Addresses and Articles. 
 
 APRIL-JULY, 1897. 
 
 BY 
 
 Judge WALTER CLARK. 
 
 " I believe tlie people are as much master now as ever." 
 
 James Hunter, the Regulator, 1771, writing in exile 
 after his defeat at the Alamance. 
 
 RICHMOND : 
 
 JAMES E. GOODE PRINTING COMPANY. 
 
 1897. 
 
Digitized by the Internet Archive 
 
 in 2011 with funding from 
 
 University of North Carolina at Chapel Hil 
 
 http://www.archive.org/details/addressesarticle41clar 
 
 \ 
 
WHERE SHALL THE GOVERNING POWER 
 RESIDE?" 
 
 Address Before the University College of Medicine, 
 Richmond, Va., April 29, 1897. 
 
 Young Gentlemen of the Graduating Class, Mr. President^ 
 Ladies and Gentlemen : 
 
 The poet Burns declared that in Hea'ven itself he would 
 "ask no more than just a Hieland welcome," and no invited 
 speaker can ever have a handsomer introduction or a kinder 
 welcome than he will alvtays receive at the hands of a Vir- 
 ginia audience. The growth of this magnificent city is a 
 pride to the whole South, of which for four long and ever- 
 memorable years it was the capital and the centre. Of the 
 many evidences of rapid progress to be seen on all sides, it is 
 not ray purpose to speak. It is proper, however, to express 
 gratification, which should be shared by every Southerner, 
 that here in our ancient capital this institution for the edu- 
 cation of physicians and surgeons has already taken so high 
 a stand, and that there is no need of going farther North to 
 secure a medical diploma whose value is recognized through- 
 out the Union. When I first saw the city of Richmond, it 
 was under vastly different auspices and amid other surround- 
 ing? than those that greet us to-night. It was thirty-six 
 years ago. Virginia had called for aid, and across her 
 Southern border North Carolina poured her troops like an 
 Alpine torrent. At that time I was a lad of fourteen, a cadet 
 at a military institute. The troops needing such instruction 
 
as it was thought we could give, I was like many other as- 
 signed to duty by the Governor, and entered this State at- 
 tached to one of the North Carolina regiments. It was then 
 that my feet first trod the soil of this historic city. Remain- j 
 
 ing in the service, it was my fortune again and again, during j 
 these four eveiitful years, the memory of which should never ' 
 
 be forgotten, to pass through Richmond when men from 
 Maine to Minnesota, on the one side, and men from Mar3^1and 
 to the Mexican border on the other, were contending for the 
 possession of the Confederate capital. Ringed with fire, the 
 city grew accustomed to the dull, beavy booming of cauuon, _---4' 
 and as at Saragossa, people bought and sold, married and 
 were given in marriage, danced or wept, as occasion served, 
 while the work of war went on at the gates. 
 
 To-da}'^ it is hard to realize that the sceae is the same. 
 Lee and Jackson are glorious memories now. Another flag 
 floats from the flag-staff en jour capitol. From yon river 
 
 "the fleets of iron have fled," 
 
 and where the long lines of infantry stood the green "grave 
 grass grows where asleep are the ranks of the dead." Peace, 
 gweet-bosomed peace, broods over a city which numbers four- 
 fold the population of the one that w^ithstood McClellan, and 
 Meade, and Burnside, and Hooker, and Grant, in the "brave 
 days of ola." Looking upon the surface of this now peace- 
 ful scene one would murmur: "Other times; other men." 
 
 Yet I must say to 3'oui, my young friends, that not in 1861, 
 when the steady tread of the old Confederate regiments first 
 echoed along these streets, and the artillery wagons came 
 rumbling by, and the bugles of marching cavalry rolled along 
 your valleys, was there greater unrest in the minds of the 
 masses of your fellow citizens North and South, East and West, 
 than there is at this moment of deep, dreamless, apparent 
 peace. The hearts of men are strangely moved within them, 
 for the masses are not satisfied with existing conditions. No 
 
one contemplates that the present unrest will culminate, lilce 
 that of 1 801, in armed strife, but all the signs that history 
 has ever given of great impending changes are with us. 
 Xone are lacking. Conditions, will not, cannot, remain as 
 they are. Be assured of that. If you are men worthy of 
 the Revolutionary race of heroes who won our liberties, and 
 equal to the generation which faced the perils of the great 
 civil v^ar without shrinking, you should read and understand 
 the signals of the coming storm. 
 
 There are men to whom the present status is very com- 
 fortable. They denounce any statement that all others are 
 not as contented as themselves. It was your own great 
 orator who, quoting the inspired seer of Israel, cried out in 
 prophetic language: "They say peace, peace, but there is no 
 peace." 
 
