Class _ZZ Book : / COPYRIGHT DEPOSIT ESSAYS AND ADDRESSES em /!? /^V* ^A 1-^-y^u, Frontispi ESSAYS and ADDRESSES WITH EXPLANATORY NOTES BY ROGER A. PRYOR NEW YORK THE NEALE PUBLISHING COMPANY 1912 ElCoG< Copyright, 1912, by The Neale Publishing Company C/ (P;C!.A330072 n TO THE MEMORY OF HER WHOSE INFLUENCE IS THE INSPIRATION OF THIS BOOK INTRODUCTION In my declining days, when " Whether for thought or for action my career is at an end," my mind naturally reverts to the past, and in the retro- spect quite as naturally lingers on events in which I myself bore a part, of more or less consequence. To these events the following collection of Essays and Addresses refers; and while intrinsically they are doubtless of little interest, they may be not with- out attraction to students who find instruction even in the ephemeral effusions of the passing day. CONTENTS CHAPTER PAGE I Independence of the South n II The Sufficiency of the New Amendments . 35 III The Soldier, the Friend of Peace and Union . 55 IV The General Grant Anniversary 83 V The Reciprocal Obligations of the Bench and Bar 89 VI The Bar and Forensic Oratory 95 VII Influence of Virginia in the Formation of the Federal Constitution 121 VIII The People of the State of New York vs. The North River Sugar Refining Company . . 151 Index 249 INDEPENDENCE OF THE SOUTH ESSAYS AND ADDRESSES BY ROGER A. PRYOR: WITH EXPLANATORY NOTES I INDEPENDENCE OF THE SOUTH [Speech on the resolutions reported by the Committee of Thirty-three.] To-day public interest in the genesis of Seces- sion is attested by the number of books issuing in explanation of that phenomenon. Of course, these publications lack the authenticity and authority of contemporary expositions of their policy by the Secessionists themselves. Among such expositions I may be pardoned for saying that the following speech was recognized by my associates as a correct and comprehensive statement of their cause: — Mr. Speaker, the resolutions before the House invite discussion of all the issues involved in the present unhappy controversy. The rapid march of events, outstripping the dilatory movements of pro- crastinating politicians, leaves us no question to con- sider but the alternative of peace or war. While your committee of compromise have been painfully elaborating plans of adjustment — all 'mean reparations upon mighty ruins," — the dispute has become incapable of accommodation; and the re- sults their wisdom was to intercept are now accom- ii 12 ESSAYS AND ADDRESSES plished and irrevocable facts. Of the thirty-three States which composed the confederacy at the be- ginning of this session, six are no longer members of the Union. Not many days will elapse before others will follow their example. Sir, it is an idle and unmeaning mockery to talk of preserving the Union ; and they who indulge in this strain of dec- lamation betray little of the candor demanded by the urgency of the occasion. In the presence of so tremendous a catastrophe as that which now op- presses us — the overthrow of Government, the par- tition of a great empire, and the imminent hazard of civil war — we owe it to ourselves and to the coun- try to be done with the expedients of a timid and temporizing policy, and to address ourselves to the emergency without reserve and without equivoca- tion. The issue before the country, I repeat, sir, is the simple question of peace or war. Acting, as they conceive, from the impulse of abundant provoca- tion, and exerting a power which they derive from the fundamental principles of this Government, the States of South Carolina, Mississippi, Florida, Ala- bama, Georgia, and Louisiana have renounced the confederacy and assumed the attitude of independ- ent republics. The party into whose hands the control of the Administration is passing, so far from a recourse to conciliatory measures and a recognition of the right of secession, obdurately re- jects all overtures of compromise, and avows a pur- pose to employ all the resources of Government for ESSAYS AND ADDRESSES 13 the subjugation of the retiring States. And so it is that the calamities of civil war are about to be precipitated upon the country. Mr. Speaker, in the suspense of this dreadful ex- pectation, the people of the South are sustained by the conviction that, after the passions and prej- udices of the moment have passed away, impartial history will acquit them of responsibility for the consequences of the impending conflict. When- ever, in after times, men shall revert to the events of this period, they will curse the madness of those by whom humanity was so deeply wounded ; but not upon us will fall their maledictions. In what obli- gation of confederate duty, I demand, have we of the South been found delinquent? Do we not con- tribute more than an equal proportion to the support of your Government? Has not Southern states- manship successfully guided the councils of the Re- public in peace? Has not Southern valor glo- riously illustrated its arms on the field of battle? To what pledge of confederate faith have we been recreant? Nor is it only in a literal compliance with the obligations of the constitutional compact that the South has exhibited its patriotic fidelity. In our conception something more was exacted by the association of fellow-citizenship ; and we have denied the people of the North no facility in trade, and no advantage of policy, which might promote their prosperity. With whose acquiescence, and to whose detriment, were measures of protection en- acted for the aggrandizement of your manufactur- 14 ESSAYS AND ADDRESSES ing interest? Upon the productions of whose industry does your splendid commerce subsist? Until the demon of sectional discord was roused by your invasion of our rights, we willingly bore the burden of unequal tariffs and exclusive bounties, to assist the development of your re- sources ; and your marvelous opulence we contem- plated with the pride of fraternal sympathy. In this spirit of unselfish patriotism Virginia contributed a princely domain to the ascendency of the North, lit- tle dreaming that the States to be born of her bounty would repay her munificence with more than the ingratitude of Lear's unnatural offspring. Sir, in what manner have the loyalty and devo- tion of the South been requited by our confederates of the North? I propound the inquiry in no spirit of vindictive accusation. Indeed, sir, I would de- spise myself no less than the public would reproach me, if, at this august moment, I should contribute anything to the exasperation of passions already too much inflamed. I advert to the wrongs which the South has endured with no other view than to vin- dicate the position she has assumed in this contro- versy. In what manner, I repeat, has the North repaid the fidelity with which the South has re- deemed all the pledges of the confederate faith and discharged all the duties of common citizenship? At the epoch of the Revolution, and, indeed, when the Federal Government was organized, slavery prevailed in the North as well as in the South. If not the chief, it was at least conspicuous among the ESSAYS AND ADDRESSES 15 interests for the protection of which our present system of Government was established. The Con- stitution distinguishes it by express and repeated recognition, in each case fortifying it by particular guarantees. Now, sir, against this great and vital interest — an interest of which the pecuniary value is indicated by countless millions, and the importance of which, in the more essential aspect of social and political relation, no form of expression can adequately rep- resent ; an interest on which subsists the material prosperity of the Southern States, and with which their security and independence are inseparably associated, — this interest, so vast and so vital, is the object of organized and incessant assault by those who are bound by every obligation of written covenant and confederate faith to protect it. They have launched against it the anathemas of moral and legal outlawry, and have canvassed Christen- dom for recruits in the crusade of Abolitionism. They have burdened it with iniquitous and oppres- sive impositions. They have denied it the develop- ment without which it cannot long endure. They have attacked it in detail by every variety of crim- inal expedient. And, finally, they have essayed, through the instrumentality of servile insurrection, to involve the South in total and irreparable ruin. These wrongs, I know, appeal in vain to the men by whom they are inflicted ; but I can imagine a case analogous in all essential particulars, in the con- templation of which they will not be likely to ex- 16 ESSAYS AND ADDRESSES hibit so much of insensibility. The manufacturing interest, if not the main, is among the most impor- tant of the industrial pursuits of New England. Now, sir, suppose the other States of the confed- eracy should combine for the spoliation of this in- terest, and to that end should hold it up to universal execration ; should invoke upon it the vengeance of Heaven, and proclaim it beyond the protection of society; suppose they should employ the agency of Government for its destruction, should organize conspiracies to ravage it, and, to impart the last touch of enormity to the outrage, should inflame the passions of your operatives to bloody and incendiary revolt : who believes the people of New England would patiently endure this accumulation of in- juries? If they be capable of so abject a submis- sion, they possess not the spirit of those ancestors of theirs with whom the most trivial exaction of il- legal power was an insufferable oppression. Yet these and greater grievances are endured by the peo- ple of the slave-holding States, but you only mock our complaints and tighten the grasp of oppression. Why marvel, then, that the day of resistance and retribution is come at last? But, sir, we do not rest the vindication of the South on the slavery issue alone, nor mainly. Our adversaries, availing themselves of the prevalent prejudice against slavery, have diligently repre- sented that the secession of the South has no other object than the perpetuation of bondage; and the effect of the misstatement is visible already in the ESSAYS AND ADDRESSES 17 unfriendly criticism of the foreign press. It is time our cause were placed upon the true grounds of defense ; upon principles which, instead of in- sulating it from the sympathies of the world, will command respect wherever justice rules and the maxims of republican liberty are revered. True it is that the grievances of which the South com- plains affect chiefly the interests of slavery; but it is a narrow and unphilosophical view of the contro- versy to represent the South as protesting only against those grievances. There, indeed, the weight of the oppression is most heavily felt; but its source must be sought elsewhere. We commit an error in reasoning, and what is worse, a blunder in policy, when we confound the practical effect with the radi- cal principle of tyranny. If we mean to apply the resources of true statesmanship to the disorders of the country, we must discover and correct the or- ganic derangement of the system ; otherwise all cur pretentious prescription is but the quackery of the empiric. Sir, for fifty years the interests of the South re- posed and prospered under the sacred safeguards of the Constitution. By that compact the equality of the States was guaranteed, their right of self- government recognized, and each member of the confederacy mutually pledged to the others in a spirit of fraternal alliance. The States of the South acceded to the Union on these conditions ; on the conditions that they were to be the peers of their sovereign associates, that their rights were to be in- 18 ESSAYS AND ADDRESSES violable, and their property secure under the pro- tection of the common Government. This sacred covenant was the bond of union between the con- federate Republics. The Constitution imposed re- ciprocal obligations on the States, and pledged them to mutual offices of good-will. In what manner are these pledges redeemed, and these obligations fulfilled, by the Northern States? Foremost in the catalogue of Southern grievance is the complaint that the fundamental principle of the confederacy, the quality of the States, is sub- verted by a combination between a majority of States to exclude other States from an equal partici- pation in the common domain, and so to deny them equal advantages of expansion and development under the operation of the Federal Government. Nay, this Government itself is abused to the con- summation of that iniquity. To all candid men I appeal, if this single fact of the exclusion of the South from any share and en- joyment of the joint territory of the States does not involve every circumstance that can rouse the in- dignation of freemen — a breach of constitutional compact; a stigma of inferiority; a principle of civil disability; and a measure of practical oppression. In private life individuals resent no grievance sooner than an invasion of their rights of property. Among nations an encroachment on their territorial possessions is an affront which war alone can re- dress. But the exclusion of the South from the common domain of the confederacy, besides these ESSAYS AND ADDRESSES 19 circumstances of insult and aggression, implies a breach of the most solemn stipulation and a reflec- tion the most offensive on the Southern character. For you cannot deny the South equal rights in the Territories without subverting the principles of the Constitution; and in justification of this wrong the social system of the South is denounced as the " sum of all villainies." What other or greater grievance need the South urge in vindication of its conduct? But this is not all. In respect of another essen- tial condition of federal union — the guarantee of State sovereignty, the right reserved by each State to administer its own affairs and to develop its own destinies in harmony with the general interests of the confederacy — whatsoever of this right may have survived the systematic encroachments of Fed- eral usurpation has vanished before the threat of military coercion. Already sovereign States are re- duced, in contemplation, to the condition of pro- vincial dependencies ; and that doom they would speedily realize but for the indomitable spirit which quails not before all the " pomp and circumstance ,: of your martial preparation. Perhaps even these radical violations of the Con- stitution in its spirit and essence you may repel as the vague refinements of a temper alert to discover material of sectional crimination. Let us descend, then, for a moment to a single instance in illustra- tion of the perfidy by which the South is defrauded of its covenanted rights. An explicit provision of the constitutional compact exacts the restitution of 20 ESSAYS AND ADDRESSES fugitive slaves ; yet that provision — albeit so essen- tial that, without it the South originally refused to join the confederacy — is shamefully annulled by the Northern States; and by the default millions of Southern property have been confiscated. So flagrantly has the South been cheated of its con- stitutional rights and denied the advantages of the Union — all the burdens of which, however, it bears in enormous disproportion ! What stronger argument than this, of violated faith and broken engagements, of the invasion of chartered rights and the usurpation of forbidden power, can be required in vindication, if you please, of revolutionary measures? All writers except the partisans of divine right and passive obedience are agreed that an infraction of the implied contract between sovereign and subject absolves the latter from his allegiance. It is this principle of consti- tutional liberty which distinguishes the great re- bellion and the revolution of 1688 as the most glo- rious epochs in British history. Say, then, is there less obligation in a solemnly ratified and written compact than in a tacit and disputed engagement; and are sovereign States denied a redress which the genius of free government guarantees to individ- uals? But the defense of the South rests upon still stronger grounds ; and her secession from the con- federacy is justified by even higher principles than the right to vindicate a violated covenant. Abso- lute power is the essence of tyranny, whether the ESSAYS AND ADDRESSES 21 power be wielded by a monarch or a multitude. The dominant section in this confederacy claims and exercises absolute power — • power without limita- tion and without responsibility; without limitation, since all the restrictions of the Constitution are broken down ; and without responsibility, because, in the nature of things, the weaker interest cannot control the majority. Of all species of tyranny, the South is subjected to the most intolerable. Under the rule of a despot we might hope something of his impartial indifference between the sections; but to be exposed to the unbridled sway of a majority, ad- verse in interest, inimical in feeling, and ambitious of domination, is to be reduced to a condition more abject than that of the slaves whose emancipation is the pretext of all this controversy. It is against this sectional domination, this rule of the majority without law and without limit — a rule asserted in subversion of the Constitution and established on the ruins of the confederacy — it is in resistance to this despotic and detestable rule, that the people of the South have taken up arms. This, Sir, is the cause of the South; and tell me if cause more just ever consecrated revolution? It is the cause of self-government against the domina- tion of foreign power — the very cause for which our fathers fought in 1776. Sooner than submit to the irresponsible rule of alien interests, they tore themselves from the embrace of the mother country and staked all in the triumph of secession. Wash- ington and Jefferson were the most illustrious of 22 ESSAYS AND ADDRESSES secessionists; and we of to-clay are but walking in the light of their glorious example. They held it unworthy of freemen to bear the burden of arbi- trary imposition; and they were not conciliated by the deceptive tender of partial representation in the British Parliament. The South has her Represen- tatives in this Capital ; but their voice is of no avail against the Northern majority. She is taxed not with her own consent, but by the votes of delegates whom she cannot control. I repeat, it is against the rule of a sectional des- potism that the South demands protection; and it is to assert the cause of civil liberty that she de- clares her independence. You of the North lav- ished your sympathy on the people of Hungary in their revolt against Austrian absolutism; but our cause is identical in principle and in purpose. At this moment, while you bestow admiration and ap- plause on the revolutionists of Italy, I would re- mind you that the people of the South are moved by the same impatience of alien ascendency and the same aspiration for self-government which, after ages of slumber, have at last awakened the Italians to a recollection of their long-lost liberties. The cause of the South solicits recognition and regard by yet another consideration — by a con- sideration which appeals to the interest of every section. To-day it is slavery which suffers from the over- throw of constitutional guarantees and the irre- sponsible reign of the majority. But, the principle ESSAYS AND ADDRESSES 23 of absolute power once ascendant in the Govern- ment, no interest is secure; and circumstances will determine against what object it may be directed. If, in contravention of the compact of union, slavery- may be oppressed by Federal action, the navigation of New England or the iron interest of Pennsyl- vania will be exposed to the. same ruin whenever they shall incur the displeasure or invite the rapacity of other sections. The only safeguard of Amer- ican liberty is in maintaining the integrity of the Constitution and preserving intact the limitations of the Government. For that the South contends; and all are alike concerned in the success of her cause. If, after the endurance of so many wrongs, and the menace of others still more intolerable, any- thing were wanting to justify the South in the pub- lic opinion of the world, it would be supplied by her solicitude to avoid violence and redress her griev- ances within the Union. We are reproached, I know, with precipitancy in not awaiting an overt act of hostility from the sectional Administration. Sir, in our judgment a proclamation of war is an overt act; and such proclamation we find in the election, by an exclusively sectional vote, of a Presi- dent pledged to put our rights and our property " in course of ultimate extinction " — a President who admonishes us in advance of his aggressive designs by the sententious but significant declaration, that ' they who deny freedom to others do not deserve it themselves, and, under a just God, cannot long 24 ESSAYS AND ADDRESSES retain it." We could not agree to await inactively the development of the disposition of the President- elect ; for we claim to hold our rights by some higher and more solid tenure than the capricious temper of any individual. Indeed, the argument of our op- ponents involves a concession of our case, inas- much as it implies that the rights of the South are no longer secured by constitutional guarantees, but are suspended on the accident of an unfriendly Ad- ministration. A more imperative consideration still determined the South to act at once, and to act decisively. If negotiation might avail, we thought to strengthen negotiation by a demonstration of our spirit. If the sword alone can reclaim our rights, we were re- solved not to be unprepared for the issue. Mr. Speaker, since the fatal 6th of November to the present hour, the Representatives of the South have invariably exhibited an accommodating dis- position. The first day of our session was signal- ized by a proposition from a colleague of my own (Mr. Boteler), which contemplated a pacific adjust- ment of our difficulties. A similar movement, like- wise originating with a Southern man, was initiated in the Senate. Meanwhile various schemes of set- tlement have been submitted in one or the other House of Congress, of which, without much re- gard to their intrinsic efficacy, we have uniformly avowed our support; while on the other side they have been as uniformly rejected with a contemp- tuous disdain of compromise. Thus while the South ESSAYS AND ADDRESSES 25 is willing to remain in the Union with an assur- ance of its rights, the Nonth declares, by a refusal of all concession, that it will destroy the Union rather than renounce its aggressive designs. In the perverted patriotism of the dominant party the Constitution of Washington is substituted by the platform of Lincoln; and rather than be reproached with logical inconsistency, it chooses to incur the guilt of civil war. And not in the negative sense of rejected com- promise only, does this party betray a purpose to push the dispute to the arbitrament of the sword. Instead of a proclamation of conservative policy that should give assurance of peace to a distracted coun- try, their leader announces that his Administration is to be directed by the counsels of the champion of the " irrepressible conflict." Instead of the sense of justice and the patriotic spirit which, we were told, still animate the masses of the Northern people, Northern legislatures vote men and munitions of war to chastise the resistance roused by their own perfidious violations of a constitutional covenant. And here, while with the one hand Republican Rep- resentatives spurn all overtures of peace, with the other they grasp the sword. No measure of concil- iation will they pass; their energies are engrossed in contriving schemes of coercion. Day after day develops the completeness of their system of force. Now it is a bill denying South Carolina the facili- ties of postal communication; anon a bill for the compulsory collection of the revenue at Charleston. 26 ESSAYS AND ADDRESSES In the South frowning fortresses threaten the sub- jugation of sovereign States; in this District a hireling soldiery are concentrated to impose an ob- noxious ruler on an unwilling people. Auspicious inauguration of a Republican President! Happy- presage of a liberal Administration! If the con- clusion be but consistent with this encouraging com- mencement, no doubt the next four years will rec- oncile the South to the rule of the dominant party. In aggravation of circumstances themselves suffi- ciently exasperating, the rumor, too monstrous for belief, that all these measures of coercion against the South are stimulated and directed by a son whom the South has delighted to honor, in proportion even to his own conceit of his own merit, imparts a tone of deeper indignation to the murmurs of an out- raged people. Thus, Mr. Speaker, by a series of aggressions of which I have attempted nothing more than an im- perfect sketch, the dominant party in the North have effected that which the world in arms could not have accomplished — the overthrow of this once glorious confederacy. And not content with an achievement that will burden their memory through all coming ages, they now purpose to con- summate their work by afflicting the country with the calamities of civil war. Mr. Speaker, we of the South maintain that among the fundamental and essential articles of the republican faith is the doctrine that the States, hav- ing subscribed the constitutional compact on their ESSAYS AND ADDRESSES 27 own independent volition and in the exercise of an inherent sovereignty, have the right, perfect and in- violable, to renounce the Union whenever, in their judgment, the Constitution is annulled and the Union abused to their oppression. Nay, in the very act of assent to the league of confederation, Vir- ginia and other States, by express stipulation, re- served to themselves the right to resume their orig- inal sovereignty whenever, in their opinion, the con- ditions of alliance might be violated. As we under- stand it, this is an association of co-equal sovereign- ties, held in fraternal embrace by the sweet in- fluences of reciprocal confidence and regard ; not a system of reluctant and oppressive connection bound together by the fetters of Federal force. Nor have the people of the South contemplated the right of secession as a vain speculative proposition, but have cherished it as an actual and inestimable muniment of republican liberty. It is precisely in this par- ticular that the citizens of the United States have the advantage of the people of all other countries ; in that, when the checks and balances of the central government are overthrown, there remains the ram- part of State sovereignty behind which they may rally and maintain their rights ; and in the still more important particular that, through the instrumen- tality of secession, they may recover their liberties by the organic operation of the system without re- course to the dreadful extremity of revolution. These principles, it appears by too many distress- ing indications, are not prevalent in the councils of 28 ESSAYS AND ADDRESSES the dominant party. Their cry is for coercion. They present the South no other alternative than submission or subjugation. Sir, it is no easy effort to debate an issue of this sort; and the impulse of a gallant people is to answer menace by defiance. But we owe it to the solemnity of the occasion to repress every ebullition of resentment, and to discuss even an offensive topic in a spirit of moderation. What, then, I would entreat of gentlemen on the other side, do they purpose by kindling the flames of civil war? No matter what may be the issue, liberty cannot survive the conflict. The frail fabric of a system constructed for the abode of peace would perish under the shocks and concus- sions of intestine strife. An armed encounter be- tween the States would be fatal to a Constitution de- signed to hold them in amicable association ; and your Union would go down with the principle of mutual consent on which it reposes. He must be inattentive to the plainest lessons of history who does not foresee that from a bloody struggle among the States — helium plus-quam civile — either an- archy would emerge to brood over the land with desolating presence, or else military violence would assert its iron sway. What though the fortune of war be propitious to your arms ? You must be con- tent with nothing less than the annihilation of the South ; for, while she breathes, the impulse of honor will throb in her bosom and urge her to still further resistance. Recollect the story of Ireland's wrongs and Ireland's emancipation. The remorseless con- ESSAYS AND ADDRESSES 29 queror doomed her to desolation ; but fate reserved her as a dependent province of the British Empire. How, as a thorn in England's side, she avenged her- self on the tyrant, and at last extorted from his fears the recognition of her rights, your intelligence needs not to be instructed. And so would your difficulty be our opportunity. Imagine, then, for a moment the complete subju- gation of the South ; after every spark of vitality is extinguished, and her inanimate form lies prostrate before you, tell me, what recompense do you gain for all your sacrifices, or what consolation in the tormenting memory of your fratricidal deed? But I dismiss the humiliating thought. No mat- ter what her inferiority of force, you cannot subju- gate the South. Smitten she may be, but not sub- dued ; defeated, but never dismayed. Already, by her determined and defiant attitude, she gives you earnest of the spirit that will animate her sons in the hour of trial. From many memorable examples of heroic resistance to wrong they derive the con- solatory assurance that a brave people battling for the right are invincible against any odds. Nine million of freemen — and heed not, I admonish you, the treacherous suggestion that the South will not oppose a united front to the foe — nine million of freemen, of a race the most energetic and indomi- table recorded in history, glorying in traditions of ancestral prowess, and attached to the cause of lib- erty with a chivalric devotion — this people, them- selves distinguished for valor and the genius of 30 ESSAYS AND ADDRESSES war, contending on their own soil for whatever im- parts a felicity to life — this people will laugh to scorn all the imposing array of your military prep- aration. Not for themselves, then, do they deprecate a conflict of arms ; but from respect to the memory of our common ancestry; for the sake of a land to be rent by the cruel lacerations of the sword ; and in reverence of virtues a benign religion instructs them to adore. By the persuasion of these pious and pathetic importunities we would soothe in every breast the spirit of strife and invoke the pacific in- tervention of reason for the adjustment of our dis- putes. And what, I pray you, is the dictate of reason? Not, surely, that a free people should be held in sub- jection to a government they detest ; not that the sword be employed to coerce sovereign States, and constrain them to wear the yoke of an odious and oppressive association ; but rather that distinct com- munities be permitted to follow the bent of their peculiar nationality, and to realize the destiny indi- cated by their own interests and their own aspira- tions. You of the North hold in your grasp the elements of a great empire — a teeming population, immense resources, and a daring energy of genius which surmounts all obstacles, and dazzles the world with its exploits. For our part, in slight esteem as you affect to hold the South, we are con- tent with our portion. Whensoever occasion shall require — and occasion does now demand it — we ESSAYS AND ADDRESSES 31 are prepared to assert our equality among the sov- ereigns of the earth, and to make good the claim against all comers. Instead, then, of vainly essaying to counteract the designs of nature, let us heed the voice of reason; instead of lamenting the rupture of an arti- ficial tie, as involving the ruin of all our hopes, let us lean on the wisdom of Providence, persuaded that as He has already distinguished the epoch of Revolution as the most glorious in the annals of America, He intends still farther to advance the cause of freedom and civilization by means of an- other dissevered nationality. II THE SUFFICIENCY OF THE NEW AMENDMENTS II THE SUFFICIENCY OF THE NEW AMENDMENTS Judge Tourgee in the March [1890] issue of the Forum challenges the efficacy of the recent Constitutional Amendments to accomplish the re- sults they were designed to secure, namely, the in- tegrity of the Union and the protection of the colored population. That the essay was not a mere academic disputation, but was inspired by a serious purpose and contemplates important objects, the writer, if he does not frankly avow, yet plainly betrays. But whatever the motive of the argu- ment, its obvious tendency is to excite the appre- hensions of all who are solicitous for the stability of the Union, and to agitate eight million colored citizens with anxiety for the security of those rights which they had supposed to be guaranteed them by the provisions of the amended Constitution. To quiet these alarms, and to confirm conviction of the sufficiency of those enactments for the great ends to which they are directed, is the purpose of this contribution. Before proceeding to a consideration of Judge TourgeVs specific criticism of the Amendments, it is important to observe a radical modification which they have effected in the relations of the national Government to the people of the United States. 35 36 ESSAYS AND ADDRESSES Prior to the adoption of the Amendments, the essential rights and liberties of the people had no other safeguard than the guarantees of the State Constitutions. The earlier Amendments of the Constitution were limitations only upon the action of the Federal Government, and imposed no re- straint on the States in their relations to the people. Excepting the prohibition of bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, the States were left absolutely free to define and regulate the people's rights. Now, it is conceivable that passion and prejudice and sinister interest might so prevail in a particular State, or in particular States, as to induce an abro- gation of the securities of civil liberty, or, at all events, such a judicial construction of those securi- ties as would render them nugatory. But by oper- ation of the new Amendments all the essential rights and liberties of the people are taken under the protection of the Federal government, and are guaranteed inviolability as against the States and any of their agencies. i. " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." l Judge Tourgee complains that here is no definition or enumera- tion of the " privileges and immunities of citizens," and that hence they stand insecurely upon mere judicial construction. But certainly it was a politic caution to abstain from such definition and enu- 1 Constitution, Article XIV., Sec. i. ESSAYS AND ADDRESSES 37 meration, lest perchance some precious right or lib- erty should inadvertently escape mention and fail of protection. Already " judicial construction " has ascertained and declared that these privileges and immunities are those which " belong of right to the citizens of all free governments " ; that they em- brace all the fundamental rights of freemen; that they include every right within the comprehensive formula of the Declaration of Independence — the right to " life, liberty, and the pursuit of happi- ness." To ascertain what those fundamental rights of freemen are which the clause in discussion places under the guardianship of the national Gov- ernment, we need only to recur to the earlier Amendments of the Constitution. As first pro- pounded, the Constitution contained no bill of rights, no reservation of individual right from the scope of governmental action; but, in deference to the demand of the people, the defect was promptly repaired. Surely, then, those rights which the earlier Amendments of the Constitution were de- vised and adopted to secure fall within the category of " fundamental rights of freemen," else they would not have been so anxiously consecrated and conserved by the fundamental law of the nation. Reverting to the rights so distinguished and pro- tected from infringement, we find that among others are included these: freedom of religion, of speech, and of the press; security against unrea- sonable searches and seizures ; the right of a speedy and public trial by an impartial jury; exemption 38 ESSAYS AND ADDRESSES from self-accusing evidence; immunity from arbi- trary invasion of person or property. All these rights now stand inviolable under the guaranty of the Federal Government. 2'. " No State shall deprive any person of life, liberty, or property without due process of law." Quite unaccountably Judge Tourgee omits this pro- vision in his enumeration of the " constitutional ad- vances " made by the new Amendments. Surely he does not consider this safeguard against the arbitrary encroachment of the State upon the rights of person and property as of too trivial signifi- cance to be noticed, for of all the securities to the people provided by the new Amendments none is of wider scope or farther-reaching consequence. Previously to its enactment, nothing stood between the State and the lives, liberties, and property of its citizens save its own volition embodied in an organic law which it might change at will ; but now any invasion of the rights of person or property, except " according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property," is forbidden to the States; and the nation, with its almighty power, stands between the victim and the aggressor. Nor can the State evade the restriction by a procedure devised for the purpose, for " a statute passed for working the wrong is not due process of law." 2 3. " No State shall deny to any person the equal protection of the laws." By this provision the 2 Bronson, J., in Porter v. Taylor, 4 Hill, 140. ESSAYS AND ADDRESSES 39 equality of all persons before the law is recognized and enforced by the Federal authority ; and the State, in the distribution of the benefits and the im- position of the burdens of government, will not be suffered to discriminate adversely to the rights of any man or class in the community — to administer one law to the poor and another to the rich, one law to the white man and another to the negro. The beneficial operation of this guaranty has already been displayed, in protecting corporations from unequal exactions, in shielding Chinamen from hostile discrimination, and in securing the negro an impartial jury on his deliverance from criminal accusation. Thus it is that now the freedom and the security of the American people are protected by a twofold panoply — the safeguard of the State and the safe- guard of the nation. If the new Amendments had no other or further effect, this alone would chal- lenge for them the grateful homage of the people. But the crowning glory of the new Amendments remains yet to be signalized. By Article XIII slavery, of whatever name and in whatever guise, was effaced forever from the soil of America ; and by the first section of Article XIV, citizenship — State as well as national — was made the birth- right of the negro. Thus by these beneficent and ever-memorable enactments five million human beings were set free from bondage and invested with the plenitude of citizenship in the imperial re- public of the world; and by a caprice of retributive 40 ESSAYS AND ADDRESSES justice the court which had just declared them in- capable of civic rights was made the sanctuary of their liberties. So far the Amendments seem entirely adequate to the ends for which they were designed. But Judge Tourgee affirms them to be defective still in two essential particulars. First, he says : ' The doctrines of the paramount prerogative of the State and the paramount allegiance of the citi- zen to the State, are said to have been ' settled by war.' These doctrines are not even yet obnoxious to any constitutional inhibition. Their correlates, secession and nullification, are not punishable of- fenses, nor even constitutionally-negatived theories. The doctrine of State sovereignty rests to-day upon precisely the same legal basis that it did one hun- dred years ago. . . . To some this will seem, perhaps, a surprising fact." Not to " some," but to all, and not " perhaps," but certainly, it is a surprising revelation that so much blood and treasure have been expended to no purpose ; that so many heroic lives have been of- fered in a useless and, because useless, a wicked sacrifice; that the wisdom and virtue of statesmen have been exerted in vain to consolidate the Union on the stable basis of constitutional authority; and that, after all, secession and nullification are still vital and operative principles in our political sys- tem. For one, at all events, I reject this cynical ESSAYS AND ADDRESSES 41 estimate of the results of the mighty struggle. For one, I hold that secession and nullification, as potential facts, were annihilated by the stroke of war, and that as principles they no longer find shelter or pretense of justification in the theory of our government. The occasion of Judge Tourgee's pessimistic out- cry is the omission from the new Amendments of any explicit negation of the right of secession. But here was another wise and politic abstention on the part of the statesmen who reconstructed the Union. A direct and formal denial, in the new Amend- ments, of the right of secession would imply a necessity for such denial ; and the necessity of such denial would involve the admission that otherwise the right did exist; and this admission would carry with it the implication that, after all, the Confed- eracy had reason and right on its side. And if so, then the war on the part of the North was an in- iquitous crusade against a people contending only for their chartered rights. But the statesmen of that day were too sagacious to commit them- selves and the nation to so self -stultifying a con- clusion. Nor, indeed, was any explicit challenge of the principle of secession necessary to its exorcism from our system of government. The case was this: the Confederates affirmed the right of a State to withdraw at will from the Union, and denied the right of the nation to coerce them back into the Union; the nation denied the right of secession, 42 ESSAYS AND ADDRESSES and asserted its right to compel a State to remain in the Union. Upon this issue the battle was fought, with the result that, in point of fact, the asserted right of secession proved to be nothing more than an idle claim incapable of enforcement, and fraught with the most frightful calamities to the party advancing it. That the right of seces- sion, whatever its validity in abstract speculation, is no longer a practical principle in American poli- tics, and will never again be asserted as the ground and justification of separation from the Union, has been definitely settled by the most decisive of all adjudications — the dread arbitrament of war. Power is a surer guaranty than paper. And yet the new Amendments do negative the right of secession by implication, that is, by abro- gating the fundamental principle of the former federal system, and by substituting a principle with which paramount State allegiance and, so, the right of secession are utterly incompatible. As the original Articles of Confederation con- stituted only a league between the States, citizen- ship of the so-united States was a thing inconceiv- able ; and accordingly the only citizenship then possible as a legal fact was citizenship of the State. National citizenship was introduced for the first time into the American polity by the Constitution of 1787. But national citizenship under that Con- stitution was not primary and paramount, but secondary and subordinate. National citizenship was only an incident of State citizenship; one was ESSAYS AND ADDRESSES 43 a citizen of 'the Union because, and only because, he was a citizen of a State. " Strictly speaking, there were no citizens of the United States, but only of some one of them." 3 "Under the Constitution [of 1787], citizenship of the United States, in reference to natives, was de- pendent upon citizenship in the several States, under their Constitution and laws." 4 ' No man was a citizen of the United States, except as he was a citizen of one of the States." 