. Obviously two questions were presented
for adjudication: The first, which by courtesy might be termed legal,
was whether the fixing of prices by statute was a prerogative which a
state legislature might constitutionally exercise at all; the second,
which was purely political, was whether, admitting that, in the
abstract, such a power could be exercised by the state, Illinois had,
in this particular case, behaved _reasonably_. 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._ Illinois attained to a point at which they
began to grasp many important prerogatives of sovereignty, and to
impose, what was tantamount to, arbitrary taxation upon a large scale.
The crucial trial of strength came on the contest for control of the
railways, and in that contest concentrated capital prevailed. The
Supreme Court reversed its attitude, and undertook to do that which it
had solemnly protested it could not do. It began to censor legislation
in the interest of the strongest force for the time being, that force
being actually financial. By the year 1800 the railway interest had
expanded prodigiously. Between 1876 and 1890 the investment in railways
had far more than doubled, and, during the last five years of this
period, the increment had been at an average of about $450,000,000
annually. At this point the majori