 THE CONFLICT OF IDEA.S, 
 
 the coriflict of interests is more real at every point of contact 
 than that which Mr. Seward proclaimed an "irrepressible 
 conflict" in 1-860. At Cooper Institute, Mr. Lincoln truly 
 declared to a startled generation that the Union could not 
 remain half bond and half free. It is equally true now that 
 this Government cannot be governed partly by freemen and 
 partly by an oligarchy of wealth. One or the other must be 
 sole master of the Republic. The generation of 1860 had 
 not, like this, the benefit of the lessons taught by four terrible 
 years of war, and hence the issue of this day can be settled 
 by ballots — not by bullets. 
 
 But it is well for us to comprehend the intensity of the 
 question now to be settled and to understand, once for all, 
 that it will not and cannot be settled till there is a complete 
 triumph for one side and a crushing, hopeless defeat for the 
 other, a catastrophe so full and utter that whatever way it 
 fall out, the victory will be engraved in profound modifica- 
 tions upon our organic law. 
 
Be it understood that I come not before you to express or 
 to advocate any views of my own, or of any party, or of any 
 sectioE. It would be an insult to you and unworthy of mj'^- 
 self to use this occasion for such a purpose, but I accept the 
 great thought of Terence, the Latin poet, which St. Augus- 
 tine tells us was received with thunders of applause by a 
 Koman audience: ^^ Homo sum, humani nihil a me alienum, 
 jputo.''' "lam a man, and whatever concerns the welfare 
 of my fellowmen can never be without interest to me.'" 
 Called upon to address educated, talented youn^ men who 
 are to go out and become captains of thought and leaders in 
 the hosts of our Israel, I should be unmindful of the duties and 
 opportunities of the occasion if I were to waste it in rhetorical 
 platitudes or well rounded sentences signifying nothing — the 
 situation is too grave, 
 
 THE ISSUES TOO IMPORTANT, 
 
 the impending conflict too certain, and the results too great 
 and lasting. If I can say ought to ina press your ingenuous 
 minds that a great struggle, more important than that of 
 1861, and as inevitable (though we trust to be settled in a 
 different forum), is before you, and that you will be fac- 
 tors of conseqaence in that contest, then perhaps not alto- 
 gether in vain I shall I have stood before you. At Waterloo, 
 when for hours the conflict for the mastership of Europe had 
 hung in nearly even balances, and at last as the sun was 
 bending low, victory seemed to incline to the French, a body 
 of troops was seen far off towards the North marching to- 
 wards the field of battle. On and o.V they caae. Every 
 glass was leveled upon them. Leaders and gecerals strained 
 their vision to discover to which side the reinforcement be- 
 longed, for it would be cast into the scales, like the sword of 
 Brennus. If it was the column"? of Grouchy, then once 
 more, and brighter than ever before, the star of Napoleon 
 would beam upon a field lost and won If it was the 
 
leading files of Blucher, then the empire would pass away 
 like a troubled dream, and England, England would be the 
 cry. On they came, with strides as steady as fate, as irre- 
 sistible as destiny. They proved to be Bulow's division of 
 Blucher's corps, and fortune fled forever her spoiled and 
 favorite child. The present generation is engaged in a like 
 momentous struggle, not on the narrow battlefield of a Bel- 
 gian plain, but on an amphitheatre that reaches to the silent 
 oceans. In the press, on the hustings, in close converse of 
 neighbor with neighbor the conflict of ideas is going on. It 
 is becoming more and more intense. The forces are nearly 
 evenly divided, and both sides, like the the contending armies 
 at Waterloo, are looking for reinforcement to the generation 
 that is arriving to manhood, for your weight will decide the 
 issue. The arrival of your generation upon the battlefield^ 
 will decisively end the struggle. 
 
 What are these contending forces, and what is the true 
 issue? Is it the tariff? That is a party issue over which 
 either side predicts beneficial results of it wins, and disastrous 
 consequences if it fails — and alternately one or the other 
 wins, and with better or worse conditions the country goes 
 on. Is it the silver issue, the financial question? That is 
 nearer the mark, yet that question is rather an incident, a 
 symptom, a phase with suggested remedies and not the dis- 
 ease itself. Nor yet is the conflict between labor and capital, 
 nor the old, old struggle between State Eights and the cen- 
 tralizing tendencies of the Federal government. 
 
 THE VITAL QUESTION LIES DEEPER 
 
 than any of these. It is that which the Roman republic had 
 to face, which every republican government has had to de- 
 termine, and upon the answer to which, its continued exist- 
 ence as a republic depends. That question was very dimly 
 and indistinctly discerned in the beginning of this great re- 
 public. It took on increased importance after the late civil 
 
war. To-day it has become the great underlying question 
 upon which men, instictively, often unconsciously, perhaps, 
 are taking sides. It is a question which in a Republic must 
 be settled, and there can be no peace until it is, and the re- 
 sult must be safeguarded by profound constitutional changes. 
 The vital question which this country is called upon to de- 
 termine and towards the determination of which we are, in- 
 telligently it may be, or blindly it may be, groping our way 
 is "Where shall the actual governing powei reside." "Shall 
 it be in men or money?" It is not a new question, but in a 
 Republic it is the inevitable question whose deterniination 
 settles all others. What matters it if the Constitution says 
 that all political power resides in or is derived from the peo- 
 ple if it has ceased to be true in fact? The Roman legions 
 bore to the latest days of the empire upon their standards the 
 vvords, "The Senate and the Roman People," centuries after 
 Augustus and Tiberius and Nero had stamped out the last 
 vestiges of the popular will. There were still Tribunes of 
 the People, and the Consuls and a Senate and the forms of a 
 Republic in official documents and proceedings long centuries 
 after the real power had passed from the curia and the comitia 
 to the barracks of the Pretorian Guards, and when there was 
 no will in Rome save that of their master. 
 