5 " Every citizen of a State is ipso facto a citizen of the United States." 6 Since, then, citizenship of the State was the primary and paramount citizenship, and citizenship of the United States only derivative and depend- ent, the logic of secession deduced the conclusions, first, that allegiance to the State was primary and paramount, and allegiance to the United States only secondary and subordinate; and, secondly, that on occasion of conflict between these diverse allegiances, allegiance to the State imposed the greater and the more imperative obligation. Hence the doctrine of the right of secession. But by the new Amendments all this is changed. The principle is inverted. Allegiance to the Union is made the primary and paramount allegiance, im- 3 Shannon v. Hill, 26 Federal Reporter, 343. 4 Slaughter-house Cases, 16 Wallace, 94. 5 Id., 72. 6 Story on the Constitution, Sec. 1693. 44 ESSAYS AND ADDRESSES posing the greater and the controlling obligation; and allegiance to the State is degraded to a deriva- tive and dependent allegiance, imposing no obliga- tion in competition with the original and supreme allegiance. " All persons born or naturalized in the United States are citizens of the United States and of the State in which they reside." 7 Thus, citizenship is created by the Federal Government, and prescribed by it to the State. Accordingly, " A citizen of a State is now only a citizen of the United States residing in that State." 8 " Citizen- ship of the United States is the primary citizenship ; State citizenship is secondary and derivative, de- pending upon citizenship of the United States." 9 Thus, by the new Amendments the fundamental postulate of secession and nullification, namely, the supremacy of the State citizenship and State allegi- ance, is destroyed, and in its stead is substituted the contradictory principle of the supremacy of national citizenship and national allegiance — a principle which necessarily involves negation of the riefht of secession and nullification. By another provision of the new Amendments still another implied but emphatic protest against the right of secession protects the integrity of the Union. The first section of Article XIV forbids a State to abridge " the privileges or immunities of citizens of the United States." But the assump- 7 Amendments, Article XIV., Sec. I. 8 Slaughter-house Cases, 95. 9 Id., 112. ESSAYS AND ADDRESSES 45 tion that a State may leave the Union at will neces- sarily involves the admission that a State may not only " abridge ' : but abolish the " privileges and immunities of citizens of the United States"; for manifestly no federal privilege or immunity can attach to a community not in the Union. Even more decisive against the hypothesis that secession may still consist with the Constitution, is the provision by which Congress is armed with plenary power to enforce all the guaranties of the new Amendments. By this provision the nation assumes supremacy and sovereignty over the States ; and unless a right to coerce a State be compatible with the right of a State to secede, this provision annihilates secession. Suffer me to deduce, as a corollary from the foregoing argument, a hope that Judge Tourgee's imagination will be no longer affrighted by the phantom of secession. But, secondly, Judge Tourgee's chief criticism of the new Amendments is directed against the pro- visions affecting the elective franchise; and he ex- pends much labor in an effort to show that they are altogether insufficient as a guaranty of suffrage to the negro. Indisputably, if their object was formally to confer the suffrage upon the negro, these Amendments have miscarried in their design, although in effect they may in a certain predica- ment invest him with the elective franchise. 10 In readjusting the relations of the Government 10 Ex parte Yarborough, no U. S., 665. 46 ESSAYS AND ADDRESSES and people after emancipation, it was as competent to the nation to make the negro a voter as to make him a citizen; but such degradation of the States, by depriving them of the distinctive feature of autonomy, namely, the right to create and qualify the electoral body, was not in the minds of the framers of the new Amendments, who even in that tremendous crisis adhered tenaciously to the char- acteristic principles of the federal system. They plainly desired that the newly-enfranchised class should be invested with the suffrage ; but they recognized that, in conformity with the genius of our institutions, the right to vote was within the gift of the State, and not of the United States. So, by the second section of the Fourteenth Amend- ment, the most persuasive argument was employed to induce the States to confer the elective franchise on the negro, namely, the provision that if he be not a voter he shall not be a constituent of repre- sentation. It being apprehended, however, that not even the aggrandizement of their political power would avail alone to move the Southern States to bestow the suffrage on the negro, the nation, then, by the Fifteenth Amendment, forbade any discrimination against him in conferring the right to vote. Further than this the new Amend- ments do not guarantee the elective franchise to the negro. Is this guarantee sufficient? Judge Tourgee contends that it is not ; I affirm that it is. The interdict in the Fifteenth Amendment against denying or abridging the right to vote on ESSAYS AND ADDRESSES 47 account of race or color, not only prevents the ab- solute disfranchisement of the negro, but insures him also an equality of electoral capacity; for a prescription of different qualifications involves necessarily an abridgment of the right to vote of the race upon whom the more onerous condition is imposed. Hence the fact that in every State of the Union the black man is a voter, and a voter upon precisely the same conditions as are pre- scribed for the white man. But, it is said, the States may deprive the negro of the suffrage. So likewise may they deprive the white man. Nay, so must they deprive the white man, for under the Fifteenth Amendment no disqualification can be applied to the black man that is not equally operative against the white; and, conversely, whatever qualification is conferred on the white man, ipso facto operates to make the negro a voter. 11 The States can disfranchise the negro not otherwise than by disfranchising at the same stroke the white man. Any enfranchisement must embrace both classes equally and alike; any proscription must include both classes equally and alike. Again, any disfranchisement of the negro by a State reduces proportionally its political power — its vote in the House of Representatives and its vote in the Electoral College. That the South should so sacrifice its influence in the government is an event that has not happened, and that, we may be sure, will not happen. And still more incon- 11 Ex parte Yarborough, loc. cit. 48 ESSAYS AND ADDRESSES ceivable is it that, in order to disfranchise the negro, the white men of the South will voluntarily disfranchise themselves. Thus, by the conjoint effect of these two provi- sions in the new Amendments, the negro is abun- dantly guaranteed in the enjoyment of the elective franchise. But Judge Tourgee propounds a construction of the Fifteenth Amendment which, if tenable, would indeed arm the States with power to withhold the suffrage from the negro; and it is that construction which inflames him with indignation and alarm for the imperiled rights of the colored people. The language of the Amendment is: "The right of citizens of the United States to vote shall not be denied or abridged on account of race," etc. In his exposition of the sense of these words the learned commentator assumes that " the term ' right to vote ' means the vested right of a duly qualified voter " ; that one who " has never possessed the right to vote has not a right to vote which can be denied or abridged." And from this postulate he deduces the inference that the only operation of the Fifteenth Amendment is to prevent the depriva- tion of an already enfranchised voter — to hinder the taking away of what the citizen has; but that the provision is utterly ineffectual to prevent with- holding the suffrage from any one in whom it is not actually vested. In other words, the proposi- tion is that while the Fifteenth Amendment disables a State to disfranchise existing voters on account ESSAYS AND ADDRESSES 49 of race, etc., the State is not restrained from refus- ing to confer the suffrage on a negro in whom it is not already vested. That I am not gratuitously- imputing to Judge Tourgee a far-fetched and fan- tastic conceit is demonstrated by his own explicit affirmation of power in a State " to provide that, on and after a certain date, only white males should become voters on arriving at the age of twenty-one years." Surely, no argument can be necessary to exhibit the absurdity of this proposition. Its basis is a verbal quibble as strained and fanciful as that by which in former days a certain Aboli- tionist essayed to prove that the Constitution for- bade restitution of fugitive slaves: "No person held to service or labor in one State, escaping into another . . . shall be delivered up." If the provision were that no citizen shall be deprived of the right to vote, there might be some plausibility in the contention; but as it is the denial of the right that is prohibited, such prohibition is violated when- ever concession of the right is refused. Indeed, Judge Tourgee himself admits that the purpose in the adoption of the Amendment was '' to provide that a colored man should, in every State and for all time, be entitled to become a voter upon the same terms and conditions as the white man " ; and the words employed are apt and efficient to accom- plish the purpose. Whether Judge Tourgee intends modestly to suggest a doubt as to the validity of his contention, or means rather to claim the merit of originality 50 ESSAYS AND ADDRESSES for his discovery, he admits that " the view now presented has not been taken by juridical writers." It is said above that, under certain circumstances, the effect of the Fifteenth Amendment might be to confer the elective franchise on the negro ; but even then, that effect is dependent upon the voli- tion of the State. The language of the Amend- ment is merely negative — not bestowing suffrage, but only forbidding a deprivation of it on account of race, color, or condition. It is by compelling a choice between the admission of the negro and the exclusion of the white man, that the former may be incidentally invested with the right to vote; but still the State is free to elect between the alterna- tive propositions, and so may defeat negro suffrage, as it may defeat white suffrage. In either case it is the will of the State that determines the event. It results, therefore, that the Fifteenth Amend- ment is obnoxious to neither of the two objections leveled against it from opposite quarters — from one quarter, that it imperatively bestows suffrage on the negro; from the other, that it affords no adequate guaranty against the exclusion of the negro from the elective franchise. Precisely the same guaranty secures suffrage to the negro and to the white man; namely, an identical qualification for both and a loss of political power consequent on the proscription of either. Enough is written, I trust, to vindicate the new Amendments from the disparagements of a critic to whom, one would suppose, they would appear of ESSAYS AND ADDRESSES 51 inestimable moment and value, as imparting and securing all the rights and privileges of American citizenship to the race of which he has approved himself the able and enthusiastic champion. Along with Magna Charta and the Declaration of Independence, these ordinances will descend to the remotest posterity as monuments of human freedom and progress. Ill THE SOLDIER THE FRIEND OF PEACE AND UNION Ill THE SOLDIER THE FRIEND OF PEACE AND UNION [The proceedings on the evening of Decoration Day, May 30, 1877, in the Academy of Music, Brooklyn, were character- ized by tliis circumstance of special interest : that it was the first reunion in the country of Federal and Confederate soldiers after the close of the Civil War. General Catlin, a distinguished hero of the War, spoke as the representative of the Federal army ; General Pryor gave expression to the senti- ments of Confederate veterans on the interesting occasion. The following correspondence sufficiently explains the publica- tion of the speech here presented: Brooklyn, N. Y., June 6, 1877. To The Hon. Roger A. Pryor : Sir — Your address at the Academy of Music, in this city, on the evening of Decoration Day, has struck us as so valuable a contribution to the history of the time, and as so likely to con- duce to the growth and strength of amicable relations through- out the country, that we consider its extensive circulation very desirable. To that end we respectfully ask that it may be published in pamphlet form. William C. De Witt, Frederick A. Schroeder, John P. Rolfe, John Greenwood, Winchester Britton, Samuel D. Morris, B. F. Tracy, Abraham H. Dailey, A. W. Tenney, Geo. G. Reynolds, Geo. H. Fisher, Albert Daggett, John A. Lott, J. S. T. Stranahan, Joshua M. Van Cott, Demas Strong, Jacob I. Bergen, John W. Hunter, Edgar N. Cullen, Stewart L. Woodford, John Winslow, J. W. Gilbert, Alex. McCue, Tohn R. Kennaday, Henry C. Murphy, Lucien Birdseye. 55 56 ESSAYS AND ADDRESSES Brooklyn, 147 Willow St., June 9, i877- Gentlemen : My aim in preparing the address was to promote the " growth and strength of amicable relations throughout the country," and since you assure me its publication may conduce to that result, I have pleasure in placing it at your disposal. With a grateful sense of the kindness implied by your re- quest, I am, gentlemen, Most respectfully, Your obedient servant, Roger A. Pryor. Messrs. William C. De Witt, and others.] While thanking you, gentlemen of the com- mittee, for the invitation which privileges me to be present on this interesting occasion, I owe it to candor to disclaim the affectation of regarding your civility as implying in any sense a personal compliment. It bears, I know, a weightier and a worthier significance. In soliciting the participa- tion of Confederate soldiers in the solemnities of this day, you mean to tender them an overture of reconciliation, to avow your good-will toward your recent adversaries, and to proclaim your desire for the prevalence of peace and fraternal feeling be- tween the lately belligerent sections. By no token more touching and impressive could you make man- ifest these liberal and patriotic sentiments. To proffer your former foes a share in the simple but pathetic ceremonial by which, on this hallowed anniversary, you symbolize the perennial bloom and fragrance associated with the memory of your departed comrades, to admit us into the sanctuary ESSAYS AND ADDRESSES 57 of your sorrows, and allow us to unite in the homage you render to the fallen heroes of the Union, is indeed so affecting a testimonial of your kindness and magnanimity, that we unreservedlv yield ourselves to its benign influences and recip- rocate, with all the warmth or our ardent Southern nature, the inarticulate but heartfelt aspiration for the reign of peace and good-will over our agitated and afflicted land. That from our bosoms every vindictive and un- charitable recollection of the unhappy conflict is banished, never to return, we this day attest by the last act of concession and conciliation — even by bearing the tribute of praise and benediction to the tomb by whose hand our Confederate Republic was stricken down. By a solemnity so impressive, by a sacrifice so transcendent, the soldiers of the lately contending armies trust to propitiate the fell spirit of discord, and to gladden the nation once more with the bless- ings of a restored and reconciled country. And this, the highest office and most precious service of patriotism, is fitly appropriated and dis- charged by the soldier; for, was not the soldier ever the friend of peace and the Union? If we carry back our memories to the contro- versy which eventually issued in the war, we shall recall the name of no soldier, on either side, who aided to inflame the animosities of section and pre- cipitate the collision. The bloody business of secession, with all its disastrous consequences, was 58 ESSAYS AND ADDRESSES wholly the act of the professed men of peace — the politicians. They nullified the Constitution in its plainest and most peremptory obligation; they broke that compact of pacification — the Missouri Compromise — under which the Union had re- posed for nigh forty years ; they rekindled and blew into conflagration the almost extinct embers of the abolition agitation ; they obtruded into the presence of the Supreme Court with their factious clamor, and compelled even that august tribunal to become accomplice in the work of commotion ; they lashed the popular mind into fury over imaginary wrongs, and to intercept the occurrence of fictitious evils occasioned a catastrophe which actually afflicted the country with every conceivable calam- ity. To vindicate the abstract right of potential secession they challenged an encounter which issued in the irresistible aggrandizement of the Federal power ; to preserve the ideal existence of slavery in the Territories they provoked a war which ended in the annihilation of slavery in the States. Meanwhile the soldiers of the nation, no matter where their birth or what their political opinions, uniformly opposed themselves to every act and every word of which the aim or tendency was to engender ill-feeling between the States or impair the stability of the Union. The illustrious Scott, hero of two wars, victor on the far distant battle- fields of Chippewa and Cerro Gordo, achieved, in his endeavor to arrest the progress of disunion, a ESSAYS AND ADDRESSES 59 civic crown no less resplendent than his martial fame. 1 And that other Federal soldier, right arm of Scott in his career of conquest, whom to name now might perchance jar upon the harmonies of the occasion, but of whose exploits history nevertheless will make due celebration in her immortal epic — he, like his great chief, was pierced with the anguish of despair by the menace of civil war. Not the ill-fated Falkland himself was more ten- derly enamored of peace, or more passionately prayed Heaven to avert from his country the agony and the ignominy of fratricidal strife, than he who by the cruel irony of fate was destined to lead the Confederate armies through so much carnage in a hopeless struggle with the Union. And so with all. Call the roll of fighting men, whether in the army or the navy, and mark one known to fame who was not the friend of peace, the advocate of conciliation. The soldier is a patriot from necessity — by the habits of educa- tion, and by the instincts of honor, which to him are the principles of nature. Identified with the fortunes of no party, implicated in the intrigues of no faction, he looks to the country, the whole coun- try, for the recognition and reward of his valor. Meaning himself to fight if peace be impossible, and well aware that war is the consummation of human 1 Allusion to General Scott's suppression of the South Caro- lina Nullification movement in 1833. 60 ESSAYS AND ADDRESSES woe, he shrinks back from the dread arbitrament till duty bids him draw the sword. And so, while free from the awful responsibility attaching to any the least agency in causing the conflict of 1 86 1, yet when by the follies and the crimes of the politicians the crisis came, the sol- dier was prompt to respond to the call of his coun- try. His country — but where was his country? Upon this momentous question the simplicity of the military man was perplexed by the sophistica- tions of the politicians. To the Southern soldier the State — the sovereign State — whose guardian care he felt in every interest and relation of life, whose bosom was for him the " mother earth " whence he sprang and to which he would return in the sepulchres of his fathers — to the reason and affection of the Southern soldier the State ap- pealed with a supreme and irresistible title to allegiance. But Federal soldiers! Your country was commensurate with the limits of the united States ; the symbol of your fealty was the flag floating over the undivided and indivisible expanse of the Republic ; the cause for which you fought was the Union inviolate and inviolable. At this point of political divergence parted the soldier of the North and of the South — each im- pelled by a motive of genuine patriotism, each contending for a cause which shone clear to his conscience, each striving after an object deemed worthy of heroic effort and heroic sacrifice. Hap- ESSAYS AND ADDRESSES 61 pily for the infirmities of human nature, the Supreme Ruler, in dispensing his retributions by- means of the moral judgments of the world, com- passionates the errors of man and to his motives only imputes culpability. From the reproach of conscious wrong the soldier of the South is free ; and if, in lifting his hand against the majesty of the Republic, he were in fault, grievously has he answered it ! Obdurate indeed must be the heart — harder than the rock hewn from the Caucasus — ■ that can look abroad over the wasted fields and the desolate homes and the stricken families of the South, and not melt into pity at the spectacle of so much suffering and so much sorrow. In the bloody conflict friends were lost to you, — over their graves we have strewn to-day garlands of amaranthine bloom, — but far from your homes and your harvests rolled the lava tide of war ; and in the triumph of your cause you found a consoling recompense for your bereavements. Men died, but the Union lived ; and the earth was filled with the echoes of your acclamation. But for the Confed- erate soldier all was lost ; and as he came back from his captivity silence greeted him with the welcome of despair! Feel you not that to exult over his misfortunes ill-beseems the pride of a magnanimous foe! So much in any event is certain, that by fear- lessly fronting death, and by the heroic endurance of pains and privations worse than the agony of death, the Confederate soldier vindicated tri- 62 ESSAYS AND ADDRESSES umphantly the sincerity of his conviction and made good whatever claim to your consideration is im- plied in an unselfish devotion to a cherished though vanquished cause. Victrix causa diis placuit sed victa Catoni. No blame, then, for that stupendous folly, the war of secession, attaches to the men who bore its brunt. The politician began it ; the soldier ended it. And, during its progress, whatever of barbar- ity aggravated its essential ills is imputable, not to the fighting man, but to the civilian. Clemency no less than courage is the ornament of true knighthood ; but while the soldier's spirit is exalted by the ambition of glorious deeds, the politician stoops to mean resentments and ignoble reprisals. For those acts of vengeance of which each side hastens now to exculpate itself to history, but over which it behooves both to drop the veil of obliv- ion — for those dastardly and despicable inhumani- ties the men of the cabinet are accountable ; and the luster of Grant's and Lee's renown is untar- nished by the atrocities of the prison-camp. The columns of neither army, in their intrepid onset, were inflamed by the incitements of passion ; but in the fury of the combat feeling still for his foe the affection of a former and a future brother, the soldier gladly sheathed his sword from his bloody execution. In every pause of battle the contend- ing hosts intermingled, and for their involuntary cruelties made atonement by an eager interchange of the charities of humanity. On the field of ESSAYS AND ADDRESSES 63 Antietam, while the carnage stayed that the wounded and the dying might be taken away from the dreadful scene, a Confederate general [the speaker] and your own gallant Meagher grasped hands, in pledge of a friendship the shock of war could not break asunder, and in instinctive but un- spoken presage of a community of country that re- turning peace should restore and perpetuate. But it was in the final catastrophe of the contest that the spirit of chivalry attained its appropriate culmination — when the great captain of the armies of the Union, in accepting the surrender of his equally great antagonist, spared him the humilia- tions of defeat, and to him and his vanquished vet- erans accorded the tribute of glory due to a frus- trate but heroic struggle. Then was exhibited in no unequal measure the greatness of soul with which the Roman conqueror saluted the misfortunes of the Macedonian monarch ; and then too did the leader of the "Lost Cause" by his unshaken equa- nimity put to shame the supplications of Alexander's degenerate successor. Such being the spirit of the soldiers in the war, no wonder they hailed with enthusiasm the advent of peace ; no wonder that from the slaughter of com- patriots their impatient hand turned with alacrity to the blessed work of pacification. With what eager overtures of reconciliation did Sherman signal to Johnston to desist from the un- natural contest ; and with what a wise magnanimity did he lure the heart of his adversary back to its 64 ESSAYS AND ADDRESSES early love for the Union. Brilliant though be the campaign by which he cut the Confederacy asun- der, his most worthy achievement was the capitula- tion of Raleigh, for by that act of intrepid gener- osity he made conquest of the affections of his foe, and transformed an embattled host into a com- munity of grateful citizens. Had not that aus- picious compact been annulled by the intrigues of the politicians, had its benign spirit informed and actuated all subsequent policies of reconstruction, the darkest page in the history of the Republic would not remain yet to be written, and this glad day of reconciliation would have been anticipated by many long and agonizing years. No, fellow- citizens, for the interval of gloom and shame lying between the baleful splendor of the war and the present golden dawn of peace ; for the nameless out- rages and ignominies of that dismal period, — massacres of the helpless, violations of the ballot, usurpations of force on the popular will and the independence of the States, — with these affronts to freedom and civilization the soldier may not be re- proached. His intervention, when at times it has happened to arrest the operation of constitutional government, was not the effect of his own volition; for standing guard over imprisoned liberty is not the willing service of the American soldier; and if he appeared on the scene of confusion, his presence was ever the guaranty of order and tranquillity. When a detachment of troops occupied the capitol of South Carolina, the hitherto unsullied sanctuary ESSAYS AND ADDRESSES 65 of its sovereignty, they moved in submission to an order from Washington; but when afterward the Federal soldiers in New Orleans fraternized with Confederates in celebrating the deliverance of Louisiana, they responded to the spontaneous and exultant impulse of their own gallant spirits. In the system of American government the auton- omy of the State is a no less essential principle than the liberty of the individual ; exists, indeed, only as the support and safeguard of the personal rights ; and when in the march of encroachment the inde- pendence of the State is subdued, the freedom of the citizen is exposed to an easy and irresistible subjec- tion. But a scheme of administration by which the civil was subordinated to the military power, and the prodigy of republican institutions under the patron- age of bayonets exhibited to the wondering gaze of the world, by which that most precious principle of American liberty, the right of local self-government, was subverted and on its ruin erected a repulsive compound of alien rule and Federal domination ; by which sovereign States were reduced to the impo- tence of satrapies and a commandant of the bar- racks invested with the majesty of the people: such a scheme of administration, however specious the pretext of its existence, and however formidable the forces enlisted in its support, was doomed from the beginning, and by the organic vice of its being, to an inevitable and ignominious overthrow. Fallen it is at last; fallen like Lucifer, never to hope 66 ESSAYS AND ADDRESSES again; fallen by the thunderbolt of the people's wrath ; and as it topples down ' in hideous ruin and combustion," the nation hails with acclama- tion the returning reign of freedom and peace. And by none is the auspicious day of liberation and reconciliation saluted with more enthusiasm than by the veterans of the Union army. In the phantom of " the bloody shirt " and the specter of the " prostrate State " factions found available topics of incendiary appeal, and politicians combine now to accuse and obstruct a pacification which threatens to leave neither party a cherished wrong to expose nor a fondly nursed grievance to de- nounce ; but the soldier, instinct with a better patriot- ism, seeks no object besides the welfare of the country and, informed by a truer wisdom, knows no other policy than the counsels of conciliation. Yes, fellow-citizens, the Union is re-established ; re-established not only in the supremacy, but in the beneficence of its power; re-established not merely over the wills, but over the hearts of the people, and of all the people. While its privileges and protection were unequally dispensed, while toward the South the Constitution shone with a darkened and sinister aspect, the affections of the people were chilled and their confidence repelled ; but now that every State is respected in her sov- ereignty and every man in his rights, the Union is restored in all its ancient strength and glory: and be persuaded, you may repose as serene a trust on the loyalty of Louisiana as upon the well-tried fidel- ESSAYS AND ADDRESSES 67 ity of your own great commonwealth. In obliter- ating all discriminations between States and between citizens, you have effaced the ill-omened distinc- tion of sections, and henceforth in the vocabulary of American politics the South is only a geograph- ical expression. And this is the tribute a Confederate soldier brings to-day to the graves of the fallen heroes of the Union — the solemn assurance that they fell not in vain, — that the work they died to achieve saved the Union from overthrow, you by the policy of justice and magnanimity have enshrined it in the hearts of its once furious but now reclaimed and reconciled foes. If we may suppose the men whose deeds you now commemorate to be attentive still in their blest abodes to the transactions of their surviving com- rades, with what joy and exultation do they contem- plate the incidents of this day! Insensible though they be to the echoes of earthly applause, even their chastened and exalted spirits must be soothed by the solemn acclaim of a nation rendering homage to the virtues of its heroic dead. But, not in the hush of a gracious holiday, nor in floral offering, nor martial requiem, nor the pomp and pageantry of a funeral procession ; nor yet in the voice of renown reverberating their exploits through the ages, — not in any nor in all of these celebrations so dear to the heart of mortal hero does the supreme reward, the true triumph, of the departed soldiers of the Union consist. In this alone is their glory consummated 68 ESSAYS AND ADDRESSES — that the cause for which they gave their lives has prevailed ; in this alone is their victory complete — that the republic has emerged from the cloud and carnage of war unbroken in unity and undimmed in luster; in this is the ecstasy of their exultation — that hands once red with fraternal blood are this day clasped in pledge and proclamation of a re- stored and perpetual brotherhood. While man ap- plauds, heaven ratines the reunion, and beams ap- provingly on the prevalence of charity in the coun- cils of nations. That the memories of intestine war oppose no ol> stable to the reunion and harmonious co-operation of the once hostile parties and dependencies, expe- rience attests by abundant and most instructive in- stances. Indeed, from the largest induction we may infer it as a principle of political philosophy, that the development of national unity is accom- plished by the method of internal agitation, and that the coherence of the aggregated parts of a state is proportioned to the violence with which they are Drought together. For illustration we have no need to recur to the remote if not imaginary examples of classic history; for of the annals of modern times the monotonous lesson is that empire is composed of a succession of conquests, and is consolidated by the fierce but ineffectual efforts of its constituent members to resist the process of assimilation. In France the war of the Fronde issued in the establishment of that compactest of nationalities; and of the followers of Napoleon in his conquest of ESSAYS AND ADDRESSES 69 Europe the most faithful were those Vendeean Bourbons who so desperately resisted the regime of the revolution. In the united Germany of to-day we see the result of centuries of civil and religious struggle; nor of the provinces ruled by the Kaiser are they the least docile and devoted that the vic- tory of Sadowa gave him. Sweden and Norway have accommodated their traditional feuds by union under a single crown; while Austria and Hungary, having replaced the subjugation of 1849 by an al- liance of choice and equality, move onward in the path of prosperity under the impulse of the same will and an identical interest. In Italy the hates and revenges of a thousand years' domestic conflict have yielded at last to the undying instinct of na- tionality; and Florence and Genoa, Venice and Rome, are once more embodied in the unity of a free and mighty empire. Most significant of all is the instance of Great Britain ; for it conveys at once a promise and an admonition ; and by the examples of Scotland and Ireland teaches statesmen as well the folly of a prescriptive as the wisdom of a mag- nanimous policy. The boast of Chatham was not an idle vaunt. The hereditary foe of the Lowlander he enticed from his mountain fastness, tamed his wild spirit to the arts of peace, and, by according him the rights of a freeman, inspired the devotion that stayed the onset at Waterloo and brought re- lief to the despair of Lucknow. But Ireland — after ages of conquest her heart still spurns the Saxon's caress; and her gallant sons, finding in yo ESSAYS AND ADDRESSES their native land neither civil nor religious liberty, to the aggrandizement of England's rival contribute the strength of their arm and the wealth of their genius. Ireland to-day repeats the mournful re- frain of history, that injustice and intolerance are the blight of empire; while in the opulence and re- pose of Scotland we behold the never-failing effect of a policy of conciliation. No cause have you, people of the North! to mis- trust the professions of fealty to the Union by which the Confederate soldier requites your fidelity to the Constitution. To his forefathers history as- cribes, and you will not refuse, an equal hand in forming the Union, an equal contribution to its re- sources, and an equal courage and devotion in its defense. From the day a Southern soldier took command of the army of the Revolution in the capi- tal of Massachusetts down to that recent time when another Southern soldier led the armies of the Union to the capital of Mexico, the men of the South have borne a not inferior part in every effort and every sacrifice for the glory of the Union. Pardon me if I recall that it was a Southern man — even Washington — with whom, by the suggestion of the Conference at Annapolis in 1786, originated the idea of the Union; that by another Southern man — Randolph, of Virginia — the fundamental plan of the Union was propounded to the Convention at Philadelphia ; that Virginia, in conjunction with New York, determined the final adoption of the compact of union ; that it was ESSAYS AND ADDRESSES 71 Marshall, the Virginian, who by authentic and au- thoritative construction of the Federal Constitu- tion endowed the Union with the energies of a na- tion and enabled it to survive the strain of civil war; that it was Monroe, the Virginian, who, by asserting the freedom of the New World from the intrigues of European ambition, opened for the Union an unimpeded and unbounded arena of de- velopment; that Virginia of her bounty brought to the bridal of the young Republic the gift of an im- perial domain — and, let me add, all shrunken and beggared as she is, she does not repent that she im- poverished herself for the aggrandizement of the Union; that by the skill of a Southern statesman the navigation of the Mississippi was liberated from foreign control and made the priceless monopoly of American commerce; that by a Southern Presi- dent the second war of independence was conducted to a successful termination ; that by the diplomacy of another Southern President Texas was wooed and won to the embrace of the Union; that under the administration of still another Southern President the Union was enriched and embellished by our gol- den conquests on the Pacific. Bear with me while, not in the ostentation of sectional vainglory, but merely to verify the fidelity of the Confederate sol- dier to the Union, I recount these among the many services and trophies which his forefathers have contributed to the strength and grandeur of the na- tion. With the people of the South affection for the 72 ESSAYS AND ADDRESSES Union was a sentiment of ancestral pride as well as a principle of traditional policy; and only by the urgency of some casual and extraordinary crisis could they ever have been precipitated into seces- sion. They went about to erect a separate govern- ment for themselves, not from an impulse of hos- tility to the Union, but from attachment to prin- ciples they had been taught to think paramount to the Union itself ; and in parting from the Union they felt all the pangs of violated nature as well as the griefs of baffled hope. But now that slavery no longer impinges on their understanding with a sin- ister bias, and the idol of State sovereignty no longer challenges of them a divided duty, love of the Union resumes its original ascendency in their hearts; the beneficence of the Union claims a su- preme consideration in their counsels. Be assured, Southern statesmanship is not so blinded in its proverbial sagacity as not to see that henceforth the strength and security of the South are to be found only under the shield of the Union. Against the perils of foreign invasion it gains in the Union the bulwark of a mighty prestige and an in- vincible army. As a guaranty of peace between its discordant peoples the ever-imminent intervention of the Federal arm will operate to deter the unruly and to tranquillize the timid. Freedom and facility of access to every part of this vast and opulent land open to the enterprise of the South a boundless field of adventure, and impart to its industrial and commercial energies a quickening impulse of de- ESSAYS AND ADDRESSES 73 velopment and fruition. Meanwhile, an expedient devised to balk the ambition of the white race re- coils upon its course, and, by augmenting the politi- cal power of the South, enables its aspiring spirits to play a splendid and superior part on the theater of Federal affairs. If, in contrast with the brilliant future offered to the South in the Union, you contemplate for a moment the destiny to which it would be condemned by another civil convulsion, caused by another re- volt against the Federal power ; the havoc and car- nage of a war aggravated by a conflict between races and issuing inevitably in the catastrophe of a remorseless subjugation, you cannot, on the suppo- sition that the Southern people are rational beings, impute to them any other policy or purpose than to cleave to the Union as their only and their all-suf- ficient shelter and support. But you say, perhaps, that these dictates of reason, obvious and imperative though they be, are counteracted by the blind impulses of passion; that rage at the miscarriage of his cause, revenge for the many calamities and contumelies he suffered from the victorious North; that all the unappeased and inappeasable resentments of the war, still operate to cherish in the Confederate soldier undying hate of the Union. Now, I do not pretend — it is not essential to my argument to pretend — 'that the Southern soldier contemplated the fall of the Con- federacy with indifference. Born of an enthusiasm for liberty, erratic, if you please, but not the less 74 ESSAYS AND ADDRESSES genuine and exalted ; endeared by the memory of so many sacrifices and so many sorrows heroically borne in its behalf; gilded by so much glory and hallowed by the blood of the brave and the tears of the fair, its disastrous overthrow smote upon the heart of the Southern soldier with an anguish he may not utter, but which he disdains to dissemble. Nor will you, its exultant but not ungenerous foe, grudge him who followed its flag through the few years of its battle-crowded career this mournful recollection of its tragic story. But this is the effusion of feeling; an homage of the heart for which it does not solicit the sanction of reason. From the vantage ground of a larger observation, with a more calm and considerate medi- tation on the causes and conditions of national pros- perity; I, for one, cannot resist the conclusion that, after all, Providence wisely ordered the event, and that it is well for the South itself that it was dis- appointed in its endeavor to establish a separate government. Plain is it to be seen now that such government, if once established, could not in the nature of things have long endured, since in con- ceding the right of any State to secede at will the Constitution of the Confederacy made express pro- vision for its own dissolution. A little while, and its members, urged by some special interest or sin- ister ambition, would have receded from the alli- ance; and then one after another have fallen a prey to foreign aggression or domestic anarchy. More- over, the process of disintegration would not have ESSAYS AND ADDRESSES 75 ceased with the exit of the South nor have been limited to the confines of the Confederacy; but the example of successful dismemberment, communi- cating its contagion to the remaining States, and the principle of cohesion lost from the Union, North America would have exhibited that dissolving view of crumbling governments and chaotic societies which in other quarters of the New