Railroad Rates,
AND
TRANSPORTATION OvERLAND,
In a Letter
To a Member of Congress.
By JOHN T. DOYLE.
S.\N FRANCISCO :
1ÎOSQUI Engraving and Printing Co.
1893.
Hon. Abrají S. Hewitt,
House of Representatives, Washington.
Dear Sir :
The abuses in the system of overland transportation be¬
tween the Eastern and the Pacific States have all sprung from
a disregard of the principle of impartiality which should
govern the administration of all public trusts. The com¬
panies operating the overland railroads have arbitrarily dis¬
criminated between individuals and between places, as their
own interests or those of their managers dictate. By this
method they have succeeded in monopolizing the business of
transportation, and levying an unjust and, doubtless, unlawful
tax on all commerce between the communities concerned ;
they have almost destroyed the lines of clipper ships which
formerly did so large a share of the carrying ; and thus, be¬
sides contributing materially to the destruction of our mer¬
cantile marine, they have greatly enhanced the cost of the
exportation of the surplus wheat crop of this coast. This
last season it has cost our farmers as high as ij4.5s per ton
for the carriage of their wheat to England. Two, three, and
four years ago ;£'2.ios and ^^3. were current rates. This
killing enhancement of freights is directly connected with the
system of railroad management which deprives shipping of
any west-bound cargo, and throws the cost of the wh^le
voyage on the freight hence to Liverpool. They have imposed
on our exports, and on those of the Atlantic States which
have commerce with us, an arbitrary ad valorem tariff, ad¬
justed at all points to the maximum. They now threaten to
divide our community into two hostile parties, intercourse
between which is prohibited. That these abuses are in viola¬
tion of law, cannot, I think, be doubted ; but from our pecu¬
liar dual form of government and the imperfection of our
2
Statutes, no adequate remedy for them exists. They have
grown up under imperfect Congressional legislation, and Con¬
gress alone can provide a remedy. Before proceeding to
discuss the remedial legislation needed, we must examine the
evil itself more in detail and trace its origin.
It is common knowledge that in every business certain
goods require the speediest transportation obtainable, and
others, in the carriage of which time is of little importance,
compared to rate of freight. In the commerce between the
Eastern and the Pacific States, the former class of merchan¬
dise naturally sought transportation by rail, the latter by sea,
or by the Isthmus. As every dealer must keep up his assort¬
ment or lose his trade, all the importers naturally had dealings
with the railroad companies, as well as with the ocean and
Isthmus lines, each in its appropriate sphere. In the summer
of 1878, however, the Union Pacific Railroad (having first
secured the control of the Panama route) announced a change
in its overland classification, and an advance in freight
charges, ranging from fifty to one hundred per cent, over
those previously in force, thus effectually forbidding all im¬
portations under their published tariff. At the same time the
merchants were waited on by a freight agent, and informed
that by contracting to give all their freight, of every kind, to
the railroad companies, they would not only escape the ex¬
cessive charges of the new tariff, but even secure a slight
reduction from the old rates. Had the mercantile community
been united, the exaction of these contracts for exclusive
dealing might have been resisted ; but the companies had
rightly calculated on their want of union and preparation and
the influence of business rivalry among them. Possibly those
who first accepted the new contracts secured, or were prom¬
ised, some special favors or advantages. However this may
be, some were found to lead in tiie movement and accept
them. Each one who did so rendered it more difficult for the
others to hold out ; for the man who refused foresaw that he
would not only have to pay on his fine goods double or treble
the rates paid by his more compliant rivals in business, but
also be exposed to invidious personal discrimination in rapid¬
ity of transport and usual accommodations in the way of
shipment, forwarding and delivery—discriminations destruc¬
tive to his business, easily practiced, difficult of proof, and, if
3
proved, without adequate remedy. One by one at first, then
in larger numbers, and finally almost in a bodj', the importers
gave way and signed the contracts. The companies were very
civil ; the contracts were open to all alike, and were not at
first very rigidly interpreted or strictly enforced. They were
explained and rather accepted as a legitimate effort to com¬
pete with the ocean and Isthmus lines, and their ultimate
operation, perhaps was not clearly foreseen. The following
year renewals of them were _ proffered, with clauses a little
more stringent as to rival modes of transportation ; and in
each succeeding year since, the screw has been turned a little
tighter. The penal clauses of two former years are set forth
in the Nation of December 8th, 1881, which I enclose. Those
in the contracts for 1882 are as follows :
In consideralion of the guaranty of the foregoing special rates of freight, the
" second party has covenanted and agreed, and does hereby covenant and agree
to ship or cause to be shipped by way of the railroad owned or operated by the
first parties, and such other connecting railroads as may be designated from time
** to time by the said first parties, all the goods, wares and merchandise handled
" by the said second party, which may or shall be purchased in or obtained from
** any point in the United States or Canada, east of the meridian of Omaha during
"the term of this contract, for sale or use on the Pacific Coast, whether such
" goods are shipped in the name or for account of said second party or otherwise.
" It is mutually understood and declared that the object of this agreement is to
*' secure for and give to the first parties the transportation of all goods handled by
" said second party, which may be shipped from the Eastern States and Canada
" to San Francisco, or other port or point of distribution on the Pacific Coast
" during the term of this contract. Also that said second party is able to control
" the matter and direct the manner of shipping said goods, and that in the event
" of any portion of said goods being diverted from the routes, by which it is herein
" agreed they shall be shipped, such diversion shall be construed as, and held to
" be, prÍ7Ha facie evidence of default in the performance of this agreement by said
" second party ; and it shall then be optional with said first parties to annul the
" agreement, or to collect as liquidated damages a sum equivalent to the charges
" said goods would have been subject to if shipped by rail in accordance with the
" terms of this agreement.
" It is also mutually understood and particularly agreed that the special rales of
" freight herein provided are for the sole use. and benefit of the second party, and
" that said second party shall not allow the use of its name or shipping marks, in
" any way or by any other party or parties, which shall procure for said other
" party or parties the benefit of said special rates of freight ; a^td it is expressly
" stipulated that m case said second party shall supply^ by sale or otherzaise, any
" party or pai'ties zvho are known to handle goods zvhich may have been shipped via
" any route not herem designated^ fro7n the territory east of the inc7'idia7i of 07)iaha
" to any point or poifits ofi the Pacific Coast of the Uftited States^ or to B7'itish
*' Colu7nbia, during the ter/7i of this agree/nent, said secostd pai'ty shall pay or cause
' ' to be paid to said first parties fi'eight at the regular tarifi rates on the goods so
" supplied, in default of which the first parties shall have the right at their option,
" to cancel and annul this agreement.
* ***•»* *
" It is further mutually understood and agreed, that in case the first parties shall
" at any time have reason to believe that the second party has violated or disre-
" garded the terms of this agreement, .said first pa7'iies shall have the right to
" exa7/iÍ7ie the books and papers of the seco7id party, in so far as 7nay be fzecessary to
" deter7}íÍ7ie the truth of the 77ialter m questioti.
" It is further mutually understood and agreed that all freight shipped under or
4
" covered by this agreement shall be truly and accurately described by the use of
'■ definite, not general, terms, and, as far as true and practicable, by terms used in
" the tariff of the first parties hereto,' so that the proper rate to be applied may
" be determined without inspection of the contents of the packages by ihe carrier;
" and that in cases of doubt as to the exact nature of the contents of any package
" of freight consigned to said second party, the carriers shall have, and are hereby
" accorded, the right cither to open said packages or to inspect the original invoices of
" purchase for the contents of said packages, in order to determine the proper rate
" to be charged thereon ; and that in case it shall be found that any such package
" or packages contain freight of a higher class than that specified by shippers of
" same, the nature of the goods having been wilt'ully misrepresented for the pur-
'■ posé of obtaining a lower rate upon the same than that which would have been
" obtained under this agreement, had the goods been truly described, the carriers
" shall have, and are hereby accorded, the right to charge upon such package or
" packages so misdescribed, double the regular tariff rate upon the same."
» * * * •» -K- *
I beg you to read these clauses thoughtfully and realize
their full meaning and inevitable effect. They divide this
community sharply into two classes, viz : " Those who handle.
i. c. buy, sell, forward or consume goods which have come
here from the East otherwise than by rail, and those who do
not." If one of the former class applies to purchase goods
from one of the latter, he may perhaps, in an isolated case,
obtain them, but he must pay a price much above the market
value, because the seller has contracted and will be called on
to pay the open tariff freight on them,rtJ a penalty ior selling to
a customer obnoxious to the Railroad Company; but if the re¬
quest be repeated, he is sure in the end, and quite likely at the
outset, to be told " we dare not sell to you lest our railroad con¬
tract be revoked, or a renewal of it be refused us." That is the
precise meaning and intention ! Absolute non-intercourse in
business with any who, directly or indirectly, use other means
of transportation, is the price exacted from the merchants of
this coast for liberty to have their merchandise carried over
a national highway, built and equipped wholly with means
furnished by the public! How long social relations can, in a
commercial community, survive an enforced cessation of busi¬
ness intercourse, accompanied, as this must be, by a sense of
humiliation on the one side and wrong on the other, may be
conjectured ; but what jealousies, social enmities or other
evil consequences may ensue is of no consequence. The man
whose freight is transported by the overland railroad com¬
panies must neither buy nor sell with one who directly or in¬
directly countenances any other mode of transportation. He
has become a slave of the railroad company.