 YEARS AFTER THE VICTOR OF MARENGO 
 
 had been crowned emperor, and the sword of Austerlitz had 
 become the supreme power of France, the French coins and 
 official documents still bore the superscriptions of the repub- 
 lic. The nature of a government is not determined by its 
 forms and titles. These usually remain unchanged long after 
 the governing power has become vested elsewhere. What 
 boots it if on parchment we shall continue to read, "All 
 political power is vested in and derived from the people; all 
 government of right originates from the people, is founded 
 
upon, their will only, and is instituted solely for the good of 
 the whole," if it is not a living, potential, actual truth? 
 
 IF, AS A MATTER OF FACT, 
 
 great corporations through their agents, whether lobbyists or 
 members of the legislatuie itself, can control a majority of 
 that bod_y, so that the choice of the corporations, and not the 
 genuine choice of the people, is sent to the Federal Hail of 
 embassadors to sit as a Senator in Congress, then the parch- 
 ment declarations is a flaunting lie. If giganticcombinations 
 of wealth can elect or control majorities in Static Legislature 
 or in Congress, so as to shape legislation, if they can be 
 poteixt in the nomination of Federal or State officials, then 
 the veal governing pov/er vests in money, not in men, and 
 your boasted republic is but a once beauteou'j form from 
 which the spirit has already departed. 
 
 This is the question of the hour, which should be pondered 
 and understood ?«ith a full grasp of its meaning, and all the 
 consequences vvhich must flow from the displacement of the 
 centre of gravity in government. If this displacement has 
 already measurably taken place, or if there is grave danger 
 of it, the struffo-le to restore it will bring on the crisis which 
 must determine the real nature of our government. For 
 mark you well this fact: that if multi-millionaires or vast 
 combinations of capital, have succeeded, or shall succeed, to 
 the real control of legislation, they have only won its posses- 
 sion because it can be immensely profitable to them; and if 
 profitable, they cannot afford to run the risk, from time 
 to time, of losing so profitable a domination by popular agi- 
 tation. They will seek, if they have not already done so, to 
 strengthen themselves by securing 
 
 THE MAJORITY OF THE FEDERAL SENATE, 
 
 and an influence in the executive councils, and even more 
 important than that, the majority of appointments to the 
 
10 
 
 Federal bench, whose life tenure and uncontrolled power of 
 construing constitutions and statutes will be of invaluable aid. 
 In Rome, where the augurs, by reading signs in the sky or 
 inspecting the entrails of fowls, could adjourn assemblies of 
 the people by decreeing the day to be unlucky, the augurs 
 were invariably selected by those in power, the personnel of 
 the augurs being indispensable for their purposes. Nor, as 
 time goes by, \^ill the matter stop even with the selection of 
 judicial augurs. Agitation, public agitation, effects values — 
 that horrible lete noire of capitalism. Profound constitutional 
 changes, either secured by express enactment or read into the 
 Constitution by servile judges, must lessen the opportunity 
 for agitation by rendering it povserless, and the gradual in- 
 crease and the maintenance of a large standing army must 
 prevent all thought of resistance. If the money power, as 
 has been charged, and as is believed by many, is already 
 largely in the control of the government, State and national, 
 then the steps just described will be natural and necessary to 
 protect and preserve that profitable power in their hands, 
 leaving the empty forms of a republic to stand in silent but 
 impotent protest. 
 
 On the other hand, if the control of legislation is so highly 
 profitable and important to the money power, it will be an 
 irreparable calamity to the toiling masses to lose it. The 
 founders of the republic fondly believed they had secured 
 it not only for themselves, but for their posterity for all time. 
 If the advocates of popular government win, they in turn, 
 still less than the money power, can rest easy in the victory 
 with the organic »law remaining as it is. Experience has 
 shown its weakness and its insufficiency. There are many 
 points requiring amendments. It would be tedious, perhaps 
 beyond my power, to point out any except the most obvious. 
 The election of United States Senators by State Legislatures 
 has been so often a perversion of the popular choice and a 
 concession to corporation influences that the public senti- 
 