World so dis- heartens the friends of freedom and civilization. Nor to the restoration of the Union is the Con- federate soldier any the less reconciled by the de- struction of slavery. True, the material interests of the South were essentially implicated in the main- tenance of the system ; but, philosophically, it was the occasion, not the cause of secession. For the cause of secession you must look beyond the incident of the anti-slavery agitation to that irrepressible conflict between the principles of State sovereignty and Federal supremacy which, menacing the Union in its conception as the twin children of the patri- arch wrestled for the mastery in their mother's womb, again endangered its existence in 1798 on occasion of the Alien and Sedition laws ; and again in 1819, on occasion of the admission of Missouri; and still again in 1833, on occasion of the protective tariff ; and which, arrested by no concession and ac- commodated by no compromise, continued to rage with increasing fury until, provoking the revolt of the South, it terminated finally in the absolute and resistless ascendency of the national power. In 1861 the people of the South resented the 76 ESSAYS AND ADDRESSES intervention of the Federal Government to restrict the extension of slavery; but it was the principle not the object, of the interference that encountered their opposition ; and any other usurpation of Fed- eral power on the sovereign rights of the States would equally have challenged their resistance. Nor, suffer me to say, was slavery any more the point of your attack than of our defense ; for other- wise, in beginning the war the Federal Government would not have been so scrupulous to proclaim through all its organs its purpose not to touch any the least of the securities of slave property. No, people of the North, impartial history will record that slavery fell not by any effort of man's will, but by the immediate intervention and act of the Almighty himself; and in the anthem of praise ascending to Heaven for the emancipation of four million human beings, the voice of the Confederate soldier mingles its note of devout gratulation. The Divinity that presided over the destinies of the Re- public at its nativity graciously endowed it with every element of stability save one; and now that in the exuberance of its bounty the same propitious Providence is pleased to replace the weakness of slavery by the unconquerable strength of freedom, we may fondly hope that the existence of our blessed Union is limited only by the mortality that measures the duration of all human institutions. But why argue on speculative grounds, to prove the patriotism of the Confederate soldier, — since within these few months he has, by so memorable ESSAYS AND ADDRESSES jj an illustration, vindicated his fidelity to the Union? You cannot have forgotten — for the land still trembles with the agitations of the crisis — that when of late a disputed succession to the Presidency appalled the country with the imminence of civil war; when business stood still and men held their breath in apprehension of a calamity of which the very shadow sufficed to eclipse all the joy of the nation ! — you cannot but remember how, obdurate to the entreaties of party and impenetrable to the promptings of resentment, and responsive only to the inspirations of patriotism, the Confederate sol- dier in Congress spoke peace to the affrighted land. Your difficulty was his opportunity; he had only to say the word and the fatal fourth of March would have passed without the choice of a Federal execu- tive, and the Union have been involved in the agon- ies of a dynastic struggle. But with a sublime mag- nanimity he spurned the proffered revenge — and yet do you say the Confederate soldier is false to his allegiance? Pardon me if even in this presence I make bold to protest that he was never faithless to his trust; to declare that when you thought him treacherous to the Union he was only true to his State ; and to tell you that when he braved all the wrath of your ma- jestic power, it was only in heroic fidelity to a weak, but with him an all-commanding cause. If your reproach be just, and the Confederate soldier were a conscious culprit, then indeed is reconciliation a folly and a crime; for, if false to you once, he may 78 ESSAYS AND ADDRESSES betray you again ; and instead of alluring him to your embrace by these overtures of fraternity, you should repel him from your presence as a perfidious outcast. No, patriots of the Union! the Confed- erate soldier offers not to your confidence a con- science stained with the guilt of recreancy. Veter- ans of the Union! he comes not into your compan- ionship with confession of criminality; but for the credentials of his loyalty to the Union he proudly adduces the constancy with which he clung to the fortunes of his ill-starred Confederacy. And so, fellow-citizens, by the reciprocation of es- teem and the kindly offices of mutual confidence, the soldiers of the late war are brought to-day to frater- nize over the graves of their departed comrades, and to renew with ceremonies of impressive solem- nity their vows of fealty to the Constitution and the Union. While on the one side the soldier of the North engages to keep watch over the rights of the State, and to see that its liberties be not profaned by military usurpation, nor its sovereignty dispar- aged by Federal intervention, the Confederate sol- dier on his part pledges himself to repel every ap- proach of danger to the Union. Of this alliance so propitious to the peace and stability of the na- tion, no ill-omened reminiscence shall interpose to imperil the integrity; but whatsoever of common glory may be gathered from the annals of the Re- public shall be culled out and collected into an in- dissoluble bond of brotherhood. The memory of Washington and Montgomery, Greene and Putnam, ESSAYS AND ADDRESSES 79 of Jefferson and Hamilton, of Jackson and Mc- Donough; the shades of the nameless heroes of the Revolution, whose unforgotten graves were not passed without honor in the processions of this day, 2 — all, all shall be invoked to still the clamor of sectional jealousies. Nay, even the incidents of our unhappy conflict, gaining as they recede from view the halo of historic illustration, shall lose their irri- tating and repulsive aspect ; and the victories of the war shall be recounted with equal and impartial ex- ultation whether they signalize Federal or Confed- erate valor. And hereafter, should the menace of foreign aggression summon us to marshal the heroes of the past for present encouragement and emulation, the images of Grant and Lee, of " Stone- wall " and Sherman, shall speak a sufficient assur- ance at home and admonition abroad, that for the most' puissant power on earth the conquest of Amer- ica is an impossible achievement. Thus, even in the tomb the Federal and the Confederate soldier shall prove the friends of peace; and their blended memories serve as a safeguard of the Union. 2 The American soldiers who fell in the battle of Long Island were buried at Fort Greene; and part of the perform- ances of the day was the decoration of their graves. IV THE GENERAL GRANT ANNIVERSARY IV THE GENERAL GRANT ANNIVERSARY [Speech on the occasion of the banquet to celebrate the seventy-first anniversary of the birth of General U. S. Grant, at The Waldorf, Thursday, April 27, 1893.] General Horace Porter presented Judge Roger A. Pryor, with the following introduction. Gentlemen — We have another distinguished general here to-night, who fought with us in the war, but not on the same side. It has been said that it is astounding how you like a man after you fight him. That is the reason we have him here to- night — to give him a warm reception. He always gave us a warm reception. He used to take us and provide for us, and was willing to keep us out of harm's way while hostilities lasted — < unless sooner exchanged. He was always in the front, and his further appearance in the front to- night is a reflection upon the accuracy of our mark- manship. Not knowing how to punish him there, we brought him up to New York and sentenced him to fourteen years of hard labor on the bench. Gentlemen, I introduce to you General Roger A. Pryor. In reply Judge Pryor said: Mr. Chairman 83 84 ESSAYS AND ADDRESSES and Gentlemen — It was the sword of Grant that smote the Confederacy to its fall; and yet I, a Confederate soldier, am pleased in the privilege af- forded me by your invitation of testifying my ap- preciation of his greatness. By the accordant voices of all men in all ages martial achievement constitutes a pre-eminent title to renown ; and it is not for me to gainsay the glory of him whose skill baffled the strategy of Johnston and prevailed over the genius of my own illustrious commander. From Donelson to Vicksburg the campaign of General Grant in the West was an unchequered career of conquest. In the East he effaced from your flag the blemish of a three years' ineffectual effort, and carried it in triumph to the catastrophe at Appomattox. Commencing his career at the be- ginning of the war on a level with the million men you sent to the field, with no power to push his fortunes, with no augury of success attaching to his name, with a modesty that veiled his worth and hindered his advancement, nevertheless, at the end of the arduous struggle he emerged, by merit alone, pre-eminent over all rivalry and the unchallenged chieftain of the armies of the North. That he achieved what all others had failed to accomplish, that, confronted by a foe of unsurpassed courage and constancy, and opposed by leaders with an ability for war unequal only to the attainment of the im- possible, he yet overcame all obstacles and van- quished every antagonist, is enough to associate ESSAYS AND ADDRESSES 85 him with the Caesars and Napoleons in the Pantheon of Immortals. But even more worthy of homage than his mili- tary exploits is the magnanimity with which, in the hour of triumph, he disdained the trophies of vic- tory, and the clemency with which, in the fury of battle, he proffered a helping hand to his fallen foe. There are those who, conceding the distinction of Grant as a soldier, affect to deplore his miscar- riage as a statesman. But when I recall the prob- lems that confronted him as President — the re- pairing of ravages of war — helium plus — quam civile; the repressing the spirit of revolt smothered, but not subdued; the ameliorating the evils of the social and civil convulsion in the South consequent on the emancipation of five million negro slaves and their incorporation into the system of American citizenship ; recollecting, too, the critical altercations with foreign powers inherited by his administration remembering these tremendous troubles, and consid- ering that nevertheless he safely piloted the Republic through all its perils, and delivered it to his suc- cessor unfettered in freedom, undiminished in strength, and undimmed in luster, I do not hesitate to avow the conviction that Grant was as great in peace as in war. Laying aside, however, all his other titles to re- nown, this remains unquestioned and unquestion- able — that this strong arm upheld the Union in the instant of imminent overthrow, and assured it an endless duration of grandeur and glory; and I, a 86 ESSAYS AND ADDRESSES Confederate soldier, proclaim that by the preserva- tion of the Union Grant rendered to the cause of liberty and civilization as transcendent a service as any recorded in the annals of human achievement. And so, by the majestic simplicity of his char- acter ; by his constancy in adversity and his modera- tion in prosperity ; by his genius alike in peace and in war; by the splendor of his deeds in the merid- ian of life, and by his sublime fortitude in the ag- onies of death, Ulysses Grant presents a figure in history before which the coming ages will bow in reverential admiration. THE RECIPROCAL OBLIGATIONS OF THE BENCH AND THE BAR V THE RECIPROCAL OBLIGATIONS OF THE BENCH AND THE BAR [The following address was delivered at the annual dinner of the alumni of the University Law School on April 18, 1895, in response to the toast, "The Blench.''] Mr. Chairman and Gentlemen : The topic naturally suggested by the toast you offer is the reciprocal obligations of the Bench and the Bar. The duty of counsel is by careful re- search and discussion so to present the case, on each side, as to enable the Court to render a right de- cision. In the performance of this function great scope is afforded for the display of learning and ability. The learning, however, should not be abused by an ostentatious prodigality of citation, but be seen only in the production of authorities pertinent and conclusive of the point. Bulk is not always weight; and the attraction of a brief may be in an inverse ratio to its length. And the ability exhibited should be manifest in an orderly marshal- ling of essential facts, in a firm grasp of the prin- ciples involved, in an accurate apprehension of the conflicting analogies, and in an argument clear, com- pact, and cogent. Forensic eloquence, though not of the kind formerly in vogue — florid, copious, and 89 90 ESSAYS AND ADDRESSES declamatory — is still a power, but simple, subdued and severely logical — pure reason aglow with an- imation. The first and indispensable requisite is to engage the attention of the Court; and by no means is this condition so effectually fulfilled as by luminous statement, elegance of diction, methodical arrange- ment of topics, and earnestness of address. I say elegance of diction, because, after all, there is a fas- cination and an effect in mere felicity of phrase ; and I inculcate earnestness of manner, because the Hor- atian precept, " Si vis me Here," is as imperative as ever. Having so presented his client's case, the advo- cate's office is at an end, and the judge occupies the scene with his imposing presence. The duty of the Bench to the Bar is primarily a patient attention to the arguments. " Patience and gravity of hear- ing," says Bacon, " is an essential part of justice, and an overspeaking judge is no well-tuned cym- bal." However able the judge, and however inex- perienced the lawyer, it stands to reason that he who has made a special study of the case must know it better than he to whom it is just presented, and that so something may be learned even from the speech of the least expert advocate. Hence another maxim of the same great authority, namely : " Let not the judge meet the cause halfway, nor give occasion to the party to say his counsel or proofs were not heard." Again, the advocate is entitled to the most respectful treatment by the ESSAYS AND ADDRESSES 91 Court. The amenities of the gentleman are not in- compatible with the dignity of the judge. And this courtesy of the Bench to the Bar should not be pro- portioned to the eminence of the advocate; on the contrary, the younger, the weaker, and the ob- scurer the counsel the clearer his title to deferen- tial encouragement from the Court. It may be more perilous to provoke a duel of wit and disputa- tion with a Choate than with a tyro, but for that very reason the judge should be prompter to chal- lenge Mr. Choate than the tyro. How crushing to modest merit a sneer or a frown from the Court, and how cruel, too! How helpful a word of praise or a look of approval ! The briefs handed in, the judge should study them thoroughly and impartially, so that when he delivers his decision the defeated counsel will say that at all events the Court has tried to do justice. It is not for mortals never to err, and everything will be forgiven to the judge who has sought dili- gently and conscientiously to discover the right. Whether he go wrong from corruption or indo- lence, the miscarriage of justice is the same, and equally oppressive to the suitor. But while gravely meditating the case, the judge need not prolong his deliberation to an Eldonian period of gestation. Curia adirisari vult should not be the synonym of interminable procrastination. In Magna Charta the sale of justice, the denial of jus- tice, and the delay of justice appear in the same category of unpardonable offenses. Indeed, gentle- 92 ESSAYS AND ADDRESSES men, the judicial office is not of dignity only, but of awful responsibility. The dispensing of justice, the righting of wrong, the protection of innocence, the punishment of guilt — these are its functions; and what prudence, what labor, what vigilance, what learning, what courage, what probity, are in- dispensable to their faithful fulfillment! Be as- sured that the Bench has its trials and perplexities, and is not exempt even from the remorse of an un- just decision, though the effect merely of human fallibility. Bear with us, then, I pray you, if, under the strain of our arduous, anxious, and distracting duties, we sometimes lapse into error and occasion- ally give vent to ebullitions of ill-humor. Over the infirmities of the upright judge charity will cast its veil ; and the worth of the magistrate may atone for the weakness of the man. Gentlemen of the Bar, the Bench greets you as brothers. It is only while the ermine is on that we assert the superiority of position. Descending from our official station, we stand on a level with the most recent of Dr. Abbott's graduates, and we solicit from them the familiarities of an equal friendship. Meanwhile, we invoke for you, one and all, the ut- most fortune of the profession. Dat Galenas opes, dat Justitianus honor es; wealth is not the reward of the lawyer, but by noble endeavor he may attain a better prize — a name of renown and an influence for good. VI THE BAR AND FORENSIC ORATORY VI THE BAR AND FORENSIC ORATORY [Address to the graduating class of the Albany Law School-] Mr. President, and Gentlemen of the Grad- uating Class : The invitation with which you have honored me imposes an obligation which I know not how other- wise so effectually to discharge as by communicating to you the results of my observation of the means by which success at the bar is most surely achieved. You pause to-day at a critical stage of your pro- fessional career, when abandoned by the guidance of the wise and faithful preceptors who have con- ducted you hitherto, you are left to your own re- sources and to the direction of your own judgment, in the pursuit of the prize so eagerly coveted and yet so difficult of attainment. What if one who himself has run the race and has missed the goal; who, mindful of the infirmi- ties and limitations that hindered his efforts, and yet observant of the arts by which more skillful competitors have grasped the reward; what if he should generalize his experience in lessons of prac- tical utility to the adventurous but untried advo- cate — would you not accept the hand so extended to you, as of more help than any declamation, how- 95 96 ESSAYS AND ADDRESSES ever eloquent, upon any theme however fraught with interest and excitement? I will not affect to disguise from you the labors and difficulties that beset the path upon which you are about to enter. " The immortal garland is not to be run for with- out dust and heat," and the victory you are to achieve will be the crown and recompense of in- finite toil; of obstacles overcome; of high faculties exerted to the utmost effect ; of many a miscarriage and much humiliation; of the solicitations of pleas- ure spurned for nobler but less attractive objects of desire; of a life consecrated in all its energies to the single aim of eminence and distinction in your chosen profession. But to the aspiring and reso- lute spirit the frown of difficulty and danger is but a challenge to increase of exertion, and the trumpet call of ambition of more potency than all the beck- oning blandishments of indolence and ease. To sustain, then, the efforts and privations ex- acted as the condition of success at the bar, you must be animated by an enthusiasm for your pro- fession — an enthusiasm born not merely of a pas- sion for its distinctions, but nourished as well by an eager and insatiate delight in the study of the law. An avidity for the prizes of the profession is undoubtedly a powerful impulse in its pursuit, but the more constant as well as the nobler motive is a love for the profession itself. If you have em- braced the law with the ardor of a genuine affec- tion; if you be truly enamored of her austere and ESSAYS AND ADDRESSES 97 rugged beauties ; if you be resolved to woo her with the assiduity of a heartfelt devotion: be assured that you will win her, and that she will repay your fidelity by a revelation of charms which she dis- covers only to her unselfish suitors, and by a frui- tion of reward which no other profession so pro- fusely lavishes upon its votaries. ' If you love me you will find me out," was the animating assurance of the fair doctor of Padua; and Tully tells us that ' without a passionate inclination and an ardor like that of love, no man ever achieved anything great, especially distinction as an advocate." Enthusiasm, I repeat with emphasis — enthusiasm in the study of your profession is the first and fundamental con- dition O'f success in its pursuit. Enthusiasm, however, is but an incitement and support under the labors requisite for the attain- ment of the prizes of the profession. It is possible by sheer force of audacity, and the trick of a ready wit and the persuasions of a facile and fluent oratory, to masquerade awhile as a lawyer, and attract to one's self a profitable clien- tele; but without solid and extensive learning in the profession one cannot achieve a real and enduring eminence at the bar, nor long impose a fictitious reputation upon the public. For soon the preten- sions of the charlatan will be exploded by his mis- leading advice and the miscarriage of his causes ; and his deceived and ruined clients will apply, per- haps too late, to some competent lawyer for the reparation of their fortunes. 98 ESSAYS AND ADDRESSES How, then, are you to acquire this indispensable knowledge of your profession? Not otherwise, be persuaded, than by your faculties. It was the idle vaunt of an advocate of antiquity, as distinguished by vanity as by eloquence, that he could master the civil law in three days; but the conceit even of Ci- cero would have been abashed in the presence of the immense mass of jurisprudence extant in the age of Justinian. With the progressive development of civilization society becomes more complex, and the relations and transactions of life indefinitely multiply; and as over every relation and transaction of life a principle of law presides, we need not marvel at the compass and intricacy of jurisprudence at this ad- vanced age and in this enlightened country. The short and simple code which sufficed the necessi- ties of our rude forefathers in the parent country is expanded to the bulk of the immense and elabor- ate system with which you are to grapple. But indeed no finite intelligence can comprehend com- pletely the infinite volume and complexity of the law in this our day — nor, happily, is so impossible an attainment exacted of you. In practice you will — indeed you must — i address and restrict your- selves to some special departments of jurisprudence, and while with the learning of these you will fa- miliarly acquaint yourselves, of other outlying prov- inces you will be content to know the general scope and characteristic features. But to whatever branch of the profession you ESSAYS AND ADDRESSES 99 confine your practice, you must be conversant with the law of evidence and procedure, for the rules of evidence and procedure are prevalent over the entire field of jurisprudence. Limited, however, as your researches will be, you cannot become pro- ficient in any department of the law except on the condition of diligent, devoted, conscientious study; and given an equivalency of intellectual endowment, the success of competitors for forensic distinction will be in the proportion of their respective attain- ments in legal learning. Obviously, then, it is of supreme moment to the aspirant for forensic eminence that he pursue that method of study which shall yield him the largest results in useful and abiding acquisitions. I assume that your diploma authenticates your acquaintance with the principles of jurisprudence; and yet throughout your professional career you will need to have habitual recourse to the works of the master authors. For perusal of such systematic treatises not only refreshes the memory, but is of especial utility in improving the style, in training the faculties, and in methodizing your learning. But for these results it is necessary that you be conversant with books of real merit only, lest by familiarity with inferior writers your learning be vitiated by error, your taste corrupted, and your habit of thought degenerate into a loose and desul- tory succession of unconnected propositions. I could name authors — of no mean pretensions too — ■ whose works are so destitute of every literary ioo ESSAYS AND ADDRESSES excellence, and of every logical process, that the only safeguard against their evil influence upon the mental discipline is in their dullness, which repels perusal. On the other hand, the literature of the law abounds in models and masterpieces of rhe- torical art, of correct reasoning, and of scientific method — works which at once inform the under- standing, delight the literary sensibilties, and de- velop the faculty of argument. To the too-frequent selection of works of the former class as text-books in our schools I impute much of the repugnance to the study of the law evinced even by men of su- perior abilities; and I cannot but believe that, if the student were introduced to the profession under the auspices of the great masters, the fascinations of their genius would impel him to its pursuit with in- terest and avidity. It is, however, to the Reports that the practicing lawyer will have the most frequent and familiar re- course — i mainly, no doubt, because there only can be found an authoritative exposition of the rule of law that is to furnish the solution of the case in hand, but also because of the value of the study of Reports in the scheme of professional training. I know not a more profitable or more pleasing intel- lectual exercise than is afforded by the reading of cases in our best Reports. In the first place, the statement of the case in an instructive lesson upon that most important and at the same time most diffi- cult feat of forensic oratory — opus oratorium maxime; I mean a lucid presentation of the facts ESSAYS AND ADDRESSES 101 upon which hinges the event of the litigation. Here we find omitted no single circumstance which bears upon the point in controversy; and no single circumstance introduced which, being irrelevant to that point, confuses the mind and, possibly, diverts it from the issue in agitation. Then, too, the es- sential facts are developed in due sequence and de- pendency, so as to conduct to the legal conclusion as by the force of an irrefragable syllogism. From the darkness and confusion of chaos to educe light and order is the achievement of omnipo- tence ; and, in like manner, from a mass of compli- cated and discordant circumstances to cull out and collect the essential elements into a symmetrical and complete body of fact, luminous as the orb of day, is the highest exploit of the human intelligence, as illustrated by a Mansfield and a Marshall. With- out a perfect apprehension of the circumstances of a case, — analogous to the diagnosis of the physi- cian, — it is impossible to subject it to scientific classification, and to know by what principle of law it is governed ; and hence the ability to master and to marshal facts is the most useful and not the least admirable art in the equipment of the lawyer. Now by no means can this indispensable faculty be so effectually disciplined and developed as by study of the statements of competent reporters. The syllabus of such a reporter is in itself replete with interest and instruction — as an exposition in the shortest and clearest compass of the principles which legal reason evolves from the circumstances of 102 ESSAYS AND ADDRESSES the case. But it is as an auxiliary in the culture of the logical faculty that the Report is of especial utility to the student, in so much that the great master of dialectics recommended Smith's Leading Cases as the best lesson in the processes of ratiocin- ation. The subtle analysis, the compact force, the delicate perception of analogy, the comprehensive grasp, and the elegant diction exhibited in the opin- ions of a Folger and a Rapallo — I speak of the de- parted only — incessantly meditated and anxiously emulated, can not but communicate to the student somewhat of the same superlative power of legal argumentation, and somewhat of the same felicity of expression and illustration. It is, then, by reading, by the study of books, and not otherwise, that the lawyer can so equip him- self for his profession as to secure the reward after which he aspires. But how shall he read? Is there an art of study by which the largest fund of information can be acquired with a minimum expenditure of labor? Obviously the same amount of mental power ex- erted during the same period, even by the same in- dividual, does not always yield equal results. And the disparity is still more apparent between the ac- quisitions of different persons, though of equivalent capacities. It follows, therefore, that there are conditions propitious and unpropitious to fruitful study. Accordingly, from Ouintilian to the present day teachers have been formulating precepts for the conduct of the understanding in the acquisition of ESSAYS AND ADDRESSES 103 knowledge. The one-book maxim, niultum legcre, non iiuilta, — little reading and much reflection, — was zealously inculcated by Hobbes and Locke, while on the other hand other instructors of equal eminence and authority have, both by doctrine and example, il- lustrated the advantages of omnivorous reading. My own observation is that, while the hclluo libro- rum may be a prodigy of erudition, his capacity of reception is developed at the expense of his active powers, and that he is not apt to be expert and ef- ficient in the use of his materials. Obviously, as a thorough mastery of a few books in each depart- ment of the law implies not only readier but ampler acquisitions of learning than can be accumulated by a discursive expatiation over a multitude of vol- umes, he who perfectly knows Kent's Commen- taries, for example, has in his head more law than is at the instant command of any man in the pro- fession; and then his learning, instead of being an undigested mass, is so classified and distributed in the memory, and is so incorporated into his mental constitution, as to be always available for use and application. But by what method may the student best fix and fasten in his mind the matter of the volumes he reads? One great authority, Dr. Johnson, advises trusting to memory alone, — arguing that a memor- andum onlv transfers the impression to paper, and so discharges the mind from the obligation of recol- lection, — 1 while Professor Bain inculcates the utility of abstracts and annotations for the acquisition of 104 ESSAYS AND ADDRESSES a clear and firm conception of the contents of the book. These two processes, you will remember, were combined in the education of the prince of orators, who, by transcribing Thucydides eight times, not only held the entire work verbatim in his mind, but absorbed and assimilated every particle of intellectual nourishment to be derived from that rich storehouse of eloquence and philosophy. For a plan of study my own experience suggests that one subject at the time be grappled and mas- tered, and that to this end you read the best author by whom the topic is treated, in connection with the principal cases by which it is illustrated and ap- plied ; and that then you reproduce from memory a synopsis or summary of your acquisitions. By this procedure you will at once concentrate your faculties, systematize your learning and imprint it indelibly upon the mind. And as to the method of reading, I would incul- cate that you pause upon a sentence until you com- pletely apprehend its meaning, and upon every argu- ment until you clearly perceive its processes ; for not to understand is not to learn ; and, besides, an habitual acquiescence in dim and vague conceptions inevitably darkens and debilitates the intellect. Hence I would earnestly admonish you of the fu- tility and evil of excessive study, since when the mind is fatigued it grasps nothing firmly and ten- aciously; and the habit of listlessly wandering over the pages of a book is fatal to all intensity of appli- cation and capacity of acquisition. Only when the ESSAYS AND ADDRESSES 105 attention is awake and the faculties fresh and alert can you read with effect, and to read without result is at once a waste of time and a depravation of the intellect. The moment you perceive that the mind refuses to take hold; the moment that the spur is necessary to stimulate its flagging energies; the moment you feel a vacillation and vagrancy of at- tention, — that instant lay aside your book, and for refreshment betake yourself to that best of re- storatives, the delights of literature. For repose is not always recreation ; and when the reason is weary it is best recuperated by the play of the facul- ties of taste and imagination. And yet, after all, it is a distressing reflection to the student how little he remembers of what he reads. It is the remark of a celebrated author — himself a man of uncommon erudition — that " he who remembers most, remembers little compared with what he forgets " ; but he adds the encouraging admonition — " Do not resign all hopes of improve- ment because you do not retain what even the author himself has perhaps forgotten." So import- ant a faculty is memory, that Ouintilian esteemed it the equivalent of genius, — tantiim ingenii quan- tum mcmoria, — and to the lawyer it is perhaps the most indispensable of mental powers. Many expedients are employed to fix the results of reading in the mind ; but, after all, " the true art of memory is the art of attention." What we have read with interest we remember — and we remem- ber it because its interest engaged our attention. 106 ESSAYS AND ADDRESSES The vivid and enduring recollections of childhood and the forgetfulness of old age are equally pro- verbial, but the boy remembers because the inter- esting novelties of the world absorb his attention, and the octogenarian forgets because he has ceased to observe with interest the, to him, familiar and fading incidents of life. If, therefore, you con- centrate your attention upon the book in hand, and afterward revolve its contents in frequent medita- tion, you will retain them without the aid of any artifice of mnemonics. In that invaluable guide to the student, — Locke's tractate On the Conduct of the Understanding, — it is written that " reading furnishes the mind with the materials of knowledge, but it is thinking that makes what we read our own"; to which add Bacon's injunction of frequent conference on the subject of our reading, and you have the precepts of the best teachers on the art of study. Be assured that a system of study conducted on these principles and pursued with diligence will soon sufficiently accomplish you in the learning of the profession. Equipped now with competent learning in the profession, you come to apply your knowledge in the conduct of causes. But here precepts are of slight utility for your guidance, since skill in the trial of causes is not to be taught by art, but is to be acquired only by experience. The dearth of treatises on the subject attests their uselessness. It is a curious fact, by the way, that the best rules ESSAYS AND ADDRESSES 107 for the examination of witnesses were propounded nineteen centuries ago by the author of the Insti- tutes of Oratory, and in modern times by a learned prelate of the Church of England — I mean Arch- bishop Whateley, in his book upon rhetoric. It is obvious to remark that, before engaging in a trial, you must be thoroughly master of the law and the facts of the case ; that you know in advance what your own witnesses will testify; and, if pos- sible, anticipate the evidence of your adversary; that you never propound a question without a def- inite and predetermined purpose ; that upon cross- examination especially you ask no question an an- swer to which may harm more than it can help you ; that you avoid leading an adverse witness to repeat his testimony in chief, for most certainly he will strengthen it, and with the effect of a recoil of your own engine ; that you preserve throughout perfect self-possession and control of your faculties; that you be not prematurely elated by an apparent ad- vantage, nor depressed or embarrassed by a sudden discomfiture ; that you watch the vicissitudes of the trial with a sleepless vigilance; that you keep stead- ily and constantly in view the object of your exer- tion, namely, the success of your cause; that to that end all your efforts — every look, every action, every word — be directed ; that toward witnesses, hostile as well as friendly, you be uniformly courte- ous ; that with your opponent you observe all the punctilios of chivalric debate; that to the jury you be respectful but not adulatory, and to the Court 108 ESSAYS AND ADDRESSES deferential but not obsequious; above all, that you maintain a perfect equability of temper, for when an advocate loses his temper he has already lost his cause. The constituent elements of forensic genius are identical with those of the military — " untroubled perspicacity in confusion, firm decision, rapid execu- tion, providence against attack, fertility of resource, and stratagem." With these very general — and because general, sterile, — precepts for the conduct of trials, I pass to the consideration of the crown and consumma- tion of professional excellence — I mean forensic oratory. That the eloquence of the bar has lost its ancient luster is the mournful refrain of the laudator tcm- poris acli. Where now, he cries, are the Pinkneys and Wirts, the Emmets and Hoffmans, whose ora- tions, enriched by the spoils of literature and radiant with the colors of fancy, and glowing with the fires of passion, and resounding in the accents of a soul- stirring declamation, held enraptured audiences as by a spell of enchantment? And because of these none now survives, he concludes that forensic ora- tory has declined from its high estate; and because such eloquence is no longer extant, he infers that eloquence at the bar is no more in request. But the inference is invalidated by the assumption of the premise. The fact is, not that the eloquence of the bar has deteriorated, but rather that it has under- gone a modification. When men were more under ESSAYS AND ADDRESSES 109 the dominion of emotion and imagination, they were affected by a style of oratory very different from that which prevails with a mind dominated by reason and intent upon the prosiac realities of every-day business ; but it is still true that eloquence is the art of persuasion, and that persuasion is the specific function of the advocate. The truth, then, is not that eloquence is a useless instrument for the lawyer, but that his purposes now require a different species of oratory from that which his predecessor found of such prevalent power; and that, instead of the passionate appeal and tropical luxuriance of a former day, he per- ceives that sobriety of statement and severity of logic are of more efficacy for conviction and in swaying enlightened and disciplined judgments to his ends. Nevertheless these are precisely the character- istics of the loftiest strain of forensic eloquence — for where else are displayed so close a grapple of the subject of discussion, such argumentative force, such austere disdain of tinsel embellishment, such concise simplicity of expression, as in the immortal oration on the Crown? And, in Erskine's argu- ment in support of the Rights of Juries, the same quality of pure intellectual power, the same contempt of meretricious ornament, and the same abstention from declamatory appeal, are conspicuous ; and yet this address to the Court is the highest effort of forensic oratory. Concede, then, that there is no longer a call for no ESSAYS AND ADDRESSES mere flourishes of rhetoric; still in the contentions of the bar at the present day there is ample scope and exigent occasion for eloquence in the truest sense — the power of persuasion. The ultimate object being to gain your cause, then, whether that end be to be compassed by con- viction of the reason or by influence upon the feel- ings, it is an indispensable condition of success that you secure and retain the attention of the tribunal addressed ; otherwise the most powerful argument and the most moving appeal will be but an idle ex- penditure of breath. Now, nothing so effectually arrests attention as a visible earnestness of manner, revealed in tone, look and gesture — a passion for your cause, subdued but palpitating in every organ of expression. A frigid indifference in the speaker communicates its own languor to the hearers ; but his vivacity inflames them with a responsive animation. Mere intensity of feeling, however, will speedily fatigue and repel attention unless it be retained and rewarded by a commensurate excellence in the form and substance of the discourse. A lucid and logical arrangement of topics — so perspicuous as instantly to reveal their own signif- icance and force ; a diction choice but not fastidious, rich yet not redundant; an exhibition of learning short of pedantry, but sufficient for information ; a concatenation of argument, compact and convinc- ing; and an elocution graceful, animated, and earn- est — these are the qualities of speech by the concen- trated spell of which even the most austere and im- ESSAYS AND ADDRESSES in patient court will be fascinated into an involuntary thralldom. With the learning requisite for the material of argument your professional reading will supply you ; logic will teach you the art of sound reasoning; moral philosophy will unveil to you the mysteries of the human heart and enable you to touch the springs of human passion ; that copious and elegant vocabulary which is not only the fit and felicitous vehicle of worthy thought, but is in itself a beauty and a power, you will acquire by habitual converse with the classics of our language ; the wealth and delicacy of fancy from which even a forensic dis- putation may borrow appropriate embellishment and interest, aye, and efficacy too, — for it is the feather that wings the arrow to the mark, — this exquisite charm of oratory will be imparted to you by the munificent matters of romance and poesy. The aim of oratory being immediate impression upon the audience, it results that its excellence is to be measured by its effect, and not by its conform- ity to the canons of criticism. The composition may be brilliant as a literary performance and yet altogether ineffectual as an oral address — it may be magnificent, but not oratory. Such were the splendid disquisitions of Edmund Burke — read even now with infinite admiration of their deep philosophy, their gorgeous imagery, and the im- perial beauties of their style, but heard at the time only by the few to whom the dinner bell did not offer more persuasive attractions. Such, too, was ii2 ESSAYS AND ADDRESSES the speech of Sir James Macintosh in defense of Peltier, which, superb as an essay on the freedom of the press, was so devoid of oratorical effect that it failed to avert the conviction of a client in