Possibly these suggestions may appear e.xaggerated, it may
5
be thought that such shocking conditions are not intended to
be and will not be enforced, or that it will be impossible to
discover violations. Even if this were true, it is no answer^
for the contracts are equally objectionable in any event. But
it is not true ; they are intended to be enforced. The inten¬
tion is distinctly announced. Nay, because they are hence¬
forth to be strictly enforced, contracts are no longer open to
all dealers alike; only the large houses are now allowed the
privilege of taking them, the reason assigned being that other-
wise the company would have to maintain too large a corps of
spies !
Besides, if not to be enforced, why insei't them What
object to be gained by a gratuitous and offensive imputation
of habitual bad faith on the part of their customers, only to
be guarded against stringent conventional rules of evidence,
discovery of books and papers, based on suspicion, and pen¬
alties inflicted at discretion, of the complaining party.' They
are to be enforced, and indeed must be, or the whole contract
system must break down. Every contract of the kind, like
every penal enactment, must provide against evasion or be¬
come wholly inefiflcient. If buying and selling between the
two classes spoken of were permitted, evasion of the contracts
would be easy and would soon become general, because
tolerated.
With all of these humiliating conditions, however, the con¬
tracts have been generally accepted by the mercantile com¬
munity. Not that they are willing to be so oppressed or un¬
conscious of the wrong inflicted on them, but having once
given entrance to the nefarious system, they find themselves
powerless to resist further encroachment, and must accede to
whatever the railroad companies see fit to demand. So true
it is :
Things bad begun make strong themselves by ill."
Conversing with two gentlemen the other day, I said to one
of them, an extensive merchant : " I suppose you have taken
one of these new railroad contracts.' " " Oh yes," said he,
" it is either that or go out of business; we have no choice, that
is the way I look at it." This but expresses the universal
sentiment. And not only have they no choice as to accept¬
ing these contracts, but they must not even murmur or express
dissatisfaction at them. No man in business dares speak out
6
what he silently thinks on the subject ; he knows too well the
extent to which he is in the power of the companies. Even
if he should escape the arbitrary revocation of his present
contract, he feels certain that he will be refused a renewal
next January, and must then affront the alternative of "going
out of business." He can not even fall back on ocean and
isthmus transportation. The clipper lines round the Horn
have been one by one rooted out, by the contract system, and
the Isthmus rates are controlled by the overland companies'
as their contracts expressly declare. If a petition to Congress
for relief from this oppression were circulated here to-morrow,
it is safe to say that not ten, and probably not even one of
those who most acutely feel it, and most denounce it in pri¬
vate to each other—certainly none who hold railroad con¬
tracts and expect to remain in business—would have courage
to set their signatures to the paper. Nor are they to be
blamed. They have families, property, creditors, and find
themselves, without conscious fault on their own part, under
the absolute government of a combination of large corpora¬
tions unrestrained by any law but the interest and passion
of their managers. The penalty for revolt would be destruc¬
tion.
The evil is patent and monstrous, and considering that the
roads were wholly built and equipped with means provided
by Congress, and their methods of business are exclusively
under its control, and the duty of providing a remedy by that
body is urgent.
A Congressional schedule of rates is open to grave objec¬
tions, and, from its inevitable complexity, is probably imprac¬
ticable. Congress does not possess the necessary information
to enact a rate of charges just to the railroads and the public.
To confer the power of fixing charges on a Board of Commis¬
sioners is objectionable on other grounds, and, if we may judge
by our local experience, would afford no actual relief. Gen¬
eral legislation, if practicable, is much to be preferred. Its
justice or injustice can be determined on principle, without
reference to confusing details of business and conflicting in¬
terests of particular parties. Hence, too, it is more likely to
unite the friends of reform ; and as its merits are capable of
popular appreciation and discussion, a recognition of its jus¬
tice is more likely to lead to its adoption. I know no good
7
reason why the principles which should govern overland rates
are not equally applicable to all inter-state railroad transpor¬
tation ; but my studies having been confined to the former, I
address-myself here to them alone. That general rules can
be devised for them, just in themselves, simple and easily en¬
forced, and which will remedy the abuses complained of, I
have no doubt ; and as the overland roads were wholly built
and equipped with means furnished by the public, and are in
fact creatures of an Act of Congress, there can be no consti¬
tutional or other valid objection to Congressional regulation
of their methods. In fact, no authority but Congress can
regulate them.
I admit, in limine, the private interest in the roads, and
that corporate property is as much under the protection of
the Constitution as that of individuals. But the road.s, though
the right to operate them be private property are not the less
public highways, and, as such, open by law to the use of all
citizens on equal terms. Congress, in furnishing means for
their construction, never designed that their use should be
limited to any particular set of men, or that any preferences
or partialities should be shown to one over another. There
is no word in the Pacific Railroad Acts to sanction such a
claim, and it is plain nothing of the sort was designed. The
abuses in the system have all sprung from a disregard of this
principle ; and in demanding conformity to it, we are strictly
within the lines of simple justice.
The basis whereon the whole of this system has been built
up is the artificial classification of merchandise adopted by
the railroad companies, and the abuse of the liberty, incident
to corporate existence, to make private contracts. Abolish
the present absurd classification and substitute one founded
on justice and good sense ; require the companies to make
public their rates of charge, and forbid all deviation under
any pretext, and you will have enacted regulations which, if
enforced, will tear up the whole wicked system by the roots.
Every railroad freight tariff consists in part of a lengthy
and minute alphabetical enumeration of commodities liable
to become the subject of transportation, beginning, say with
"««'¿A," and ending with "¿Tz'wír." In that of the Union and
Central Pacific roads for west-bound overland freight, in
force February 28, 1878, which happens to be at hand, this
8
enumeration covers nearly three pages of large paper in fine
type, five columns to the page, and specifies, as I conjec¬
ture from a partial count, from eight hundred to a thousand
different items. I think it a fair specimen of such papers.
Opposite each article enumerated is a figure or letter indica-
ing the class to which it belongs, as class ist, 2d, 3d, 4th, etc.
Class A, B, C, D, etc., one and a half times first class, double
first class, two and a half times first class, etc. Some roads
have a larger number of classes than others, but there are
usually from twelve to fifteen. All commodities are not how¬
ever, included in them, for there are usually numerous special
rates on certain goods from and to certain places, which are
not made public, because the subject of a special arrangement
between the shipper and the carrier.
One contemplating the establishment of some new industry,
dependent, as almost all such are, on transportation for success,
goes to the railroad company for a rate on his goods. They
ascertain the cost of production, the value at market, and
give him a special rate which they decide that he can afford
to pay. No person outside the office of the railroad company
itself can do more than guess at how many different rates are
in force over its road. All this is, of course, familiar knowl¬
edge to those habitually shipping or receiving freight over
any of the great railroad lines, but to many it is likely to be
—as it was to me when I began to study the question—
unknown, except in a very general way, and it is the first
thing to be clearly understood in examining the question.
To illustrate to readers unfamiliar with the subject, the list of
details on which classification is subdivided I quote from the
overland tariff above referred to the following, under the head
of " Paper." The enumeration is on the left, the classification
on the right side of the column :
Paper boxes, flat and compact A
Paper boxes, nested and folded i
Paper, book, bundles released A
Paper labels 3
Paper, colored or glazed 4
Paper collars, cuffs and bosoms, boxed i
Paper collars, cuffs and bosoms, flat and compact 3
Paper, gilt, fancy, writing or note i
9
Paper, drawing, mounted on cloth i
Paper, medicated 4
Paper posters 4
Paper, tissue B
Paper, blotting B
Paper, blotting, printed 3
Paper, flat, in boxes, not ruled or printed A
Paper, printed or ruled 3
Paper, news printing, in bales or bundles C
Paper-hangings, in boxes A
Paper, roofing and building, uncolored D
Paper, building, tinted for inside walls A
Paper, carpeting, or imitation oilcloth 3
Paper, straw wrapping D
Paper, wrapping, Manila and hardware C
Paper for covering trunks A
Paper goods and paper ware not otherwise specified i
REASONS FOR THIS CLASSIFICATION.
Here we have just a quarter of a hunderd different phases
under which this single article of paper is presented, and they
are distributed into seven different classes. If you ask a rail¬
road official the reason of these distinctions, you will probably
lead him to point out that paper boxes " nested and folded,"
take up vastly more space than if packed " flat and compact,"
which is true enough and suggests a difference in the rate of
charge. As to other items in the tariff, you are likely to be told
that the carrier is liable at common law, as a insurer, and hence
must charge a rate proportionate to the risk ; that there are
very many other considerations affecting rates of freight,—as
danger of breakage, leakage chafing and the like ; that some
goods as acids, oils, etc., endanger other articles in the same
car ; that some articles require special care in handling and
stowing, etc., and that what leads to this excessively minute
classification is the earnest desire of the companies, and es¬
pecially of his company, to do exactly right by all interests,
and not to charge on, any particular commodity more than it
can justly bear : that long experience in railroad traffic hav¬
ing led to the adoption of the classification in force, it would
be rash to disturb it hastily, especially on the suggestion of
one so little versed in the details of railroad business, classifi-
lO
cation and rules in force on connecting roads, action of com¬
peting lines, etc., as yourself. You may get an admission
that classification, may possibly be further simplified, and be
told that such is the constant aim of his company, and that
any suggestions on the subject will have thoughtful attention
and will receive their thanks.