11 
 
 ment to confer upon the people of each State, instead of its 
 Legislature, the election of its Federal Senators is confined 
 to no party and to no section. The bill to amend the Con- 
 stitution in that respect has passed the lower house of Con- 
 gress more than once, and once, at least, by a unanimous 
 vote. The corporations have so far been able to prevent its 
 passage by the Senate itself. The Federal judiciary, by its 
 mode of appointment especially lays itself open to the grasp 
 of great monopolies and combinations, whose influence in 
 such matters is asserted to have become almost irresistible of 
 recent years. The life tenure of office, placing the occupants 
 of the Federal bench be3''ond reach of public complaint, if 
 their trust is abused, and the finality of their powers as inter- 
 preters of the Contsitution and statutes, combine to make it 
 essential to the great monopolies to control the appointment 
 in this branch of the government. There are unquestionably 
 
 MANY ABLE AND SPOTLESS MEN 
 
 on the Federal bench to-day, but it has been asserted, and it 
 must be confessed, not without much foundation of fact, 
 that it is rapidly becoming the rule to fill such positions tvith 
 men whose life work has been that of counsel for great cor- 
 porations and whose entire training is calculated to bias them 
 upon all questions upon which corporation interests and pop- 
 ular rights must clash. One of the incidents of the coming 
 struc^o-le will be the determined effort to make the Federal 
 judges elective by the people of their respective districts and 
 circuits for a term of j^ears. This change has alread}'^ been 
 deemed necessary and been decreed by nearly every State as 
 to its own judiciary, and there are still stronger and more 
 urgent reasons why the people should have more weight and 
 the corporations less in naming the Federal judges. 
 
 Remember that it was the sage of Mooticello who pointed 
 out the "sapping and mining" which would overthrow the 
 
12 
 
 Constitution if the ultimate construction of statutes and Con- 
 stitution was left to so unrepublican an institution as a body 
 of men who wp.re selected for life and without the public hav- 
 ing any choice in their selection. Time has proven his wis- 
 dom and ao-o^ravated the evil he denounced. 
 There are 
 
 TWO CLASSES OF MEN ONLY 
 
 ivho are likely to oppose the election of United States Sena- 
 tors and United States Judges by the people: First, there are 
 those who accept the phrase of a govern raent of and by the 
 people as a formula merely. They at heart do not believe 
 the people are capable of self-government. They would 
 never have trusted them with the election of Governors, 
 members of Congress, or the President, and the}'' sincerely 
 fear to trust to the voice of the people the selection of any 
 other officer whatsoever. The other class is that whose self- 
 interest, personal aspirations or orders from those above them 
 bind to oppose popular enfranchisement in the selection of 
 Federal Senators and Judges. 
 
 Then there is the great Transportation question. From_ 
 its economic side it is of vast importance. By secret rebates 
 they can build up and destroy at will cities and individual for- 
 tunes. It is too great a power to t»e entrusted to the hands 
 of a few irresponsible men, the control of whom is generally 
 found to be centered in that modern Babylon by the Thames. 
 Of vast importance from the economic side, the danger is 
 deadly from the governmental standpoint By the vast num- 
 ber of their employees, the great numbers of the press and 
 the bar whom they retain, and their ready power of concen- 
 tration of influences upon pivotal points, they have a prepon- 
 derating weight which can endanger the maintenance of pop- 
 ular government. The suggested remedy of government 
 ownership of railroads is untried here and is fraught with 
 
13 
 
 prophesied evils. The remedy sought to be applied in many 
 States of control by means of Railroad Commissions has too 
 often resulted in the railroads electing the Coramissiocers and 
 simply adding the Commissions to their ass*3ts. The question 
 must needs be solved, but its solution has not yet been found. 
 
 IT IS THB OLD RIDDLE OF THE SPHINX. 
 
 To fail to acswer it is death. There are still other matters 
 which need not be discussed now. Who shdU win the victory 
 remains to be seen. But the inevitable conflict is at hand and 
 that its results will be lasting and Mill leave its mark in con- 
 stitutional changes is beyond question. 
 
 It should not be lost sight of in this struggle for the 
 possession of the governing power there is no taint of an 
 agrarian spirit. There is no appreciable element of the 
 American people who are opposed to property rights. It is 
 not opposition to property, but to its combination in vast 
 masses for political purposes, that it may control legislation 
 and the machinery of government in the interest of the 
 combination and against the property rights of others. It 
 was Senator McDuffie who said that legislation could be the 
 most powerful and exacting of plunderers. There is no 
 hatred of corporations as such. They are essential in the 
 service of civilized life, nay indispensable. Nor even against 
 railroad corporations so far as they keep v/ithin the legiti- 
 mate duties of their creation, but is when they seek to use 
 their enormous power of wealth and organization for the un- 
 due emolument of their owners and by entering the political 
 arena seek to control legislation and public policy that the 
 collision becomes inevitable. The opposition is not to them 
 as servants of the public, but as would be masters of the 
 people. That we have already passed the danger line as to 
 the aggregation of wealth will be seen from this summary 
 from reliable sources: Egypt, Persia and other great empires 
 fell when less than ten per cent, of the people had secured 
 