whose favor concurred the pride of patriotism and the indulgent sympathies of the jury. Obviously a composition submitted for perusal in the seclusion of the closet, addressed to a cool and critical judgment, and subject to the recurrences of revision and the pauses of meditation, exacts a per- fection of structure that shall satisfy the scruples of a prolonged and patient scrutiny, and allows of a subtility of argumentation, an elliptical brevity of expression, and a subdued moderation of tone and color which would be altogether inappropriate in spoken discourse; spoken discourse, of which the meaning must be apprehended in the instant or else be lost in the onward rush of thought and feeling — in which the nicer and more delicate felicities of style either escape observation or provoke reproof for lack of harmony with the serious business of the occasion, and to which an exaltation of passion is communicated by the contagious sympathies of the audience. So diverse and incompatible indeed are the re- quisites of written and oral composition, that Fox's test of a speech was, Does it read well? for if it reads well, then it is not a good speech. And here permit me to mention a circumstance which, as I conceive, largely explains the decadence of spoken eloquence at the present day — I mean the ESSAYS AND ADDRESSES 113 presence of the stenographer. It is to him rather than to the audience that the orator addresses him- self; and, solicitous about the critical judgment of the newspaper reader, he is inattentive to the condi- tions of immediate effect upon his audience. A gentleman of long service in the Federal Senate tells me that it is a common remark that the debates in secret session are far superior to those in public, and the cause is the absence of the reporter. The characteristic qualities of oral eloquence, es- pecially at the bar, are dictated by its end and oc- casion, namely, to sweep along the judgments and the feelings toward a definite conclusion ; and hence that " agonistical " style, as the father of philo- sophical criticism distinguishes it — negatively, an abhorrence of the ornate and the glittering, of the pompous and the florid, of brilliant paradox, of turgid nonsense, of all the elaborate artifices of rhe- toric; positively, a steady and swift pursuit of the object in view, impassioned appeal, indignant excla- mation, defiant interrogation, argument condensed into self-evident and epigrammatic propositions rather than drawn out into a chain of consecutive ratiocination, amplification, and repetition under varied aspects of the salient points, a homely and idiomatic diction — all quivering with the vivacity and animation of an earnest and glowing spirit — these are the qualities of speech which constitute true and effective eloquence. Now, how are these excellencies of oratory to be acquired? For if it be true of the poet that he is ii 4 ESSAYS AND ADDRESSES such by the inborn prerogative of genius, it is other- wise with the orator; who, whatever his native en- dowments, must still be disciplined into proficiency by assiduous culture; and who on the other hand, howsoever embarrassed and impeded by original in- firmities, may yet, like Demosthenes, attain by ar- duous endeavor to the highest perfection of elo- quence. Of all our faculties, probably that of ef- fective public speech is the most susceptible of growth and development, and like other faculties, it is best cultivated by use and imitation. It was by speaking at least once every night dur- ing the session of Parliament that the greatest of debaters declared that he acquired his unrivaled ability. If, then, you would become an orator, be per- suaded that only by practice in public speaking can you command the self-possession, the prompt con- ception, the fluency and felicity of expression and the grace of delivery that are essential to the char- acter. Practice alone, however, only gives freedom and facility to the operation of your powers; and if you would augment those powers and wield them to the utmost effect, you must enrich and invigorate your- selves from the resources of the great masters of oratory. A constant contemplation of the ideals of eloquence not only exalts the mind to a kindred emulation, but insensibly instructs it in the arts of an equal achievement. So, by the play of its pinions in preparatory ex- ESSAYS AND ADDRESSES 115 cursions, and by watching the mother bird in her loftier nights, the young eagle is trained and em- boldened to pierce the empyrean and soar amid the glories of the highest heaven. Happily for every purpose of instruction and emulation our literature is rich in all the models of oratory. In forensic eloquence the arguments of Erskine, in Parliamentary eloquence the speeches of Macaulay, in pulpit eloquence the sermons of Rob- ert Hall, in popular eloquence the harangues of O'Connell — exhibit to us all the resources of ora- tory in the utmost plenitude of genius. Nor need we travel abroad for examples and illus- trations of forensic oratory in its highest perfec- tion; for in the sublime passion of Patrick Henry, in the gorgeous vehemence of Choate, in the brilliant and abounding fancy of Prentiss, and in the majes- tic simplicity of Webster, we find at home every beauty and every power of eloquence, displayed with an effect not inferior to the achievements of the mighty masters of antiquity. But whatever the intrinsic beauty and power of the production, it is still an inert energy until oral utterance gives it the life and movement of an actual force. The characteristic excellence of a speech, as dis- tinguished from a written composition, consists in the delivery — and assuredly the whole effect of a speech depends upon its delivery. Hence the em- phasis with which, by practice as well as by precept — by practice in the untiring endeavor to catch n6 ESSAYS AND ADDRESSES every grace of elocution; by precept in inculcating action as the first and the second and the third requisite of effective eloquence — hence the empha- sis with which the prince of orators urged the im- portance of delivery in the art of eloquence. And his great adversary bore equal testimony to the effect of delivery, when to the Rhodians, who ap- plauded his rehearsal of Demosthenes' oration, he exclaimed, " Could you have heard him deliver it ! ' Of the efficacy and value of delivery — ^compre- hending tone, look, and gesture — we have an in- teresting example in the preaching of Whitefield, whose sermons, though intrinsically of little or no worth, caught from the magic of his action and his voice an eloquence that thrilled the skeptical Boling- broke, that extorted applause from the fastidious Hume, and that warmed even the cool and cautious Franklin into a glow of involuntary enthusiasm. Precepts, I fear, are of little avail to the attain- ment of excellence in delivery; but these are too obvious to escape remark — distinctness of articu- lation, correctness of pronunciation, due modula- tion of voice, earnestness of manner, and a vivid animation of action. By all means in speaking banish every thought of self, and abandon yourself to the enthusiasm of the argument ; for though you may be thus betrayed into some eccentricities or extravagances, still they are your own, they are true to nature, and 'tis the touch of nature that kindles the sympathy of a kindred emotion. A frigid formality of delivery, however ESSAYS AND ADDRESSES 117 conformable to the rules of art, is incompatible with all the effects of eloquence. Especially abstain from any verbal preparation of your discourse; for, be- sides that, if you have the thought it will leap into life by the appropriate expression — provisam rem verba sequenter. The least appearance of utterance from! memory is fatal to the spontaneity in which consists all the enchanting illusions of eloquence. Animated by a generous enthusiasm for the law, expert in the tactics of a trial, enriched by judicious study with the learning of the profession, and ac- complished by appropriate culture in the art of elo- quence, you will win the renown extolled by the great master as the consummate distinction of the bar — of being " the first lawyer among orators and the first orator among lawyers." Gentlemen, the calling with which you have chosen to link the destinies of your life is indeed a noble vocation. Charged with the conservation of the highest and dearest interests of humanity, — 1 the property, the character, the happiness, the liberty, the life of the citizen, — the consciousness of so lofty a commission cannot but impart to the pro- fession a commensurate elevation of thought and expansion of sympathies. Constrained by the variety of problems submit- ted for its solution to expatiate over the whole em- pire of civilization, it is dignified and adorned by all the learning within the reach of the human intelli- gence. Its end and aim being the chastisement of wrong n8 ESSAYS AND ADDRESSES and the vindication of right, its abstract studies and its habitual practice alike conduce to the educa- tion of the moral nature in conformity with the highest and purest ideals of justice. The scourge of triumphant iniquity and the refuge of oppressed innocence, its transcendent func- tions require an ability which no craft can baffle and an eloquence which no heart can resist. To be worthy of association in so noble a guild is proof sufficient of genius and virtue ; and so to be worthy, I doubt not, will be your endeavor through- out the career upon the commencement of which I beg to bestow my heart- felt benediction. VII INFLUENCE OF VIRGINIA IN THE FORMA- TION OF THE FEDERAL CONSTITUTION VII INFLUENCE OF VIRGINIA IN THE FORMA- TION OF THE FEDERAL CONSTITUTION [ The address before the Virginia Bar Association, published by the Association, is inserted in this collection upon the sup- position that the reader will be interested in the evolution of the Federal Constitution as framed by the fathers and ex- pounded by Marshall ; not, as it is now become, the supreme autocracy of the Executive, usurping the functions of other departments and nullifying the essential rights of the States. Surely, it is opportune to recall the fundamental postulates, that the departments of Government are co-ordinate and inde- pendent: and that the principle of our political system is " In- destructible union of indestructible States."] Mr. President and Gentlemen of the Virginia State Bar Association Although I live under another sky, remote from my native State, my heart, unchanged, is still true to the Commonwealth of Virginia. Her renown I cherish as a priceless heritage, and any derogation from her glory I feel as a filial bereavement. The eminence already attained by the American Republic in the rank of ruling Powers, its manifest destiny of illimitable expansion and indefinite dura- tion, and the coincidence it exhibits of public order with individual freedom, naturally attracts attention to the policy of which the effects are so prodigious and beneficent. Hence the interest, everywhere 121 122 ESSAYS AND ADDRESSES apparent, in the Constitution of the Federal Govern- ment. Political philosophers the world over have subjected it to the keenest criticism; and yet it chal- lenges unbounded and well-nigh universal applause. " It is the greatest refinement in social policy," de- clares Lord Brougham, " to which any state of cir- cumstances has ever given rise, or to which any age has given birth." With equal enthusiasm Mr. Glad- stone pronounces it " the most wonderful work ever struck off at a given time by the brain and purpose of man." And Mr. Bryce, in a strain of less fervid and more discriminating admiration, esteems it " above every other written constitution for the in- trinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details." A rivalry of pretension to the authorship of a sys- tem of government so successful and so celebrated was inevitable, as time effaced the traces of its origin. Immediately after the event, indeed, the credit of its construction was awarded to Virginia by common consent; but latterly indications of an effort to despoil her of the distinction are visible in many directions. The task I propose to myself, in requital of your kindness, is to reassert the rightful claim of Virginia, and to vindicate it by the unim- peachable evidence of history. The genesis of the supreme law, I assume, is an interesting subject of research with lawyers ; proof that the Federal Constitution is essentially the off- ESSAYS AND ADDRESSES 123 spring of Virginia cannot be an ungrateful offering to Virginians. If I recount incidents familiar to Virginians, they are incidents of which Virginians should never be weary in the recollection. For a time, as implied by Mr. Gladstone, the no- tion prevailed that the Federal Constitution was the conception and achievement of the convention of 1787; but now the accepted and the more scien- tific theory is, that it was not a creation, but an evo- lution — the normal and inevitable outgrowth of the antecedent political conditions of the country. Contemplated, however, in either aspect, whether as a design or a development, the influence of Virginia in its formation is equally conspicuous and decisive. If we view it as the product of the past, it embodies the spirit, the ideas, and the institutions of Virginia. If we take it as a contrivance of policy, we still see it formed and finished by the hand of Virginia. The colonists of Virginia were English, and they brought with them from their ancestral home the political instincts and traditions of that masterful race. In 16 19, a year before the Mayflower skirted the coast of Massachusetts, the Virginians inaugur- ated representative government on the American continent, " and this example," says Story, " of a domestic parliament to regulate all the internal con- cerns of the country was never lost sight of, but was afterward cherished throughout America as the dearest birthright of freemen." Insisting upon the privilege of self-government, on the 21st of June, 1 62 1, the Virginians extorted the concessions that 124 ESSAYS AND ADDRESSES " no orders of court shall bind the said colony un- less they be ratified by the General Assemblies." They asserted the right of self-taxation and con- trol of the public purse, protesting, in 1624, that " the Governor shall not lay any imposition upon the colony, their lands or commodities, otherwise than by the authority of the General Assembly, and employed as the said Assembly shall appoint." Though loyal to the King, in 1635 they " thrust out ' : his governor for encroachment upon their rights, and substituted successors of their own choosing. Nay, after the downfall of monarchy they confronted Cromwell himself, and only yielded to his usurpation upon an honorable capitulation, acknowledging their submission as " a voluntary act, not forced or constrained by conquest,"' and guaran- teeing them " such freedom and privileges as be- long to the freeborn people of England.'' After the Restoration they broke out in open rebellion against the oppressions of government, and antic- ipated by a century the final and victorious strug- gle for the liberties of America. On the untimely death of their leader — the well-born, the gallant, the accomplished, the eloquent Bacon — their re- volt was quenched in blood ; but, even so, without any surrender of their chartered rights. A long period of repose ensued, during which Virginia accumulated wealth, multiplied in popula- tion, reinforced her native virtues by incorporating in her community the Scotch-Irish Presbyterians and the German Lutherans of the Valley, and em- ESSAYS AND ADDRESSES 125 bellished her material form with the social graces and the refinements of learning. And yet the ener- gies of her nature were not relaxed by the luxuries of an epicurean life; but, instead, were braced and disciplined in combats with her savage neighbor and conflicts with a more formidable foe. The victory of Point Pleasant and the defeat on the Mononga- hela attested equally her readiness for the imminent grapple with the power of Great Britain. So, in 1765, English as she was in affection and upon principle, by her resolutions against the Stamp Act, testifying her ancient and unalterable attach- ment to self-government, she sounded to her sister States the signal of resistance to foreign aggression. In 1773, by her committee of correspondence, she invited them to union in the common cause; and she insured that union by a call of the General Congress. Her leadership in the great movement was recog- nized by the appointment of Peyton Randolph to the head of the civil and George Washington to the head of the military establishment. On the 15th of May, 1776, she instructed her delegates in the Congress to propose a definitive renunciation of al- legiance to the British Crown; and, accordingly, on the 7th of June Richard Henry Lee, in her be- half, moved the resolution that " the united Colon- ies are and ought to be free and independent States." The resolution passed, Thomas Jefferson announced the advent of the new nation in his immortal mani- festo. Meanwhile, on the 15th of May, 1776, Vir- ginia alone, and of her own volition, outrunning the 126 ESSAYS AND ADDRESSES initiative of Congress, abjured her old allegiance and assumed the attitude of an independent State. On the 1 2th of June her Declaration of Rights and, on the 29th, her plan of government were adopted — the first instance in recorded history of a written constitution for a free and independent community enacted by the sovereign will of the people. This memorable performance, be it observed, was not anticipated by the so-called constitutions of New Hampshire and South Carolina ; because, first, they did not purport to be systems of government, but merely provisional expedients, a sort of modus vivendi — " to continue," as they are careful to pro- test, " only during the present unhappy and unnat- ural contest with Great Britain ; " and because, sec- ondly, as organic laws they were essentially defec- tive in collecting the total political power in a single legislative body, and in providing no security for the inalienable rights of the people. Far different was the constitution of Virginia. Avowedly the fundamental law of a free and sov- ereign State reposing ultimately on the basis of the popular suffrage; with a single executive, a bi-cam- eral legislature, an independent judiciary, and a Bill of Rights defining and safeguarding the immunities of the citizen, it presented a system of republican polity perfect in principle and complete in detail — the grand original of all subsequent State constitu- tions, and the model, as will be seen, to which the architects of the Federal government had recourse. In order to an adequate appreciation of the ESSAYS AND ADDRESSES 127 agency of Virginia in the formation of the Federal Constitution, it is requisite that we recall two events in her history under the Articles of Confed- eration. The acceptance of those Articles was hindered by the reluctance of the recusant States to be over- borne by the preponderance of Virginia resulting from the disproportionate extent of her territory, and by a desire to partake the benefit of that terri- tory. They demanded, as the condition of their accession to the confederacy, that this domain should be the dowry of the nation, instead of the in- vidious possession of a single State. Now, the right of Virginia to the Northwestern territory was clear and incontestable, because held by the two- fold title of charter and conquest. Waiving the claim by charter, still the territory was the acquisi- tion of her own valor and genius; and this, too, while she was contributing her contingent in troops and supplies to the maintenance of the common cause. The expedition of George Rogers Clark was her enterprise, was sustained by her resources, and was conducted to a successful issue without succor, or sympathy even, from the States which now coveted an equal participation in the advantages of the conquest. In her grasp on the conclusion of peace, it was assured to her by the principle of the treaty — uti possidetis. It was a region not only of immense expanse, but of a salutary climate and fabulous fertility; and had Virginia, yielding to self- ish motive, declined to contribute it to the Union, 128 ESSAYS AND ADDRESSES her scepter would have had an empire for its sup- port. But such illiberal propensity was not in her nature; instead, rather a generous disdain of per- sonal interest in competition with the claims of country — and accordingly this princely domain she offered an oblation on the alter of patriotism. Thus did she sacrifice to the common weal the domain out of which were carved the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin. By this act of unparalleled magnanimity Virginia not only re- moved an obstacle to the completion of the confed- eracy, but supplied an imperious motive to a closer and firmer compact between the States. With such a wealth of empire the common property of the States, which one would forfeit its portion by seces- sion from the partnership? Indeed, this gift by Virginia was a mighty cement of union. And more, in order to an effectual rule over so vast a region, a larger and more energetic action by the general government was necessary; — to which, again, a reformed and reinvigorated constitution was an indispensable condition. So it was that Virginia held together the States during the critical period of the confederation, and by the application of an urgent interest spurred them on to a more intimate connection. By another act of less but still important conse- quence, Virginia contributed to the aggrandizement of the Federal power. Under the guidance of Jay the Eastern States signified their assent to the oc- clusion of the Mississippi River by the Spanish gov- ESSAYS AND ADDRESSES 129 ernment. This highway of access to the ocean closed to the enterprise of the great Valley, its treas- ures were locked up in sterile torpor ; population re- pelled ; a barrier interposed to the westward expan- sion of our empire, and the American republic dwarfed and diminished to an attenuated thread of States along the Atlantic seaboard. But Virginia, with a larger patriotism, and a more prophetic fore- sight, by her relentless resistance intercepted the ill- omened policy and secured eventually to the nascent nation a continent for the consummation of its ulti- mate grandeur. Such now were the magnitude and variety of in- terests soliciting the guardianship of Federal author- ity, that a stronger government became an instant and imperative necessity. The Articles of Confederation imported nothing more than a " league of friendship"; and although not an altogether inadequate bond of union under the pressure of war, their insufficiency on the return of peace was a disquieting apprehension with thoughtful men. While the public spirit was aglow with patriotic fervor and the exigencies of the common cause forbade either languor or discord- ancy in the exertions of the associated States, — with all the resources of the country collected in the grasp of the military chieftain, — even a league of friendship might avail for the purposes of an ef- ficient administration. That peril past, that spirit extinct, and that energetic command relaxed, each State relapsed into a distinct community intent 130 ESSAYS AND ADDRESSES only upon its own interest and indifferent to the general welfare. Immediately on the close of the war the futility of the existing arrangement was disclosed, to the dismay of all patriots. Then was seen the utter in- competency of the confederation to the ends of government. With no executive and no judiciary; without power to enforce its requisitions, to raise armies or collect revenues, to fulfil its engagements at home or abroad, to regulate commerce or even to maintain its own dignity against rabble outrage, — it fell at once into helpless exhaustion and uni- versal contempt. Obvious was the alternative of either a firmer union and a stronger government on the one hand or on the other anarchy and ruin. The event was long in suspense ; but ultimately Virginia inclined the balance to the side of safety, by a peremptory demand for a reformed Constitution and an invigor- ated government. The devotion of her magnificent domain to the common country, as already shown, supplied a mo- tive of union and an incentive to a sounder system. But, coincidently, Washington imparted another and a mighty impulse toward a regenerated Consti- tution. Having conducted the war to a triumphant close, and having exhibited in his character all the virtue and all the wisdom of which humanity is capable, his reward was the universal esteem and affection of his countrymen, and an irresistible as- cendancy over their inclinations and opinions. His ESSAYS AND ADDRESSES 131 judgment was their oracle; his will their law. The French minister declared that, in determining the nation to a stronger system, his word was of more weight than the collective influence of all other authority. Foreseeing the vanity of all he had ac- complished and the relapse of the country under despotism unless the Union were reorganized, he exerted himself with indefatigable activity to incul- cate the necessity of a new constitution. This ob- ject he pursued unremittingly, by personal discourse and private correspondence; and with commensurate effect. But his crowning act in disposing the nation to a reform of the Constitution was his circular letter to the governors of the States on retiring from the command of the army, in which, with im- portunate patriotism, he pressed the need of a stronger government. They all made response in the spirit of Trumbull, of Connecticut, who extolled " this last address of Washington as exhibiting the fundamental principles of an indissoluble union of the States under one Federal head." Communi- cated to the several legislatures, the appeal fired the heart of the nation to a passionate clamor for a new constitution. As in every crisis of American history Virginia had advanced to the front, so now she again took the lead in the march toward a renovated govern- ment. Simultaneously with her cession of terri- tory, she imparted to the Congress the power of im- post ; thus, in the language of Mr. Bancroft, " mar- shaling the United States on their way to a better 132 ESSAYS AND ADDRESSES union." Still more decisively, Virginia summoned the Convention to recast the Constitution; and Vir- ginia first commissioned delegates to that auspicious assembly. Thus, on a review of the successive stages in the development of the republican system in America, we observe that it was Virginia who set the ex- ample of representative government and colonial autonomy; that it was Virginia who gave the first signal of resistance to British aggression; that it was Virginia who initiated union in the common cause; that it was Virginia who first adjured al- legiance to the English Crown and instituted a re- publican polity by the act of her sovereign will ; that it was Virginia who first proposed to the sister colonies a Declaration of Independence ; that the sword of one son made good what the pen of an- other had proclaimed ; that for the sake, even of an imperfect federation, she surrendered a domain of imperial magnitude ; that she opened a way for that career of progress and expansion which the repub- lic has since so gloriously pursued ; that on the col- lapse of the confederacy she rescued the country from chaos by summoning the States to the recon- struction of its fundamental law ; in short, that Vir- ginia stimulated the desire, and provided the means, and prompted the effort, and furnished the ideal, for the Federal Constitution of 1787. We are now to see her in the act of making it — moulding its form and fashioning its features, by her consum- mate statesmanship. ESSAYS AND ADDRESSES 133 Forecasting on the eve of the convention the probable influence of Virginia on its action, her commanding attitude in the confederacy was a sig- nificant factor. In deference to her superior wealth, her greater population, her historic primacy among the States, and her foremost part in the achievement of independence, the initiative and as- cendency were accorded to her without dissent. " As the Convention had met," says Hildreth, " on the invitation of Virginia, it seemed to belong to the delegates of that State to start the proceed- ings." The group of distinguished men at the moment eminent in her councils certified her fitness for the great undertaking. Washington, Jefferson, Madi- son, Mason, Henry, Marshall, Monroe, and other names of hardly inferior note formed a galaxy of genius that would have lent luster to any age and any country. The approved abilities and ripe experience of the men whom she especially commissioned for the work gave assurance that it would be done by them and be well done. Washington, in whose unerring wisdom the nation reposed its surest trust, — " I know," wrote Knox, " your personal influence and character is the last stake which America has to play " ; Randolph, delegate in the Congress of the confederation, and successively Attorney-General and Governor of the Commonwealth; Blair, long a burgess of the Colony, member of the convention of 1776 and of the committee which reported the plan 134 ESSAYS AND ADDRESSES of State government, member of the Court of Chan- cery and Chief Justice of the General Court ; Wythe, strenuous champion of independence in the House of Burgesses, signer of the Declaration in Congress, with Jefferson and Pendleton framer of the re- formed legislation for the State, and member of the Court of Chancery; Madison, also member of the Convention of 1776 and of the Committee to report a constitution for the State, member of the Legislature and of Congress, active and able and eminent in every station; Mason, author of the first constitution for an independent American State, and of the first Bill of Rights ever formulated for a free community; ranking, by these achievements, with the most illustrious law-givers of the world: — such were the characters who, in behalf of Virginia, assumed the task of reconstructing the Federal gov- ernment. The problem before the Convention was complex — namely, first to frame a system of polity for the nation as a unit, as an integral personality; and, secondly, to adjust and reconcile the Federal suprem- acy with the sovereignty of the States. The primary task pertained to the form of gov- ernment and its operation upon the citizen ; and as such simply, it involved no novelty of invention and no difficulty in the execution. That the structure of Federal government should be republican was the imperative dictate of the political experience of the country. It was against the oppression of mon- archy that the colonies had revolted, and republi- ESSAYS AND ADDRESSES 135 can institutions were already prevalent in every State. For the particular modification of the republican principle best adapted to the situation of the States the Convention was not at liberty to look abroad; nor, had it so explored, would anything have been discovered propitious to its purpose. During its deliberations the Swiss Confederacy was cited, only to be condemned ; the oligarchic republic of Venice was tottering to its fall ; and the Dutch institutions were signaled as a ruin to be avoided rather than an example for imitation. In origin, therefore, the form of the Federal gov- ernment was of necessity American; and its model was revealed in the then existing institutions of the States — a conclusion to which, notwithstanding the thesis he maintains, Dr. Ellis Stevens is con- strained by his researches into the sources of the Federal Constitution. " After all," he admits, " American political experience was the principal factor on which the Philadelphia Convention relied in its constructive task " ; and " the convention prac- tically took the model of colonial government as it had long and familiarly existed, and as adapted in the State governments then freshly set up, and applied it to the nation." And Dr. Boregeaud af- firms with emphasis that " the institutions of the States are the edifice itself of which the Federal Con- stitution is but the completion." We have already seen that, in 16 19, Virginia fur- nished the Colonies with the exemplar of represen- 136 ESSAYS AND ADDRESSES tative government, and that Virginia, first of the States, instituted a republican system on the founda- tion of a written Constitution. This Constitution was the original of the organic acts of the other States ; and it, with its progeny, was now before the Convention to supersede all speculative experiment by a model of wise design and demonstrated ef- ficiency. Its authors — Mason, Madison, and Blair — were on the floor of the Convention to commend it for adoption. That, in fact, it presented the pat- tern after which the Federal Constitution was framed is attested by their substantial identity in the essential attributes of republican polity — a single executive, a legislature of two chambers, an independent judiciary, popular representation, and official responsibility. While the form of representative republican gov- ernment adopted by the Convention is but a duplicate of the system established by Virginia in 1776, so much of the Constitution as regulates the relations of the Union to the States is an absolutely original conception. Of alliances offensive and defensive, of leagues of friendship such as the Articles of Confederation, and of Federal associations with varying degrees of intimacy, examples were not wanting either in an- cient or modern times. But here is a system at once Federal and national ; its constituents, States as well as individuals, acting coercively within the limits of the several sovereignties, yet so acting without restraint upon local autonomy or abatement ESSAYS AND ADDRESSES 137 of its own efficiency, and without peril of collision between the concurrent forces. The expedient by which so felicitous and so marvelous a result was attained consists, not, as commonly taught, in a par- tition of powers between the Federal and the State governments, — for each retains its faculties in all their plenitude, — but in the distinction of objects to which those powers are directed; Federal func- tions being limited to purposes of national policy, and State functions restricted to the ends of local economy ; and in an effectual provision against con- flict between the co-ordinate jurisdictions by ac- cording precedence and supremacy to the Federal authority. " This contrivance," says Judge Hare, " so far as my knowledge extends, has no precedent in political history." With equal emphasis Professor Fiske ex- claims that " thus at length was realized the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of law — the State law and the Federal law, each with its legislature, its executive, and its judiciary, moving one within the other, noiselessly and without fric- tion. It was one of the longest reaches of con- structive statesmanship ever known in the world." By whose genius the solution of the hitherto in- soluble problem of national unity with local self- government was achieved authentic history demon- strates to the world. In advance of the convention Madison sketched in outline a project of Federal union, which, approved by his colleagues, was pro- 138 ESSAYS AND ADDRESSES pounded as the plan of the Virginia delegation. Two competing plans, the one of New Jersey and the other of Hamilton, were submitted ; but, these cast aside with slight regard, the Convention pro- ceeded to construct a system on the principles of the Virginia programme. After four months of ear- nest and exhaustive discussion the Virginia scheme emerged from the stormy debate altered in detail, but identical in substance; and, so modified, was promulgated by the Convention for acceptance by the States. That " Madison gave the outline of the plan which the Convention adopted," and that " the fundamental conception of our partly Federal, partly National government, appears throughout the Virginia plan as well as in the Constitution which grew out of it," are the explicit concessions of Hare and Fiske, critics from whom Virginia may not ex- pect anything of exaggerated commendation. Thus did Virginia, acting upon the initiative al- lowed to her hegemony in the confederation, intro- duce to the Convention the true theory of Federal government; and thus is the Constitution of 1787 but the articulation of the principles she pro- pounded. Nay, more, in the form of its acceptance by the States, — that is, by ratification in sovereign convention of the people as proposed by Madison, — she gave it a sanction and a stability of which it would have been destitute had a mere legislative approval, as suggested by Hamilton, been the only basis on which it reposed. Nor did Virginia's contributions to the Federal ESSAYS AND ADDRESSES 139 structure cease with its completion by the Conven- tion. As transmitted to Congress for submission to the people, it was wanting in an essential safe- guard for the rights of the citizen and the State against Federal encroachment. But this defect was speedily repaired, and repaired from resources sup- plied by Virginia. Together with her acceptance of the Constitution she communicated to Congress a series of proposi- tions which she insisted should be incorporated with it, as guarantees of the rights of the States and the liberties of the people. Her claim of protection to the States was conceded in the Tenth Amendment, providing that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respect- ively, or to the people." And in the first eight Amendments we find that each and every specifica- tion of popular immunity is but a repetition — oc- casionally in identical terms — of the principles em- bodied in the Bill of Rights proposed by Virginia. True, some of these principles other States had sub- mitted as a necessary part of the fundamental law; but, then, those States had adopted them from George Mason's Bill of Rights — the earliest not only, but the most comprehensive and the most lum- inous formula of freedom yet extant in the world. So that, if not directly yet derivatively, the original amendments of the Constitution are distinctly the contribution of Virginia. Thus supplemented, the Federal Constitution af- i 4 o ESSAYS AND ADDRESSES forded in potency and promise a sufficient safe- guard to all the great interests it was designed to conserve — the supremacy of the central govern- ment, the rights of the States, and the inalienable liberties of the people. It still remained, however, to discover and de- velop the principle by which these guarantees upon paper should be effectual to their purpose; for of what avail to assert Federal supremacy if it be im- pugned by the action of the States, or to reserve State rights if they be invaded by the national authority, or to declare inviolable the immunities of the citizen if they be infringed by the usurpation of government? Plainly a power, in some quarter, to restrict the several departments to their normal functions, and to arrest any aberration of the Fed- eral or State government from its legitimate orbit, was indispensable to the harmonious and beneficent operation of the complicated system. Obviously, too, the only method by which this necessary result could be accomplished was by nullifying any act, Federal or State, which should contravene the pro- visions of the Constitution. But to what organ of government might this por- tentous power be safely intrusted ? Not to the Ex- ecutive, already armed with more than regal ener- gies. Not to the Legislature, which, obedient to popular interest and popular passion, would make the mandate of its constituency the measure of legal authority. By the nature of its functions the Judicial Department alone was competent to the ESSAYS AND ADDRESSES 141 delicate and difficult task of expounding the sense of the Constitution, and adjudging what act, Fed- eral or State, was beyond its limitations. Without purse or sword — depending upon the Legislature for the means of its subsistence, and upon the Ex- ecutive for the enforcement of its decrees — its only- power was moral ; and so its faculty of invalidating an unconstitutional act is fraught with no menace to the institutions or the liberties of the country. Then, too, the sanctity which in the American mind hallows the judicial office, and the reverent sub- mission with which the American people bow to the adjudications of private right, — and only in such adjudications can the validity of a law be deter- mined, — this homage rendered to the judiciary was an all-sufficient guaranty that its judgment discred- iting an unauthorized act would be accepted as the imperative voice of the Constitution itself. And yet, nowhere in the Constitution is there an explicit concession to the judiciary of power to in- validate an act, Federal or State, because repug- nant to its provisions. Implicit authority so to ad- judge was vehemently denied in the Convention, and in the year 1800 was challenged from the Supreme Bench by Justice Chase, the member most addicted to a latitudinarian construction of the Federal com- pact. To-day, however, the jurisdiction of any court, the humblest no less than the most august, to pro- nounce an apparent law no law, because contrary to the Constitution, is a familiar and fundamental 142 ESSAYS AND ADDRESSES principle of American jurisprudence. And it is the feature of our political system that is peculiarly the marvel and admiration of foreign jurists and states- men. " There is no precedent for it," says Sir Henry Maine, " either in the ancient or the modern world." De Tocqueville declares that " the power vested in the American courts, of pronouncing a statute to be unconstitutional, forms one of the strongest barriers which has ever been devised against the tyranny of political assemblies." And Dr. Borgeaud writes, in 1894, that " a fundamental difference separates American constitution juris- prudence from that which has grown up in Europe. While in Europe the act by which the legislative power might violate an article of the Constitution can only give rise to political redress, in the United States the judicial power may decide upon the con- stitutionality of laws." While recognizing the utility of the institution, Bryne and Stevens discredit its novelty, affecting to see in it nothing more than the principle upon which English courts invalidate a by-law of a civil corporation because ultra vires, and in its applica- tion only an evolution from the law of agency. But where is the analogy between a judicial interdict of municipal transgression and the nullifying by the courts of the act of an independent and co-ordinate department of government? An ordinance beyond the scope of the municipal charter is void, because outside that charter there is no municipality ; a law of a sovereign State or of Congress approved by ESSAYS AND ADDRESSES 143 the President is invalidated by judicial sentence, be- cause incompatible with the fundamental compact of union. In England an act of Parliament is the supreme law, anything in Magna Charta or the Pe- tition of Right to the contrary notwithstanding; and the validity of such act is subject to no test but the will of the Parliament. In the United States an act of Congress or of a Legislature, though authenticated by all the formalities of regular pro- cedure, is still to be in harmony with the organic law of the government; and if upon judicial inquiry it be found repugnant to that law, no matter what its apparent