I confess I was long mystified about this business, and none
the less so from the fact that, while I found the system itself
obtained on all railroads in the country, the details on the
different roads did not agree at all. An article that was set
down as second class on one road might be first or fourth on
another and belong to Class A or .B on a third. In the re¬
port of the California Commissioners of Transportation of
December, 1877, at page 34, is an interesting table of several
pages showing the classification on the principal railroads of
this State of certain leading articles of merchandise, " from
which," says the report, " it will be seen that so far from pre¬
senting anything approaching uniformity, the greatest diver¬
sity prevails among them." The reason of this diversity is to
be found in the point of view from which the railroad com¬
panies look at the question. They would have the public
suppose that classification proceeds on some intrinsic analogy
between the various articles put into the same class, and that
the class to which an article properly and logically belongs,
having been first ascertained, the rate of freight is thereby
determined. This seems so natural in itself and is so in ac¬
cordance with the operation of a mind desiring to do exact jus¬
tice, and harmonious with the forms through which a novice is
conducted in ascertaining the rate of freight on any particular
commodity, that it is likely to be accepted without question.
It is, however, a mere pretext and sham, resorted to for the
mystification of the honest enquirer. By the introduction of
a false middle term, viz., "class," the railroad companies are
enabled to take out of every article transported the utmost
cent the owner can afford to pay for its carriage, while they
conceal from him their method of proceeding, and mystify
him with a bewildering complexity of detail, in the way of
classification. Instead of considering wh}' his commodities
are charged at a higher rate than others he is perple.xed with
the enquiry why the one belongs to one class and the other to
another. He perhaps endeavors to trace out the secret anal-
11
ogy between Perry Davis' Pain Killer, shoe pegs and twine,
all of which he finds in one class, and the points of generic
difference between these commodities on the one hand and
say tin ware, tobacco in pails and wheelbarrows, on the other,
which he finds in a different» one, and while he muddles his
brains over the investigation, more abstruse by far than Hudi-
bras' famous one as to
How many different species
Of maggots breed in rotten cheese,
And which are next akin to those,
Engendered in a chandler's nose.
The railroad manager is quietly laughing at him in his sleeve,
the simple fact being that classification does not in any way
determine the rate of freight, but, on the contrary, is deter¬
mined by it. The companies first ascertain the highest rate of
freight the particular article in question can pay, and it is put
into the class that pays that rate of freight. This is all there
is about it. It is a mere device for mystification.
The railroad agent, if driven to the wall, will, if he be a frank
man, probably admit that the rule adopted in fixing freights
is to charge all that the commodity in question can bear, and
on this simple rule all their tables are constructed. The rule,
however, is a false one, and leads to endless injustice. It
proceeds on the theory that the railroads are purely private
property, for the use of which or for passage over which they
may properly and lawfully charge each man all they can
get out of him. This theory itself is false. Railroads are
public highzvays just as much as turnpike roads are, and the
whole public are entitled to transit over them on equaland im¬
partial terms. In approaching the subject of railroad freights,
therefore, the first thing necessary is to discard this false
theory. The benefit to the shipper or the amount he can
afford to pay has properly nothing to do with the rate of
freight to be charged ; the true basis of the calculation is the
necessary cost of the service. As this is a turning point in
the controversy, I may be pardoned for dwelling on it a mo¬
ment in the way of illustration. If it be true that the benefit
to the shipper should be taken as the basis of the charge for
carrying freight, it must be equally true with respect to the
carriage of passengers, and must be equally applicable to all
other carriers as to railroad companies.
1 2
Let us see how that would work. The drayman who takes
the goods to the railroad depot should adjust his charges on
the same basis as the railroad company. Instead of a uniform
rate per load, or per ton, or per day, he should inquire into
the profit to be made on the vçnture he hauls. The tele¬
graph operator who transmits a message (for telegraph com¬
panies are carriers too), instead of counting the words should
inquire into the value of the message to the sender or re¬
ceiver. An instruction to buy or sell a thousand shares of
stock or tons of wheat should pay ten times as much as a
like direction for a hundred, and the state of the market and
the likelihood of a profit in the transaction should enhance the
charge accordingly. So on railroad trains a man of wealth
should pay more for his ticket than one in moderate circum¬
stances, and the nature of the errand should be taken into
account. If he anticipates a pecuniary advantage from the
journey he should pay more ; if he travels for mere pleasure,
less. If for health, perhaps, the nature and extent of his mal¬
ady, the likelihood of a cure, and the insured value of his
life might justly cut a figure in determining his fare. He
should, at least, carry at all times a certified copy of his stand¬
ing on the last assessment roll and present an affidavit of his
losses and gains since it was made.
I need not pursue this further. The absurd results to which
such doctrine leads applied to other carriers or to railroad car¬
riers of persons, sufficiently illustrates the false basis on which
this claim to regulate freights by the profit to the shipper rests.
Governor Stanford, in his recent letter, varies the statement
of the railroad rule somewhat, adopting the suggestion first
made public, I believe, in Mr. Beerstecher's report of about
a year ago—a coincidence, by the way, sufficiently remarkable
to suggest that one or the other of the two authorities has
borrowed the other's thought. He gives as the reason for
classification "to make the burdens of transportation propor¬
tioned to value ; thus each article, as nearly as possible, pays
an equal percentage of its own value." Without stopping here
to inqure into the correctness of this as a statement of fact
(wherein I suspect it can be successfully controverted) it chal¬
lenges immediate attention as a claim to turn the charge for
transportation into an ad valorem tax on the merchandise trans¬
ported. If Government did the service of transportation it is
. ^3
not unlikely that we should have a school of politicians advo¬
cating this form of taxation. Perhaps such a tax imposed by
Government — though medieval in character and long dis¬
carded in all progressive States—might be just and wise. That
question I am not here to discuss. What I insist on is that it is
a tax, and taxation is one of the essential functions of Govern¬
ment, which has never been, and with safety, never can be del¬
egated to a railroad or other company. When the freight on
sugar from New York was (January i, 1881) advanced from
one cent to two, everyone recognized that it was a protective
import duty imposed for the benefit of local manufacturers.
Such, unless we are all misinformed as to the origin of the
advance, was its very object and purpose. The imposition of
such a tax, even though it may possibly operate well, is evi¬
dently a function of Government, and when exercised by a
railroad company, a clear usurpation. As holders of a toll-
road franchise, such companies are entitled to collect tolls,
subject to the limitation that they must be uniform and within
the limit allowed by law. As common carriers over the roads
they are entitled to a reasonable compensation, based on the
necessary cost of the service rendered. That is the rule of com¬
mon sense and of the common law. They have no more right
to inquire into the intrinsic qualities of the commodity trans¬
ported, or the profit to be made on it, than they have to make
the like inquiry as to passengers. Value they have a right to
inquire into, but only in reference to their liability as insurers,
or bailees for hire.
There is another abuse, formerly very rife here, though to
what extent now practiced I am unable to say. It is liable
at any time to recur, and should be dealt with in any reform¬
atory legislation. I mean discrimination between places.
This is, in some aspects, " a more serious evil than discrimi-
" nation between persons, for it affects whole communities,
" and may involve in its consequences the ruin of individuals
" and families, and inflict injury on thousands who have no
" direct relations with railroads, but whose property is ren-
" dered valueless, and the fruits of whose industry is destroyed
" by the decay of their place of residence, caused by adverse
" railroad discrimination."
Want of space does not permit me to enlarge on this or
refer to instances. There are, unfortunately, plenty of them
H
thaf are notorious, and your business experience must have
drawn your attention to such. So far as the overland roads
are concerned, they are easily dealt with by legislation which
will require transportation charges to be based on the cost of
the service. That is the common law rule, and is the only
rational or philosophical basis either of the classification of
goods or the rate of charges. Let us take these separately.
I.—AS TO CLASSIFICATION.
«
Two persons present themselves simultaneously at the same
railroad station, offering goods to be transported. The weight
of each lot is the same, the space occupied just equal, and the
places of shipment and destination are also identical. What
just reason can be rendered why the freight of one lot should
be double or treble that of the other} Does the mechanical
engine which draws the train, the inanimate fuel which fur¬
nishes the power, the engineer, fireman, conductor or brake-
man, who do the work, or the clerk or book-keeper who enters
or way-bills the goods, know of any distinction between the
one and the other .' Are any of these employees paid higher
wages for attending to the one package or the otherIs
there any—even the slightest—difference in the cost of per¬
forming the service ? None of these ! Why, then, this mi¬
nute and vexatious classification of goods, and the searching
demand of the carriers for a precise specification of the con¬
tents of the package before declaring the rate of freight
Why, for instance, is one rate demanded on printing paper and
another on books in sheets Why is the freight on ores from
the same or neighboring mines put at a certain percentage of
their assay value ? The companies' reason is of course obvi¬
ous enough. These charges are adjusted on the basis of a per¬
centage of their customers' profits, and this the largest that the
trade will bear. They speak in their contracts of their tariff
and very rightly, for it is as much a tariff as any ever enacted^
by Congress. It is a tariff on imports from one State to an¬
other. A tariff for revenue, but whicli (as recently shown in
the case of sugar) is occasionally, and for a consideration^
made protective. Such a tariff Congress itself has no power to
enact, and if it had, it never seriously entertain the suggestion.
Yet these companies have enacted it, and by its means have
been enabled to constitute themselves intrusive partners in
15
every man's business, without sharing risk or contributing
capital to appropriate the largest share of the profits, as a tax
to be paid in advance of sale or consumption !
