180 Magazine of History Those who are not familiar with the story of Lincoln at New Salem from 1831 to 1837 will search in vain for a finer presentation than the monograph by Thomas. After the uni- versal reception of his standard one volume biography A braham Lincoln published in 1952, more students will desire to reread this most authoritative book on the years which the former railsplitter spent at New Salem. Lincoln National Life Foundation Louis A. Warren

Justice George Shims, Jr. of Pittsburgh. By George Shiras, 3rd and Winfield Shiras. (Pittsburgh : University of Pittsburgh Press, 1953, pp. xx, 256. Illustrations, bibliog- raphy, and index. $4.50.) Mr. Justice Shiras served on the Supreme Court of the for a little over a decade round the close of the nineteenth century-he was appointed to the Supreme Court by a Republican president, , in 1892, and voluntarily stepped down from the Court in 1903. Shiras entered a Court that contained amongst others that venerable titan, Justice Stephen J. Field of California who had been appointed to the Court by President Lincoln in the middle of the Civil War ; and a year before Shiras retired Oliver Wendell Holmes Jr. was nominated to the Court by President . Shiras’ term on the Court represented a decade in which the foundations were laid for that “businessman’s” majority on the Court that was to be dominant right up to the Court, Revolution of 1937. In the middle of Shiras’ term of office, for example, the Court handed down the important decision in Allgeyer v. Louisiana* which paved the way for the line of decisions beginning with Lochner v. (Holmes J. dissenting) in 1905 striking down governmental regulation of the economy in the name of ; the Court also, in the E. C. Knight Case in 1895,* was able effectively to muzzle the anti-trust forces by its ruling that “manufacture” was not “commerce,” and that therefore manufacturing concerns were beyond the ambit of the Sherman Act. It was a period in American history when the rugged individualism of the pioneer and the expansive - 1 Allgeyer v. Louisiana, 165 U.S. 578 (1897). 4 United States v. E. C. Knight Co., 156 U.S. 1 (1895). Book Reviews 181 self-interest of commercial enterprise formed a solid block of resistance to incipient collectivist trends, producing, as Holmes himself described it in 1897, a disposition in those who “no longer hope to control the legislatures to look to the courts as expounders of the Constitutions . . . [I] n some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right.”3 It is easy to see in the judicial opinions of a patriarch like Field, with a varied and exciting professional career in the frontier society of the West Coast as a background to his appointment to the Court, the influence of pioneer notions of individualism and self-help. But Shiras belonged to a later generation of justices, the generation of corporation lawyers ; and the temptation is rather strong, especially to critics of the Court around the time of the Court Revolution of 1937, to see in these men’s decisions on the Court the rationaliza- tions, conscious or otherwise, of the preferred interests of their former professional clients. As a professional lawyer, Shiras is not too readily distinguishable from countless other corporation lawyers of his time. He graduated from Yale College, class of 1853, and thereafter studied briefly at the Yale Law School before elect- ing the more direct method of entry into the legal profession through apprenticeship in a law office. He was admitted to the Allegheny, Pennsylvania, bar in 1855, and began practice in Pittsburgh, being so successful that by the 1880’s his profes- sional income was estimated at $75,000.00 per year. He was even mentioned briefly as a Republican candidate for the Sen- ate in 1881. When Justice Joseph P. Bradley died in 1892, it was accepted that his successor should, like Bradley, come from the third United States judicial circuit (comprising New Jersey, Pennsylvania, and Delaware). Friends of Shiras im- mediately undertook a campaign in his behalf and began writ- ing to President Harrison. Notable among the Shiras support- ers were the members of the Yale class of 1853, a fact which secured for Shiras important bi-partisan support, one of the members being Democratic Senator Randall Lee Gibson of

*Oliver Wendell Holmes, “The Path of the Law,’’ Harvccrd Law Review (Cambridge, Mass., 1887- ), 10 (1897), 467-468. 182 Indiana Magazine of Histoly