authority, its nullity is a necessary con- sequence. No, gentlemen, the function of the judiciary to annul an act of legislation for repugnancy to the Constitution is an American invention, and is due to the sagacity of the statesmen of Virginia. After expatiating upon the wisdom and benefi- cence of the institution, publicists are eager in tracing its origin, with the result that Rhode Island is distinguished as the place, and the year 1786 as the epoch, of the great discovery in political science. No share in the achievement is accorded to Vir- ginia by any commentator on the American Consti- tution — ■ either by Story or Kent or Cooley. And yet, in November, 1782, — four years before the Rhode Island case of Trevett v. Weedon — your own Court of Appeals, in Commonwealth v. Caton, reported 4 Call, page 5 — by a solemn judicial deliv- erance asserted the power of the courts. These are i 4 4 ESSAYS AND ADDRESSES the words : " To declare any act of the Legislature to be unconstitutional and void " ; and it is of mo- ment to remark that the doctrine was then vindi- cated by the argument upon which to this day it re- poses. Of no less significance are the facts that Chan- cellor Wythe, by whom the power of the judiciary to cancel an unconstitutional enactment was first of- ficially promulgated, had for pupil John Marshall ; that in 1788 John Marshall repeated his master's lesson on the floor of the State Convention, and that in 1803, as Chief Justice of the United States, the same John Marshall, sometime law student with George Wythe, delivered that judgment in Marbury v. Madison by which the principle he had learned under the tuition of Virginia was consolidated in the jurisprudence of the Union. In the face of the authentic records of history, no candid critic will dispute the initiative of Virginia in the development of the most original and the most salutary principle in the American system of constitutional government. But otherwise than in framing the Constitution of 1787, and in afterward calling into operation the principle upon which its success was suspended, the influence of Virginia was manifest in the formation of the Constitution. From the inevitable gener- ality of its expressions, and its reserve in enumera- ting but not defining the powers communicated, it was open to a diversity of construction; and upon this alternative of interpretation depended its ef- ESSAYS AND ADDRESSES 145 ficiency as an instrument of government. In the contemplation of a commentator inimical to its es- sential object, or incapable of penetrating beneath the surface of its text, it imparted authority of scarcely greater scope and vigor than was grudged to the defunct confederation. In the contemplation of a commentator sympathetic with its aims and competent to perceive the profound implications latent in its brief but pregnant phraseology, it was instinct with the energies of a self-sustaining and all-sufficient system. Of symmetrical form and heroic proportions, our organic law awaited the il- lumination of Marshall's mind, to draw from it the accents of transcendent power. He found the Con- stitution inanimate and inarticulate; he gave it life and light and a voice of sovereign command. Cur- tailed of his auxiliary expositions, the document it- self were a futile engine of Federal action and a fragile bond of Federal union. Hence, the not over-strained statement in the American Common- wealth, that the Constitution is " the work of the judges, and most of all of one man, the great Chief- Justice Marshall." John Marshall, we remember, was a son of Virginia ; and by him she developed the Constitution into the full majesty of its might. Upon a retrospect of the circumstances and condi- tions out of which the Constitution of 1787 was evolved, and upon an impartial estimate of the agen- cies operative in its formation, the conclusion is ob- vious and incontrovertible that the authorship of that renowned instrument is justly ascribed to Vir- 146 ESSAYS AND ADDRESSES ginia. It is founded upon institutions which she created; it is the emanation of influences which she set in action — she summoned the convention to frame it ; it was her ideal and inspiration ; in form and substance it was her conception — her plastic hand fashioned its distinguishing features ; she gave it the vigor that has sustained and impelled the Union along an unexampled career of grandeur and glory. The organic structure of government of which Virginia thus supplied the precedent, and the coin- cidence of Federal supremacy with State autonomy which she first realized, are not only prevalent al- ready on the American continent, but are destined at no remote period to subdue the civilized world to their liberal and enlightened sway. Whatever for- tune, therefore, may betide Virginia in the future posterity will perpetuate the remembrance of her great achievement; and so long as impcrium ct lib- ertas shall subsist as the ideal of government, the Federal Constitution of 1787 will remain her im- perishable monument. Mr. President and Gentlemen, if I revert to an early epoch for illustration of Virginia's worth, it is not because her after annals are wanting in great names and great deeds. Down to i860 her sons were ascendant on the national theater, and her counsels controlled the policy of government. They were Virginians who augmented the power of the Union by the acquisition of Louisiana and the Floridas; and the valor of Virginians extended its ESSAYS AND ADDRESSES 147 empire to the Pacific Ocean. He was a Virginian who, by establishing the independence of Texas, in- troduced the " Lone Star " into the constellation of States. He was a Virginian who issued the inter- dict against European conquest in America, and so consecrated the continent as the abode of demo- cratic institutions. He was a Virginian whose strong arm upheld the Southern Confederacy against the pressure of opposing millions, and whose martial exploits invest the " Lost Cause ' with a halo of unfading luster "si Pergama dcxtra de- fendi potuit, ctiam hac dcfcnsa fitisset." From her firstborn to her latest, — from Wash- ington to Lee, unequal only in fortune, — the Old Commonwealth has maintained the high strain of her noble lineage. The Virginians are not degenerate. Prostrated by a great catastrophe and stunned for a time by the stroke, they will recover their unconquerable spirit ; and, true to the traditions of their fathers, the gen- ius that ruled the Republic in the days of its fairest fame may again direct its destinies. The story of Virginia's renown abides with us, not as a solace in our decline, but as an incentive to emulation of her ancient virtues; that so we may transmit her glory to the succeeding generation without blemish and without abatement. VIII THE PEOPLE OF THE STATE OF NEW YORK VS. THE NORTH RIVER SUGAR REFINING COMPANY VIII THE PEOPLE OF THE STATE OF NEW YORK VS. THE NORTH RIVER SUGAR REFINING COMPANY The subjoined argument is of interest and impor- tance, because : it was the first effort in any court of the country, by judicial decision, to break up a trust- combination ; it was successful ; and emphatically, be- cause it established that the principles of the Com- mon Law are adequate and effective to the destruc- tion of such combination. For, at the time there was neither Federal nor State statute invalidating such combination. Indeed, subsequent Federal and State statutes afford a protection to monopolies, since it is held that the statutes supersede the operation of the Common Law ; and that if monopolies be not within statutory terms they are immune against attack — in analogy to the perpetual coypright of the Common Law, which the courts adjudged to be destroyed by the statute of Anne, limiting copyright to a definite period. COURT OF APPEALS The People of the State of New York, Plaintiffs and Respondents, against The North River Sugar Refin- ing Company, Defendant and Appellant. 151 152 ESSAYS AND ADDRESSES Argument of Roger A. Pryor for the Respondents : 1890. STATEMENT Appeal from judgment of the General Term of the Supreme Court in the first judicial depart- ment, entered upon an order affirming a judgment in favor of plaintiffs and an order denying a motion for a new trial. Action under the Code of Civil Procedure which, Section 1798, provides that in a suit by the Attorney- General the charter of a domestic corporation may be vacated upon the ground that it has either : First. — Offended against any provision of an act by or under which it was created, altered, or re- newed, or an act amending the same and applicable to the corporation ; or, Second. — Violated any provision of law whereby it has forfeited its charter or become liable to be dissolved by the abuse of its powers; or, Third. — Forfeited its privileges or franchises by a failure to exercise its powers ; or, Fourth. — Done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises; or, Fifth. — Exercised a privilege or franchise not conferred upon it by law. Trial by jury in conformity with the requirement of Section 1800. Judgment of dissolution in com- pliance with the provisions of Section 180 1. Defendant offered no evidence, but upon the as- sumption of the insufficiency of the plaintiff's case, ESSAYS AND ADDRESSES 153 moved the Court to direct a verdict in its favor (fol. 244), and omitted to request the submission of any question to the jury. On motion of plaintiffs the Court directed a verdict for them (fol. 244). Points A The judgment is vitiated by no technical error. 1. — Appellant is estopped to say that the case should have gone to the jury; and if there be any evidence to sustain the decision, it will be upheld on appeal. (Dillon vs. Cockroft, 90 N. Y., 649; Prov- ost vs. McEnroe, 102 N. Y., 650; Ormes vs. Dauchy, 82 N. Y., 443 ; Trustees vs. Kirk, 68 N. Y., 459, 464; Stratford vs. Jones, 97 N. Y., 589.) An uncontroverted state of facts presents a ques- tion of law which the Court not only may, but must, determine by a peremptory instruction to the jury. (Appleby vs. Ins. Co., 54 N. Y., 260; People vs. Cooke, 8 N. Y., 67; Lomer vs. Meeker, 25 N. Y., 361; Dwight vs. Ins. Company, 103 N. Y. ; 341, 359; Kelly vs. Burroughs, 102 N. Y., 93; Stratford vs. Jones, 92 N. Y., 589 ; Leggette vs. Hyde, 58 N. Y., 275.) The rule prevails in quo warranto to forfeit a corporate franchise. (People vs. Waterford, &c, 2 Keyes, 329.) If the proof of a fact be so preponderating that a verdict against it would be set aside, the Court must direct a verdict in accordance with the evidence. (Dwight vs. Germania Ins. Co., 103 N. Y., 358.) 154 ESSAYS AND ADDRESSES The verdict of the jury, although under the direc- tion of the Court, was a general verdict for the People; and, being a general verdict, it settles in favor of the prevailing party every fact litigated upon the trial. (Wolf vs. Life Ins. Co., 43 Barb., 405; affirmed 41 N. Y., 620; Murphy vs. Lippe, 35 Super. Ct, 542; Nichols vs. Martin, 35 Hun, 168, 173; Koehler vs. Adler, 78 N. Y., 287.) " In the disposition of the case by this Court the facts most favorable to the plaintiff must be deemed to have been found in his favor." (Cady vs. Brad- shaw, 116 N. Y., 190.) 2. — The solitary exception to evidence (fol. 1658) is plainly untenable. (Kelly vs. Doody, 116 N. Y., 583; Sweet vs. Tuttle, 14 N. Y., 465, 472; DeCamp vs. Mclntire, 115 N. Y., 259, 266; Nicolay vs. Lin- ger, 80 N. Y., 54, 57; DeWolf vs. Williams, 69 N. Y., 621, 662; Nichols vs. White, 41 Hun 155; Knapp vs. Smith, 27 N. Y., 281.) The evidence was competent to prove an essen- tial fact in the case, namely, that defendant's stock was held by the board for the purposes declared in the Sugar Refineries Company deed. For what purpose the stock was held — whether for the in- terest of the combination or for another and differ- ent object — is plainly a question of fact, and a question not soluble by construction of the deed, but to be answered only by a witness cognizant of the purposes for which the stock was deposited with the board. Conceivably the stock might have been transferred for an object altogether foreign to the ESSAYS AND ADDRESSES 155 purposes of the combination; and, if so, then it would not have been held under the provisions of the deed. Parole evidence to connect an instrument with its subject and object is always competent when necessary. If here the evidence were not neces- sary, i. e.,\i the deed exhibited the connection with the stock, then the evidence is harmless. B On the merits the validity of the judgment is unimpeachable — the unchallenged evidence exhibit- ing a clear case for the forfeiture of defendant's charter. The creation of a corporation is an act of sover- eignty (Wood's Field on Corporations, Sec. 6), and the consideration of the grant of corporate fran- chises is the public benefit. " The objects for which a corporation is created are universally such as the Government wishes to promote. They are deemed beneficial to the coun- try; and this benefit constitutes the consideration and in most cases, the sole consideration of the grant." (Marshall, C. J., in Trustees of Dartmouth College vs. Woodward, 4 Wheaton, 518, 637; The Binghamton Bridge, 3 Wall., 51, 73; 2 Waterman on Corp., Sec. 431.) " In the granting of charters the Legislature is presumed to have had in view the public interest, and public policy is concerned in the restriction of 156 ESSAYS AND ADDRESSES corporations within chartered limits, and a depar- ture therefrom is only deemed excusable when it can- not result in prejudice to the public." (Gray, J., in Leslie vs. Lorillard, no N. Y., 531.) " Grants of franchises are the conferring on indi- viduals rights belonging to the whole people, and can only be justified by securing to the people, in the grants themselves, benefits equivalent to the rights which the grants take from them. This can only be done by enforcing a strict performance of all the beneficial conditions of such grants." (Bradish, Pres., in Thompson vs. People, 23 Wend., 559.) " The charters and franchises of modern times are contracts made for public consideration and advantage." (Id., 580, Senator Verplanck.) 11 Hence, corporate franchises are granted in trust, and upon condition ; in trust, on the one hand, that they be exerted to the attainment of the object for which they are conceded, and on the other that they be not abused to the public detriment; upon the condition that for nonuser or misuser they may be reclaimed by the State in the appropriate judicial proceeding. " Franchises may be forfeited by a breach of the trust on which they were granted, and perversion of the end of the grant or institution. The perform- ance of the duties enjoined by the charter is a con- dition of the grant." (Rapallo, J., in People vs. W. T. & B. Co., 47 N. Y., 586, 592.) ESSAYS AND ADDRESSES 157 " A corporation may be dissolved, for it is cre- ated upon a trust, and if that be broken it is for- feited." (Sir James Smith's Case, 4 Modern, 58.) " Franchises, being regal privileges in the hands of the subject, are held to be granted upon the con- dition of making a proper use of them ; and may be lost or forfeited either by abuse or neglect." (2 Black. Comm., 153.; Earl of Shrewsbury's Case, 9 Rep., 46.) ' All corporate franchises are granted upon con- dition that they should be duly executed according to the charter that settles the constitution." (Lord Holt in City of London vs. Vanacker, 1 Lord Ray- mond, 499.) " The primary object of the institution of a cor- poration is the public welfare, and the interest of the stockholders is but secondary ; hence the will- ful frustration of that intention is a fraud on the public " — affirming of a corporation whose stock had been absorbed by a rival corporation to prevent competition. (Appeal of the Electric Light, &c, Co.; 122 Pa. St., 154; 9 Am. St. R., 81.) " A corporation is made a body politic on the im- plied condition that it should demean itself faith- fully and honestly in the use of all its franchises." (People vs. Bristol, &c, 23 Wend., 235-6.) " The performance of the duties enjoined by the fundamental law by or under which it is created is in all cases a condition of the grant of corporate privileges ; and a failure, therefore, to perform any of these duties is a breach of the condition upon 158 ESSAYS AND ADDRESSES which the corporation holds its franchises." Peo- ple vs. Fishkill, &c, 27 Barb., 445, 45 2 -) " That a corporation may be dissolved for a breach of trust is the settled doctrine at this day." (Kent, C, in Slee vs. Bloom, 5 Johns. Ch., 380.) " A corporation must come up to the substantive objects for which it was instituted. If it depart from any of these, it is guilty of a breach of trust." (People vs. Bristol, &c, 23 Wend., 236.) " Every private corporation undertakes and agrees, upon condition of forfeiture, that it will ex- ercise the rights and privileges conferred upon it in furtherance of the objects and purposes of its crea- tion, and not otherwise; and that it will so manage and conduct its affairs that it shall not become dan- gerous or hazardous to the safety or well being of the State or community in and with which it trans- acts business." (Ward vs. Farwell, 97 111., 593.) " The corporate franchise is granted upon condi- tion that it shall become void in case of misuser." (People vs. Phoenix Bank, 24 Wend., 433.) " Corporate rights and powers are the correlatives of corporate obligations and duties; constitute the consideration for the corporate franchises ; and their performance may be exacted as a condition of cor- porate existence." (Mayor vs. R. R. Co., 113 N. Y., 311, 319.) " Franchises may be forfeited by breach of the trust on which they are granted, and perversion of the objects of the grant." (People vs. Dispensary, 7 Lans., 306.) ESSAYS AND ADDRESSES 159 " The grant of corporate franchises is necessarily subject to the condition that the privileges and fran- chises conferred shall not be abused, and that when abused or misemployed they may be withdrawn by proceedings consistent with law." (Ins. Co. vs. Needles, 113 U. S., 574.) " A private corporation created by the Legisla- ture may lose its franchises by a misuser or nonuser of them ; and they may be resumed by the govern- ment under a judicial judgment upon a quo war- ranto to ascertain and enforce the forfeiture. This is the common law of the land, and it is a condition annexed to the creation of every such corporation." (Terrett vs. Taylor, 9 Cranch., 52; 2 Kent Com., 312; Slee vs. Bloom, 5 Johns. Ch., 366, 379; Com. vs. Bank, 21 Picker, 542; A. and A. on Corp., Sec. 774 (9th ed.) ; Ins. Co. vs. Needles, 113 U. S. 574-) " The grant to a corporation being made upon an implied pledge that the condition of it shall be ful- filled, when the public is affected by a breach of the condition, it is a violation by the corporation of its duty. The State is not required to prove an actual injury; it is a sufficient cause of forfeiture if the act be such as in the nature of things is calcu- lated to produce injury." (2 Waterman on Corp., Sec. 427.) " The public have an interest that a corporation shall not transcend the powers granted." (R. R. Co. vs. Keokuk Co., 113 U. S., 384.) 160 ESSAYS AND ADDRESSES in Any act of a corporation, in violation of law and to the public detriment, forfeits its franchises. " It is a sufficient cause of forfeiture, if the acts complained of are illegal either under the statute or at common law, or in violation of the inherent and fundamental principles or implied conditions of its existence." (State vs. R. R. Company, 45 Wise, 590; Ches. & Ohio, &c, vs. Bait. & Ohio, &c, 4 Gill and Johns., 121.) The existence of a corporation may be annulled when it has " violated any provision of law where- by it has forfeited its charter or become liable to be dissolved by the abuse of its powers." (Code Civ. Pro., Sec. 1798, Sub 2.) 1 The statute provides that an information may be filed to procure the forfeiture of the charter and privileges of a corporate body for a violation of any provision of law in such way as to constitute a positive misuser." (People vs. Fishkill, &c, 27 Barb., 452.) " The misuser must be such a neglect or disre- gard of the trust, or such a perversion of it, as in some manner or in some degree to lessen its utility to those for whose benefit it was instituted " {i.e., the people), " or else to work some other public in- jury." (Thompson vs. People, 23 Wend., 581-2, Verplanck, Senator.) " Some misdemeanor in the trust, injurious to the public," is a sufficient ground of forfeiture. (Ich., 583-4.) ESSAYS AND ADDRESSES 161 IV Acts and contracts ultra vires the corporate au- thority are illegal; and where prejudicial to the public interests are grounds of forfeiture of the corporate franchise. i. — " The act of incorporation is to them an en- abling act ; it gives them all the power they possess ; and when it prescribes to them a mode of contract- ing, they must observe that mode." (Marshall, C. J., in Head vs. The Providence Co., 2 Cranch., 169.) In grants by the public, nothing passes by impli- cation. (U. S. vs. Arrendondo, 6 Peters, 736.) " The language employed (in the act of charter) defines their power and duties, and excludes by necessary implication . . . the adoption of any other method for the promotion of such busi- ness than those specially pointed out by the statute." (Ruger, C. J., in Nassau Bank vs. Jones, 95 N. Y. 121.) " The rule of construction in this class of cases is that it shall be most strongly against the corpora- tion. Every reasonable doubt is to be resolved ad- versely. Nothing is to be taken as conceded but what is given in unmistakable terms, or by an impli- cation equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public wel- fare." (Fertilizing Co. vs. Hyde Park, 97 U. S., 666.) i62' ESSAYS AND ADDRESSES " The charter of a corporation is the measure of its powers, and the enumeration of these powers im- plies the exclusion of all others." (Thomas vs. R. R. Co., 101 U. S., 82; Green Bay, &c, vs. Com- pany, 107 U. S., 98; Pratt vs. Short, 79 N. Y., 437.) This elementary common law principle, that a corporation can exercise no power not expressly granted, or necessarily implied, is made a positive prohibition of statute, which prescribes that '' no corporation shall possess or exercise any corporate powers, except such as are given or enumerated, or are necessary to the exercise of the powers so given or enumerated." (First Part Rev. Stats., Title III ; Ch. 18, Sec. 3; Laws 1861, Ch. 170; Milbank vs. R. R. Co., 64 How., 24.) Hence, an act ultra vires is an infraction of posi- tive law. And this statute declares the public policy of the State (Morris, &c, vs. R.R. Co., 20 N. J. Eq., 542) ; and makes an unauthorized corporate act illegal. (Ashbury, &c, vs. Riche, L. R., 7 H. of L., 653.) 2. — " Judgment of ouster and dissolution has al- ways been the punishment for the wanton violation of a charter; and it may be made to follow whenever the proper public authority shall see fit to invoke its application." (Nat. Bank vs. Matthews, 98 U. S., 621, 629.; Bank vs. Whitney, 103 U. S., 102.) " If the utility of the corporation be lessened, or if any injury result to the public, by an act which it is not authorized to do, it is a forfeiture." (Bank vs. State, 6 Smedes and M., 599, 623.) ESSAYS AND ADDRESSES 163 " When a corporation does acts which it is not authorized or is forbidden to do, the State may for- feit its franchises and dissolve the corporation." (Taylor on Corp., Sec. 457, 289, 459; People vs. Utica, 15 Johns., 358.) For, ' The public has an interest in the proper ad- ministration of the powers conferred by the act on the corporation." (East Anglia, &c, vs. R. R. Co., n C. B., 775.) " A corporation may incur a forfeiture of its franchises by the doing of an illegal act. Any act of a corporation which is forbidden by its charter, or by a general rule of law, and strictly every act which the charter does not expressly or impliedly authorize, is unlawful; and if the doing of such act is an injury to the public, it may be sufficient ground of forfeiture." (2 Morawetz on Corp., Sec. 1024.) An act ultra vires is the usurpation of a fran- chise, and cause of forfeiture. (People vs. Trus- tees, 5 Wend., 211.) " A contract with a corporation may be binding on the parties, though it was an abuse of the cor- porate powers for which the corporation is answer- able to the government which created it." (Bank vs. Hammond, 1 Rich. (S. C), 288; Southern vs. Lanier, 5 Fla., 100; Silver Lake vs. North, 5 John. Ch., 373.) " The contracts of corporations which are not authorized by their charters, are illegal, because they are made in contravention of public policy." (Selden, J., in Bissell vs. R. R., 22 N. Y., 285.) 1 64 ESSAYS AND ADDRESSES Where corporations abuse their powers, e. g., by acts ultra vires, " the State may interpose and re- claim their charters." {Id., 259.) " A contract made by a corporation in violation of the terms of its charter is ultra vires, and void as against public policy." (President, &c, vs. R. R. Co., 7 Lans., 241.) An act ultra vires is an abuse of the corporate franchise. (Thomas vs. City, 12 Wallace, 356; Green's Brice, 708-9 — 2d ed.). " The word ' unlawful ' as applicable to corpora- tions, is not used exclusively in the sense of malum in se or malum prohibitum. It is also used to desig- nate powers which companies are not authorized to exercise, or contracts which they are not author- ized to make, or acts which they are not authorized to do — such acts, powers and contracts as are ul- tra vires." (People vs. Chicago Gas Trust Co., 22 Chicago Legal News, 108, 41 Albany Law Journal, 58.) A corporation may be dissolved when it has " ex- ercised a privilege or franchise not conferred upon it by law" (Code Civ. Pro., Sec. 1798. Sub. 5), or " offended against any provision of the act under which it was created ' (Sub. 1), or when it "has violated any provision of law whereby it has be- come liable to be dissolved by abuse of its powers ' ! (Sub. 2). " Considering the authority which the Attorney- General has, by suit, to forfeit the franchises of corporations for misuse or abuse, and to regulate ESSAYS AND ADDRESSES 165 and restrain them in the exercise of their corporate rights, little danger is to be apprehended from the overgrowth of their power, or their monopolistic tendencies." (Ruger, C. J., in People vs. O'Brien, in N. Y., 1.) A common law ground of forfeiture is still avail- able though not within the statute. (People vs. Bristol, 23 Wend., 222; State vs. R. R. Co., 45 Wise, 589; People vs. Palmer, 109 N. Y., no.) The rule that an illegal or unauthorized act is sufficient ground of corporate forfeiture, is abun- dantly illustrated by adjudicated cases. In the King vs. The Mayor and Commonalty of London, 8 Howell's St. Tr., 1078, " the Great Quo Warranto Case " (Life of Chief Justice Saunders by Lord Campbell), it was argued by Treby and Pollexfen for the defendant that the charter of a corporation was not liable to forfeiture for an act ultra vires or contrary to law; and that the un- authorized or illegal act was not predicable of the corporation — a mere ens legis, incapable of action — but of the individuals composing it; who alone were accountable to the law. But the contention was discredited by the Court, and the principle established, that the act of its constituents is the act of the corporation, and that a corporation incurs the penalty of forfeiture by an act illegal or ultra vires. 1 66 ESSAYS AND ADDRESSES However odious this decision in its political as- pect, its validity as a legal proposition stands un- challenged to the present day. (Thompson vs. The People, 23 Wend., 572.) So, when a bank chartered to do business in one county of the State established a branch in another county, it became forfeit. (People vs. Bank, Doug- lass (Mich.), 282.) So, when a college chartered in one place estab- lishes a medical school in another. (The Peo- ple vs. Geneva College, 5 Wend., 211.) So, extortionate charges by a railroad company. (Attorney-General vs. R. R. Co., 35 Wise, 432, 532.) So, a neglect by a bank to make a report required by law. (State vs. Bank, 5 Ohio St., 171.) So, violating a restriction on the rate of interest upon loans. (Com. vs. Bank, 28 Penn. St., 383; State vs. Bank, 33 Miss., 474.) So, keeping its principal place of business, officers and records in another State. (State vs. R. R. Co., 45 Wise, 580.) So, dividing with an agent who procured a legis- lative appropriation to the corporation. (People vs. Dispensary, 7 Lans., 304.) So, embezzlement of funds on deposit with a bank. (Bank vs. State, 1 Blackf. (Ind.), 267.) So, omission of a duty expressly imposed by law, c. g., to make a report. (Attorney-General vs. R. R. Co., 6 Iredell (Law), 469.) So, when an insurance company carries on bank- ESSAYS AND ADDRESSES 167 ing operations. (People vs. Utica Ins. Co., 15 Johns., 358.) So, the unauthorized lease by a railroad company of its road, rights and franchises. (State vs. A. & N. R. R. Co., 4 R. R. & Corporation Journal, 86; Penn. Co. vs. St. Louis, &c, R. R. Co., 118 U. S. 290.) So, a railroad corporation forfeits its charter, on quo warranto, by ceasing to operate a part of its route. (People vs. The R. R. Co., 24 N. Y., 261.) So, a corporation forfeits its franchise by holding property in violation of the restraints of its char- ter. (Matter of McGraw, 11 1 N. Y., in.) So, if a railroad company abandon a portion of the line it was incorporated to operate, it will be dissolved. (People vs. R. R. Co., 24 N. Y., 261.) For further instances and illustrations of grounds of forfeiture, see 2 Kyd on Corp., 479 et scq.; A. and A. on Corp., Sees. 774-776; 2 Waterman on Corp., Sec. 427; Green's Brice, 787; People vs. Bristol, 23 Wend., 233-250; State vs. R. R. Co., 8 Am. St. R., 188-190, note by Freeman. VI Agreements tending to monopoly, i. c, " any combination among merchants to raise the price of merchandise, to the detriment of the public " (Bou- vier's Law Diet., " Monopoly") are illegal. (Peo- ple vs. American Sugar Refining Company, 7 Rail- way and Corporation Law Journal, 83. ; Richardson vs. Buhl, Id., 89; People vs. Chicago Gas Trust, 41 1 68 ESSAYS AND ADDRESSES Alb. L. J., 68; Anderson vs. Jett, 41 Alb. L. J., 103; Leonard vs. Poole, 114 N. Y., 371 ; Arnot vs. Coal Company, 68 N. Y., 559; Stanton vs. Allen, 5 Denio, 434; Clancy vs. Salt Company, 62 Barb., 395 ; Hooker vs. Vanderwater, 4 Denio, 349 ; Texas & P. Ry. Co. vs. Southern P. Ry. Co., 6 Southern Reporter 888, 891, La. Supreme Court, 1889.) People vs. Fisher, 14 Wend., 9-19; Colles vs. Trow Company, 11 Hun, 397; Watson vs. The Companies, 52 How., 348; Coal Co. vs. Coal Co., 68 Penn. St., 182; Salt Co. vs. Guthrie, 35 Ohio St., 672; Croft vs. McConoughy, 79 111., 339; Santa Clara vs. Hayes, 76 Cal, 387; 9 Am. St. R., 211 ; Bank vs. King, 44 N. Y., 87 ; Case of Monopolies, 11 Coke, 84; Raymond vs. Leavitt, 46 Mich., 447; India Bag Co. vs. Koch, 14 La. Ann., 168; Ray vs. Mackin, 100 111., 246; People vs. Stephens, 71 N. Y., 545 ; Marsh vs. Russell, 66 N. Y., 288 ; Hart- ford, &c, vs. R. R. Co., 3 Robt. 411; Hilton vs. Eckersley, 6 Ell. & Bl., 47; Central, &c, vs. Collins, 40 Ga., 582 ; Hoffman vs. Brooks, 1 1 Weekly Law Bulletin, 258. And, in all the cases adjudging monopoly agree- ments and combinations to be illegal, the ground of decision is, that they tend to the public prejudice, by preventing competition and enhancing prices. " Monopolies are favorites neither with Courts nor people. They operate in restraint of competi- tion, and hence are, as a rule, detrimental to the public welfare." (Electric Company, 9 Am. St. R., 82.) ESSAYS AND ADDRESSES 169 " Free competition is the life of business ; and all combinations among persons or corporations for the purpose of raising or controlling the prices of mer- chandise, or any of the necessaries of life, are monopolies and intolerable, and ought to receive the condemnation of all courts." (Richardson vs. Buhl, 7 Railway & Corp. Jour., 96.) " Monopolies are destructive of individual right and public interests." (Metcalf vs. Brand, 9 Am. St. R., 28 9 ;86Ky., 331.) " The natural law of supply and demand is the best law of trade." (State z's. Goodwill, 41 Alb. Law Journal, 53, West Virginia Supreme Court.) " Rivalry is the life of trade. The thrift and welfare of the people depend upon it. Monopoly is opposed to it all along the line." (Anderson vs. Jett, 41 Alb. L. Jour., 104.) " Monopolies are justly odious, as they operate not only injuriously to trade, but against the gen- eral prosperity of the country." (Charles River Bridge vs. Warren Bridge, 11 Peters, 567.) " I hold it to be an incontrovertible proposition of both English and American public law, that all mere monopolies are odious and against common right. . . . Monopolies are the bane of our body politic at the present day. In the eager pur- suit of gain they are sought in every direction. They exhibit themselves in corners in the stock market and produce market and in many other ways." (Bradley, J., in Butchers' Union vs. Cres- ent, in U. S., 766.) lyo ESSAYS AND ADDRESSES ''The statute against monopolies (1623) is the magna charta of British industry." (2 Kent, 271, Marginal Note c.) " It is against the general policy of the law to destroy or interfere with free competition, or to per- mit such destruction or interference. An unauthor- ized monopoly, therefore, is against public policy as destroying or interfering with free competi- tion." (Stewart vs. The Company, 17 Minn., 37 2 -) " A contract which tends to create and perpetuate a monopoly is against public policy." (Gas Co. vs. Gas Co., 2 Am. State Reports, 124.) " In its very nature, a right to exclude competi- tion is injurious to the public." (City vs. Gas Light Co., 70 Mo., 69.) " Competition is the life of trade, and whatever destroys or even relaxes competition in trade is in- jurious if not fatal to it." (4 Denio, 353; 14 Wend., 19.) " Public policy favors competition in trade, to the end that its commodities may be afforded to the consumer as cheaply as possible; and it is opposed to monopolies, which tend to enhance market prices to the injury of the general public." (Salt Co. vs. Guthrie, 35 Ohio St., 666.) " There are three inseparable incidents to every monopoly: that the price of the commodity will be raised ; that the commodity is not so good and mer- chantable as before ; that it tends to the impoverish- ment of artificers and others " ; and so a charter of ESSAYS AND ADDRESSES 171 monopoly was held void, as against common right and the liberty of the subject. (The Case of Monopolies, 1 1 Coke, 84. ) " With results naturally flowing from the laws of supply and demand, the Courts have nothing to do ; but when agreements are resorted to for the purpose of taking trade out of the realm of com- petition, the Courts cannot be successfully invoked, and their execution will be left to the volition of the parties thereto." (Santa Clara, &c, vs. Hayes, 76 Cal., 387, 9 Am. St. Rep., 211.) In Richardson vs. Buhl, 7 Railway and Corp. Journal, 89, the Supreme Court of Michigan (1889) held of a corporation organized to absorb other match manufactories, " that such corporation is unlawful and against public policy, its object being to prevent competition, and to control the price of an article of necessity." In People vs. Chicago Gas Trust Company, 41 Albany Law Jour- nal, 68, the Supreme Court of Illinois (1889) ruled the same point. In the People vs. The American Sugar Refining Company, 7 Railway & Corp. Law Journal, 83, the Superior Court of the City of San Francisco (1890) held of this identical combination that it constitutes a monopoly and an unlawful business (p. 86), and that connection with it forfeited a corporate charter. In Anderson vs. Jett, 41 Albany Law Journal, 103, the Kentucky Court of Appeals ( 1889) held of an agreement between owners of two rival steam- 172' ESSAYS AND ADDRESSES boats, to divide the net profits of each in a certain proportion, each bearing its own expenses, neither to sell his boat without notice to the other, and the one selling out not to enter the trade for a year, that its object and effect was to prevent competition and a consequent reduction of charges, and so was void as against public policy. In Leonard vs. Poole, 114 N. Y., 371, this Court (Second Division) held that a combination for the purpose of raising the price of lard was " an unlaw- ful plot " (378), and an " indictable misdemeanor " (377), under section 168 of the Penal Code, because injurious to trade and commerce. In Mill and Lumber Co. vs. Llayes, 76 Cal, 387 ; 9 Am. St. R., 211, the Supreme Court of California denounced as against public policy and void a con- tract " entered into for the purpose of limiting the supply of lumber and increasing the price thereof, and giving one of the contracting parties control of all lumber near a particular town in the year desig- nated, and to control the supply of lumber for that year in the counties mentioned in the contract." An agreement between shareholders not to sell their respective stock without the concurrent con- sent of all is void, because " in restraint of trade and against public policy." (Fisher vs. Bush, 35 Hun, 641.) An agreement by several firms not to sell, except with the consent of the majority, is a combination to enhance price, and unlawful. (India Bag Co. vs. Koch, 14 La. Ann., 168.) ESSAYS AND ADDRESSES 173 In Arnot vs. Coal Company, 68 N. Y., 558, the purpose of the arrangement was " to artificially en- hance the price " of coal ; and the Court held that " a combination to effect such a purpose is inimical to the interests of the public, and all contracts de- signed to effect such an end are contrary to public policy, and therefore illegal " ; and that this prin- ciple " is too well-settled by adjudicated cases to be questioned at this clay " (p. 565). In Colles vs. The Trow Company, 1 1 Hun, 397, the Court held that an agreement by defendant com- pany to expend its funds in stopping the competi- tion of a rival, was ultra vires and void — saying, page 398, " the corporation was not created for the purpose of destroying competition and establish- ing a monopoly in any other way than such as might be incidental to the superiority of its manu- factures and their excellence and cheapness." In the People vs. Fisher, 14 Wend., 9, 19, the Court say that " competition is the life of trade," and that " combinations and confederacies to en- hance the prices of any article of trade or commerce are injurious " to the public, and therefore illegal. A grant of an exclusive right of way and privi- lege of laying and maintaining tubing for transport- ing oil through a tract of two thousand acres, held invalid as an unreasonable restraint of trade and contrary to public policy. (West Virginia vs. Company, 46 Am. Rep., 527.) In Watson vs. The Companies, 52 How., 348, held that a combination between rival steamboat i 7 4 ESSAYS AND ADDRESSES companies, for their " joint or mutual benefit or ac- count," whereby competition between them was pre- vented, created a monopoly and so was " contrary to public policy and injurious to the public." In Stanton vs. Allen, 5 Denio, 434, 441, the Court say, that " the association being thus secured against internal defection and external encroach- ment, and the members having thrown their con- cerns in a common stock, to derive an income in proportion to the number of shares they held, and not according to their merit and activity in busi- ness, and safe against the reduction of compensa- tion that would otherwise follow mean accommoda- tions and want of skill and attention, the public interest must necessarily suffer grievous loss," and accordingly the combination was held to be illegal. In Hooker vs. Vanderwater, 4 Denio, 349, 353, held that " the object of this combination is to de- stroy competition " between the parties to it ; that " competition is the life of trade," that " whatever destroys or even reduces competition in trade is in- jurious if not fatal to it," and that so the combina- tion was a criminal conspiracy under the Statute, because injurious to trade and commerce. (Peo- ple vs. Fisher, 14 Wend., 9.) In Hoffman vs. Brooks, 11 Weekly Law Bulletin, 258, 259, the Court, speaking of agreements to pre- vent competition, say : " The presumption is always against the validity of such agreements, and certainly where they in- ESSAYS AND ADDRESSES 175 elude all those engaged in any business in a large city, or district, are unlimited in duration, and are manifestly intended, by the surrender of individual discretion, by the arbitrary fixing of prices, or by any of the methods in which the hope of gain makes human ingenuity so fruitful, to strangle competition outright and breed monopolies, the law, while it may not punish, will not enforce them It is not averred that the prices fixed are extortion- ate, but it is enough that they are absolutely re- moved beyond the operation of every natural cause of fluctuation." In Croft vs. McConoughy, 79 111., 346, 350, the Court, speaking of a combination to control the price of grain, says : " So long as competition was free, the interest of the public was safe. The laws of trade, in con- nection with the rigor of competition, was all the guaranty the public required ; but the secret com- bination created by the contract destroyed all com- petition, and created a monopoly against which the public interest had no protection." " No one can claim protection for the exclusive use of a trade-mark which would practically give him a monopoly, &c. // he would, the public ivould be injured, for competition would be destroyed." (Canal Co. vs. Clark, 13 Wall., 323.) In People vs. Stephens, 71 N. Y., 545, the Court says that : " Arrangements and combinations among those prepared and expecting to become bidders at auc- 176 ESSAYS AND ADDRESSES tion to prevent competition are condemned as im- moral and against public policy." In Marsh vs. Russell, 66 N. Y., 292, the associ- ation apparently was a mere partnership; but the Court said that: ' If, however, the primary object of the firm was to prevent competition, it might be considered as against public policy, and that it would be ' con- demned by proof that it was part of a conspiracy to control prices or create a monopoly.' " In Hartford, &c, R. R. Co. vs. N. Y. & N. H. R. R. Co., 3 Robt, 415, the Court condemned as il- legal an agreement by a railroad company not to extend its line, saying that : " The agreement was intended to prevent any competition in travel ; and such competition it was not lawful for the parties to prevent, or attempt to prevent." (Stewart vs. Erie Co., 17 Minn., 372; Charlton vs. Ry. Co., 5 Jurist, N. S., 1096.) In People vs. Marx, 99 N. Y., 377, the Court declared a formal statute unconstitutional and void, because it " prohibited an important branch of in- dustry for the sole reason that it competed with an- other and might reduce the price of an article of food for the human race." (387.) In Alger vs. Thacher, 19 Pick., 51, Morton, J., enumerates these among the grounds that invalidate contracts in restraint of trade : " 4. They prevent competition and enhance prices. 