The system is defended at times on the plea of encourage¬
ment to feeble or languishing industries. We are told, ex.gr.,
that ore ol a high grade must pay a high freight, else the
owners of poor mines would not be able to get their ores to
market. Peter, in other words, must be robbed to pay Paul.
The pretext is as destitute of truth as it is flimsy—a mere ex¬
cuse for high charges when it is thought the trade can bear
them. When a railroad company carries ores worth twenty-
five dollars per ton for ten dollars, they do so because that sum
remunerates them for the services, and to charge a hundred
dollars for carrying a ton of like ore worth ten times as much,
is to the extent of the excess a mere extortion. So, when a
higher or even as high a charge is made for carrying goods a
portion of the way as for the whole way, the injustice is so
patent that no amount of argument can obscure it outside of
the cupidity of the companies, and their power to exact. I
have never heard any plausible reason assigned for these dis¬
criminative rates of charge, except the carrier's common law
liability as an insurer. But every one knows that this liabilit}'
is a myth. It has no practical value, is released in advance
ninety-nine times in a hundred, and had better be abolished
by law as a mere excuse for unjust exactions. It arose in a
condition of society wholly different frgm ours ; the rea¬
sons on which it was founded have long since ceased to exist,
and there is no reason why it should longer continue. Re¬
move it, and no shadow of excuse is left for artificial classifi¬
cation. There is a natural and philosophical basis for classi¬
fication. It was in universal use before railroads monopolized
transportation, and still prevails on water routes, and others
open to competition, namely, weight and measurement.
These classes comprise the great mass of merchandise which
is the subject of transportation. The few articles which do
not come properly within either may constitute a separate and
third class. Let us get back, then to the old classification,
adopt a unit of weight and a unit of measurement, to be
applied at the option of the carrier to all goods, save those
included in the limited and exceptional category referred to.
Require the companies to adopt and publish their rates on
i6
these units or their multiples, open to all shippers on equal
terms, and forbid all special contracts, special rates, rebates
or peculiar favors, and you will at once get clear of all dis¬
crimination between individuals. Nor will this action materi¬
ally enhance the cost of transportation. It is demonstrable,
though space does not permit its present discussion, that their
own interest will compel the companies to carry for the lowest
rates at which the business can profitably be done.
II.—AS TO DISCRIMINATION BETWEEN PLACES.
The cost of transportation by rail is evidently made up of
those items, viz :
1. The fixed expenses of the company, as salaries of officers
and employees, interest on capital, rents, taxes, insurance and
similar outgo.
2. The cost of receiving, loading, way-billing, reporting,
unloading, delivering and the like.
3. The cost of movement.
The first of these is practically a constant quantity ; the
second depends on the volume of goods handled, but is unaf¬
fected by the distance they are moved ; the third varies in
direct proportion to distance traversed. Of each of these
three items of cost each package should bear its just propor¬
tion and each should pay the carrier a reasonable percentage
of profit. The charge for transporting a given lot of mer¬
chandise should therefore be made up of two sums ; the one
an amount fixed without regard to the distance to be traversed,
but varying with the quantity of the goods, the other variable
and proportioned to quantity and distance. In other words a
terminal and a movement charge.
The variation in cost attending the handling of small and
large lots of merchandise may be compensated by allowing
the terminal charge to vary according both to the quantity of
goods and the number of packages. There should also be a
wholesale as well as a retail unit, viz, the carload lot and the
ton. Whatever these rates may be for cither, they should be
made public and be the same to all comers.
There are numerous other considerations which might be
adduced bearing on the questions I have here endeavored to
17
discuss, but the necessity of keeping this communication with¬
in reasonable bounds forbids adverting to them. They all
lead up to these four cardinal principles—a unit of weight, a
unit of measurement, a terminal charge and a rate per mile.
These apply to and cover all ordinary merchandise. Where
articles transported, from their peculiar form or character, ex¬
cessive size or weight or inherent qualities, do not fairly come
within the reason of the rule, they should be excepted ; such
cases are of rare occurrence and do not affect the general
commerce of the country ; they may for the present, at least,
be safely left to private contract.
III.—ENFORCEMENT OF THESE PROVISIONS.
It will not do to leave the enforcement of these provisions
to the action of individuals. Every dealer with these large
companies is compelled by circumstances to put himself so
much in their power in his every day transactions with them,
that, to use an ordinary phrase, he cannot afford to quarrel
with them.
This fact experience has abundantly proved, and the en¬
forcement of the law must therefore be entrusted to agents
of the public. A Board of Commissioners should be ap¬
pointed to whom all transactions and dealings of the com¬
panies should be constantly and systematically reported.
They should have, for the purpose of investigation, all the
powers of a Court or Congressional Committee and should be
charged with the duty of prosecuting for all violations of the
law ; penalties should be denounced for its infraction suf¬
ficiently severe to ensure obedience. The Board should report
annually or oftener to Congress or to the President.
I have drawn a bill embodying these ideas and submit the
same to your consideration.
Yours respectfully,
JOHN T. DOYLE.
(From The Overland Monthly, July, i8^.)
SHAKSPERE'S LAW—THE CASE OE SHYLOCK.
A Letter to Lawrence Barrett.
Shakspere's legal knowledge, or rather the accuracy of
his expressions, whenever he alludes to legal subjects, has
often been remarked, and is one of the arguments urged in
support of the conjecture that the plays publi.shed under his
name were really the work of Lord Bacon. The suggestion
is that no man who had not received a legal education could
have been so uniformly accurate in the use of technical lan¬
guage, and in his casual references to legal principles, maxims
of jurisprudence, and modes of procedure in court. Others
account for this familiarity with the subject by supposing he
spent a part of his youth as clerk in an attorney's office ;
while others again are of the opinion that the amount of
technical knowledge he displays was common in his day to
most men who had received as much general education as he.
The trial scene in the Merchant of Venice has, however,
always seemed inconsistent with his supposed legal learning,
for the proceedings in it are such as never could have occured
in any court administering English law. Lord Campbell, in
his letter to Payne Collyer, has attempted to gloss over the
difficulty, but to all common lawyers the attempt is a failure.
Save in the fact that the scene presents a plaintiff, a defend¬
ant, and a judge—characters essential to litigation under any
system of procedure—there is no resemblance in the proceed¬
ings on the stage to anything that could possibly occur in an
English court, or any court administering English law. No
jury is impanelled to determine the facts, no witnesses called
by either side ; on the contrary, when the court opens, the
Duke, who presides, is already fully informed of the facts, and
20
has even communicated them, in writing, to Bellario, a learned
doctor of Padua, and invited him to come and render judg¬
ment in the case. After his efforts to move Shylock to pity
have proved vain, he says :
Upon my power I may dismiss this court,
Unless Bellario, a learned doctor,
Whom I have sent for to determine this,
Come here today."
The extent of his power was to adjourn the court, unless
the doctor, whom he had sent for to determine the case, arrived
in season. Such an occurrence as this, we all know, could
never take place in court proceeding according to English
methods. It is, indeed, so repugnant to all our ideas of the
administration of justice, that I remember being scandalized
by it, even when, as a boy of fifteen or sixteen, I first read the
play,'and I imagine its incongruity strikes every reader at
once. Later on in life I set it down as another instance of
the failure of the cleverest men (not themselves lawyers) to
introduce a lawsuit into fiction without violating the common
rules of procedure. To make the situation dramatic, they
invariably make it impossible. I concluded that the failure
of others might be excused, when even Shakspere missed it.
Subsequent experience convinced me, however, that he did
not miss it, after all. This is how it happened :
In 1851-52, I passed several months in the neighboring
republic of Nicaragua. It was at that time, perhaps, the least
known and least frequented of the Spanish-American States.
Originally explored and colonized by an expedition from Pan¬
ama, its communications with Europe and all the outer world
were maintained, almost wholly, from the Pacific side of the
continent; its commerce was insignificant, travel never reached
it, and it had probably kept up the customs and practices in
vogue under the Spanish rule with less variation than any of
the colonies. The affairs of the company I represented hav¬
ing become considerably entangled by the transactions and
omissions of a former agent, I found myself, ere long, involved
in half a dozen suits, the proceedings of which gave me a new
light on the Shylock case. To explain this, I will briefly re¬
late what occurred in the first of them. The course of the
others was similar.
Business having brought me to the' City of Granada, I was
2 I
one day accosted on the street by a dapper little man, carry¬
ing an ivory-headed cane, who, calling me by name, said :
" El alcalde le llama" — " The alcalde sends for you." I
thought the invitation rather wanting in courtesy, and to pay
like with like, intimated that I was busy then, without saying
whether I would wait on his Honor or not. The little man
simply repeating his message and left. A person present,
seeing that I showed no disposition to move, then informed
me that the dapper little man with the cane was an alguazil,
and that, by his verbal notice, I had been legally summoned
to the alcalde's court, to which I was recommended to go
without unnecessary delay. I accordingly repaired at once
to the court room in the jtizgado, as directed.
Proceedings of some sort were going on at the moment,
but the alcalde suspended them, received me very courteously,
and directed some one present to go and call Don Dolores
Bermudez, the plaintiff, into court. The substance of Mr.