14 
 
 nine-tenths of the accumulated v^ealth of those empires. The 
 glories of imperial Rome crumbled into dust before the brawny 
 arms of the half-naked barbarians of the northern forests 
 when 1,800 families had garnered the bulk of its wealth. 
 Already to-day, one-half of one per cent, of the people of this 
 country own over one-half of its entire wealth, and nme per 
 cent, of its people seventy-five per cent, of its property. This 
 condition tends rapidly to aggravate itself. To-day in Europe, 
 forty per cent, of the householders are tenants. In this grand 
 young Republic already seventy per cent, of the householders, 
 nearly double the European ratio, do not own but rent their 
 hemes. This condition of things has not accidentally hap- 
 pened. It has been brought about by the great corporations 
 and combinations of capital. Already many warning voices 
 have been raised. I will mention only two —-and they are 
 leaders in the two most conservative professions in the world. 
 In an address before the American Bar Association at Mil- 
 waukee in 1893, 
 
 ; 
 MR. JUSTICE BROWN, OF THE SUPREME COURT OF THE UNITED STATES, 
 
 the holder of a post T^hich is a guarantee of his conservatism, 
 and speaking to the most conservative body in the country — 
 the leaders of the bar — pointing out the evils of this rapid 
 concentration of wealth into a few hands, suggested that 
 without interfering with one's accumulation in his life time, 
 those vast estates whose continuacce is a menace to our form 
 of government could be effectually broken up by modifying 
 our statute of wills and statutes of descent and providing 
 that at one's death all above a certain limited amount to each 
 child should be otherwise distributed or go into the coffers 
 of the State. He pointed out what every lawyer knows, 
 though it is contrary to our habits of thought, that no man 
 after he passes beyond this "vale of tears" has the right to 
 dictate what shall become of his property. If he could of 
 right control it for one generation he could for many gene- 
 
15 
 
 rations, which the law, years f»go, found it necessary to pro- 
 hibit. The present condition of things imperatively demands 
 some limitation upon the transmissal from hand to hand of 
 these colossal estates. The public welfare is the supreme law. 
 The promotion of the public welfare is named in the pre- 
 amble of the Constitution of the United States as on3 of the 
 motives for that instrument. Solus populi suprema Lex. 
 The same reason requires the breaking up of the great estates 
 accumulated by trusts and which in turn create and give a 
 motive for the formation of trusts. Without taking further 
 time, [ will quote a single phrase from the words of one who 
 is better known to fame by the designatio uW "Ian McLaren," 
 a conservative of a most conservative church, the Kirk of 
 Scotland. In his late work, "Words of the Mastef," he 
 says, "A millionaire is now almost worshipped, but if the 
 signs of the time are not at fault, the day is not far distant 
 when to die possessed of great wealth will be to stamp one as 
 a semi- criminal.'" These quotations might be greatly ex- 
 tended, but when we reflect that these utterances are from 
 leaders of thought in the two most conservative professions 
 in the world — for your own great profession has now become 
 one of the most progressive on the planet, a very Edison 
 among the professions — when such speech comes from such 
 men we know that we are face to face with the great evil of 
 the day, and that the public welfare demands its abatement. 
 I will add just here one other quotation. In his message to 
 Congress, Deceirber 3, 1888, President Cleveland used these 
 striking words: "The communism of combined wealth and 
 capital, the outgrowth of over-weening cupidity and seldsh- 
 ness, which insidiously undermines the justice and integrity of 
 frie institutions, is not less dangerous than the communism of 
 oppressed poverty and toil, which exasperated by injustice 
 and discontent, attacks with wild disorder the citadel of rule.'"* 
 He might have said that- w^s a thousand fold more so. 
 
16 
 
 THE REAL MENAGE TO MEN OF MODERN PROPERTY 
 
 and those seeking to earn a modest competence is not in the 
 poor and weak, but in the collossal and mighty combinations 
 "which lay their hands upon States and recoil not on the 
 threshold of the National Judiciary. ""Words," said Mira- 
 beau, "Words are things." Aware of that fact, those who 
 serve the money power by speech and pen, are wont to dub 
 those who entertain sentiments adverse to government 
 by money as anarchists, socialists and communists. But be 
 not daunted in this contest by epithets. The very combina- 
 tion of epithets will show that they are words, nothing more. 
 An anarchist is one who is opposed to all government. He 
 is the ne plus ultra of individualism. Society has nothing 
 to fear from the few hundred throughout the Union profess- 
 ing that faith. At the very opposite pole are the commun- 
 ists who believe in government for everything, in the com- 
 munity of goods. This system failed under the Apostles 
 themselves who gave it a trial, and is not likely to be tried 
 again with any success while poor human nature remains 
 what is. Between these two opposite poles, anarchism or 
 no government, on the one hand, and communism or govern- 
 ment in everything at the other, lies socialism. Every civil- 
 ized government is to a large extent, and almost in propor- 
 tion to its degree of civilization, socialistic. The original 
 conception of government was a policeman with a big stick 
 to prevent or punish murder and violence, theft and other 
 crimes, so that property and person might be secure. But 
 tie have become far more socialistic than that crude begin- 
 ning. When taxes were laid on the property and persons of 
 all, whether having children or not, and not in proportion to 
 the number of children, in order to educate other people's 
 children, a most unmistakable stride towards socialism was 
 taken, yet our public schools are now our pride, and justly 
 so. Socialistic, too, is the levy of public taxes to maintain 
 
