long as public opinion favors private property, laws governing bequest and inheritance similar to those which exist at present will be continued in force. But if public opinion ever turns in disgust from the existing economic system, convinced of the practicability as well as of the desirability of socialism, a change in the laws governing the descent of property will be one of the easiest methods of approach.
In the third place, the position of the federal courts is not impregnable. Save only the Supreme Court, Congress has power to abolish them. This was actually done in 1801 in the case of the "midnight judges." More recently the existence of the Commerce Court has been threatened. There is no way, moreover, of compelling a recalcitrant Congress to make appropriations for the federal courts, and if so disposed the President by failing to appoint or the Senate to confirm could permit even the Supreme Court to die a peaceful death. Jefferson, Jackson and Lincoln showed that a Supreme Court decision is not binding on a coordinate department of the government. The constitution expressly makes the appellate jurisdiction of the Supreme Court subject to such exceptions and regulations as Congress shall make. On one occasion Congress limited the appellate jurisdiction of the court with a view to preventing it from declaring an act of Congress unconstitutional. This action was upheld by the court itself.[1] It is well known also that Congress can pack the court by increasing its membership. Professor Goodnow aptly remarks "that almost all of the great powers which the federal courts possess are theirs only because of the fact that their exercise of these powers has as a whole been satisfactory to the people of the United States."[2]
IV
The main reliance of property owners does not lie in constitutions and courts, but in not violating the sense of fair play. The desire for property is well-nigh universal, and, so long as a fair and open field is maintained, the sense of injustice will have little chance to take root, and the army of property owners, both actual and potential, together with their natural allies among those without property, will be too numerous to be dispossessed. The danger to property does not lie so much in the minds of wily agitators, in the ignorance or depravity of the common man, or in the envy which the poor bear toward the rich as in closing the door of opportunity to the struggling and aspiring masses. So long as a man could homestead a piece of land, there was no social problem such as exists to-day. No self-respecting class whose necessities condemn it to a life of barely requited toil can be expected to rest content without at least the hope of something better. There is no