Bermudez's complaint against the company was then stated to
me, and I was asked for my answer to it. I sent for my coun¬
sel, and the company's defense was stated orally. The con¬
tract out of which the controvery arose was produced, and
perhaps a witness or two examined, and some oral discussion
followed ; those details I forget, for there was nothing in them
that struck me as strange. There was, in fact, little, if any,
dispute about the facts of the case, the real controversy being
as to the company's liability and its extent. We were finally
informed that on a given day we should be expected to attend
again, when the Judge would be prepared with his decision.
At the appointed time we attended accordingly, and the
Judge read a paper in which all the facts were stated, at the
conclusion of which he announced to us that he had proposed
to submit the question of law involved to Don Buenaventura
Selva, a practicing lawyer of Granada, as a "jurisconsult,"
unless some competent objections were made to him. I
learned then, that I could challenge the proposed jurisconsult
for consanguinity, affinity, or favor, just as we challenge a
juror. I knew of no cause of challenge against him ; my
counsel said he was an un-cxceptionable person ; and so he was
chosen, and the case referred to him. Some days after, he
returned the papers to the alcade with his opinion, which was
in my favor, and the plaintifif's case was.dismissed.
22
In the course of the same afternoon, or next day, I received
an intimation that Don Buenaventura expected from me a
gratificaiion—the name in that country for what we call a
gratuity—and I think the sum of two hundred dollars was
named. This did not harmonize with my crude notions of
the administration of justice, and I asked for explanations.
They were given in the stereotyped form used to explain
every other anomaly in that queer country, "Costumbre del
pais" I thought it a custom more honored in the breach than
the observance, and declined to pay. I found out afterwards,
however, that this was a mistake ; that under their system of
administration the Judge merely ascertains the facts, and as
to the law and its application to the case, reference is had to
a jurisconsult, or doctor of the law; and that he, after pro¬
nouncing his decision, is entitled to accept from either party
—in practice always from the successful one—a " quiddani
Jionorariuin" or gratification ; his service to the court being
gratuitous, just as that of an amicus curice is with us.
With this experience, I read the case of Shylock over
again, and understood it better. It was plain the sort of pro¬
cedure Shakspere had in view, and attributed to the Venetian
court, was exactly that of my recent experience. The trial
scene in the "Merchant of Venice" opens on the day ap¬
pointed for hearing judgment ; the facts had been ascertained
at a previous session, and Bellario had been selected as the
jurist to determine the law applicable to them. The case had
been submitted to him in writing, and the court awaited his
decision. The defendant, when the case is called, answers,
as is done daily in our own courts ; " Ready so please your
Grace," Shylock is not present. In a common law court,
his absence would have resulted in a nonsuit,' but not so
here ; he is sent for, just as my adversary was, and comes.
After an ineffectual attempt to move him to mercy, the Duke
intimates an adjournment, unless Bellario comes, and it is
then announced that a messenger from him is in attendance :
his letter is read, and Portia is introduced. Bellario's letter
excuses his non-attendance on a plea of illness, and proposes
her, under the name of Balthasar, as a substitute. " I ac¬
quainted him with the cause in controver.sy, between the Jew
' "And the ))laintiff being called, comes not, but makes default," is the
exact form of the entry on the roll in a common law judgment of nonsuit.
23
and Antonio, the merchant ; we turned over many books to¬
gether ; he is furnished with my opinion, which, bettered with
his own learning, the greatness whereof I cannot enough com¬
mend, comes with him at my importunit}' to fill up your
Grace's request in my stead. . . / leave him to your gracious
acceptatice, whose trial shall better publish his commendation."
The Duke, of course, had the right so far as concerned him¬
self to accept the substitution of Balthasar for Bellario ; but
Shylock, I take it, would have had his right to challenge the
substitute, and perhaps it is to avoid this, by disarming, his
suspicions, that all Portia's utterances in the case, until she
has secured his express consent to her acting, are favorable
to him. Thus,
" Of a strange nature is the suit you follow.
Yet in such rule that the Venetian law
Cannot impugn you as you do proceed
and again, after her splendid plea for mercy :
" I have spoken thus much.
To mitigate the justice of thy plea.
Which, if thou follow, this strict Court of Venice
Must needs give sentence 'gainst the merchant heie."
Shylock would have been mad to object to a judge whose
intimations were so clearly in his favor. He first pronounces
her "A Daniel come to judgment ! yea, a Daniel ! " This does
not however, amount to an express acceptance of her as a
substitute ; it is but an expression of high respect, consistent,
however, with a refusal to consent to the proposed substitu¬
tion. She carries the deception still further, pronounces the
bond forfeit, and that
" Lawfully, by this, the Jew may claim
A pound of flesh, to be by him cut off
Nearest the merchant's heart."
and again pleads for mercy.
The poor Jew, completely entrapped, then " chatges her by
the laiv to proceed to judgment^ Antonio does the same, and
both parties having thus in open court accepted her, as such,
she is fairly installed as the Judex substitutus for Bellario, and
and almost immediately afterwards suggests the quibble over
the drop of blood and the just one pound of flesh, on which
Antonio escapes.
To complete the parallel to my Nicaragua experience above
recounted, we find, after the trial is over, and the poor dis-
24
comfited Jew has retired from the court, the Duke says to the
defendant, whose life has been saved by Portia's subtlety,
" Antonio, gratify this gentleman.
For, in my mind, you are much bound to him."
That is, give him a gratification, or honorarium ; and Bassanio
offers her the three thousand ducats which were the condition
of the bond.
One difficulty yet remained in the case, which the above
explanation did not touch, and which to me was still a stum¬
bling block, viz ; In the play the action is promoted by Shy-
lock to enforce against Antonio the penalty of his bond ; it
concludes with a judgment against the plaintiff that his estate
be forfeited, one half to the commonwealth, the other to the
defendant, and that his life lie at the mercy of the Duke i
Justice, perhaps, but excessively raw justice, such as we would
think could only be meted out in the court of the Turkish
Cadi, who fines the plaintiff, imprisons the defendant, and
bastinadoes the witnesses. Yet a few years since, I met with a
case in a Mexican'court, involving just as marked a departure
from all our notions of the proper course of justice as this. A
question arose in this city, as to the disposition of the estate of
a gentleman who died in Mazatlan, where he had been slain
in an encounter with his partner, while discussing in anger the
state of their accounts. There had been a trial of the case
in Mexico. The surviving partner put forward claims before
our court, which caused me, on behalf of next of kin of the
deceased, to send to Mexico for a complete transcript of the
judgment record there. I have it now in my office, all duly
certified, and a curious document it is. It begins with an
official inquiry by the alcalde, as to the cause of death ; some¬
thing like our coroner's inquest. After the preliminary in-~
quiry, the surviving partner is called upon to answer a charge
of homicide ; then follow the depositions of witnesses, relating
among other circumstances the finding of a revolver under
the body of the deceased when he was raised from the floor,
after the fatal encounter. The survivor's version of the oc¬
curence was that the deceased had drawn a pistol on him^
which went off in the struggle for its possession, and killed
its owner. The alcalde conducted the trial with pretty evi¬
dent partiality to the survivor, whom, at the conclusion of
it, he acquitted. A sister of the deceased, by her attorney.
25
then petitioned to be allowed to intervene and appeal from
the judgment. Decided that her relation.ship is not suffi¬
ciently proved, and her petition is denied. Then the Fiscal,
on behalf of the State, inter\'enes, and appeals to the Supreme
Court. There the witnesses are reëxamined, and on a sugges¬
tion of collusion between two of them, on whose testimony
the defendant relied, are examined separately. They contra¬
dict each other badly, and break down. Then a suggestion
appears to have been made that the pistol found under the
deceased's body was not his own, but another's. His had an
ivory handle, this a wooden one, etc. The alcalde is sum¬
moned to produce the pistol, which as a pHce de conviction had
remained in his possession. He answers that after the con¬
clusion of the trial before him, thinking there was no further
use for it, he had sold it for $2.00 to a man going to Chihua¬
hua, and who had not since been seen. The judgment below
is then reversed, the defendant sentenced to death, and the
alcalde before tvhoni the trial had been had below, is sentenced to
a fine of $100 for his partiality and misconduct.
After reading this record, it occurred to me that in a court
proceeding according to such methods as these, a judgment
against the plaintiff of forfeiture of life and goods might be
supposed, even in an action on a bond, without grossly viola¬
ting probability ; and it seems to me that Shakspere was ac¬
quainted (however he acquired the knowledge) with the modes
of procedure in tribunals administering the law of Spain, as
well as with those of our own country; if like practice did
not obtain in Venice, or if he knew nothing of Venetian law,
there was no great improbability in assuming it to resemble
that of Spain, considering that both were inherited from a
common source, and that the Spanish monarchs had so long
exercised dominion in Italy. JOHN T. DOYLE.
San Francisco, Cal.,
June, 1886.
To Lawrence Barrett, Esq.,
My Dear Sir :
I have committed the foregoing to writing, and delivered it to the editor
of the Overland Monthly, at your suggestion, and by your permission I ad¬
dress it to yourself. The name of so eminent and conscientious an interpreter of
Shakspere will secure for it more attention than it would otherwise receive.
Yours respectfully,
John T. Doyle.
Revised from Shaksperiana for yune^ iS8y.
NEW READINGS IN OTHELLO.
Lawrence Barrett, Esq.,
My dear Sir :—There are two lines in Othello which have
always seemed to me very perplexing. As ordinarily printed
they appear so irreconcilable with what we call "good Eng¬
lish," that I cannot but suppose the text erroneous. They are
I. Man but a rush against Othello's breast,
And he retires." etc. act V, sc. ii.