17 
 
 hospitals for the sick, the poor, the insane, the blind and the 
 deaf and dumb. So is the postoffice itself, for what connec- 
 tion is there between governraenl in its original function of 
 preserving peace and order and the distribution of intelligence? 
 In like manner municipal ownership of lights, water works 
 and street cars — adnirable as it is, and admirably as it has 
 operated for the public good — is essentially socialistic. I 
 would not be misunderstood as opposing any of these measures 
 because they are socialistic, nor as advocating further steps in 
 that direction. That is not my purpose, but to call to your 
 minds that whether a measure is to be adopted or not, should 
 depend upon whether it will serve the public welfare, and 
 that it is not to be rejected if the only objection that can be 
 urged is that some one thinks it is socialistic, seeing that so 
 large a part of the better portion of government is already 
 of like nature. We need to be often reminded, indeed we 
 should never forget, that government exists for the people 
 and not the people tor the government. It was your own 
 great statesman, Thomas Jefferson, who, for maintaining this 
 sentiment in the opering of the century, brought doMn uppn 
 his head the wrath of those who believed in government ky 
 the few. 
 
 THE BREEZES THAT SWEEP FROM THE SOUTH 
 
 across the dark and bloody trocha, from the orange groves of 
 the Queen of the Antilles, bear to us the despairing cry of 
 Cuba Libra fram men whose souls are stirred by the same 
 sacred fires that burned in the bosom of the heroes of 1776, 
 and already Maceo has fallen, the "Warren of this new strug- 
 gle for liberty. And from across the deep waters, borne by 
 the harnessed lightning from Epirote valleys and Thessalian 
 plain comes the clash of arms where the descendants of 
 Epaminondas and Miltiadesare struggling in the lists with 
 the myriads of the modern Xerxes. Our hearts go out to 
 Cuban and to Cretan, to Epirotes and the men of Macedonia, 
 2 
 
18 
 
 our hands might go too, if our goveraraent really express^^d 
 the feelings of the people. But are we sure that John Ran- 
 dolph, of Roanoke, was not right when he said: "Sirs, the 
 Greeks are at our doors."" In seeking the salvation of others, 
 are we sure of our own? While sympathizing with the strug- 
 gle for self-government elsewhere, are we certain that we 
 have it ourselves? Is there no whisper of the lobby that at 
 times is more potent than the voice of the people? Is there 
 never behind the Executive a power greater than the Execu- 
 tive itself? 
 
 When Napoleon Bonaparte was an unknown lieutenant of 
 artillery, some one asked Abbe Raynal why he spent so much 
 time talking with him. "Because," said the Abbe, 'there is 
 so much future in him.' " It is always pleasant to talk to 
 young men, there is so much future in them, but my young 
 friends, I will claim your attention no longer. I might have 
 spoken to you upon matters connected with your own great 
 profession and the w^onderful, almost miraculous, advances 
 it has made in recent years, but in doing so I should have 
 deserved the fate of him 
 
 WHO CARRIED COALS TO NEW CASTLE. 
 
 I might have spoken to you of my own profession; this would 
 have been pleasant to me, but would have been dull to you. 
 I might have interested you by praises of the beauty and 
 perfections of the lovely sex which honors us with its pres- 
 ence to-night, but to do so would have been a vain attempt 
 to "paint the lily or gild refined gold." I might have re- 
 ferred to the glorious past of this grand old Commonwealth, 
 the mother of statesmen and of States, but the eager youth 
 of to-day think not of the past. They have their faces 
 turned towards the glorious morn whose opening gates give 
 glimpses of the golden corruscations of the dawn. The future 
 is theirs, all theirs, and it will be what they shall make it. 
 I have therefore met you on the platform where all citizens 
 
19 
 
 of the Republic stand together, in which all have an equal in- 
 terest. I have told you of the great and just unrest in the 
 public mind and the dissatisfaction at present conditions. I 
 have called your attention to the fact that the vital and inevi- 
 table issue overshadowing all others is whether the governing 
 power shall reside in manhood or in money. I have endeavored 
 to call your attention briefly to the consequences of victory 
 for either side and to some of the remedies suggested. I now 
 again repeat that the disposal of the victory is with 3'^our gene- 
 ration, for you shall bear in your hands the issues of life and 
 death for the last great experiment of free goyernment. With 
 you it shall rest whether the silent centuries are all ready to 
 close over the tomb in which shall rest the last hope of hu- 
 manity. 
 