5. They expose the public to all evils of monopoly. And this is especially applicable to wealthy companies and ESSAYS AND ADDRESSES 177 large corporations, who have the means, unless re- strained by law, to exclude rivalry, monopolize bus- iness and engross the market." (Bishop vs. Palmer, 146 Mass., 469; Oregon vs. Winsor, 20 Wall., 64, 67.) " No one can claim protection for the exclusive use of a trade-mark which would practically give him a monopoly in the sale of any goods other than those produced by himself. If he could the public would be injured rather than protected; for compe- tition would be destroyed." (Goodyear Co. vs. Goodyear Co., 39 Alb. Law Journal 95 (U. S. S. Ct). An agreement to prevent competition at a public sale is void, as against public policy. (Brisbane vs. Adams, 3 N. Y., 129.) A combination to advance the price of stocks by means of fictitious dealings is void, as against public policy. (Livermore vs. Poor, 5 Hun, 285.) An agreement not to run a competing line of steamboats is illegal and invalid. (Wright vs. Rider, 36 Cal., 342.) " It is ultra vires and illegal for one railroad company to purchase the stock of another with a view to obtain a controlling interest in the latter, and then prevent competition between itself and the other company." (Central R. R. vs. Collins, 40 Ga., 582 ; Hazelhurst vs. Savannah, &c, R. R. Co., 43 Ga., 13; Elkins vs. Atlantic, &c, R. R. Co., 36 N. J. Eq., 5. " Property bought of an opposition steamship 178 ESSAYS AND ADDRESSES line, not with a view to employing it in connec- tion with the business of the road, but to withdraw it from business, thereby preventing competition, is not authorized by the charter." (Morgan vs. Donovan, 58 Ala., 242.) An agreement by one steamship company to pay another so much a month, as long as the former is suffered to run without opposition, is immoral and in restraint of trade. (Murray vs. Vanderbilt, 39 Barb., 141.) Land may not be acquired by a railroad company to prevent interference by competing lines. (R. R. Co. vs. Davis, 43 N. Y., 137, 146; Pierce on Rail- roads, 513, note 2.) " It is not competent for a railroad company to grant to a single telegraph company the exclusive right of establishing lines of telegraph communica- tion along its right of way. The purpose of such contracts is very plainly to cripple and prevent com- petition, and they are therefore void, as being in restraint of trade and contrary to public policy." (Western Union vs. R. R. Co., 11 Federal Re- porter, 3 ; Western Union z>s. Company, 23 Federal Reporter, 12; Bait., &c, Co. vs. Company, 24 Fed- eral Reporter, 319; Western Union vs. Company, 65 Ga., 160; Western Union vs. Company, 29 Am. Rep., 31.) Combinations of railroads to monopolize freight and carriage are illegal. (Denver vs. Company, 15 Fed. Rep., 650.) A municipal by-law in restraint of trade is il- ESSAYS AND ADDRESSES 179 legal and void. (Hunt vs. Wickwir, 10 Wend., 102.) An agreement by lessee with lessor that his em- ployes shall trade only with the lessor is unlawful, as tending to monopoly. (Crawford vs. Wick, 18 Ohio St., 190.) Combinations to " corner " commodities are il- legal. (Sampson vs. Shaw, 101 Mass., 145; Leon- ard vs. Poole, 114 N. Y., 371.) " It may be useful and lawful to restrain him from trading in some places, unless he intends a monopoly, which is a crime." (Parker, J., in Mitchell vs. Reynolds, 1 P. Williams, 181.) " If a contract go to the total restraint of trade in the State where it is made it is necessarily void." West Virginia vs. Company, 46 Am. Rep., 529; Dunlap vs. Gregory, 10 N. Y., 244; Lawrence vs. Kidder, 10 Barb., 642.) The authority of the Mogul Steamship Co. vs. McGregor et al. is weakened by the considerations : first, that the decision was not by a Court of last resort, where it may be reversed; second, the de- cision was by a divided Court; third, the decision turned upon the principles of the common law, whereas here a statute denounces combinations in- jurious to trade and commerce; fourth, the decision is contrary to the uniform current of adjudication in this and other States of the Union. See criticism of the decision by Sir Frederick Pollock, 7 Railway & Corp. Law Journal, 61 ; and letter from the Brit- ish Consul at Hankow on the disastrous effect of 180 ESSAYS AND ADDRESSES the decision upon trade, 6 R. R. & Corp. Law Jour- nal 159. In Chappel vs. Brockway, 21 Wend., 163, the agreement " only secured the plaintiff in the exclu- sive enjoyment of his business as against a single individual, while all the world beside were left at full liberty to enter upon the enterprise." In Leslie vs. Lorillard, no N. Y., 519, there was no element of combination, and the dictum was only that contracts are not void, as being in general restraint of trade, when they operate simply " to prevent a party from engaging or competing in the same business." But on page 533 the Court says: " Corporations are great engines for the promotion of the public convenience and for the development of public wealth; and, so long as they are con- ducted for the purposes for which organized, they are a public benefit, but if allowed to engage, with- out supervision, in subjects of enterprise foreign to their charters, or if permitted unrestrainedly to control and monopolise the avenues to that indus- try in which they are engaged, they become a public menace, against which public policy and statutes design protection." In the Diamond Match Company vs. Rober, 106 N. Y., 473, the decision was that the agreement, being only in partial restraint of trade, was valid on common law principles ; but on page 483 the Court says, " Combinations between producers to limit pro- duction and enhance prices are, or may be, unlaw- ful, but they stand on a different footing." ESSAYS AND ADDRESSES 181 The Statute Book of the State is replete with Acts indicative that restriction of competition is contrary to its policy, e. g. : Laws 1884, Ch. 252, Sec. 15 ; in N. Y., 65 ; Laws 1841, Ch. 183, Sec. 16; Laws 1854, Ch. 232; 2 R. S. (1st ed.), 691, Sec. 8; 7 Edmunds' Stats., p. 532, Sec. 9. The monopoly of a copy and patent right indi- cates no government policy hostile to competition, but is an exceptional measure for the stimulation of genius in authorship and invention, by guarantee- ing it for a period the exclusive benefit of its pro- duction. Not private aggrandizement, but the pub- lic interest is the distinct object of the regulation. (2 Mill Pol. Econ., 548.) But, in truth, this tedious citation of doctrine and decisions to exhibit the illegality of monopoly com- binations is unnecessary, since, for the support of the judgment, we are content to stand upon the law as propounded by the learned counsel for defendant in their argument below. On page 5-6 of his brief Judge Daly concedes that the effect of the adjudications is : " That combinations are unlawful, the design and effect of which necessarily is to give the party com- bining a monopoly more or less, for any length of time, of the manufacture or sale of a commodity, or of rates for transportation, or to regulate and con- trol the price of commodity, or to control the rates for the transportation of persons or merchandise, or to secure any pecuniary or other advantage in restraint of trade, which would be injurious to the 1 82 ESSAYS AND ADDRESSES community. The unlawful purpose in all these cases was either to raise prices or rates by means of the combination, or to keep them under its control so that the effect would be to compel the public to pay higher prices or rates than they would have to pay but for the combination." And on page 5 the distinguished jurist explicitly admits that such a combination is an indictable of- fense. VII The combination created by " The Sugar Refin- eries Company " deed, being injurious to trade and commerce, is a criminal conspiracy, and an indict- able offense. 1. — It was so at common law. (Raymond vs. Leavitt, 46 Mich., 447 ; Rex vs. DeBerenger, 3 M. and S., 67; Rex vs. Hillber, 2 Chitty, 163; Rex vs. Waddington, 1 East., 143, 167; Rex vs. Sterling, 1 Keble, 650; The King vs. Norris, 2 Kenyon, 300; Anonymous, 12 Modern, 248: People vs. Melvin, 2 Wheeler's Cr. Cas., 262 ; Com. vs. Carlisle, Brightly (Pa.), 36; 4 Black. Com. 158-9; 2 Bish. Cr. Law, Sec. 231 ; 1 Russ. Cr. Law, 168; 3 Inst., C. 89.). 2. — It is so in the State of New York, by express provision of statute. (Penal Code, Sec. 168, Sub. 6; Leonard vs. Poole, 114 N. Y., 371 ; Pittsburg vs. McMillin, 53 Hun, 67, 69; People vs. Fisher, 14 Wend., 9; Morris Run Co. vs. Barclay, 68 Pa. St., 174; Hooker vs. Vanderwater, 4 Denio, 349; Clancy vs. Salt Co., 62 Barb., 395; Barbour's Cr. Law, 245.) ESSAYS AND ADDRESSES 183 VIII The character of the combination, whether tend- ing to monopoly and injurious to the public, will be determined by the provisions of the instrument con- stituting it, without reference to its effects in actual operation. " The clear tendency of such an agreement is to establish a monopoly and to destroy competition in trade. It is no answer to say that competition in the salt trade was not in fact destroyed, or that the price of the commodity was not unreasonably ad- vanced. Courts will not stop to inquire as to the degree of injury inflicted upon the public ; it is enough to know that the inevitable tendency of such contracts is injurious to the public." (Salt Co. vs. Guthrie, 35 Ohio St., 672.) In Hilton vs. Eckersly, 6 Ellis & BL, 47, 65, Lord Campbell, C. J., construing the monopoly agreement in question, said : " I do not think that any averment is necessary as to what has been done under it, or as to any mis- chief which it has actually produced. We are to consider what may be done under it, and what mis- chief may thus arise." In Clancy vs. Salt Company, 62 Barb, 406, the Court say: " It is impossible for any man, in reading this agreement, not to see that the object of the parties to it was to limit the production of salt — to create a monopoly — and to increase the price of salt " ; 1 84 ESSAYS AND ADDRESSES and upon the terms of the agreement the Court held it illegal on general principles of law. In Atchison vs. Mallon, 43 N.Y., 149, per Folger, J. : " It is not necessary for the determination of this case to inquire whether the effect of the agreement between the parties was in fact detrimental. The true inquiry is, is it the natural tendency of such an agreement to injuriously influence the public inter- ests? The rule is, that agreements, which, in their necessary operation, tend to restrain natural rivalry and competition, and thus result in disadvantage to the public, are against the principles of sound public policy, and void." " One result is that the Chicago Gas Trust Com- pany can control the other companies. The ques- tion is not whether it has attempted to exercise such control ; the law looks to the general tendency of the power conferred." (People vs. Chicago Trust, supra.; Richardson vs. Crandall, 48 N. Y., 348.) " Its object and direct tendency is to prevent free and fair competition, and control prices throughout the national domain. It is no answer to say that this monopoly has in fact reduced the price of fric- tion matches. That policy may have been neces- sary to crush competition. The fact exists that it rests in the discretion of this company at any time to raise the price to an exorbitant degree." (Rich- ardson vs. Huhl, 7 Railway & Corp. Journal, 97.) " The combination or agreement, whether or not in the particular instance it has the desired effect, is void. The vice is the combination or agreement. ESSAYS AND ADDRESSES 185 the practical evil effect of the combination only demonstrates its character; but if its object is to prevent or impede free and fair competition in trade, and may in fact have that tendency, it is void, as being against public policy." (Anderson vs. Jett, 41 Alb. L. Journal, 104.) Indeed, counsel for appellant concede that the case presents only a question of law upon the con- struction of the agreement : " Being a question of science and not a question upon evidence as to what the actual effect has been, it must be considered and taken to be a question of lazv." (Argument of Mr. Carter, p. 21.) Nor will the Court be deceived by the plausible professions of purpose on the face of the paper, but will construe it upon its manifest tendency. " The law is not to be hoodwinked by colorable pretenses." (Shaw, C. J., Com. vs. Hunt, 38 Am. Dec, 347-8; Hooker vs. Vanderwater, 4 Denio, 352; Stanton vs. Allen, 5 Denio, 440; Matter of Jacobs, 98 N. Y., no; Mugler vs. Kansas, 123 U. S., 661 ; Fisher vs. Bush, 35 Hun, 643 ; Harring- ton vs. Victoria, &c, 28 Moak Eng. R., 453.) IX The question then is, whether, by its provisions, the trust agreement tends to the suppression of com- petition and the enhancement of prices. Counsel for appellant concede this to be the question for ad- judication : " The question which you have to de- cide is, whether this agreement tends to stifle com- 1 86 ESSAYS AND ADDRESSES petition and enhance prices, and therefore to work an injury to trade and commerce" (Mr. Carter, p. 22). And on p. 30 he says: 'I deny that this agreement does tend to stifle competition or to en- hance prices to the consumer." On the contrary, respondents affirm, that the " Sugar Refineries Company " deed does constitute a combination tending to monopoly, the prevention of competition, and the enhancement of prices. I. — To an accurate apprehension of the operation and effect of the instrument and the resulting com- bination, it is requisite to recur to a few of the laws of economic science. 1 st. In determining the laws of value, political economy proceeds upon the postulate that compe- tition is free. (Laughlin, Elements of Pol. Econ- omy, Sec. 94.) 2d. The natural or normal price of a commodity is the cost of its production, including in such cost the profit of the producer. And, toward this price the market price of the commodity constantly gravitates. If the market price sink below the normal price, production will decrease ; for men will not continue to produce at a loss, and production will diminish until the normal price is restored. If the market price be above the normal price, i. e., the cost of production plus the legitimate profit of the producer, capital, ever vigilant and ac- tive in quest of profitable investment, will, unless artificially arrested, rush into the production of the ESSAYS AND ADDRESSES 187 commodity, until the increased production restores the normal price. Thus the market price of commodities perpetually tends to their normal price — and this price is the highest the producer can get, if competition be free. (1 Mill's Principles of Political Economy, 556; Laughlin, Sec. 109; Cyclopaedia of Political Science, " Competition," by Charles Coquelin.) 3d. The influence which disturbs the market price of a commodity, either raising it above, or depress- ing it below, the normal price, is the relative supply of the commodity. If the supply be greater than the demand for the commodity, competition be- tween sellers will reduce the price. If the supply be less than the demand, competi- tion between buyers will increase the price. " The price of every article of commerce is in- versely in proportion to the supply." (Chalmers on Political Economy; Say's Pol. Econ. b. ii., ch. i.) The normal price prevails when the supply is ex- actly equivalent to the demand. 4th. It results, therefore, that the supply deter- mines the price of a commodity; and that a control of the supply involves a control of its price. 5th. If, however, the supply of a commodity be in several hands, with diverse interests, competition between them will stimulate production and so di- minish the price. This effect, therefore, can only be prevented by concentrating the supply within the grasp of a single control — in other words, by a monopoly of the supply. 1 88 ESSAYS AND ADDRESSES 6th. In its nature monopoly is incompatible with competition — necessarily excludes it. " Wher- ever competition is not, monopoly is." (2 Mill's Principles of Political Economy, 378.) The proposition is absurd that a single producer competes with himself in the sale of his commodity. And equally impossible is competition among many producers whose capacity of production is under the control of a single will — among many pro- ducers reduced by combination, or unification, to a single producer, and all of whom profit by the profit and lose by the loss of each. 7th. Monopoly, therefore, by control of the sup- ply and by exclusion of competition, is absolute master of the price of the commodity monopolized. And, under the irresistible impulse of self-interest, monopoly will exact the highest price which the consumer of the commodity will stand. " The price of monopoly is upon every occasion the high- est that can be got." (Wealth of Nations, 64; 1 Mill, 546, 552.) " To confer a monopoly upon a producer or dealer, or upon a set of producers or dealers not too numerous to combine, is to give them the power of levying any amount of taxation on the public, for their individual benefit, which will not make the public forego the use of the commodity." (2 Mill, 547-) " A producer without competition may raise his product to what price he will, even to the extreme ESSAYS AND ADDRESSES 189 limit of the consumer's ability." (Say, Pol. Ec., b. ii., ch. i.) 8th. But to the monopoly price of a commodity, which is a necessity of comfortable existence, there is no assignable limit, since, for such a commodity, the consumer will pay an exorbitant price — econo- mizing by abstaining from less indispensable arti- cles. (1 Mill, 560.) 9th. As price depends upon the relation of the supply to the demand, monopoly can increase the price of its commodity only by reducing the supply. (1 Mill, 552.) 10th. As it is the competition between sellers only which reduces price, and as monopoly excludes com- petition, a diminution in the cost of production of a monopoly article does not lessen its price. ( 1 Mill, 558-) II. — Viewed in the light of these principles — axioms in the science of political economy — the agreement constitutes a strict and absolute monop- oly Its object to concentrate the control of the pro- duction of refined sugar under the dominion of a single will, and that will stimulated by self-interest to push the price of the commodity to the highest possible point. The scheme adopted for the attain- ment of its object is at once simple and infallibly effectual. 1st. The refineries become corporate bodies; the entire capital stock of each company is transferred iQO ESSAYS AND ADDRESSES to a board consisting of eleven members ; the stock so transferred is held in " strict joint tenancy," so as upon the death or retirement of a member to de- volve upon the survivors; the vote of the majority is equivalent to " the unanimous action of the board." Thus, as sole owner of the entire capital stock of all the companies, the board absolutely dominates and controls the action of each and every company (R.R. Co. vs. Com., 7 Atlantic R., 368). Necessarily every question of corporate policy solv- able by shareholders is determined by this board, for they are the only shareholders. Necessarily every question of corporate policy and management solvable by the trustees of the corporation is deter- mined ultimately by this board; for they elect and remove trustees, and no man can be a trustee unless they choose to qualify him by a transfer of the requisite stock, and no man can be a trustee longer than they desire, since, by law to be a trustee one must be a stockholder, and trustees stipulate on request to retransfer their stock to the board. Thus the board controls at will the production and sup- ply of sugar by the confederated refineries. Such, in effect, is the admission of appellant: " The Board as sole stockholder is to elect directors of all the corporations, and thus can control, as stockholders control, but not otherwise, the action of all the companies." (Mr. Carter, p. 17.) Again on page 56 : " Suppose the board pass reso- lutions . . . there is no sort of doubt that the corporate bodies will assent ; because they are one ESSAYS AND ADDRESSES 191 zvith them. Undoubtedly these corporations can agree upon the manner in which they will do busi- ness and the circumstance that competition is de- stroyed between them makes it reasonable and prob- able that those resolutions will be carried out by all the members. ... A power exists (in the Board) to fix a price eventually." 2d. In return for the surrender of its stock to the board each company receives trust certificates in some proportion to the estimated value of its prop- erties; the profits of the companies are turned into the board, and then are distributed among the cer- tificate holders — exactly the same dividend being allotted to each share. Thus, each company shar- ing the profits and losses of every other, an abso- lute unity and identity of interest is secured among them. The profit of one being the gain of all and the loss of one the loss of all, competition between them is absolutely excluded, as absolutely as be- tween copartners. And, so appellant explicitly concedes : " Com- petition is destroyed between them," i. e., the com- panies (Mr. Carter, 56.) " It is the necessary effect, and may be assumed to be one of the purposes," of the combination (pp. 28, 54, 18, 17). 3d. (Having the power to dictate the price, as they control the supply of refined sugar, the board is stimulated by self-interest to extort the utmost price, for its members are all holders of trust cer- tificates. Collectively they own the greater part, i9z ESSAYS AND ADDRESSES and, to insure their entire devotion to the interests of the " combine," they are prohibited, under severe penalties, to trade in sugar on their own account. 4th. The agreement makes provision for taking into the " combine ' : every other refinery in the country (fols, 40, 119), indeed, the "combine'' already controls the entire production of refined sugar in the State of New York, and largely the production in the United States (fols. 166, 225, 227). Thus the agreement contemplates and makes pro- vision for a monopoly of the supply of sugar within the United States. And that such is its object is further demon- strated by the interdict upon members of the board " to buy or sell sugar or be interested, directly or indirectly, in the purchase or sale of sugars." " The control of the four companies by the ap- pellee — an outside and independent corporation — suppresses competition between them, and de- stroys their diversity of interest, and all motive for competition. There is thus built up a virtual mo- nopoly." (People vs. Chicago Gas Trust Co., supra. ) 5th. In order to an adequate estimate of the con- trol of the combination over the price of sugar, and so to measure its capacity for mischief, we must bear in mind that an exorbitant impost virtually ex- cludes foreign competition; and that thus there is no limit to the power of the combination to plunder the ESSAYS AND ADDRESSES 193 public but the ability of the public to pay the trib- ute. 6th. Thus it is apparent upon the provisions of its constitution, that the scheme contemplates and is framed to compass two cardinal objects : First, the prevention of competition between the refineries in the combination; and this it accomplishes by consolidating their interests and creating between them a community of profits and losses, and by subjecting them to the control of one and the same management, whereby an identity of price in the purchase of the raw material and in the sale of the finished product, may be fixed for each and every refinery. Second, a monopoly of the production and supply of sugar throughout the country by the absorption of all other refineries ; for which provi- sion is made by the express terms of the deed and by the reservation of an adequate fund in the treas- ury of the combination. To attain these objects is the obvious and only raison d'etre of the combina- tion ; and in so far as it fails to realize either result, it miscarries in its mission. That either object suf- fices to condemn the combination as illegal — as, in- deed, a criminal conspiracy against the public inter- ests — is an incontrovertible proposition. Author- ities, supra. Conceding that the board " will be governed by the ordinary motives which influence human action, and, so far as it is for their interest and so far as 194 ESSAYS AND ADDRESSES they have the power, to raise prices, to that extent undoubtedly it may be assumed that prices will be raised" (Mr. Carter, p. 17), and admitting that it is the aim and effect of the combination to prevent competition between its members, appellant argues that still the combination is ineffectual to maintain prices above their normal rate, because it is im- possible for the combination to monopolize the pro- duction of refined sugar; and by an inexorable law of economic science, excessive profits will stimulate competition and so reduce prices to their normal level. I. — Pausing upon the concession " that by the combination, competition among its members is de- stroyed," this effect of itself and alone condemns the combination as illegal ; for it is precisely such combinations, and because of precisely such an ef- fect, that are discredited and denounced in the ad- judged cases (authorities, supra). The language of Courts and writers is uniform, that if the agree- ment or combination tend to monopoly, if it reduce or lessen competition, it is contrary to public policy and unlawful, because operating pro tanto an arti- ficial enhancement of price. In no case or book is there an intimation even, that in order to incur the censure of the law, the combination must constitute a complete monopoly, and the agreement effect a to- tal extinction of competition. 1 st. The etymological is neither the scientific nor legal sense of monopoly, but both political econo- mists and judges recognize and reprobate partial ESSAYS AND ADDRESSES 195 and temporary monopolies, operating respectively partial and temporary detriment to the public in- terest. Monopoly comprehends " cases in which a person or a union of persons cannot control more than a portion of the whole supply of the commod- ity, since such a partial control may render possible and profitable an artificial rise in the price of the commodity ' : (Sidgwick, Prin. Pol. Econ., 338, 188-9, 408-9, 335, 336, 195). In a note (p. 189) this author adduces as an instance of a partial and temporary monopoly, and its ruinous consequences, the Gold Ring (Black Friday) of 1869. So, Mill, Vol. 1, p. 502: " A trade may also from the nature of the case ' (e. g., Sugar Refining) 'be confined to so few hands that profits may admit of being put up by a combination among the dealers." Again on page 501 : "If a business can be advantageously carried on only by a large capital ' : {e. g., Sugar Refining), " this, in most countries so narrowly lim- its the class of persons who can enter the employ- ment, that they are enabled to keep up their rate of profit above the general level." Again : ' There are but few commodities which are naturally and necessarily limited in supply. But any commodity whatever may be artificially so. . . . Any com- modity may be the subject of a monopoly " ( 1 Mill's Principles of Political Economy, 552, D. Appleton & Co., 1864). And Laughlin (Elements of Pol. Econ., Sec. 203) says: " Other instances " (of partial monop- oly) " are to be found in the temporary effects of 196 ESSAYS AND ADDRESSES combinations and corners," by which " the supply is limited in order to cause the whole to be taken off at a price independent of the normal value." If the bare possibility of a rival springing up to compete with the combination suffices to efface its character as a monopoly, then there can be no mo- nopoly except in the rare and unimportant case of a complete possession or control of the commodity; and as to all the great trades and industries there can be no monopoly, and they are beyond the pro- tection of the law which prohibits combinations to prevent competition and enhance price — a mani- fest reductio ad absurdum. In none of the cases condemned by the courts as monopolies, we repeat, was there a complete and entire control of the commodity by the combina- tion. 2d. Nor is a partial monopoly, i. e., a combina- tion controlling only a portion of the supply, inef- fectual for the maintenance of monopoly prices (citations supra from Sidgwick, Mill and Laughlin). Appellant admits that " this combination cannot raise the price without raising it for the benefit of others, and the outsiders may or may not choose to raise their prices accordingly." (Mr. Carter, P- 3 2 -) But if " outsiders " elect to undersell the combi- nation, still their competition will not affect the mo- nopoly price of the combination, unless they be cap- able of a production adequate to the supply of the entire market. ESSAYS AND ADDRESSES 197 So long as the combination by its control of pro- duction can prevent the supply being equal to the demand, it has the power to indefinitely increase price. " If the article is a necessary of life, which, rather than resign, people are willing to pay for at any price, a deficiency of one-third (withheld by the combination) may raise the price to double, triple, or quadruple." (2 Mill, 550, and note.) " A partial control of the supply may render pos- sible an artificial rise in the price of the commodity, even though the remainder is supplied by several sellers freely competing, if only the proportion con- trolled is so large that its withdrawal zvould cause a serious scarcity, and thus considerably raise the competitively determined value of the uncontrolled remainder." (Sidgwick, 338.) The validity of this ascertained law of economic science is susceptible of easy illustration and proof. (a) Suppose that this combination controls two- thirds of the product of refined sugar, and the out- side competitors one-third, and that while the com- bination demands seven cents a pound the competi- tors ask only five cents. Now, it is an axiom of political economy that there cannot be two prices for the same article in the same market, because, of course, everybody would buy the commodity at the lower price. It follows, therefore, that everybody would buy at five cents of the competi- tors. But competition between buyers enhances the price, and their competition would ultimately raise the price of the outside competitors to the 198 ESSAYS AND ADDRESSES price of the combination, unless those competitors could supply the entire demand. (b) Suppose, however, the one-third product of the outside competitors be taken at the five cent price. The demand, being yet unsatisfied, could be supplied only by the combination, which, having now a complete monopoly of the commodity, could extort a monopoly price — to the extent even of indemnifying itself for any loss it may have sus- tained by the previous competition. Wherefore, if outside competitors cannot supply all the demand, they cannot prevent a monopoly price. And this a priori deduction is confirmed by the observed fact, that competitors of a combination uniformly avail themselves of the monopoly price of the combination. 3d. At all events this combination is, in legal effect, a strict monopoly, for the evidence shows that it controls absolutely and completely the sup- ply of sugar in the State of New York, and such control in a single State is held by the courts of that State to be a monopoly. (Lawrence vs. Kid- der, 10 Barb., 642; Dunlop vs. Gregory, 10 N. Y., 244; West Virginia, &c, vs. Company, 46 Am. Rep., 529.) II. — Advancing now to appellant's main argu- ment, namely, that although this combination ex- tinguishes all competition among its members, yet it is impotent to control or arrest the larger com- petition of capital invited by the excessive prices ESSAYS AND ADDRESSES 199 of the combination to invest in the production of sugar, and that so increased production will reduce price to its normal level, we answer: 1st. That the argument postulates free competi- tion of capital with capital and of labor with labor. Whereas, the utmost that can be affirmed in support of the argument is, that it is the tendency of labor to seek the highest wages, and of capital the largest profits ; and so that it is the tendency of economic forces to maintain an equilibrium of price. The fallacy of appellant's argument lurks in the ambi- guity of the word tendency; which means either the operation of causes that will produce a result, or the operation of causes that may produce a result, if not arrested or impeded by counteracting forces. (Whateley's Lectures on Pol. Econ., 231.) In the latter sense appellant's proposition is true ; in the former it is false. In point of fact many causes operate to hinder the free competition of labor and of capital — a fact attested conclusively by the prevalence of different rates of wages and of different rates of interest (Laughlin, Sees. 124- 125). Hence, the utmost we may predicate of the competition of capital in redressing the balance of prices is, that such is its tendency, and possibly its ultimate result. " After due allowance is made for these various causes of inequality, difference in the risk and agreeableness of different employments, and natural or artificial monopolies, the rate of profit on capital in all employments tends to an equality" (1 Mill, 502). Again, "But in all 200 ESSAYS AND ADDRESSES things which admit of indefinite multiplication, de- mand and supply only determine the perturbations of value during a period which cannot exceed the length of time necessary for altering the supply ' (id., 561). Mr. Carter himself says: "All the combinations in the world for the manufacture of refined sugar could never permanently keep up the price," etc. (p. 39), and that the reduction of price " may not occur in one month or two months or three months, and a temporary rise in price may be brought about in this manner," i. e., by the combi- nation (p. 33). So that assuming a free migration of capital in quest of profitable investment, there is still a complete absence of competition with the combination, for the long period during which out- side refineries are building and equipping and get- ting their product upon the market; and of what havoc even a temporary monopoly is capable, we again adduce the Gold Ring of 1869 as a memora- ble and admonitory instance. And then, if after a prolonged exaction of arbi- trary and exorbitant prices, the combination ulti- mately collapses, under the strain of competition, the widespread disturbance of the market and finan- cial ruin, exhibit another set of evils engendered by the system — as witness the recent explosion of the copper syndicate. 2d. Even after outside refineries shall be estab- lished, equipped and in operation, it by no means fol- lows that they will compete with the combination in the reduction of prices (supra), and if they do, ESSAYS AND ADDRESSES 201 experience, notably of the Standard Oil Company, demonstrates that nascent rivals are invariably crushed by established and powerful combinations, which, for that purpose, reduce prices until their competitor is driven from the field, and then in- demnify themselves by aggravated plunder of the public. In enumerating the classes of monopolies, the Cyclopaedia of Political Science, etc., vol. II., p. 891, distinguishes: 1st. The engrossing of a business by a combination of individuals, who by means of the vastness of the capital invested, drive out com- petitors, not by a superior service, or a lower nor- mal price, which is the operation of the natural law of competition, but by losses deliberately incurred which they can bear and the competitor cannot, to be recouped by excessive charges when the com- petitor is made harmless." XI The Sugar Refineries combination is not justified by the economic law of " Large Production " (Laughlin, Sec. 50), i. c, by the effect of aggre- gated capital and concentrated management, in re- ducing prices. 1 st. The combination does not bring a single ad- ditional dollar to the production of sugar. The principle of division of labor is not more available and operative than before the combination. Neither is there any aggregation of capital or con- centration of management; for, by express provi- 202 ESSAYS AND ADDRESSES sion of the trust deed, " the several companies, parties to this agreement, shall maintain their sep- arate organization and each shall carry on and con- duct its own business." So each company main- tains its own complement of salaried officers and servants, and, subject to the control of the board, directs its own affairs, and hence there is no econo- mizing of expenditure. The cost of running each company is precisely what it was before the com- bination, and the business of each is still under a separate and several management. And the capital of each company remains in its own exchequer ; only the certificates, representatives of that capital, are deposited with the board, in order to collect there the voting power of the companies. 2d. Such establishments as Macy's, Wana- maker's, etc., have no control of the production of commodities, and so cannot enhance prices ; but are concerned only in the distribution of commodities, and so by the greater capital they employ, by so much increase the volume of supply, and by as much as they increase the volume of supply, by so much diminish prices. Their only chance of suc- cess is in underselling small dealers, and this they are enabled to do by the great aggregate income they realize from small profit on immense capital. Thus such establishments are the very opposite of monopoly; for while they live only by extending the area of demand and consumption to which a reduction of price is indispensable, monopoly thrives only upon a diminution of supply, by which ex- ESSAYS AND ADDRESSES 203 pedient only can it command exaggerated prices. Demand and consumption are extended only by a decrease of price; but the end and aim of monopoly is increase of price, and this it surely accomplishes by curtailment of supply, instead of useless expendi- ture in augmented production, and the hazardous experiment of cheap prices. If Macy and Wanamaker had a monopoly of com- modities, they would exact their own prices ; but now they can sell only by underbidding competitors. XII The example of the Standard Oil Company, ad- duced as an instance of the reduction of price by combination, involves the fallacy of the petitio principii, in assuming the very proposition to be proved, namely, that reduction of price was a con- sequence of the combination. True, the price of refined oil is less than before the existence of the combination; but non liquet that the combination was the cause of the reduction, since other causes adequate to the effect were in full operation, c. g., increase of the raw material, diminution of the cost of production by improved processes and machinery, etc. Non constat, but that under free competition the price would have been still less ; as probably it would have been, since all experience attests the efficacy of competition in the reduction of price. Indeed, we have the assurance of the highest au- thority that the fall in the price of refined oil was not because, but in spite of the Standard combina- tion. 204 ESSAYS AND ADDRESSES " Newspaper organs of monopoly tell us to ad- mire the magnanimity of the Standard Oil people, who have reduced prices. This is a false state- ment. Prices have fallen in spite of the most strenuous efforts to keep them up. . . . They have always held back vast quantities of oil to main- tain prices, and rumors reach us of a determined effort to diminish production." (Professor Ely, Problems of To-day, p. 144.) a XIII The sugar combination finds no justification or support in the right accorded by law (Penal Code, Sec. 170) to associations of labor for the enhance- ment of wages. The mischief of over-supply and inadequate values in commodities, the producer can and will correct by a reduced supply, thus restoring the equilibrium of prices. But sentient labor cannot withdraw from the market, it must eat or die ; and, indeed, in proportion to the inadequacy of wages, is the in- crease in the supply of labor, for the deficiency of wages can be compensated only by longer work and conscripting the young and the old for the support of the family — < the less the pay, the more the work necessary for subsistence. Then, too, since the labor class constitute the mass of society, and since the well-being of society depends upon the physical, intellectual and moral condition of the mass of its constituents, the law secures to labor the right of ESSAYS AND ADDRESSES 205 recourse to the only expedient, combination, by which its condition may be bettered. XIV Nor is the case similar to the pooling arrange- ments between railroad carriers (which, however, are illegal, authorities supra), for there the evil of monopoly is checked by the power of the State to regulate prices. (Munn vs. Illinois, 94 U. S., 113; R.R. Commission Cases, 116 U. S., 307; Dow vs. Biedelman, 125 U. S., 680; People vs. R.R., 70 N. Y, 569.) xv Defendant's counsel assume that here was a sale of defendant's stock to " The Sugar Refineries Company." The relevancy of the point to the argu- ment is not apparent; but indisputably the transac- tion has no feature of a sale. 1st. A sale implies a price for the thing bought; but here was no price paid or promised; and the trust certificates exchanged for the stock are only evidence of the holder's right to the stock deposited with the board, and to dividends on it. 2d. The deed provides in terms that the stock shall be held by the board " as trustees." 3d. If the stock were sold to the board, it would be the property of the board, and the profits, as an incident of that property, would belong to the board; but by the provisions of the deed these prof- its are to be distributed in the form of dividends to 206 ESSAYS AND ADDRESSES the holders of the certificates exchanged for the stock. 4th. If the corporate stock be sold to the board for the price of its certificates, then upon the dis- solution of a corporation its assets would be the property of the board — a result which the stock- holders in the corporation would be the last to ac- cept. 5th. No rational mind can draw any other con- clusion than that the corporate stock was transferred to the board for the sole purpose of imparting to the board the voting power of the stockholders — in other words the control of the corporation. XVI The fact that the arrangement imposes a copart- nership liability on the associated corporations, is ineffectual to efface the illegality of the combina- tion. The assimilation of such a scheme to a copartner- ship was attempted in Stanton vs. Allen, 5 Denio, 442 ; but the Court dismissed the argument sum- marily with the remark, that " no one can be de- ceived by any supposed analogy between the prin- ciple of uniformity of price among members of an ordinary business firm, and the same thing in a con- federacy formed for no other purpose or use than to bring it about.'' XVII Another argument by Mr. Carter is that the sev- eral interests implicated in the combination might ESSAYS AND ADDRESSES 207 legally be consolidated in a single corporation; and that hence the present confederacy of corporations is invulnerable to attack. But — 1st. It is no defense of the system assailed that another scheme constructed on a different principle might be legally unimpeachable. The argument proceeds on a false analogy; and it is no justifica- tion of one thing to show that another and different thing might be legal and legitimate. 