Reading this attentively I ask what it is to "man a rush"
If I want to man one what must I do
The only explanation given that I know, is that the word
man is here used as a verb, in the same sense as when we say
" man the guns," or ";««« the yards but it is quite unsatis¬
factory, for when so used, the word imports the application of
several men^:o a single instrument, or to the doing of a single
act. To man the guns requires a crew to each gun : to man
the yards, the whole ship's company is turned out. In like
manner we read that the garrison was insufficient to man the
walls, and I believe I have heard on ship board the order to
man the windlass or the capstan bars. So Mr. Gladstone
lately spoke of manning a Parliament. But in all these cases
and all others that I can think of, the word distinctly imports,
the concurrence of many irien to a single act or operation.
Who ever heard of manning a sword, a musket, an ax, a
plough, a pen or a cudgel t Here the discourse is of swords.
" Behold," says Othello " I have à sword ;
A better never did itself sustain.
Upon a soldier's thigh ; I have seen the day
That with this little arm and this good sword
I have made my way through more impediments
Than twenty times your stop : but O vain boast
Who can control his fate 'tis not so now—
Be not afraid " &c.
******
"Man but a rush against Othello's breast.
And he retires."
28
The contrast presented is between his former prowess and
his present feebleness, and yet if the verb man is to have its
usual signification in the sentence this contrast is to be em¬
phasized, by the assertion that several men attacking him
with a rush could overcome him. I feel persuaded Shaks-
peare never wrote such nonsense. The antithesis suggested is
between the weapons;—the sword and the rush ; the time has
been when I have made my way through twenty men armed
as you are, now; though I have a weapon, "a sword of Spain ;
the ice brook's temper" yet with a mere rush you may over¬
come me. But if Gratiano or any other one person could not
properly be said to man a sword against him, how can the
term be applied to so worthless a weapon as a rush It is
plain I think, that the word ?nan is an error.
The correction I have to offer is not my own, but that of a
gentleman whose abundant, though sometimes slipshod schol¬
arship and fine taste, give to his suggestion a certain amount
of weight. I was sitting one evening in company with a few
friends of whom the late Mr. Samuel Ward was one. During
a pause in the conversation, I causually opened a volume of
Shakspeare on the table and read aloud the lines in question
"Sam,"said I to Mr. Ward.with the familiarity with which his
intimates addressed him, "what in the world does that mean
How are you going to man a rush any more than you can
man a needle, a pin, or a bodkin ? He read the passage and
after a moment's pause, said, "I never noticed it before, but as
printed, it is certainly nonsense : Are you sure it is not mis¬
print for aim ? The letters are nearly the same and the
words might easily be mistaken for one another : "Aim but a
rush " would make sense : What do you think ?"
Whatever I thought before, I have never since doubted he
was right, and that the word " man," is simply a misprint for
" aim." No need to aim a sword at Othello's breast now ;
a mere rush will suffice.
II. The second line I refer to is that next to the conclu¬
sion of lago's verse in praise of a "deserving woman indeed.''
" She was a ivi^ht if such wight were." Act II. Sc. i.
My difficulty here is in the word wight which is scarcely
ever applied to a woman. It was, I suppose, originally of
common gender for a good deal of diligence has brought to
light as many as seven instances in print of its application to
29
females ; but they are all of very early date, and I believe
(though I have not had time to verify the fact), that its use in
that sense had ceased before Othello was written. How ever
that may be, Shakspeare's use of it is confined to men, with
this single exception, if this be indeed an exception. I ven¬
ture to think that it is not, and that it is a mere typographical
error which escaped the proof reader from its similarity in
sound to the word actually used by the author. Look at the
situation : lago, Cassio, Emilia and Desdemona, while awaiting
Othello's arrival, pass the time in light bantering conversa¬
tion. The presence of the general's young bride naturally
makes wives and wifely qualities the topic.
lago intimates that Emilia is more or less of a scold.
Desdemona defends her friend, and he rejoins by a fling at the
sex in general. Emilia says to him, "Thou shalt not write
my praise," after a retort to which, Desdemona asks, " What
wouldst thou write of me if thou shouldst praise me ? " lago
endeavors to excuse himself from answering but she presses
him and his muse after labor gets off" the distich
" If she be fair and wise,—fairness and wit.
The one's for use, and the other uses it."
Then comes the question, " How if she be black and witty.' "
then, " How if fair and foolish.'" and finally the inquiry is
made, " \\ hat praise wouldst thou bestow on a deserving
woman, indeed .' " one that, etc. Which leads lago to sum up
the qualities of a good wife, as unconscious beauty, modesty,
good temper, self-denial, economy, knowledge of domestic
affairs, discreetness, in a word, all domestic virtues, and
declare his praise of the possessor.
She that was ever fair and never proud,
Had tongue at will and yet was never loud,
Never lacked gold, and yet went never gay,
Fled from her wish and yet said * now I may; '
.She that being angered, her revenge being nigh
Bad her wrong stay and her displeasure fly,
.She that in wisdom never was so frail,
To change the cod's head for the salmon's tail,
She that could think and ne'er disclose her mind
See suitors following and ne'er look behind,
She was a wi^ht " ?
Surely not ;—of all things in the world,—
" She was a ivije, if ever such wife were
To suckle fools and chronicle small beer."
30
That is to say the model wife possessed of all the domestic
virtues ascribed to her by the speaker has, after all, no higher
career, and therefore no higher praise than that of a good
mother, who rears a family of children, and whose mind is
stored with the small beer chronicles of their doings and ail¬
ments. When each child was born, when they had their
various infantile maladies, at what dates deaths and marriages
occurred in the family or neighborhood, and the like. The
conjecture that the true word here is wife derives, I think,
additional force from the way in which the concluding line is
introduced. Having pictured to the young bride the virtues
calculated to illustrate and adorn the new life on which she
has just entered, with a heart full of love and admiration for
her husband, and determination by his merits and her own
conduct to justify to the world the condescention involved in
her choice,—mirrored to her, in a word, her own thoughts,
aims and intentions—he adds, ''she ivas a wife, if ever siic/i
wife were,"—and suddenly pauses, leaving the sentence
unfinished. Her original question, " How would you praise
me ? " remains still unanswered ; but these verses so clearly
point to herself that she eagerly asks " to what ? " and receives
immediately the disillusioning but perfectly true réply, " To
suckle fools ard chronicle small beer" The word wight signi¬
fying simply a person, deprives the sentence of its force, its
epigramatic character, and its application to the person
addressed. The substitution of wife, gives not only force and
piquancy, but truth also, for it is only to a wife that the office
of suckling fools and keeping the small beer chronicles
referred to, is applicable. For these and like reasons, I can¬
not help thinking that the word wight, in this line, is a mis¬
print for wife
Menlo Park, March 29th, 1887.
DONNELLY AND THE SHAKESPEARE CIPHER.
From the Overland Monthly for July^ 1888.
I confess myself one of those whose interest was so aroused
by Mr. Ignatious Donnelly's announcement of the discovery
of a cipher in the plays of Shakespeare, which revealed Lord
Bacon as their author, that I waited with impatience the pub¬
lication of his promised work. I bought the first copy I
could lay my hands on, and plunged into the reading and
study of it with avidity, giving to it the abundant leisure that
an accident afforded me, and bestowing on it not a little pains
and trouble. The results are somewhat disappointing.
The first thing about the book that will strike the average
observer, is its physical character, and the scant courtesy the
author has received from his publishers. The price charged
is an>ple to pay for a well-made book and yield a handsome
royalty to the author ; yet the publishers have not deemed the
production worthy even of the trifling expenditure needed for
thread and twine. It is put together with bits of wire, like
some ephemeral pamphlet intended to be glanced over and
consigned to the waste-basket. Its thousand pages are loosely
put together in a single slovenly volume, so awkward in size
and excessive in weight that it cannot be handled or read
without great inconvenience. It is, I suppose, in compensa¬
tion for these defects that the cover is overspread with a taste¬
less but showy device, displaying the cipher revelation "Fran¬
cis Bacon, Nicholas Bacon's Son," with the pretended calcula¬
tion leading up to them, which is, however, practically con¬
ceded in the text of the book to be a failure.
32
Mr. Donnelly having had previous experience of publishers
should have been on his guard against vulgar, gaud and false
pretences of this sort, the inevitable tendency of which is to
produce on the mind of the purchaser the combination of im¬
pressions embodied in the word "catch-penny." This feeling
is strengthened by finding inaccurate quotations, careless
proof-reading, and the like, suggesting a book made, not to
use, but to sell. We may acquit Mr. Donnelly of some of the
responsibility for these defects, for it is to be assumed that
misfortune alone threw him into the hands of publishers who
looked at his work only from a mercenary point of view ; but
he was not a novice, and should have guarded against them.
