendage to the soil, is to start forth on a new career of activity and honour, and show the world the spectacle of an ennobled and regenerated race. ”

“ For several years Smith had sought to draw attention to the condition of the gipsy children, and after the passing of the Canal Boats Amendment Act he gave all his time to that subject. In 1880 he published ‘Gipsy Life: being an Account of our Gipsies and their Children,’ London, 8vo, a work containing much information on the history of the race in England. A Moveable Dwellings Bill, framed in accordance with Smith's views, was several times introduced into parliament by Messrs. ”

“ Smith's devotion to Prohibition, and particularly his determined stand for the honest enforcement of the Scott Act, which is in force in that county, made him a shining mark for the vengeance of the men whose trade and profits were so seriously affected thereby. The confession of Walter Kelly, the assailant, that he was employed to 'do up' Mr. Smith because he was a man who gave the hotel keepers much trouble, and had to be thrashed, as well as the payment of money by Mr. ”

“ They shall not take away our rights; and if they don't stop leading me by the nose, I will lead them by the nose; and if they don't let me alone, I will turn up the world—I will make war. When we shake our own bushes, we want to catch our own fruit.
The lawyers themselves acknowledge that we have all power granted us in our charters that we could ask for—that we had more power than any other court in the state ”

“ When Congress enacts regulations of commerce or revenue, it does so for the United States, and the equality exists. When a State passes a law in any way acting upon commerce, or one of revenue, it can only do so for itself, and the equality is destroyed. In such a case the Constitution would be violated, both in spirit and in letter.
Again, it is declared in the first clause of the eighth section of the first article of the Constitution, that all duties, imposts, and excises shall be uniform throughout the United States ”

“ The power of the governor-general being supreme, his power would not have been invoked in vain if the grant was good; and no officer in the province would have disobeyed his order to survey on the selections being made.
It is not for us to say what, it any, acts would have given St Vrain an equity in any definite piece of ground; it suffices for this case that he had none while the country was under the government of Spain, and that the petitioner Smith has acquired none since the cession by any acts which he has done, or caused to be done in making the location specified in his petition. ”

“ In order to make every individual feel himself perfectly secure in the possession of every right which belongs to him, it is not only necessary that the judicial should be separated from the executive power, but that it should be rendered as much as possible independent of that power. The judge should not be liable to be removed from his office according to the caprice of that power. The regular the good-will or even upon the good economy payment of his salary should not depend upon of that power. ”

“ Nothing can illustrate more forcibly the danger of converting a tax upon a ship-owner or master for bringing in passengers into a duty on imports or a duty on tonnage than the fact, that ingenious minds hesitate and disagree as to which of two classes of things so utterly different in their character it shall be assigned. It proves, what is true, that there is no similarity to either, nor any congruity in the association. I trust, then, the power of the court will not be strained to diminish an obvious right of the State, in order to add to the increasing power of the United States. ”