 On your Capitol grounds stands the colossal statue of the 
 world's greatest leader, who vvon the battle for the fiee. On 
 eternal guard around him stand the bronzed figures of those 
 who preserved that liberty in civic halls and high debate for 
 many a weary year. Out yonder overlooking ''Fame's eter- 
 nal camping- ground" — in Hollywood cemetery — and the 
 dreamless sleep of many a chieftain and many a soldier, is the 
 peerless form of another of the world's greatest leaders, he 
 who said that ''Duty is the noblest word in the English lan- 
 guage." Where these immortals have led the vi ay, we, the 
 children of men, can afford to follow. 
 
'* THE RIGHT TO REGULATE RAILROAD FARES 
 AND FREIGHT RATES." 
 
 Address Before the Law Class of Wake Forest College, 
 May 24, 1897. 
 
 Young Gentlemen of the Law Department, Mr. President, 
 
 Ladies and Gentlemen : 
 
 The rapid progress and development of Wake Forest Col- 
 lege in recent years is a subject of congratulation, not only to 
 the great denomination to whose energy, wisdow and liber- 
 ality it owes its existence, but to the whole State. It is doing 
 a grand and beneficent work and is sowing seed which shall 
 bear abundant harvests. Dr. Hufraan in his late admirable 
 paper OD "The Baptists in ISTorth Carolina," in speaking oi the 
 early persecutions they underwent in this colony and the con- 
 temporaneous contests between the people and arbitrary rul- 
 ers, says, with truth and force: ''In all this long struggle the 
 Baptists were of the people and with the people. They be- 
 lieved in civil and political as well as religious liberty, and 
 held themselves in readiness to contend earnestly, not only 
 for the faith once delivered to the saints, but also for the 
 chartered rights of freemen. To understand their rapid 
 growth in numbers and influence, it is necessary to bear these 
 facts in mind." 
 
 There has ever been this compensation for religious prose- 
 cution —that it burns into the inmost souls of its victims the 
 necessity of civil liberty and creates a sturdy determination to 
 maintain it always and under all circumstances — and to-day 
 
21 
 
 the unbending spirit of freemen and devotion to the right of 
 the people to self-government have no firmer anchorage than 
 in the hearts of the Baptist people of North Carolina. 
 
 SUCCESSFUL AS THIS COLLEGE HAS BEEN 
 
 the suscess of its Law Department has been phenommal. It 
 began with tw^o students in the summer of 1894, not quite 
 three years ago. I learn from Prof. Gulley that in the ses- 
 sion of 1894-5 it had fourteen students; the catalogue of 
 1895-6 shows sixty-seven law students, and that of 1896-7 
 has eighty-sil — a number which is not only greater than 
 that of any other law school in the State, but which, I am 
 told, is greater than that of all the other law schools put to- 
 gether. Twenty-eight of its students have already received 
 license to practice and are scattered over this State, Georgia, 
 South (Carolina and Virginia, and twenty -five more will apply 
 for license at the September term of the Supreme Court. I 
 learn, too, that your law course requires two years. This 
 is eminently right. Young men lose nothing by taking time 
 to lay broad and deep the foundations of their legal knowl- 
 edge. There is nowadays too great a disposition to rush out 
 into all the professions with too little preparation. 
 
 Tn nothing is the old maxim, Festina lente (''make haste 
 slowly"), wiser than in this matter of procuring a thorough 
 training for the arena on which one is to fight the battle of 
 life. In many of the States three years' legal study is re- 
 quired before admittance to the bar, and in others four years. 
 There are several which require only two years' study. 
 North Carolina is one of the very few States in which only 
 one year's study is required before the law student is per- 
 mitted to stand his examination for license to practice. This 
 is entirely too little. It is unjust to the bar, and more than 
 unjust to the young student who should begin his career well 
 grounded in the principles of law. Your college officials 
 have done well by you and acted vsisely for the reputation 
 
22 
 
 of the college in exacting a two years' course of study, for 
 your success or failure in after life will reflect upon the col- 
 lege which sends you forth. 
 
 So large and prosperous a law school and college must, frora 
 time to time, turn out men who will be influential for weal 
 or woe, in guiding the destinies of the State. In the begin- 
 ning of the great Freoch Revolution, w^hen the young soldiers 
 flocked from all parts of France to the standards of the Re- 
 public, 
 
 THE GENERALS WOULD SAY: 
 
 "There are some captains among you; a little time will show 
 who they are, and they shall have their places." I know 
 not how many governors and generals and senators and judges 
 I am talking to to-night — and, possibly, there may be a bishop 
 or two among you, for I see some good Methodist timber here 
 — and 1 feel the responsibility of selecting a subject upon 
 which to address you. 
 