Leaving the externals of the book, however, and coming to
its contents, Mr. Donnelly has plenty to answer for. It con¬
tains just 998 pages, and is entitled " The Great Cryptogram;
Francis Bacon's Cipher in the so-called Shakespeare Plays"; it
follows upon the author's announcement made over a year
ago, of the discovery of a cipher in the plays that revealed
Bacon as their author. Yet the first five hundred pages—
more than half the book—are given up to an effort to prove
him such, by the old line of argument, with which the literary
world has been so long familiar. It is unimportant to inquire
whether Mr. Donnelly has put this argument any better, or
only worse, than his predecessors in the same line ; the fact is
that it has nothing to do with the supposed cryptogram, and
is, therefore, simply " from the purpose." Whether a cipher
is, or is not concealed in the plays, is a question of fact, to be
determined on internal evidence alone. The man who asserts
that he has discovered such cannot expect credence for his
statement, because he shows plausible reasons for supposing
the work written by one fond of ciphers, or familiar with their
use, or accustomed to constructing them, or in possession of
state secrets which might render their use probable. All
these may be sufficient reasons to search for a cipher, but they
do not in the slightest degree support the assertion that one
has been found ; they have not even a tendency to do so. In
devoting, therefore, more than half of his book to the proof of
the probability of a cipher, Mr. Donnelly makes a confession
of weakness, which, consciously or unconsciously, affects the
judgment of every reader. This concession of weakness is
emphasized too by the fact that, although avowedly forced, by
33
want of space, to abbreviate the cipher revelations and omit
matter he would like to insert (see pp. 784, 844), he yet gives
up one hundred subsequent pages to a book of " conclusions,"
quite as irrelevant as his five hundred pages of introduction.
The current headings of these conclusions will sufficiently
justify this observation on their character. They are "Delia
Bacon," "William Henry Smith," "The Baconians," "Other
masks of Francis Bacon," etc. Six hundred pages out of a
thousand deliberately given up to irrelevant matter tends to
shake faith in Mr. Donnelly's belief in his own discovery.
Unfortunately too, this is not all ; for the four hundred re¬
maining pages, nominally devoted to the cipher itself, are so
padded with argument, conjecture, exclamation and the like,
and so verbose and studiously obscure in statement, as to cor-
robate the reader's most unfavorable surmise.
If there be a cipher in the Shakespeare plays and Mr. Don¬
nelly has found it, the proof of the fact is of the simplest
kind. A clear statement of the method adopted and its suc¬
cessful application to a sufficient number of examples, would
satisfy the most skeptical ; in a word, it is just like the pro¬
verbial proof of a pudding. But it will not do to go through
the text of Shakespeare, picking up one word here and another
there, in such order as to form sentences ; and then on the
strength of sentences thus constructed, to claim that you have
found a cipher in the text. A cipher must follow some rule,
which, whether simple or complex, is capable of clear expres¬
sion in words, just as the binomial theorem or any algebraical
formula. In fact, it must be reducible to a formula, and the man
who claims to have discovered it must either tell us his for¬
mula or renounce all claim to credence for his discovery.
This Mr. Donnelly has not done. His excuse for the omis¬
sion, viz, that he would have no copyright in any matter de¬
ciphered from the plays, by the use of his rule, unless so deci¬
phered by himself (pp. 583, 584), I must be pardoned for say¬
ing, seems to me quite unsatisfactory, not to say frivolous.
But just as a juggler ostentatiously, shuffles and cuts the
cards, from which he has some private method of extracting
(or has perhaps extracted in advance) the particular one
needed for his purpose, so Mr. Donnelly makes parade of a
form of calculation by which he claims to extract from the
text of the first part of King Henry IV., the words "Francis
34
Bacon, Nicholas Bacon's son," to which he attaches a world of
significance and importance, even parading them on the cover
of his book as an advertisement, although he is compelled to
acknowledge afterwards (p. 561) that "these coincidences are
either parts of a cipher, different from that which he has worked
out ; or that they have no relation to the cipher proper, but
were put there to lead some subsequent investigator to the
conviction that there was a cipher in the plays." Mr. Don¬
nelly professes to think that he gets at these important words,
" Francis Bacon, Nicholas Bacon's son," by a rule based on the
peculiar paging of the folio edition of 1623, and the words
which are printed therein in italics or with hyphens connect¬
ing them. He multiplies these figures together after ways of
his own, and the product, as he says, guides him as to how
many words he is to count, from some particular point of his
own selection, to reach the word sought for. But his rule has
no uniformity ; it varies with the page to which it is to be ap¬
plied, or rather with the word that has to be discovered.
Thus to get at the word Francis, he takes the number of
page 53 and multiplies it by 6, which gives him a product of
318. He then turns the leaf and taking up page 55, he counts
the words from the break in the first column (at " Enter his
lady ") to the bottom of the same column, and finding them
255 in number, he deducts the 255 from the 318 above arrived
at, and gets 62 ; he then starts at Scene IV, on the second
column of page 55, and counting 62 words forwards, he finds
the sixty-second word is " Francis!' Admirable indeed !
although excessively complex. What led him, however, to
commence operating on page 53, and why its number was
multiplied by 6 ; why from this product the number of words
between " Enter his lady " and the foot of the first column of
another and different page (55) was deducted, or what deter¬
mined the point at which he would commence to count the
words, is nowhere disclosed ; and unless the use of that par¬
ticular form of calculation is to be continued and applied to
other pages of the book, it needs explanation. To get at the
next word he takes the same page 53, and multiplies it by 7
'the number of words in italics in its first column) and thus
produces 371. Counting the words from the top of the page
downwards, he finds the three hundred and seventy-first word
is " bacon." " I have a gammon of bacon," etc., says the sec-
35
ond carrier. Next Mr. Donnelly goes to page 54, which he
multiplies by 12 (the number of italic words in its first col¬
umn), which makes 648, and the six hundred and forty-eighth
word from the top of page 53 is "Nicholas." For the next
word he again takes page 54 and multiplies it by 11 making
594, then starting at the stage direction, " Enter Gad's Hill,"
near the end of the first column of the same page (54), and
counting backivards to the top of the column and forwards dotvn
the next cohiinn, the five hundred and ninety-third word
reached is " Bacon's," this being the word desired. The tri¬
fling discrepancy between the two numbers 593 and 594 is
disregarded, probably on the principle de minimis non curat lex.
Finally returning to page 53, he multiplies it by 9 and gets
477; and beginning at the end of scene 2 on the second column
of page 54, and thence counting backivards jcp the second col¬
umn and also np the first, the four hundred and sevent}--
seventh word we come to is " Son." And thus by five differ¬
ent rules he has got out the five significant words, " Francis
Bacon, Nicholas Bacon's Son." " Prodigious !" says Mr. Don¬
nelly. " Can any man doubt after that result that there is a
cipher in the plays.'" Assuredly not! Not one, but many
ciphers ; just as many as there are words in the sentence to
be picked out, and the rule varies with each one and depends
simply on the result you want to arrive at. The number of
the page to be multiplied, the multiplier to be applied to it,
the place whence you start to count, whether you count back¬
wards or forwards or partly the one and partly the other,
whether the result of the count brings you to the word re¬
quired or within one of it,—all of these things vary with the
exigencies of each particular case, and the man who with this
liberty to choose cannot discover not one, but a dozen ciphers,
by which he can spell out whatever he desires, does not pos¬
sess the requisite ingenuity and patience for a cipher hunter ;
he had better confine himself to the puzzle department of a
child's weekly paper.
It may be said that this criticism of Mr. Donnelly's work is
unjust, as he does not himself claim that " Francis Bacon, Nich¬
olas Bacon's Son " is worked out by the cipher he relies on for
his narrative. But if so, for what purpose were the twenty-five
pages comprised in chapter IV. inserted in the book .' Will
Mr. Donnelly avow that they amount to nothing, and were
36
introduced merely for the purpose of mystification : designed
to make the suggestion of a cipher appear plausible, and so
induce acceptance of it without close scrutiny of what is fur¬
ther on entitled " the cipher explained ? " I confess myself
unable to imagine any other alternative, and unwilling to
adopt a theory inconsistent with good faith on Mr. Donnelly's
part, I am forced to assume that he believes he has got out
the five magical words in question by means of his supposed
cipher, whereas the fact is apparent on his own pages that
to fit these five words he has invented five different cipher
rules.
In fact, the history of this "discovery" is pretty clear. He
evidently stumbled on the form of calculation, which gave him
the number of words necessary to count from the top of page
67 to get the word " S. Albones," and the same rule applied to
Piigs 53 Isd to the word "bacon." These are the only real
coincidences adduced. But by applying the multiplication to
page 54, and starting the count on page 53,—a variation which
Mr. Donnelly does not seem to have deemed of any moment,
—the word " Nicholas," (or rather "S. Nicholas" was reached).
These results seem to have been sufficient to throw Mr. Don¬
nelly off his balance, and lead him to the hasty and prema¬
ture announcement of his vaunted cipher. All that followed
was the consequence of that false step. His rule would work
no further, yet there were provokingly in sight the words.
" Francis," "bacons," and "son," and there was nothing to do
but to vary the rule to suit the emergency and elicit the de¬
sired words.
But having worked out these variations he discovered that
a cipher based on multiplying the number of the page was
unworkable. Multiplication produces figures too large to be
readily handled or dealt with. Counting words upwards and
downwards when you get into hundreds and thousands (where
multiplication will surely bring you ere long), and resolving
the result of your count into factors is too laborious and
tedious. To work out such a rule by experiment and analysis
would require a lifetime. Addition and subtraction are more
flexible : by them any desired number is speedily arrived at,
and the words of the text being once counted and marked off
into groups of ten, the number requisite to count from any
37
given starting point to any particular word desired is arrived
at by inspection. To form that number out of any other you
have but to make the requisite addition and subtraction, and
the whole business is done. It is " as easy as lying." '
Mr. Donnelly has refused to give his readers the alleged
basis of his cipher, lest some one else should elicit from the
plays the secret history he believes them to contain, and so
rob him of his ingenuity. We are forced therefore to get
at his processes by analysis and conjecture, as he has himself
attempted to do with Bacon's. Thus guided we are led to
conjecture that Mr. Donnelly having rashly committed him¬
self to the discovery of a cipher, based on his finding the
five words above quoted, felt constrained to back up his
alleged discovery by the production of matter of some
kind, said to be deciphered from the text by a rule
which prudence required him to conceal from the reader.