Louisiana ; while , an old fishing acquaint- ance of Shiras, had a long and friendly talk to President Harrison on Shiras’ behalf. The only really discordant note seems to have been struck by the Republican party “machine” in Pennsylvania, whose currently reigning “bosses,” Senators James Donald Cameron and , piqued at Presi- dent Harrison’s rejection of their own “machine” candidate, attempted vainly to assert the principle of senatorial courtesy as a means of blocking confirmation of the Shiras nomination in the Senate. It is likely thrit by virtue of his very “representativeness” and also the absence of any notable color or even eccentricities in his make-up, Shiras would today be substantially forgotten, even by legal historians. What saves him from this fate is the controversy over his role in what Evans Hughes was later to characterize as one of ‘the Supreme Court‘s “self- inflicted w~unds”~-the income tax cases of 1895.6 The Supreme Court, at its first consideration of the federal income tax legislation, had announced its invalidation of certain por- tions only of the legislation, including the tax on rents and income from real estate; at the same time Chief Justice Melville Weston Fuller indicated that the CouPt was evenly divided (necessarily by a four-four vote, Justice Howell Ed- munds Jackson being absent on account of illness), upon certain other questions, principally the question whether the whole act was void because the tax on income from real estate had been declared invalid (‘the “severability” issue) and also the question whether the tax on income from personal prop- erty was also invalid. The Court directed re-argument on these issues. At the rehearing, Justice Jackson, now virtually at death’s door, managed to fight off the ravages of tuber- culosis and dropsy long enough ’to attend and vote in favor of the legislation. The result was that the remaining portions of the federal income tax legislation were now invalidated also, by a five-to-four vote (Fuller C. J., Field, Gray, Brewer, Shiras, in favor of invalidation ; Harlan, White, Brown, and Jackson dissenting). On analysis of the vote, it was plainly evident, as a simple matter of mathematics, that one of ‘the original four justices who had at the first hearing

4 , The Supreme Court of th United States (New York, 1928), 50. 5 Pollock v. Farmers’ Loan and Trust Co., 157 U.S. 429 (1896). Book Reviews 183

voted against invalidation of the balance of the legislation, had now switched his vote so as to favor invalidation. How- ever, since the Court’s conferences are held in camera and since Chief Justice Fuller had, for some reason, made no announcement at the first hearing of how the four-four tie was made up, it was impossible to say with any certainty just which judge had now changed his vote. Judges, of course, are technically entitled to change their minds ; nevertheless, popular opinion at the time greeted the Court’s final decision with extreme bitterness as being an example of a judicial decision dictated by conscious solicitude for the special interests of the privileged and wealthy classes. An indignant public seems immediately to have fastened upon Shiras as the guilty party in the switch of votes, and though Shiras seems to have accepted the public fury and clamor with outward calm, there is little doubt that he felt the charge very deeply. The authors of the present volume advance the thesis at some length that it was not Shiras who switched his vote at all, but some other justice-a conclusion, it should be noted, to which Charles Evans Hughes also seems to have inclinede6 But the evidence seems to be as inconclusive as ever and quite incapable of basing any hard-and-fast proposition as to whether Shiras did change his vote, or whether he did not. What can, however, be said in Shiras’ behalf is that there is no justification on the known facts for singling him out in preference to any one of the remaining members of the court majority at the second argumentchief Justice Fuller, and Justices Field, Gray, and Brewer-as the justice who changed his vote. And this is enough, in passing on the merits of the charge against Shiras, to warrant not merely the somewhat ambiguous Scottish jury verdict of “not proven” but also the more affirmative common law jury formula of “not guilty.” Yale University Edward McWhinney

The Real Americans. By A. Hyatt Verrill. (New York : G. P. Putnam’s Sons, 1954, pp. x, 309. Illustrations, glossary, and index. $5.00.) According to the author, this book, intended for a popular audience, was written “for the purpose of conveying a better knowledge and understanding of our Indians of the United

6 Hughea, The Supreme Court, 54.