2d. The argument involves not only a non- sequitur, but the assumption of a false premise, namely, that for the purpose and to the effect of se- curing a monopoly of the sugar refinery business, all the sugar refining interests of the country might legally be concentrated in a single company. Any combination to do an act injurious to trade or commerce is a criminal conspiracy (Penal Code, Sec. 168, Sub. 6), and to prevent or restrict com- petition is injurious to trade and commerce (Leon- ard vs. Poole, 114 N. Y., 371 ; Hooker vs. Vander- water, 4 Denio, 353; People vs. Fisher, 14 Wend., 19, and authorities supra.) An otherwise lawful combination becomes a crime if its intent be to form a monopoly (Parker, C. J., in Mitchell vs. Rey- nolds, 1 P. Williams, 181). Hence, it is an un- warrantable hypothesis to assume that the right of incorporation for legitimate business, involves the right to incorporate for an unlawful purpose. (Clancy vs. Salt Company, 62 Barb., 395; Endow- ment Fund vs. Sutchwell, 71 N. C, in ; 8 Am. St. 208 ESSAYS AND ADDRESSES R., 192, note by Freeman; Richardson vs. Buhl, 7 R.R. & Corporation Law Journal, 89; People vs. Chicago Gas Trust, 41 Alb. Law J., 68.) XVIII It is no answer to the criticism of the sugar " combine ' : to say, that a man may do what he pleases with his own, that the stock in the several companies is the property of the shareholders, and that they may dispose of it at their pleasure. For it is not a true proposition of law that a man may do as he chooses with his own, the fundamen- tal principle is rather, sic utere tuo ut alienum non Icedas, and every man's property is subject to the restriction that he shall not use it to the detriment of society. Salus populi suprcma lex. It is upon this principle that the law condemns and confiscates property as a nuisance ; it is by this principle that the law restrains in so many particulars the right of a man to contract (Stanton vs. Allen, 5 Denio, 441), especially forbidding him so to contract as to create monopoly. Authorities, supra. " Every right, from absolute ownership in prop- erty down to a mere easement, is purchased and holden subject to the restriction that it shall be so exercised as not to injure others." (Coates vs. Mayor, 7 Cowen, 585.) XIX It is perfectly obvious that the scheme under dis- cussion does not present a case of mere partial re- straint of trade, for the benefit of the vendor of a ESSAYS AND ADDRESSES 209 commodity or business (Diamond Match Co. vs. Roeber, 106 N. Y., 473; Leslie vs. Lorillard, no N. Y., 533; Watertown vs. Pool, 51 Hun, 157), but is, in purpose and effect, a combination of producers to monopolize and control the market, and hence cannot be vindicated upon the principle of those decisions. xx The scheme of combination constituted by the Sugar Refineries Company deed creates a monopoly in the strictest and most absolute sense, i. c, a single seller. It concentrates the power of production and supply in a single body, actuated by a single and common interest; it excludes the possibility of competition, and it tends inevitably to the enhance- ment of price. Thus the combination is illegal and criminal ; and since ' a corporation has no authority to do acts which by the public law are in- dictable " (State vs. Krebs, 64 N. C, 604); since acts ultra vires, i. c, abuse of corporate powers (Code Civ. Pro., Sec. 1798, Sub. 2), and "a vio- lation of any provision of law (id.) are express statutory grounds of forfeiture, it results that the verdict was well directed against defendant. And that the intervention of the Courts is chal- lenged by the urgency of the public interest, is evi- dent from the mischievous consequences of trust combinations. " If it is to be the future order of things that each of the industries is to be in charge of one trust, and 210 ESSAYS AND ADDRESSES competition thereby excluded, what follows? Among other things such as these: ( i ) The creation of as many distinct dominating classes as we have industries, to whom all other interests will be selfishly subject and subordinated. (2) A domination of capital over labor which would leave to the workman, not the highest wages he could get from among a host of competitors for his labor, but just what the one monopolist employer may arbitrarily choose to give him. (3) The dis- couragement of the production of raw materials through the constant forcing down of their price that comes by confining the demand to one pur- chaser. (4) The discouragement of invention by restricting production to one mammoth corporation ; who, with no fear of a competitor before their eyes, would be less necessitated to keep up with the march of discovery and little disposed to prematurely destroy old plant for better. (5) The creation of fierce antagonisms between trusts whose interests might be conflicting, causing interruptions to busi- ness far more serious than those we suffer from the worst forms of strike. (6) The subjecting of the whole distributing trade to just such conditions and compensations as the monopolist producer may choose to dictate, with no possibility of recourse or redress. (7) The old plant of our industries (which should have been allowed to give place to new in a natural way) , having been absorbed into the monop- olies, will have to do duty with the improved, and will thus be conserved to act as a drag upon the ESSAYS AND ADDRESSES 211 efficiency and economy of production. (8) The in- troduction of very serious changes in the relations of banking to commerce ; for, under the trust system, the banks would have to carry a whole industry in one solid block, and not, as at present, divided among a wide diversity of individual firms. (9) The own- ing and control of the banks, in a large measure, by the monopolies, in order to protect their own mam- moth interests and also to hold in the more complete subjection such other interests as might not relish their industrial domination. (19) The creation of an industrial aristocracy of immense power, which would foster class hostilities, embitter politics and endanger the Republic." — New York Daily Com- mercial Bulletin, 1 st April, 1889. XXI Defendant corporation is party to the Sugar Re- fineries Company deed. 1. — In September, 1887, George H. Moller, then secretary of the defendant company, signed the deed thus : " North River Sugar Refining Company, Geo. H. Moller, Secretary v (folios 98-99); and he so signed under and pursuant to a resolution of a meet- ing comprising all the stockholders and trustees of the company (folio 99), declaring it to be " for the interest of the North River Sugar Refining Com- pany to participate in the consolidation ' : of the Sugar Refineries (folio 103), and authorizing " the President and Secretary ... to sign all con- tracts, agreements and papers which the above com- 212 ESSAYS AND ADDRESSES mittee may make in relation to the said consolida- tion " (folio 104) — i. c, the combination in ques- tion. And he so signed in the belief that he had authority to sign from the stockholders and trustees (folio 98). Plainly, if Moller had authority to execute the instrument in behalf of the company, the subsequent resolution of November 4th, 1887, purporting to revoke that authority, was ineffectual to cancel an execution already consummated. The preamble to the resolution of November 4th, declared that " it is deemed inexpedient at the present time to enter into any such consolidation ' : (folio 108). Thus, the resolution to go into the combination was not rescinded, but was only post- poned in the time and modified in the mode of execu- tion. So, at a meeting of stockholders of the com- pany, held 25th November, 1887, it was recited that whereas Moller had signed the deed under the be- lief that he was authorized so to do, providing for the delivery of the stock of the company to trustees therein named (folio 119) ; and whereas, "John E. Searles, Jr., had offered to purchase the capital stock of said North River Sugar Refining Company for the sum of $325,000/' it was " Resolved, that Peter Moller, Jr., George H. Moller and Gerd Mar- tens be and they are hereby appointed a committee to deliver said stock to John E. Searles, Jr. (mem- ber, secretary and treasurer of the board), or at his request to John E. Parsons, John R. Dos Passos and Franklin Bartlett, trustees" (folio 120), ap- ESSAYS AND ADDRESSES 213 pointed by the board to receive the stock from the individual stockholders ; so as to make " certain that the stockholders of all corporations had assented," before the issue of certificates for the stock (folio 196) ; and then to transfer the stock to the board (folio 161). Accordingly, all the stock of the North River Sugar Refining Company was transferred, by blank assignments, to John E. Searles, Jr. (folio 115), who purchased for the Sugar Refineries Company (folio 161) ; he transferred it to the named trustees, and they transferred it to the Sugar Refineries Com- pany (folios 161, 163). Obviously, the resolution of the 25th of Novem- ber, coupled with the acts done pursuant to it, was a ratification of George H. Moller's execution of the deed — namely, he had agreed for the company that it should become a party to the consolidation; and the resolution and consequent action of the company made it a party to the consolidation. Every right and every obligation conferred or im- posed upon the company or its stockholders by Mol- ler's execution became, in fact, the right and obliga- tion of the company or its stockholders — they are both in precisely the same situation they would have been in under Moller's execution — and the deed still bears the signature " North River Sugar Re- fining Company, George H. Moller, Secretary " ; the company is still a party to the deed. 2. — Upon the supposition that Moller's signature was a nullity, still one may be a party to an instru- 214 ESSAYS AND ADDRESSES ment without a formal, technical execution of it — without signing it. It is common learning that a grantee in a conveyance becomes a party to it and is bound by its covenants, by taking the benefit of it and without executing it. Here, the North River Sugar Refining Company or its shareholders — whoever they be — have done what the deed re- quired of them, i. c, transferred their stock to the board (folios 139, 139, 163, 139, 155), have got what the deed guaranteed to them, namely, the cer- tificates of the Sugar Refining Company (folios 138, I 55» J 63). This board, the Sugar Refineries Com- pany, was constituted and created under and pur- suant to the deed (folios 138). The stock was transferred to the board in conformity with the terms of the deed (folios 142, 154). Certificates for the North River Company's stock were to be issued for ' the amount specified in the deed ,: (folio 154), and were received from the board (folio 159). The board holds the North River Company stock " subject to the purposes set forth in the deed" (folio 158). The -fifteen per cent re- served out of the $700,000 certificates allotted to the North River Company, was so reserved under the deed (folios 228, 237, 239) — "the original agreement with the North River Company " (folios 286, 242). Finally, the North River Company, or its stock- holders, have been awarded the dividend stipulated by the deed (fol. 201). Beyond all controversy, the North River Com- ESSAYS AND ADDRESSES 215 pany, or its stockholders, have acted upon the pro- visions of the deed, have received and enjoy the benefits of it, and so are parties to it; if not upon the original execution of Moller, then as effectually by subsequent adoption and ratification. (The Sheldon Company vs. the Eickmeyer Co., 90 N. Y., 607 ; President, &c, vs. R. R. Co., 7 Lans., 240.) XXII But the controlling question of fact is, not whether the defendant was a party to the deed, but whether it is in the combination? The allegation of the complaint is that, " said agreement con- stitutes a combination to do an act injurious to trade and commerce, to which combination defendant is a party " (folio 43). I — By the essential principle and policy of the scheme, the corporations are parties to the com- bination, thus : 1 st. The board is created by the corporations. 2d. The deed explicitly provides that none but corporations can be parties to the combination. 3d. The deed recites, " The several corporations, parties to this agreement/' etc. 4th. " The several corporations shall be entitled to the shares " of trust stock. 5th. Provision is made for the acquisition of other refineries " to become parties to this deed." 6th. The profits of each corporation is to be paid over by it to the board, etc. 216 ESSAYS AND ADDRESSES 7th. The corporations stipulate for the transfer of their stock. 8th. Each corporation agrees to maintain its separate organization, etc. 9th. Funds for the board are to be raised " by- mortgage to be made by the corporations on their property." 10th. The profits of the corporations, before declaration of a dividend, are to be turned into the board. nth. Nowhere does the deed recognize stock- holders as parties to the instrument or constituents of the company; but on the contrary, the essential principle of the scheme is, that it is the creation of the corporations. Obviously and undisputably, the corporations, as such, are the constituents of the combination. II — Defendant might become a party to the com- bination without being technically and formally a party to the deed. The agreement created and constituted the com- bination. The combination is the effect of the agreement. An agreement to form a combination is one thing; the consummation of the combination is another substantive thing. Defendant might go into the combination after its formation, without having previously executed the agreement. It appears on the face of the agree- ment that some individuals signed it ; but individuals could not join the combination; they were organ- ized as corporations, and those corporations after- ESSAYS AND ADDRESSES 217 ward went into the combination, although they had never signed the agreement. Ill — Whether defendant be in the combination is determined exclusively and decisively by the trans- fer of its stock to the board, named the Sugar Re- fineries Company. The answer admits that ''the owners of corporate stock of this defendant, and of other sugar refinery companies, have assigned and transferred their stock to the said persons called the Sugar Refineries Company" (folio 57), and the fact appears also in the evidence (folios 115, 121, 138). Armed with the voting power of defendant corporation, the board has absolute control of the corporation, and is bound by the deed under which it holds its stock, to exert that control in the interest and for the aggrandizement of the combination. IV — This defendant, in a peculiar and emphatic sense, is a party to the combination; for while the board is only nominal owner of the stock of other companies, the beneficial ownership being in the holders of the certificates for which it was ex- changed ; of defendant's stock, while the board holds the legal title, the beneficial interest is in the associa- tion ; for defendant's stock was bought by Searles in behalf of the combination, was paid for by the money of the combination (folios 160, 163), and, accordingly, the dividend declared upon defend- ant's stock is retained in the treasury of the com- bination (folio 204). V — The declaration of a dividend by the board upon defendant's stock (folio 201) affords con- 218 ESSAYS AND ADDRESSES elusive evidence of its connection with the combina- tion. VI — To the argument that since appellant had no legal power to enter the combination, in con- templation of law it has not entered the combina- tion, the Court of Appeals furnishes a conclusive answer in the Matter of McGraw, in N. Y., 106. XXIII Defendant corporation was carried into the com- bination by the concurrent action of all the stock- holders and trustees — action, taken not as indi- viduals, but as stockholders and trustees, and taken for the express purpose of placing the corporation within the grasp and control of the combination. i — The original resolution of April 22d, 1887, authorizing the accession of the company, and as a company (folio 103), was adopted at a regular meeting of the stockholders, all the trustees being present and voting for the resolution (folios 104 and 105). The resolution of the 25th November, 1887, authorizing the sale and transfer of defendant's stock to Searles was adopted at a regular meeting of stockholders, all being present except two, and they " consenting and delivering up their stock ' : (folios 116-118). At this meeting all the trustees were present and voted for the resolution (folios 101, 116, 118, 121). In every instance the board had assurance that the transfer of stock was made by authority of " all the stockholders" (folio 195). ESSAYS AND ADDRESSES 219 " The agreement was in fact made and the mort- gage authorized by all the stockholders. They were, it is true, also trustees, but their assent in that capacity must bind them in both characters." (Paulding vs. Company, 94 N. Y., 341.) 2. — Searles, being sole owner of defendant's stock, being in fact the company ("I was the North River Sugar Refining Company"), (folio 150), transferred it to the Sugar Refineries Board (folio 139). Thus by the action of all its stockholders and trustees, defendant company was taken into the combination, and there it is to-day. 3. — And, not only was defendant carried into the combination by the act of its stockholders as such; but its present stockholders, as such, are the men who compose and control the combination. XXIV On the hypothesis that by no act of its trustees, as such, was defendant introduced into the com- bination, we answer that in quo warranto to dis- solve a corporation, it is the misconduct of the corporators that operates a forfeiture of the cor- porate franchise. 1. — The corporation itself — the metaphysical entity — is obviously incapable of action. Its " concerns " are " managed " by the board of trus- tees (Act 1848, Section 3) ; but these trustees are " elected by the stockholders " {id.), who therefore constitute the ultimate and supreme power in the corporation. The will of the corporators is the will 220 ESSAYS AND ADDRESSES of the corporation; the property of the corporation is virtually the property of the corporators; the gains of the corporation are the gains of the cor- porators, and its losses their losses. The corpo- rators constitute the corporation; so that if they all die it dies (Field on Corp., 449; Boone on Corp., Sect. 199). In fact the corporators are the cor- poration, and the notion of a corporate entity, dis- tinct and apart from the natural persons composing the corporation — of a body independent of its members — of a substance separate from its con- stituents — this notion, invented by the subtle in- tellect of Coke, " for the purpose of perpetual suc- cession ' : (Marshall, C. J., in Dartmouth College Case, 4 Wheaton, 636), is an empty fiction, and, as such, of no weight in the present discussion. On this point the authorities are clear and con- clusive. ' The right of acting as a corporation is a fran- chise in the individuals that compose it." (2 Kyd on Corp., 475.)^ ; ' A corporation in the concrete is taken for the particular members of such corporation." (Ayl- iffe, Civ. Law, 196.) The corporation consists of the whole number of members." (1 Morawetz on Corp., Sec. 474.) " A corporation is a collection of individuals in one body." (Bronson, J., in People vs. Assessors, 1 Hill, 620.) ' Corporations are little more than aggregations of individuals united for some legitimate purpose ESSAYS AND ADDRESSES 221 and acting as a single body." (McKinley vs. Wheeler, 130 U. S., 633.) ;< A corporation is really an association of per- sons, and no judicial dictum or legislative enact- ment can alter this fact." ( 1 Mora, on Corp., Sec. 227.) ' A corporation generally consists of members in their natural capacity." (1 Waterman on Corp., Sec. 5.) " Corporations are merely associations of indi- viduals united for a special purpose, and permitted to do business under a particular name, and have a succession of members without dissolution." (Pembina vs. Pennsylvania, 125 U. S., 189.) " The word ' corporations ' is but a collective name for the corporators or members — a corpora- tion is not a reality or thing distinct from its con- stituent parts." (1 Mora., Sec. 1.) " A corporation and its shareholders are in reality the same." (2 Mora, on Corp., Sec. 852.) " The shareholders, then, vested with the corpo- rate powers, are the body corporate, corporation, or company." (Taylor on Corp., Sec. 50.) " A stockholder is an integral part of the cor- poration," and so without notice to himself, he is bound by notice to the corporation. (Sanger vs. Upton, 91 U. S., 59; Glenn vs. Soule, 22 Fed. Rep., 4I7-) " The property of the corporation belongs equita- bly to the stockholders ; and they are virtually the debtors of the creditors of the corporation." (Pet- 222 ESSAYS AND ADDRESSES tibone vs. Toledo, &c, Co., 39 Alb. Law J., 147, Mass. Supreme Judical Court ; Bissell vs. R. R. Co., 22 N. Y., 259.) In an action against a corporation stockholders are represented by the corporation, and a judgment against it conclusively binds them. (Cook on Stock, &c, Sec. 209; Mora., Sec. 865.) " The corporation of London is the citizens of London." (City, &c, vs. Wood, 12 Modern, 669.) ' The people of the locality constitute the politi- cal corporation." (Clark vs. Rochester, 24 Barb., 446, 473.) The individual members are the corporation, and hence citizenship of members determines Federal jurisdiction of the corporation. ' If the corporation be considered as a mere faculty, and not as a company of individuals, who in transacting their joint concerns may use a legal name, they must be excluded from the courts of the Union." (Marshall, C. J., in Bank vs. Dev- eaux, 5 Cranch., 61, 87; Louisville vs. Letson, 2 How. (U. S.), 497. 552.) ' When the certificate shall have been filed, etc., the persons who shall have signed and acknowl- edged the same " — and of course their successors — " shall be a body politic and corporate." (Act 1848, Sec. 2.) 2. — The corporate franchises vest, not in the cor- poration, but in the corporators. " A grant of corporate existence is a grant of special privileges to the corporators, enabling them ESSAYS AND ADDRESSES 223 to act for certain designated purposes as a single in- dividual." (Paul vs. Virginia, 8 Wall, 181.) " Corporate franchises are privileges conferred by grant from the Government, vested in private indi- viduals. They contain an implied covenant on the part of the Government not to invade the rights vested, and on the part of the grantee " (i. c, the individuals) " to execute the conditions and duties prescribed in the grant." (3 Kent, 458; People vs. Utica, 15 Johns., 387; State vs. Bank, 41 Am. Dec, 112.) " The franchise to be and act as a corporation vests in the individuals who compose the corpora- tion, and not in the corporation itself," and hence, does not pass by the assignment of the corporation. (Fietsam vs. Hay, 122 111., 293.) " We have supposed, if anything was settled by an unbroken course of decisions in the Federal and State courts, it was that an act of incorporation was a contract between the State and the stock- holders. All courts, at this day, are estopped from questioning the doctrine." (Davis, J., in Bingham- ton Bridge Case, 3 Wall., 51, 73; Wilmington R. R. Co. z's. Reid, 13 Wallace, 266; The Delaware R. R. Tax Case, 18 Wallace, 225 ; Erie, &c, vs. Casey, 26 Pa. St., 287.) 3. — It results, therefore, obviously and irrefrag- ably, that since the corporate franchise vests in the corporators, and the act of incorporation constitutes a contract between them and the Government, it is their act which operates a forfeiture of the fran- 224 ESSAYS AND ADDRESSES chise, and their misconduct which incurs the pen- alty of forfeiture of their franchise. And so are the authorities. ' Any particular member of a corporation may be disfranchised or lose his place in the corporation by acting contrary to the laws of the land." (i Black Com., 484, marginal.) And, " as every member may forfeit that which any member may, the same acts which will forfeit the rights of every member separately, if done jointly by all the members, will be a forfeiture of the corporate existence." (2 Kyd, 477.) " When the question is of the non-user or abuse of franchises by a corporation, it must of necessity be intended of the acts or negligence of the natural persons, or of those officers who were empowered by them." (2 Kyd, 478.) " Though the proceedings be against the cor- porate body, it is the acts or omissions of the in- dividual corporators that is the subject of the judg- ment of the Court. The powers and privileges are conferred, and the conditions enjoined upon them; they obtain the grant and engage to perform the conditions," (People vs. Kingston, &c, 28 Wend., 205.) Accordingly, in Denike vs. Company, 80 N. Y., 606, it was held that " all the stockholders of a cor- poration uniting might undoubtedly surrender the franchises and work its dissolution," — >and this though the statute (Sec. 2419, Code Civ. Pro.) pre- scribes that a voluntary dissolution shall be unon ESSAYS AND ADDRESSES 225 the petition of the trustees. (S. P. Webster vs. Turner, 12 Hun, 264.) xxv Party to a combination of which the effect is obvious and inevitable, defendant will be held to intend that effect. Indeed, any other purpose of the parties to the combination than to prevent com- petition and enhance price is inconceivable. (Haire vs. Wilson, 9 B. & C, 643 ; Denny vs. Dana, 2 Cush., 160.) " In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect." (Henderson vs. The Mayor, 92 U. S., 259.) XXVI The case then, is this : The persons who pro- cured the charter of defendant company were en- dowed by the State with the corporate franchise and the faculties of a body politic, in consideration of the benefit to the public from an increased pro- duction of refined sugar, and the consequent greater supply and less price to the community; but so far from appearing in the market as an independent producer, and a competitor in the supply of the com- modity, and a factor in the reduction of its price, defendant company, by the agency of its constituent members, is introduced into a combination of sugar refineries, of which the apparent and inevitable operation is to limit production, diminish supply, 226 ESSAYS AND ADDRESSES and enhance prices. Indisputably, here is a viola- tion of the trust and a breach of the condition upon which the corporate franchise was conceded to de- fendant. Indisputably defendant's corporate facul- ties, instead of conducing to the benefit of the pub- lic, are perverted to its detriment, and, consequently, it has incurred a forfeiture of its franchises. 1 The stated purpose for which the ' American Sugar Refinery Company ' became incorporated was the production — the competitive production — of sugar to supply human want; the business fran- chise granted was not for the sole benefit of the cor- poration or its stockholders, but, in a measure, for that of the public as well; the understood com- mercial policy underlying the grant, and to the observance of which the defendant, by accepting it, stood committed, looked to the promotion of trade in that commodity — ■ the promotion of trade neces- sarily denotes the encouragement of rivalry in the business — competition on equal terms is conceded to be the life of trade, and to invite and promote that competition is the established policy of our laws. As competition tends to create trade, so monopoly tends to destroy it. This is the axiom which underlies the constitution and general legis- lation of this State, and upon which the decisions of its courts have habitually, not to say uniformly, proceeded." (People, &c, vs. The American Sugar Ref. Co., 7 Railway & Corp. Law Journal, 86.) If a monopoly combination among natural per- sons be contrary to law, much more is it so between ESSAYS AND ADDRESSES 227 corporations ; because ultra vires, and because repug- nant to the aim of corporate institution, " the true ground and original of corporations being the in- crease and advancement of trade and merchan- dise." (Sir Robert Atkin's Case, 3 Modern, 12.) XXVII Independently of the character of the combina- tion, i. c, as tending to monopoly and repugnant to public policy, defendant, by joining it, did an act ultra vires in abuse of its powers, and in perversion of its institution; and so incurred the statutory penalty, namely, forfeiture of its corporate fran- chise. I — That defendant was guilty of an excess, and so of an abuse, of its powers, in becoming a party to the combination, is palpable upon a survey of the constitution of The Sugar Refineries Company, and its relations to the associated corporations. (a) CONSTITUTION OF THE COMPANY 1st. To have a corporate name — "The Sugar Refineries Company." 2d. To have a common seal. 3d. To have a capital stock. 4th. To divide its capital stock into shares. 5th. To issue negotiable certificates of stock. 6th. To have perpetual succession. 7th. To make by-laws. 8th. To institute offices. 228 ESSAYS AND ADDRESSES 9th. To have power of amotion. And, as the Board consists of more than seven members, the law annexes to it these additional at- tributes. 10th. To sue and be sued as a substantive legal en- tity (Code Civ. Pro., Sees. 1919, 1920, 1812, 264). nth. To take hold and convey property (Laws 1867, Ch. 289; Waterbury vs. Company, 50 Barb., 160). Possessing every faculty of a corporation except irresponsibility of members for liabilities of the body, the Company is, by the law of New York, a Joint Stock Association. (2 Bouvier's Law Diet., '' Joint Stock Company"; Laws 1849, Ch. 258; New York Const., Art. 8, Sec. 1 ; People vs. Wem- ple, 7 R. R. & Corp. Law Journal, 127; Water- bury vs. Company, 50 Barb., 157; Liverpool Ins. Co. vs. Massachusetts, 10 Wallace, 566; Westcott vs. Fargo, 61 N. Y., 547; The Bank vs. Vander- werker, 74 N. Y., 234; 1 Waterman on Corp., Sec. 10; Cook on Stock, &c, Sees. 504, 506). (b) RELATION OF CORPORATIONS TO COMPANY 1st. The Company is created by the corpo- rations. 2d. It is called " The Sugar Refineries Com- pany." 3d. The capital stock of " each corporation " — not to the shareholders individually — is transferred to the board. 4th. The corporations " shall be entitled to ESSAYS AND ADDRESSES 229 shares " in the Sugar Refineries Company; and " of the shares allotted to the several refineries," &c. 5th. The profits arising from each corporation shall be paid over by it to the board. 6th. The funds necessary for the board are to be raised " by mortgages to be made by the cor- porations." 7th. The board qualifies trustees of the corpora- tions by the transfer of corporate stock " to be re- transferred when requested by the board." 8th. The stock of the corporations is held by the board with all the rights and powers incident to stockholders in the several corporations, 9th. The stock of the corporations constitutes the only capital of the company. 10th. The stock of the corporations is ex- changed for the stock of " The Sugar Refineries Company " — this company taking the place of the shareholders in the corporations. Thus, member- ship in " The Sugar Refineries Company " is sub- stituted for membership in the corporation. 1 ith. The corporations, as corporations, are par- ties to the instrument creating the board. Here, then, is a joint-stock association with a capital of $50,000,000, holding all the stock of the several corporations, receiving all the profits of the several corporations, appointing, in effect, all the trustees of the several corporations, and grasping an absolute control of the several corporations in the conduct of their business and the disposition of their property. Plainly it was ultra vires and an 230 ESSAYS AND ADDRESSES abuse of the powers of the corporations to contract such relations to such a body. II — " A statutory corporation is limited as to all its powers, by the purposes of its incorporations as denned in the act. The Memorandum of Incor- poration ' : (i. c, certificate of incorporation), "is their fundamental and their unalterable law; and they are incorporated only for the objects and pur- poses expressed in the memorandum" (certificate). (Lord Selborne in Ashbury, &c, Co. vs. Riche, L. R., 7 H. L., 653.) " When a corporation is organized through ar- ticles of association entered into under general laws, the memorandum of association stands in the place of a legislative charter, in so far that its powers can- not exceed those enumerated therein ; but powers enumerated and claimed therein which are not war- ranted by statute are void for want of authority." (Oregon vs. Ry. Co., 130 U. S., 2; The Eastern, &c, vs. Vaughan, 14 N. Y., 546, 551; People vs. Chicago Gas Trust, supra.) By Section 1, Act 1848, the certificate of incor- poration must state the objects for which the " com- pany is formed," and " the purpose of the organiza- tion is limited to one of the general classes of busi- ness, designated in the act, as manufacturing, min- ing, mechanical or chemical." (The People vs. Beach, 19 Hun, 260.) Defendant's declared object is " the manufacture and sale of sugar, syrups and molasses." Thus, neither by their charter, nor by the Act of 1848, nor ESSAYS AND ADDRESSES 231 by the general statute defining corporate powers (Rev. Stat., Section 1, Title 3, Ch. 18, Part 1), have these corporations authority to contract the alliance with the Sugar Refineries Company. " A corporation so formed is a manufacturing corporation with powers limited to the accomplish- ment of the purposes so declared." (Astor vs. Ar- cade R. Co., 1 13 N. Y., 93.) Ill — A corporation cannot be created merely for the purpose of consolidating with another. (Church vs. Perry, 20 N. Y. State Rep., 633.) A corporation can make no contract which is not necessary, directly or incidentally, to enable it to answer the purpose of its charter. (Beach vs. Ful- ton, 3 Wend., 573 ; Legnard vs. Association, 80 N. Y., 638; Millbank vs. R. R. Co., 64 How., 23-25; Rock River vs. Sherwood, 10 Wise, 230; Abbey vs. Billups, 35 Miss., 618; Davis vs. Old Colony, 131 Mass., 258; Pierce on Railroads, 500, note; Boone on Corp., Sec. 43.) Hence, held that a gas company cannot purchase the stock of another company, because " there is no necessary connection between manufacturing gas and buying stock." (People vs. Chicago Gas Trust, 22 Chicago Legal News, 107.) IV — The connection with " The Sugar Refineries Company " is not necessary to enable the corpora- tions to answer the end of their existence; nor is the contract of connection made in the legitimate prose- cution of their business, and hence, the contract and connection are ultra vires and an abuse of corporate 232' ESSAYS AND ADDRESSES power. (People vs. Chicago Gas Trust, 22 Chi- cago Legal News, 107; Hood vs. R. R. Co., 22 Conn., 1 ; Franklin vs. Lewiston, 68 Maine, 43.) XXVIII The combination between the several corpora- tions, resulting from the transfer of their stock to the board, " subject to the purposes set forth in this deed," if not in legal conception, is in practical effect an amalgamation or consolidation of these corporations — • or, at all events, a copartnership between them. (Pittsburg vs. McMillin, 53 Hun, 67, 69; Champion vs. Bostwick, 18 Wend., 175, 183; Burnett vs. Snyder, 81 N. Y., 555 ; Stroker vs. Elting, 97 N. Y., 102, 105.) Indeed, that the combination constitutes a part- nership between the corporations is conceded by the apologists of the Trust. (Prof. Dwight's Essay, 3 Political Science Quarterly, 624.) I — The avowed object of the combination was a consolidation of the several corporations (folios 107, 119.) II — And such is the result. 1 st. The stockholders in each are stockholders in all — indeed, the stock of all is blended in a single and indistinguishable mass. 2d. The profits of each are the profits of all, and the losses of each the losses of all ; and thus an ab- solute unity and identity of interest pervades the aggregate of associated corporations. 3d. The voting power in each is the voting ESSAYS AND ADDRESSES 233 power in all ; and so an aboslute unity and identity of control dominates and directs the action of the aggregate of associated corporations. 4th. Here, then, is an organic union — a fusion of separate individualities in an indivisible unit — in short, an amalgamation and consolidation of the distinct corporate existences; and the several and separate entity of each corporation is a mere fiction, without practical force or efficacy. 5th. A common name, " The Sugar Refineries Company," distinguishes the unity of combination into which the several corporations are consolidated. 6th. The association involves the essential and decisive principles of partnership; namely, a com- munity of capital — the stock contributed to the board by the several corporations — and a com- munity of profit and loss among the members of the association. Ill — But, " corporations cannot consolidate their funds or form a partnership, unless authorized by express grant or necessary implication." (The N. Y. Canal Co. vs. Sharon, 7 Wend., 412.) " Without legislative authority corporations organized separately cannot merge and consolidate their interests." (Clearwater vs. Meredith, 1 Wall., 25, 29.) In Massachusetts (as in New York) the exclusive management of manufacturing corporations is vested in the trustees; and hence, held that such a corporation has no power to form a copartnership ; because, first, it would subject the corporation to 234 ESSAYS AND ADDRESSES the control of the partner, and, secondly, would sub- ject the corporation to the copartnership liabilities. (Whittenton vs. Upton, 10 Gray, 596-597.) " An agreement that the profits and loss shall be brought into one common fund and the net receipts divided, without the authority of an act of Parlia- ment, appears to me clearly and palpably illegal ; otherwise it might be that all the railways in the kingdom might be collected into one vast joint-stock concern." (V. C. Wood in Charlton vs. R'ys, 5 Jurist N. S., 1096, 1 100.) " There was no authority of law to consolidate these two corporations, and to place both under the same management, or to subject the capital of one to answer for the other." (Pearce vs. R. R. Co., 21 How. U. S., 443.) " Contracts between corporations which create in fact, if not in name, partnerships, are void on the double ground of being ultra vires and also contrary to public policy." (Green's Brice, 416, 425 (2d Ed.) " A corporation cannot enter any arrangement amounting to a virtual consolidation or partner- ship." (1 Morawetz on Corp., Sec. 376, ace. A. & A. on Corp., Sec. 272; Parsons on Partnership, p. 29 ; Marine Bank vs. Ogden, 29 111., 248 ; Taylor on Corp., Sees. 419-420; Mallory vs. Oil Works, 2 Pickle (Term.), 598; Pierson vs. McCurdy, 33 Hun. 520, 522 ; French vs. Donohue, 29 Minn., in; Coleman vs. R'y Co., 10 Beavan, 1.) " Of what avail is it that any number of gas ESSAYS AND ADDRESSES 235 companies may be formed under the general law, if a giant trust company can be clothed with the power of holding the stock and property of such companies, and through the control thereby ob- tained, can direct all their operations, and weld them into one huge combination? ' : (People vs. Chi- cago Gas Trust Co., supra.) And although corporations under the acts sup- plementary to the Act of 1848 have a qualified right of consolidation, yet here is no such consoli- dation as the statute allows and prescribes. All statutory formalities must be complied with, to per- fect a consolidation. (Peninsular R. R. Co. vs. Thorp, 28 Mich., 506; Tuttle vs. R. R. Co., 35 Mich., 247.) XXIX Defendant corporation has forfeited its char- ter by the transfer of its control to " The Sugar Re- fineries Company." 1. — " The Sugar Refineries Company is a body or board foreign to defendant corporation — not recognized by its charter — and this body or board, by virtue of its right to vote defendant's stock, dominates it by an absolute and exclusive control. The autonomy of the constituent corporations is abolished; and they become mere subordinates and satellites of the central and supreme syndicate. " The corporations thus associated renounce autonomy. . . . The stock was transferred to 236 ESSAYS AND ADDRESSES the trust, not for the purpose of being sold, but to give control of the corporations; to make the of- ficers puppets in the hands of the trust, and thus substitute the latter as the governing body of the corporations." (Gould vs. Head, 38 Fed. Rep., 888.) " Transfer of all stock to the board gave the board control of the corporate policy and man- agement of the corporate business." (People vs. American Sugar Refining Co., 7 Railway & Corp. Jour., 84, 85.) 2. — By Section 3, Act 1848, the exclusive manage- ment of " the stock, property and concerns " of de- fendant is vested in its board of trustees, them- selves to be stockholders, and to be chosen by the stockholders. Here, the trustees are appointed by the board, and they are stockholders only in name, holding their stock by transfer from the board, and compellable on demand to retransfer it to the board ; and it was an act ultra vires for defendant to sur- render its control and management to <: The Sugar Refineries Company " ; and so, defendant has for- feited its charter by " offending against the Act by and under which it was created." (Code Civ. Pro., Sec. 1798.) In the Central R. R. Co. vs. Collins, 40 Ga., 583, the Court say: " It is a part of the public policy of the State to secure a reasonable competition be- tween its railroads, and it is contrary to that policy for one of said roads to attempt to secure a con- trolling interest in another by the purchase of its ESSAYS AND ADDRESSES 237 stock; and any contract made with that view is illegal." " The purchase by one R. R. Company of the stock of another, with the object of preventing com- petition, is against public policy and void." (El- kins vs. R. R. Co, 36, N. J. Eq., 5.) " Transfers of powers of one corporation to an- other, without the authority of the Legislature, are against public policy." (Chicago, &c, vs. Gas Co., 2 Am. State Reports, 124.) In Bradford, &c, R. R. Co. vs. N. Y., &c, R. R. Co., 16 N. Y. State Reporter, 208, the case was this : The Bradford R. R. Co., a tributary of the N. Y., Lake Erie and Western R. R. Company, desired the assistance of the latter company in the completion of its road, and to that end the Bradford Company engaged " to cause to be deposited " with the Erie Company " a majority of its capital stock," so as to give the Erie Company " the right to vote upon the stock so deposited." Accordingly, " a majority of the owners of the Bradford Company stock de- posited it with the Erie Company," but the Court, per Daniels, J., held the agreement illegal, because it so transferred the control of the Bradford Com- pany to the Erie Company. This case is obviously identical with the present as to the point in discussion; but the principle is established by abundant authority. (Whitterton vs. Upton, 10 Gray, 596-7; Simpson vs. Denison, 10 Hare, 51 ; Richmond vs. Vestry, 3 Ch. Div., 82; Winch vs. Birkenhend, 5 DeG. & Sim., 567; Be- 238 ESSAYS AND ADDRESSES man vs. Rufford, 6 Eng. L. & Eq., 106; Hafer vs. R. R. Co., 19 Abb. N. C, 454; Vanderbilt vs. Ben- nett, 19 Abb. N. C, 460; Thomas vs. R. R. Co., 101 U. S., 83 ; Ohio & Miss., &c, vs. R. R. Co., 5 Am. Law Register (N. S), 733.) ' During the argument counsel invoked the aid of the undoubted general principle that the owner- ship of shares of stock, as of other property, carries with it the legal right to sell, and contended that the owners of the shares of the South Pennsylvania Railroad Company could not legally be restrained from so doing, and that an injunction against the purchaser would have that effect. We do not think the principle applies to this case. We are not called upon to express any opinion as to the right of the individual shareholders to sell their several shares bona fide in the open market. This, so far as they are concerned, is an intended sale in com- bination for the express purpose of enabling them to abandon the rights and duties conferred and im- posed upon them by the act incorporating the com- pany and of putting the control of their corpora- tion into the hands of its rival. This is an act con- trary to the public policy of the State, which they have no right to do." (Penn. R. R. Co. vs. Com- monwealth, 7 Atl. Rep., 373.) " It is against public policy to permit one corpora- tion to embarrass and control another and per- haps competing corporation in the management of its affairs, as may be done if it is permitted to pur- ESSAYS AND ADDRESSES 239 chase and vote upon the stock." (Milbank vs. R. R. Co., 64 How., 28.) " That an individual stockholder in a private cor- poration formed for business purposes may, at will, transfer to another his shares of stock is of course not to be questioned, neither it is doubted that any number, even all, of the stockholders may by con- cert had between them sell their shares and sell them to a purchaser previously agreed upon by all. But to my mind it is equally clear that when, as the necessary legal result of such a sale oi stock, a trans- fer of the corporate franchise has been effected, the State — the people — who granted the fran- chise, granted it upon conditions to be observed and fulfilled by the grantee, may institute an inquiry — legislative, through their political representatives, or judicial, through the instrumentality of their courts — an inquiry into the purpose for which the franchise has been so transferred, an inquiry whether such purpose be in itself lawful or unlaw- ful, and whether as the result of such transfer the franchise is employed in such manner or in a busi- ness of such a character as operates a breach of the conditions annexed to the grant." (People vs. American Sugar Refinery Company, 7 Railway & Corp. Law Journal, 86.) And held of this identical combination, that by becoming a party to it a corporation surrendered its business to the Sugar Refineries Company, and so forfeited its charter. (Id., p. 83.) 