Hence the " cipher narrative" running in fragments from page
673 to page 888. But it will be plain to any one who will
take the pains to examine it, and penetrate the tangled envel¬
ope of words in which Mr. Donnelly has enfolded and involved
his cipher narrative and accompanying explanations, that the
second cipher he claims to have discovered is constructed like
the first, to fit the einergency and elicit the words already
selected from the text, to constitute what is called the cipher
narrative. It is constructed like the other on the basis of
counting words, and the "count runs not only from the begin-
'ïhe rule is briefly as follows, as laid down in the cryptographist of the Nine¬
teenth Century, page 0071.
" Select from the text the words composing the desired story in their order, and
number them, as counted from any convenient point or points near by. Ascertain
how much these numbers exceed or fall short of those you have adopted for your
cipher, and subtract or add the cipher numbers, as may be needed to make them
correspond with those of the words desired. And note that the better to disguise
your work and make it appear plausible, you will do well not to make the trans¬
mutation from one number to another too abrupt. Let the change be effected by
adding and subtracting and adding again, whereby the reader will presently
become mystified and possibly go to sleep over the calculation. Thus you may
defy detection, and get out any narrative you desire out of Shakespeare, or indeed
out of any other book containing as many and as various words. For the pur¬
pose of this calculation you will of course select certain convenient numbers as
"radicals" or root numbers, and others called "accidentals," or modifiers, to be
added to or subtracted from them as occasion requires. By a judicious selection
of these any required number can be easily reached by addition and subtraction."
38
nings and ends of scenes and columns, but also from the be¬
ginnings and ends of such subdivisions of scenes as are caused
by the stage directions, such as ' Enter Morton,' etc." The
number to be counted, too, and the direction in which the
count is to proceed, are equally undetermined with the point
of starting. There are, says Mr. Donnelly, page 583, five
"root numbers" out of which the story grows, viz, 505, 506,
513. 516 and 523- These, however, are modified by twelve
nwdifiers on pages 581, viz, 27, 63, 79, 169, 142, 63, 141, 62,
90, 91, 79, 80, (the repetition of 63 and 79 as modifiers seems
to have escaped notice), and then there is a second set of mod¬
ifiers, viz, 28, 209, 212, 237, 240. 209, 208, and 211 (page 581),
and a quantity more of modifiers on page 582, not counted by
Mr. Donnelly, but which I compute to be seventeen in num¬
ber. So that we have five " root numbers" and thirty-five
" modifiers" to tell us how many to count ; liberty to choose
for a starting point the beginning or the end, top, bottom, or
middle of any page, column, act, scene or subdivision of a
scene, and to count backwards or forwards as emergency re¬
quires ! With this extensive range of choice it would go hard
with Mr. Donnelly if he did not find whatever he wanted in
the text. The wonder is that he did not put together a result
having some significance, and affording some ground for a
resort to cipher. He could just as well have dieted by his
wonderfully flexible rule some coherent statement of fact, im¬
portant in itself, and consistent with the known facts of history,
as the wretched drivel he has worked out with such ostenta¬
tions pains and trouble. The fact that he did not do so tends
to show Mr. Donnelly's good faith, and that he really believes
there is a cipher, and is still striving to find some rule for it ;
provisionally he probably experiments and takes what liberties
he sees fit with his rules, has perhaps a dozen arrangements of
figures to work by, analogous to what the scientists call "work¬
ing hypotheses." But the story he claims to have dieted from
the te.xt so far as is, in itself, conclusive against him ; for
if Bacon had been at such enormous pains and trouble as to
invent and interject into the plays a cipher so complex as that
Mr. Donnelly thinks he has discovered, it is reasonably certain
that it would have been for the purpose of recording some¬
thing worthy of record. It is incredible that he resorted to a
cryptogram not likely to be unraveled for centuries if at all, for
39
the purpose of setting down such trash as the following,—a
fair specimen of the whole.'
**How is this derived ? Saw you the Earl ? No, I derived these news from a
well bred gentleman of good name, whom my lord the Earl sent to tell your honour
the news ; he is a servant of Sir John Travers, by the name of Umfreville. He is
furnished with all the certainties, and will answer for himself when he comes here.
He is a gentleman of good name, and freely rendered me these news for true. He
left the strand after me, but being better horsed over-rode me ; he came spurring
ahead and stopped by me to breathe his horse. Upon my life he looks more like
some hilding fellow who had stolen the horse he rode on than a gentleman ; he
doth look so dull, spiritless and woe begone. The horse he rode upon was sore
spent and almost half dead with spurring; my instinct tells me something is wrong.
He asked me the way here, and Í asked him what he is doing here, and what are
the tidings from the curtain. He told me that our party had had ill luck, and he
gave me the news," etc., etc. 673 and seq. c. 679. Again *'Field is a prisoner
and is wounded to the death, and Bardolfe is now almost as good as dead, slain,
killed outright by the hand of the old Jade."
Bardolfe is conjectured to be a nickname for Dr. Hayward,
and the "old Jade" is no less a person than Queen Elizabeth !
That such intelligence as this might have been communicated
in cipher by one conspirator to another, when it was fresh, and
important to be promptly acted on, is likely enough, though
even in that case the conjectured dramatis personae presents
difficulties ; but that Lord Bacon, or any other sane man,
should undertake to hide it away by an elaborate and inscru¬
table cipher in two dramas, one of which was not published
until two years after the other, and neither issued with the
significant paging and italics which alone render the cipher in¬
telligible until twenty years later, is such an absurdity as to
' The following is a specimen of the way in which Mr. Donnelly combines his
root numbers and modifiers to get at the necessary results.
523—284 239,— 51 188, -20 168 Hoiv
505—284 221,- 51 170,— 1 169 is
523—284-239,— 50 189,-19-170 this
505—284 221,— 50-171, 171 Jerivai
523—283-240,— 18-222,-50 172 raw
505- 283-222,- 30 192,- 19-173 yon
523- 283 240,-248 240,-8,-1-1-9 the
505—284^221,-167 54 Earl
825—284=239,— 7 2.32 no
505- 284 221 /
.4 few lines farther down we have variations like the following :
505—284-221, -219-2:248-2-246,
+ 1 247 .from
523—284=2.39,— 18- 221, -50 -171:
248—171-77,+ 1 78,+ 15 93 ¡¡ood
505-284- 221,-218 - 3 the
It will be seen that there is no rule whatever. The seventh line might just as
well have been 523—284 -239,—49 190, -16 174, and would have got the
same result, hut for some reason the deci|iherer desired to make a change, and as
the definite article is a word of frequent occurrence, he easily rinds it elsewhere.
The text however reads, "How is this derived ? .Saw you the field," etc.
40
defy belief by any one not voluntarily self deceived. Such it
is charitable to suppose Mr. Donnelly to be.
Mr. Donnelly seems but imperfectly acquainted with the
properties of numbers, a fact that may partially account for
his delusion. He announces (page 568) as a notable discov¬
ery of his own, the " curious fact " that if you take away the
last ten words of a sentence, the tenth word from the
end has thereby been, removed, and he puts this discovery
forward in a way to leave it doubtful whether he does
not regard it as a peculiarity of Shakespeare, or even of
this particular edition of his plays ! Again he says (page
583) that the " root numbers " out of which the story
grows, viz, 505, 506, 513, 516 and 523, "are the product
of multiplying certain figures in the first column of page 74
by certain other figures." Now this is demonstrably not so;
neither of the figures 10, 7, 11, or 18, stated on the same page
to be " the multipliers which produce the root numbers " can
be made to produce any one of those root numbers, by any
multiplication whatever ; the root numbers 505 and 506 have
manifestly no common factor except i; 513 and 516 none ex¬
cept 3; and neither these numbers nor their factors appear on p.
74 ; and as for 523, if Mr. Donnelly will point out any numbers,
whether on page 74, or not, which when multiplied together
will give 523, he will do a great service to arithmeticians. It
is in fact a prime number and cannot be producedby any mul¬
tiplication whatever ; Mr. Donnelly therefore is, to use a very
mild phrase, quite mistaken in this particular assertion.
It is safe to sây that Mr. Donnelly is no Shakespearian
scholar. He was evidently ignorant, long after he commenced
his cipher investigations, of the existence of a concordance of
Shakespeare ; else why spend time painfully looking through
the text for words that he wanted, such as " Francis,"
"Bacon," " Nichola.s," etc., (p. 516) and his insertion of two
clean signatures of reduced fac similies of pages of the folio
of 1623, and entire silence as to any other mode of compari¬
son with that edition, show him ignorant, to the last, of Booth's
cheap, but immaculate reprint of 1862, to be found in all pub¬
lic and well furnished private collections. And finally the
man who writes of making assurance " doubly " sure (p. 563)
and of "illustrious" Caesar, dead and turned to clay, (p. 154)
evidently gets his Shakespearian quotations from a newspaper
and takes them on trust. " Hunc tu Romane caveto"
John T. Doylk.