240 ESSAYS AND ADDRESSES XXX It results from the relations of the corporations to the Sugar Refineries Company that the former are subject to the absolute control of the latter by virtue its power to vote their stock and to appoint their trustees. " It cannot be denied that the appellee, as owner of the majority of the shares of stock of the com- panies, can control them in the exercise of all their corporate powers, through a board of management of its own selection." (People vs. Chicago Gas Trust, supra.) If, then, it be to the interest of the combination to stop the operations of particular refineries, the board, we may be sure, will arrest their operations. But, as the price of sugar, and so the profits of the combination, can be augmented only by diminish- ing the supply of sugar, it follows that the power of the board, actuated by interest, will be exerted to discontinue or to lessen the production of refin- eries. And so it was ultra vires and contrary to public policy for the corporations to subject themselves to this destroying power of the board. The right of incorporation conferred under the general law, is in the nature of a contract. In re- turn for the powers and franchises granted, the cor- poration is placed under obligation to perform cer- tain duties to the public, and it cannot, without the consent of the other party to the contract, absolve ESSAYS AND ADDRESSES 241 itself from its obligations." (Abbott vs. R. R. Co., 80 N. Y., 27.) " The privileges awarded to the four gas com- panies under their respective charters, were given them in return for, and in consideration of services to be rendered by them to the public. The public duty is imposed upon each company separately, and not upon the four when combined together. Each for itself, when it accepted its articles of associa- tion, assumed an obligation to perform the objects of its incorporation. But, the appellee, through the control which it does or may exercise over the com- panies by reason of its ownership of a majority of stock, renders it impossible for them to discharge their public duties, except at the dictation of an outside force, and in the manner prescribed by a corporation operating independently of them. The freedom and effectiveness of their action are seri- ously interfered with, if not actually destroyed. A power whose exercise leads to such a result can- not be lawfully entrusted to any corporate body." (People vs. Chicago Gas Trust, supra.) XXXI Defendant has forfeited its charter, by procur- ing and permitting its management to be conducted in another interest than that of its own stockholders. " It is the duty of the corporate management to conduct the affairs of the corporation in the interests of the shareholders as such, and the management is not justified in promoting the outside interests of a 242' ESSAYS AND ADDRESSES majority of shareholders in disregard of the inter- est in the corporate enterprise of ever so small a minority." (Taylor on Corp., Sec. 558; Milbank vs. R. R. Co., 64 How., 29.) But here, obviously, the management of defend- ant corporation is controlled, not by its own proper and peculiar officers, but by the central and supreme syndicate ; and this syndicate represents not the special interests of defendant's stockholders, but the general interests of the confederated corporations. The holders of trust certificates are not ipso facto and necessarily owners of the corporate stock; cer- tificate holders and stockholders are not identical. The certificates pass from hand to hand, and their transfer involves no assignment of the corporate stock. No certificate holder is owner of stock in any specific corporation. The holder of a trust cer- tificate is interested in the welfare of no particular corporation, but only in the aggregate earnings of the combined corporations. But, the interest of the combination may be inconsistent with the interest of an individual corporation; for the profits of the combination are increased by the restriction of pro- duction, and restriction of production implies sup- pression of particular corporations. Hence, by means of the control of the board over each corpora- tion, the interest of any corporation and its stock- holders may be sacrificed to the general interest of the combination. If it be answered that a certificate holder whose scrip is a substitute for stock in a suppressed and ESSAYS AND ADDRESSES 243 idle corporation is compensated by the increased dividends of the combination, then it appears that the earnings of a profit-producing corporation are appropriated, not to those who own the capital of which the profits are the product, but are divided with stockholders of other corporations. In a word, by operation of the system, each cor- poration shares the losses and partakes the profits of every other corporation. Indisputably, it is in the general interest of the combination, and not for its own special benefit and aggrandizement, that defendant corporation is con- ducted. But a corporation is " bound to apply its funds for the purposes directed and provided for by the act of incorporation, and for no other purpose what- ever; and a contract to do something beyond is an illegal act." (Pearce vs. R. R. Co., 21 How. U. S., 443; Berry vs. Hayes, 24 Barb., 212; East Anglia, &c, vs. Ry. Co., 7 Eng., L. & Eq., 505.) XXXII By the transfer of defendant's stock to the Sugar Refineries Company, " subject to the purposes of this deed," the law forbidding the suspension of the absolute ownership of personal property was violated. t. — The board of the " Sugar Refineries Com- pany " holds the stock of the several companies by a tenure which constitutes an illegal perpetuity. The board do not hold the stock as owners; in 244 ESSAYS AND ADDRESSES terms they hold it only " as trustees." There can be no purchase without a price; and the board neither paid nor promised a dollar for the stock. The certificates they issued are merely evidence of the holders' title to the stock, and right to the re- ceipt of a dividend on it. 2. — Holding the stock as trustees they hold it in perpetuity ; for there is no limit of time to their ten- ure, and neither they nor the certificate owners can dispose of the stock. (Gould vs. Head, 38 Fed. Rep,, 886.) 3. — The statute provides that " the absolute ownership of personal property shall not be sus- pended for more than two lives." (1 Edmonds' Stat. (2d Ed.), 727.) 4. — And this provision is to conserve an essential interest of public policy. ' A perpetuity is a thing odious in the law and destructive to the commonwealth ; it would stop commerce and prevent the circulation of property." (Lord Hardwicke, Ch., in Duke of Norfolk's Case, 1 Vera., 164; 2 Black. Com., 268 et scq.; 4 Kent, 287; Fisher vs. Bush, 35 Hunt, 643; Will of OTIara, 95 N. Y., 404, 422; Schettler vs. Smith, 41 N. Y., 328.) Much more in a republic is the free circulation of property the life-blood of the commonwealth; and hence the statutory prohibition of mortmains and entails. ' All experience shows that large accumulations of property in hands likely to keep it intact for a ESSAYS AND ADDRESSES 245 long - period, are dangerous to the public weal. Having perpetual succession any kind of corpora- tion (joint-stock associations) has peculiar facili- ties for such accumulations. Freed as such bodies are from the sure bound to the schemes of indi- viduals — the grave — they are able to add field to field, and power to power, until they become en- tirely too strong for that society which is made up of those whose plans are limited to a single life." (Central R. R. Co., 40 Ga., 629.) 5. — The need of a strict and punitive enforcement of the statutes forbidding perpetuity against cor- porations by revocation of their charters is easily demonstrated, if, indeed, it be not obvious. Every act of incorporation creates, ex necessitate rex, a perpetuity in a certain sense. A corporation may be made practically immortal. It may survive a hundred consecutive lives. So long as it subsists it holds and may hold its property, real and personal, from alienations and exchanges. This possibility the law recognizes and has to permit. It, therefore, provides at the outset limitations upon the property- holding capacity of corporations. It, moreover, insists that such property shall be actively used, and that the world outside the corporation shall receive the benefits growing from the use of such property in some form of commerce, investment or production. Hence arise the statutes that provide for the annulment of corporate charters in cases of non-user. If an individual attempts to impose a perpetuity 246 ESSAYS AND ADDRESSES upon his property, either by deed or will, there are numerous influences that are immediately brought to bear to procure the destruction of such perpetuity. The interests of heirs and next of kin and credi- tors are directly asserted to procure the annulment of the illegal instrument. But in the case of a corporation these disturbing causes are in most cases absent. Stockholders, so long as the business of the corporation is attended with profit, will not com- plain, even if such a disposition of the property of the corporation has been made as is prohibited by the statute. They will rather conspire together and co-operate with each other to uphold the un- lawful disposition. It is not to be believed that the astute and learned minds that devised the scheme put in operation by the trust deed, had forgotten or overlooked the statutes against perpetuities. They proceeded upon the theory that the interests of all the parties to such deed would prevent the question of its legality ever being raised. It was for the advantage of the stockholders and the trustees that the terms of the trust should be carried out. It was inconsistent with the interest of very stockholder to attack the trust and assert its invalidity, but, as an additional safeguard against possible caprice or resentment on the part of stockholders, the scheme of the trust provided that the trust itself should be the stock- holder. Whether or not the trust, the Sugar Re- fineries Company, be in effect a corporation in it- self, the main quality of a corporation was imparted ESSAYS AND ADDRESSES 247 to it — perpetual succession. The attempt was made to give it immortality for the purpose of maintaining an unlawful suspension and perpetuity, and upon the unlawful scheme of suspension the trust itself was made to rest. It will not aid the contention of the defense to as- sert that the statute vindicated itself, and that the attempt to create an unlawful suspension was fu- tile, and that none in fact was created, because none could be created. The stock was actually delivered to the trustees under the deed, and the trustees assumed and en- tered upon their trust, unlawful though it was. All the parties concurred in the combination and co- operated to make it effective. The reasoning of Mr. Justice Peckham, in pre- senting the decision of the Court of Appeals in a recent case, is convincing against the theory that the statute vindicated itself. " The argument is, the corporation would answer a claim to forfeit the charter by the fact that the charter precluded it from taking such property, and, therefore, as it could not, it had not done so. I do not see the force of the argument. The charter may preclude the rightful taking of the property by the corporation and may prevent the legal title from vesting in it, but that has nothing to do with the fact that, nevertheless, the corporation has, as a physical act, taken the property and may be insist- ing upon its right to keep it as a matter of law. In such case can there be any doubt that the corpora- 248 ESSAYS AND ADDRESSES tion has taken and is holding the property as its own, and in defiance of the charter, although the rightful owner of the property may thereafter ob- tain his own ? The fact that he does obtain it is no answer to the other fact that the corporation had taken it, nor is it any legal answer to the claim of forfeiture of the charter on the part of the State, that it was unsuccessful in continuing to hold the property against the charter provisions." (In the Matter of McGraw, in N. Y., 106.) Wherefore, the only possible procedure by which the statute against perpetuity can be enforced in this case, and the policy of the law vindicated, is an action by the People, not to set aside the trust deed, for the People have no property interests that would warrant such a suit by them, but an action to annul and dissolve the corporation, under the statute. C The judgment should be affirmed. INDEX INDEX INDEPENDENCE OF THE SOUTH Abolitionism, crusade of, 15. Absolute power, no interest safe against, 23. Administration, unfriendly, 24. Alabama, independent republic, 12. American liberty, only safeguard of, 23. Austrian absolutism, 22. Botele's proposition, 24. Charleston, compulsory collec- tion of revenues at, 25. Civil war about to be perpetrated, . T 3-. Constitution, integrity of, safe- guard of liberty, 23. superseded by Lincoln's plat- form, 25. war fatal to, 28. Constitution's recognition of slav- ery, 15. Discord, sectional, 14. Florida, independent republic, 12. Fugitive slaves, restitution of, 19-20. Georgia, independent republic, 12. Government, south's support of, 13- Huncary, revolt of, 22. Independence of the South, 11- 3 1 - Independent republics of South Carolina, Mississippi, Flor- ida, Alabama, Georgia, Louisiana, 12. Invasion of rights, 14. Ireland's wrongs, 28. Irrepressible conflict, 25. Italy, revolutionists of, 22. Jefferson, a secessionist, 21-22. Liberty, American, only safe- guard of, 23. Lincoln, an obnoxious ruler of an unwilling people, 26. election of, a proclamation of war, 23. Lincoln's platform supersedes Constitution, 25. Louisiana, independent republic, 12. Mississippi, independent republic, 12. New England, importance of manufacturing interests, 16. navigation of, 23. North, denied no facility of trade by South, 13. slavery in the, 14. Virginia's contribution to, 14. Pacific propositions, South's sup- port of, 24. Peace or war, issue before the country, 12. Pennsylvania, iron interests of, 23- Power, absolute, no interest safe against, 23. Republican party insistent for war, 25, 26, 28. Republics, independent, 12. Rights, invasion of, 14. Secession, 26-27. of colonies, 21. public interest in. 11. South's right of, 27. Virginia's right to, 27. Secessionist, Jefferson a, 21-22. statement of their cause, 11-31. Washington a, 21-22. Sectional discord, 14. Slave-holding states, grievances of, 16, ct scq. Slavery, 22, 23. constitution's recognition of, : 5- importance of, 15. in the North, 14. in the South, 14. impositions upon, 15. 251 252 INDEX pecuniary value of, 15. South's vindication rests not on issue of, 16. Slaves, restitution of fugitive, 19-20. South, a unit in resistance, 29. cause of, 21. defense of, 20-21. demands protection from sec- tional despotism, 22. denies North no facility of trade, 13. grievances of, 16, et seq. independence of the, 11. innocent of impending conflict, 13- rights of, no longer secure, 24. slavery in the, 14. social system "the sum of all villainies," 19. solicits recognition, 22. subject to intolerable tyranny, 21. taxed against her consent, 22. unconquerable, 28-29. took up arms, why, 21. South's equality among sover- eigns of the earth, 31. loyalty, how requited, 14. support of Government, 13. support of pacific propositions, 2 4- vindication rests not on is- sue of slavery, 16. South Carolina denied postal fa- cilities, 25. independent republic, 12. Sovereignties, co-equal, 27. Sovereignty, State, right to re- sume, 26-27. Virginia's right to resume, 27. States, slave-holding, grievances of, 16, ct seq.^ subjugation of retiring, 13. Tariffs, burden of unequal, 14- Union, idle talk of preserving, 12. Virginia's contribution to North, 14. right to secede. 27. War, election of Lincoln, a proc- lamation of, 23. fatal to Constitution, 28. peace or, issue before the coun- try, 12. proclamation of, an overt act, z 3- . . Republican party insistent for, 25, 26, 28. Washington a secessionist, 21-22. THE SUFFICIENCY OF THE NEW AMENDMENTS Amendments, crowning glory of, 39. earlier, only limitations of Fed- eral power, 36, 37. Amendment, fifteenth, 46, 47, 48, 49. 50. fourteenth, 46. monuments of human freedom and progress, 51. radical modifications effected by, 35. 36. sufficiency of the new, 35-51. American people safeguarded by state and nation, 39. Articles of Confederation, 42. Attainder, bills of, 36. Bronson, J., 38, note. Chinaman shielded from hostile discrimination, 39. Citizens, colored, anxiety as to constitutional rights, 35. Citizenship, birthright of negro, 39- national, 42-43, 44. of the State, 42. Confederation, Articles of, 42. Congress armed with plenary power, 45. Constitution of 1787, 42, 43. Constitution, quoted, 36, 38. State, only safeguards, 36. story on the (note), 43. "Constitutional advances," 38. Contracts, obligations of, 36. Corporations, protected from un- equal exactions, 39. Declaration of Independence, 37, Si- Elective franchise, Judge Tour- gfee's criticism of, 45. Electoral college, 47. Ex post facto laws, 36. Freedom of the press, 37. of religion, 37. of speech, 37. Freemen, rights of, 37. Independence, Declaration of, 37. 5i. Invasion of person or property, immunity from arbitrary, 38. "Judicial construction," 37. INDEX 253 "Laws, no State shall deny to any person the equal pro- tection of the," 38. "Life, liberty, or property, no State shall deprive any per- son of," etc., 38. Magna charta, 51. Nation is supreme, 55. National citizenship, 42-43, 44. Negro, citizenship birthright of, 39- . secured an impartial jury, 39. suffrage, 45, et seq. Nullification, 40, et seq. People, American, safeguarded by State and nation, 39. Poor, equal law for rich and, 39. Press, freedom of the, 37. Religion, freedom of, 37. Rich, equal law for poor and, 39. Secession, 40 et. seq. no longer practicable, 42. Searches and seizures, security against unreasonable, 37. Shannon v. Hill (note), 43. Slaughter-house cases (notes), 43, 44. Slavery, effaced, 39. Slaves, fugitive, 49. Sovereignty, State, 40. Speech, freedom of, 37. State autonomy, 46. citizenship of, 42. sovereignty, 40. Tourgee, Judge, 35, 36, 38, 40, 41, 45, 46, 48, 49. 5°- Trial, right of speedy, 37. Union, allegiance to, 43-44- Yarborough, exports (notes), 45, 47- THE SOLDIER THE FRIEND OF PEACE AND UNION Abolition agitation, 58. Alien and sedition laws, 75. America, conquest of, impossible, 79- Annapolis, conference at (17S6), 70. Antietam, 62-63. Armies, contended, intermingled for aid, 63. Austria-Hungary, 69. "Bloody shirt," 66. Bourbons, Vendeean, 69. California annexed, 71. Catlin, General, 55. Cerro Gordo, 58. Chatham, Lord, boast of, 69. Chippewa, 58. Constitution, 66. Confederacy, weakness of its plan of government, 74-75. Confederate soldier, all was lost to, 61. fealty to Union, 70. tribute of a, 67. vindicates sincerity of convic- tion, 62. soldiers, first reunion of Union and, 55. Conciliation, benefits of policy of, 70. Constitution, politicians nullified, 58. Falkland, Lord, 59. Federal domination, 65. Florence, 69. Fronde, war of, 68-69. Genoa, 69. Germany, united, 69. Grant, Ulysses S., 62, 63, 79. Great Britain, 69. Greene, Fort, 79 (note). Nathanael, 78. Hamilton, Alexander, 79. Hayes-Tilden controversy, 77. Ireland, 69, 70. Irrepressible conflict, 75. Italian nationalism, 69. Jackson, Andrew, 79. "Stonewall," 79. Jefferson, Thomas, 71, 79. Johnston, Joseph E., 63. Lee, Robert E., 59, 62, 63, 79. surrender of, 63. Long Island, Battle of, 79 (note). "Lost Cause," 63, 74. Louisiana, deliverance of, 65. loyalty of, 66-67. purchase, 71. Lucknow, 69. Marshall, John, 71. McDonough, 79. Meagher, Thomas Francis, 63. 254 INDEX Memorial Day, first joint observ- ance of, by Union and Confederate soldiers, 55. Mexico, Capital of, 70. Missouri Compromise, 58, 75. Monroe Doctrine, 71. James, 71. Montgomery, Richard, 78. Napoleon, 68-69. National unity developed by war, 68. Negro suffrage, 73- New Orleans, contending armies fraternize in, 65. New York determined compact of union, 70. Norway and Sweden, 69. Nullification (note), 59- Philadelphia, Convention at, 70. Politicians fomented war, 58. nullified Constitution, 58. "Prostrate State," 66. Pryor, Roger A., on battlefield, 63. Putnam, Israel, 78. Raleigh, capitulation of, 64. Randolph, John, 70. Reconstruction, 64, 65. Revolution, heroes of, 79. French, 69. Rome, 69. Sadowa, victory of, 69. Scotland, 69. 70. Scott. Winfield, 58, 70. Secession, 57, 58, 72. 74, 75- slavery the occasion of, 75. war of, soldiers not responsible for, 62. Sherman, William T., 63, 79- Slavery, 58, 72, 7& : occasion of secession, 75. Soldier, Confederate, cause for which he fought, 60-61. Confederate free from reproach of conscious wrong, 61. the friend of peace and union, 55-79- , , . , , Union, cause for which he fought, 60-6 1. Soldiers not responsible for war, 57 et scq. _ South, causes of its resistance of the Federal Government in 1861, 76-77. desolated, 61. only a geographical expression, 67. strength and security, where found, 72. Southern statesmen, services of, 70-71. South's part in building the Un- ion, 70. South Carolina, troops occupy capitol of, 64. Sovereignty, State, 60, 66. State, autonomy of, 65. "prostrate," 66. sovereignty, 60, 66, 72, 75, 76, 77- Subjugation of 1849, 69. Suffrage, negro, 73. Supreme Court, 58. Sweden and Norway, 69. Tariff of 1833, 75. Texas, annexation, 71. Tilden-Hayes controversy, 77. Union, idea originated, 70. plan propounded, 70. re-established, 66. soldiers, first reunion of Con- federate and, 55. supreme reward of, 67-68. South's fidelity to, 71-74- Venice, 69. Vendeean Bourbons, 69. Virginia determined compact of union, 70. War, inhumanities of, cabinet re- sponsible for, 62. of secession, soldiers not re- sponsible for, 62. of 1812, 71. the consummation of human woe, 60. politicians responsible for, 62. Washington, George, 70, 78. Waterloo, 69. the general grant anniversary Appomattox, 84. Donelson, Fort, 84. Grant, General, an historic fig- ure, 86. anniversary, 83-86. as President, 85. campaign in the East, 84; in the West, 84. his service to the Union, 85- 86. magnanimity and clemency or, 85. simplicity of his character, 86. INDEX 255 Johnston, Joseph E., 84. Lee, Robert E., 84. Negro suffrage, 85. Porter, General Horace, 83. Pryor, Judge Roger A., speech of, 83-86. VlCKSBURG, 84. THE RECIPROCAL OBLIGATIONS OF THE BENCH AND THE BAR Bacon (quoted), 90. Bar, reciprocal obligations of the Bench and, 89-92. Bench and Bar, reciprocal obliga- tions of the, 89-92. duty to Bar, 90, 91. frailties of, 92. Brief, attraction of, 89. Choate, Judge Rufus, 91. Court, advocate entitled to at- tention of, 90. how to gain attention of, 90. Counsel, duty of, 89. Eloquence, forensic, 89. Forensic eloquence, 89. Horatian precept, imperative, 90. Judge, amenities of the gentle- man not incompatible with the dignity of a, 91. his duty to case, 91. Judicial office, awful responsibil- ity of, 92. functions of the, 92. Justice, delay of, 91. denial of, 91. essential part of, 90. sale of, 91. Law school, annual dinner of the university, 89. Lawyer, the reward of, 92. Magna Charta, 91. University Law School, annual dinner of alumni of, 89. THE BAR AND FORENSIC ORATORY Albany Law School, 95. Authors, dangers of inferior, 99, 100. value of the master, 99, 100. Bacon, Sir Roger, 106. Bain, Professor, 103. Bar, consummate distinction of, 117. eloquence of the, 108 et seq. success at, how attained, 95 et seq. the, and forensic oratory, 95- 118. Bolingbroke, Lord, 116. Burke, Edmund, ill. Cause, how to win your, no et seq. Choate, Rufus, 115. Cicero, 97, 98. Commentaries, Kent's, 103. Court, respect to, 107. Cross-examination, care in, 107. Delivery, precepts of, 116. Demosthenes, 104, 114, 116. Eloquence, aspects of, 108, 109. how acquired, 114 et seq. importance of delivery in, 116. newspapers effect on, 113. stenographer's effect on, 113. the art of persuasion, 109. what constitutes effective, 113. Emmet, Robert, 108. Erskine, James (Lord Grange), 109, 115. Evidence and procedure, knowl- edge of the law of, neces- sary, 99. Facts, to master, the most valued equipment of a lawyer, 101. Folger, 102. Forensic genius identical with those of military, 107. Fox's test of a speech, 112. Franklin, Benjamin, 116. Hall, Robert, 115. Henry, Patrick, 115. Hobbes, 103. Hoffman, 108. Hume, David, 116. Institutes of Oratory, 107. Johnson, Dr. Samuel, 103. Juries, Rights of, 109. jurisprudence, intricacy of mod- ern, 98. Jury, respect to, 107. Justinian age, 98. 256 INDEX Kent's Commentaries, 103. Law, end and aim of, 117, 118. a noble vocation, 117. "Lawyers, first orator among," 1 17. Lending Cases, Smith's, 102. Locke, John, 103. On the Conduct of the Under- standing, 106. Macaulay, Lord, 115. Macintosh, Sir James, 112. Mansfield, 100. Marshall, John, 100. Memory, Art of, 105. Newspaper, effect on forensic eloquence, 113. O'Connell, Daniel, 115. On the Conduct of the Under- standing, 106. "Orators, first lawyer among," "7- Oratory, aim of, in. forensic, 108 et seq. Peltier, 112. Persuasion, art of, how com- passed, 1 10, in. Pinkney, 108. Portia, 97. Prentiss, 115. Tress, freedom of, 112. Quintilian, 102, 105. Rapallo, 102. Reading, how shall it be done? 102, et seq. value of, to the lawyer, 102. Reports, value of, to the prac- ticing lawyer, 100 et seq. Rights of Juries, 109. Shakespeare (quoted), 97. Smith's Leading Cases, 102. Stenographer, has effect on foren- sic eloquence, 113. Trial, requisites for the success in, 107. Thucydides, 104. Webster, Daniel, 115. Whately, Archbishop, 107. Whitefield, George, 116. Witnesses, respect to, 107. Wirt, William, 108. INFLUENCE OF VIRGINIA IN THE FORMATION OF THE FEDERAL CONSTITUTION Amendment, Tenth, 139. Amendments, first eight, 139. American Commonwealth (quot- ed), 145- Assembly, General, 124. "Bacon's Rebellion," 124. Bancroft, George (quoted), 131- 132. Bill of Rights, 134, 139. Blair, 133, 136. Boregeaud, Dr. (quoted), 135, 142. Brougham, Lord (quoted), 122. Bryce, James (quoted), 122, 145. Byrne, 142. California, 147. Chase, Justice, 141. Clark, George Rogers, 127. Commonwealth (Va.) v. Caton, 143. Confederacy, Southern, 147. Confederation, Articles of, 127, . 136. articles of, a "league of friend- ship," 129. futility of Articles of, 130. Congress, General, 125. Constitution, Federal, an evolu- tion, 123. at once Federal and National, 136. credit of construction of, awarded to Virginia, 122, 146. Hamilton's plan, 138. influence of Virginia in the formation of, 121-147. interest manifested in, 122. James Bryce on, 122, 145. Federal, Lord Broughton on, 122. New Jersey plan, 138. only Judicial Department com- petent to interpret, 140 et seq. portion of, regulating relations of Union and States wholly original, 136. rivalry as to credit of con- struction of, 122. retrospect of conditions from which evolved, 145, 146. Federal, supreme autocracy of the Executive, 121. Virginia plan, 138. Virginia plan adopted, 138, 146. INDEX 257 Virginia's imperishable monu- ment, 146. wholly American, 135. William E. Gladstone on, 122, 123- Constitutional Convention of J /87> '3 2 ei se Q- Convention of 1787, 123. Cooley, 143. Cromwell, Oliver, 124. Declaration of Independence, 125. Dutch republic, 135. Eastern States accede to Span- ish occlusion of Mississippi River, 128. Executive power regal, 140. Fiske, Professor John (quoted), 137. 138. Florida, accession of, 146. Gladstone, William E. (quoted), 122, 123. Government departments are co- ordinate and independent, 121. Hamilton, Alexander, 138. Hare, Judge (quoted), 137, 138. Henry, Patrick, 133. Hildreth, Richard (quoted), 133. Illinois part of Northwestern territory, 128. Indian warfare, 125. Indiana part of Northwestern ter- ritory, 128. Jay, John, 128. Jefferson, Thomas, 125-126, 133. Judicial Department a safeguard, 140 et seq. interpretation of legislative en- actment, origin of, 143. Rhode Island's claim to, 143. Virginia's claim to, 143-144, 146. Judiciary, American respect for, 141. power of, to interpret legislative enactment the admiration of foreign jurists, 142 et seq. Kent, James, 143. Lee, Richard Henry, resolution of, 125. Robert E., 147. Legislature subject to popular will, 140. "Lost Cause," 147. Louisiana Purchase, 146. Lutherans, German, 124. Madison, James, 133, 134, 136, 137. 138. Magna Charta, 143. Maine, Sir Henry (quoted), 142. Marbury v. Madison, 144. Marshall, John, 121, 133, 144, 145. develops Constitution to full power, 145. Mason, George, '133, 134, 136, 139. Mayflower, 123. Michigan part of Northwestern territory, 128. Mississippi river, occlusion of, by Spanish Government, 128- 129. Virginia opposes Spanish occlu- sion of, 129. Monongahela, 125. Monroe Doctrine, 147. James, 133. New Hampshire, constitution of, 126. Northwestern territory, Virginia's right to, 127. 'Ohio part of Northwestern ter- ritory, 128. Parliament, 143. Pendleton, 133. Petition of Rights, 143. Point Pleasant, 125. Presbyterians, Scotch-Irish, 124. Randolph, John, 133. Peyton, 125. Restoration, Virginia's status un- der the, 124. Rights, Bill of, 126. Virginia's declaration of, 126. South Carolina, constitution of, 126. Stamp Act, Virginia's opposition to, 125. State rights, 136-137, 140, 146. rights, how conserved, 140 et seq. "States, indestructible union of indestructible," 121. rights nullified, 121. sovereignty of, 134. the united colonies are and ought to be free and in- dependent," 125. Stevens, Dr. Ellis (quoted), 135, 142. Story, Joseph (quoted), 123, 143. Swiss Confederacy, 135. 258 INDEX Texas, independence and acquisi- tion of, 147. Tocqueville, De (quoted), 142. Trevett vs. Weedon, 143. Trumbull, Jonathan (quoted), 131- United States' rank as a ruling power, 121. Venice, republic of, 135. Virginia Bar Association, address before, 121. constitution of, 126; model for Federal constitution, 126, 132, 136, 138, 146. credit of construction of Fed- eral Constitution awarded to, 122 et scq. declares her independence, 125, 132. demands stronger constitution, 130, 132, 146. demands guarantees of the rights of the states, 139, 140. influence of. in the formation of the Federal Constitution, 121-147. invites sister States to a union of interests (1773), 125, 132. proposes renunciation of al- legiance to the Crown, 125, 132. Virginians confront Cromwell, 124. extorted concessions (1621), 123- 124. protest (1624), 124. Virginians selected their own governor (1635), 124. Virginia's additional contribution to federal power, 128. plan of government first in his- tory of self-government, 126, 132, 136, 146. Washington, George, 125, 133, 147. labors of, for stronger union of States, 130-131. Wisconsin part of Northwestern territory, 128. Wythe, Chancellor, 133, 144. THE PEOPLE OF THE STATE OF NEW YORK VS. THE NORTH RIVER SUGAR REFINING COMPANY Absolute ownership of property must not be suspended, 243- 248. Agreement or combination is the vice, 184-185. Agreements, law looks to the gen- eral tendency of power conferred, 184. limiting production illegal, 183- 184- tend to prevent free competi- tion, 184. tending to restrain natural ri- valry against public policy, 184. Anne, statute of, limiting copy- right, 150. Federal and State laws protect monopolies, 151. Appellant is estopped (citations), Appellants main argument, 198- 199. Black Friday, 195. Capital, tendency of, 'to seek highest profits, 199. Charter, language employed in the act of, defines powers (citation), 161. of a corporation the measure of its powers (citations), 162. violation of, to be punished by a judgment of ouster and dissolution (citation), 162. Charters and franchises are con- tracts (citation), 156. Legislature's view, in granting (citation), 155-156. Combination a consolidation of corporations, 232-233. any, to do an act injurious to trade is a criminal con- spiracy, 207. character of, determined by in- strument constituting it, l8 3- created by Sugar Refining Co. deed a criminal conspiracy, 182. formed of corporations, 215- 217. impotent to control competi- tion, 198-199. need not be complete monopoly, '94- otherwise lawful, a crime if its intent is monopoly, 207. will be held to intend obvious effect, 225. INDEX 259 Combinations and agreements, when unlawful, 172-182. courts will not stop to inquire injury inflicted upon pub- lic, 183. effect of adjudications on, 181. legitimate vs. unlawful, 206- 208. may indefinitely increase prices, how, 197. nascent rivals crushed by es- tablished, 201. Commodities, what controls prices, 186 et seq. Common Law adequate to destroy trust-combinations, 151. Competition destroyed falal to trade (citation), 170. if excluded, and one trust con- trols, what follows? 210- 211. restriction of, contrary to pol- icy of New York State, 180-181. the right to exclude, injurious to public (citation), 170. Constitution of the company, 227- 228. Contract, a, in total restraint of trade is void. 179. Copartnership liability ineffectual to efface illegality, 206. Copper syndicate, 200. Corporate act, unauthorized, il- legal, 162. charters annulled in case of non-user, 245. franchise, rule prevails in quo warranto, to forfeit (cita- tions), 153. Court must determine uncontro- verted state of facts (cita- tions), 153. direct a verdict, if proof of fact be preponderating (ci- tation), 153. privileges conditional upon per- formance of duties en- joined (citation). 157. rights and powers the correla- tives of corporate obliga- tions (citation), 158. Corporation, act of, in violation of law forfeits franchises (citations), 160. its constituents the act of the (citation), 164-165. Corporations can exercise no power not expressly grant- ed (citations), 162. make no contract not necessary for purposes of charter, 231-232. cannot be created merely to consolidate with another, 231. consolidate their funds unless authorized, 233-235. contract made by a, in viola- tion of its charter is ultra vires and void (citation), 164. with, may be binding although an abuse of powers (cita- tion), 163. of, unauthorized are illegal (ci- tation), 163. creation of, an act of sover- eignty, 155. court will construe upon its manifest tendency, 185. doing unauthorized acts may forfeit franchise (cita- tions), 163. domestic, charter may be vacat- ed, 152. existence of, may be annulled when (citations), 160. grant a pledge to public (cita- tion), 159. has no authority to do acts in- dictable by public law, 209. if utility be lessened, it is a forfeiture (citation), 162. may be dissolved (citation), 157- for breach of trust (citation), 158. when exercising a privilege not conferred (citation), 164. may incur a forfeiture of fran- chise by doing an illegal act (citation), 163. must apply funds as provided in act of incorporation, 243. be managed in interest of shareholders, 241. come up to substantial objects for which instituted (cita- tion), 15S. demean itself faithfully (cita- tion), 157. objects for which, created (ci- tations), 155. primary object of the institu- tution of (citations), 157. public have an interest that it shall not transcend powers (citation), 159. 260 INDEX public has interest in proper administration of powers (citation), 163. statutory, is limited as to all its powers, 230-231. what it undertakes and agrees (citation), 158. Corporations, Attorney-general's authority in relation to (ci- tation), 164-165. relation of, to company, 228- 230. rule of construction in cases of (citation), 161. that become monopolies a pub- lic menace, 180. transfer of control illegal, 236- 239- what constitute, 219-224. where, abuse powers by acts ultra vires State may re- claim charters (citation), 164. Corporators are the corporation, 219-224. Defendant corporation has for- feited its charter, why, 235- 239, 241-242, 248. did an act ultra vires, 227. guilty of excess of powers, 227. moves Court to direct verdict in its favor, 151-152. party to the combination, 217- 219. violated condition of franchise, 225-226. Defendant's charter, forfeiture of, 155. Evidence competent to prove es- sential fact, 154. solitary exception to, plainly untenable (citations), 154. Forfeiture by acts ultra "Ares — Bank, chartered, and acts ul- tra vires (citation), 166. embezzlement of funds on de- posit with (citation), 166. neglect of, to make report required by law (citation), 166. violating a restriction on rate of interest (citation), 166. College, chartered, and acts ultra vires (citation), 166. Corporation dividing Legislative appropriation with agent (citation), 166. Corporation holding property in violation of restraints of charter (citation), 167. Further grounds of, 167. Insurance company carrying on banking operations (cita- tion), 166-167. Railroad company ceasing to operate a part of its route (citation), 167. company, extortionate charges by (citation), 166. company, if a. abandons a portion of its line (cita- tion), 167. company keeping records, of- ficers, etc., in another State (citation), 166. omission to make report re- quired by law (citation), 166. company, unauthorized lease of its road, rights, fran- chises (citations), 167. common law ground still avail- able (citation), 165. Franchises, corporate, become void in case of misuse, 158. granted in trust, 156. may be forfeited by acts and contracts ultra vires the corporate authority, 161. may be lost by misuser or nonuser (citations), 159. misconduct of corporators operates a forfeiture, 219, 223-224. subject to condition that privileges and franchises be not abused (citation), 159. granted upon condition that they be executed according to charter (citations), 157. for proper use (citations), 157. grants of, are conferring peo- ple's rights (citation), 156. may be forfeited (citation), 156. for breach of trust (cita- tion), 158. Gold Ring, 195, 200. Grants, in, by the public, noth- ing passes by implication (citation), 161. "Great Quo Warranto Case," 165. Incorporation act an enabling act (citation), 161. right of, in the nature of a contract, 240-241. INDEX 261 Joint Stock Company, 228. Judgment is unimpeachable, 155. Labor cannot withdraw from the market, 204. may combine to better condi- tions, 204-205. tendency of, is to seek highest wages, 199. "Large production," law of, 201. Law not to be hoodwinked by colorable pretenses, 185. Macy's not a monopoly, 202, 203. Man, a, may not contract to form a monopoly, 208. a, may not do as he pleases with his own. 208. Mogul Steamship Co., case of, 179. Monopolies are bane of body poli- tic (citation), 169. destructive of individual right (citation), 169. detrimental to public welfare (citation), 168. distinguished, 201. intolerable (citation), 169. justly odious (citation), 169. tend to public prejudice, 168. public policy opposed to (cita- tion), 170. ruling of Kentucky Court of Appeals, 171. of New York Court of Ap- peals, 171. of Superior Court of San Francisco, 171. of Supreme Court of Cali- fornia, 171. of Supreme Court of Illinois, 171. of Supreme Court of Michi- gan, 171. statute against, the magna charta of British industry (citation), 170. Monopoly a crime, 179. against public policy (citation), 170. agreement, Lord Campbell on, 183. tending to, one illegal (cita- tions), 167-168. as controlling prices, 187-189. comprehends, what, 195. control of State supply of a commodity constitutes a, 198. end and aim is to increase prices, 203. is, wherever competition is not, 188. of copy and patent rights a reward of genius, 181. only "temporary," 200. opposed to rivalry in trade (ci- tation), 169. partial, 195-196. prices, effect of "outside" com- petition, 196. partial supply must meet, 197-198. price of, the highest, 188. tends to control prices, 187. three inseparable incidents to, 1 70- 1 7 1. thrives on diminution of sup- ply, 202. Mortmains and entails, prohibi- tion of, 244. Municipal by-law, a, in restraint of trade is void, 179. North River Sugar Refining Company, delivery of stock of, 211-215. Perpetuity inimical to public weal, 244-248. statute of, not self-denying, 247-248. Plaintiff, facts most favorable to, must be deemed found in his favor (citation), 154. on motion of. Court directs verdict in favor, 153. Points, 153-248. Pooling arrangements, 205. Sale, a, implies what, 205. no true, 205-206. Standard Oil Company, 201, 203, 204. Statement, 152. Sugar Refining Company a crimi- nal conspiracy by com- mon law, 182. in the State of New York by express provision of statute, 182. an illegal combination, 193, 194. combination created by, injuri- ous to trade, 182. contends it is impossible to monopolize production, 193- 194. deed creates a monopoly in the strictest sense, 209. does not constitute a combina- tion tending to monopoly, 186. 262 INDEX finds no justification in right accorded labor to organize, 204. its object to concentrate pro- duction under single will, 189-192. not a mere partial restraint of trade, 208-209. what constituted, 217-219. Supply and demand, courts have nothing to do with the laws of, 171. the natural law of (citation), 169. "Tendency," ambiguity of, 199. Trust-combination, first effort to break up, 151. an act, an infraction of posi- tive law, 162. is an abuse of the corporate franchise (citation), 164. is the usurpation of a fran- chise (citation), 163. see also Forfeiture. "Unlawful" as applicable to cor- porations (citation), 164. Ultra Vires, acts and contracts, 161 ct seq. Verdict of jury a general ver- dict for the people (cita- tions), 154. Wanamaker's not a monopoly, 202, 203. 4 1912