 Speaking to young lawyers, the address should properly be 
 upon some legal subject, yet" it might not be easy to find one 
 upon which you are not already well posted by your excellent 
 instrdctor. It occurs to mo, however, that there is one upon 
 which many practicing lawyers even are not as well informed 
 as they should be, because its vast importance is of compara- 
 tively recent development, and cases involving it have been 
 rarely tried as yet at the bar of the courts of this State — 
 though the subject is on trial at the great bar of public opin- 
 ion. It is a matter, too, upon which every citizen, be he law- 
 yer or layman, should be thoroughly informed as to his rights 
 and the rights of the public, 
 
 I shall, therefore, speak to you to-night upon "The Right 
 of the Public to regulate the changes ol Common Carriers and 
 of all others discharging Public, or quasi- Public, Duties." 
 The decisions on the subject by 
 
23 
 
 THE SUPREME COURT OF THE UNION 
 
 have been quite uniform, and have so thoroughly illuminated 
 and settled the \i hole matter that I can discuss it with small 
 reference to the decisions of other tribunals. I must express 
 my apologies to the best and fairest part of humanity who 
 have honored us with their presence to night that I have been 
 assigned so dry a subject as a law lecture, but I will make 
 them the best amends in my power by detaining them as short 
 a time as possible from hearing addresses from other lips and 
 on a far more interesting subject, a subject that (hough old is 
 ever new, and which requires no flowers of rhetoric to catch 
 the attention of those who "blush at the praise of their own 
 loveliness." 
 
 The right of the public to regulate the charges of common 
 carriers, even in times when the public granted no franchise, 
 and conferred no right of eminent domain, is far older than 
 the common law, older even than the civil law, and was re- 
 cognized by both as a necessary and unquestioned rule 
 
 TWENTY-ONE YEARS AGO, IN 1876, 
 
 the Supreme Court of the United States was first called upon 
 pointedly, to review and re-affirm the recognized law of the 
 ages, that the sovereign possessed the right to regulate the 
 charges for services rendered in a public employment, or for 
 the use of property affected with a public interest. The 
 particular instance was the constitutionality of an act of the 
 General Assembly of Illinois regulating the charges of ware- 
 houses for the storage of grain. It was contended thai, un- 
 like railroads and telegraph companies, the public had con- 
 ferred no franchise by au act of incorporation, nor used the 
 right of emineni domain to take private property for their 
 use, and henc8 that tho right to regulate warehouse rates 
 was not to be placed on the same footing as the unquestioned 
 
24 
 
 public right to regulate the charges of common carriers. The 
 underlying principle, however, was held to be broad enough 
 to embrace the public right tc fix and control the charges of 
 grain warehouses. Though the pressure of immense interests 
 was brought to bear to swerve the court from the well -beaten 
 track by the aid of the ablest and most skilful members of the 
 bar, it firmly held to the principles which have always been 
 law among Anglo-Saxon people. The court laid down the 
 following principle to which, with one slight deviation, it has 
 ever since adhered : 
 
 "1. Under the powers inherent in every sovereignty, a 
 government may regulate the conduct of its citizens towards 
 each other, and when necessary for the public good, the man- 
 ner in which each shall use his own property. 
 
 "2. It has, in the exercise of these powers, been customary 
 in England from time immemorial, and in this country from 
 the first colonization, to regulate ferries, commoD carriers, 
 hackmen, bakers, millers, wharfingers, auctioneers, inn-keep- 
 ers and many other matters of like nature, and in so doing to 
 fix a maximum charge to be made for services rendered, ac- 
 commodations furnished and articles sold. 
 
 "3. The Fourteenth Amendment to the United States Con- 
 stitution does not in any wise amend the law in this particu- 
 lar. 
 
 "4. When the owner of property devotes it to a use in 
 which the public has an interest, he, in effect, grants to the 
 public an interest in such use, and must, to the extent of that 
 interest, submit to be controlled by the public. 
 
 "5. The limitation by legislative enactment of the rate of 
 charges for services rendered in an employment of a public 
 nature, or for the use of property in which the public has an 
 interest establishes no new principle in the law, but only gives 
 a new effect to the old one." 
 
 The opinion was rendered by 
 
25 
 
 CHIEF JUSTICE 'V^ AITE, 
 
 and is a very able and elaborate one. Only two Judges out 
 of the nine upon that court (United States Supreme Court) 
 dissented from any part of the opinion. It is doubtful if a 
 more important one has been delivered by that court in re- 
 cent years than this negative which it then and there put upon 
 this attempt, by one of the great monied combinations of 
 the country, to reverse the immemorial law that the public 
 has the right to regulate the charges in all matters affected 
 with a public use. The court pointed out that the very learned 
 and just Lord Chief Justice Sir Matthew Hale, centuries ago, 
 had laid it doM n in his Treatise De Jure Maris^ that the 
 sovereign could regulate the conduct and tolls of public fer- 
 ries, and in his Treatise De Portihus Ma7'is had laid duwn 
 the same as the rule of the common law as to wharves and 
 wharfingers, and as to all property and avocations "affected 
 by a public interest," and cited many English and American 
 decisions, recognizing this to be a true statement of the 
 well-settled "law of the land." The court in that case 
 well says that in all such matters, "The controlling fact 
 is the power to regulate at all. If that exists, the right to 
 establish a maximum of charge, as one of the means of regu- 
 lation, is implied. In fact the common law rule, which re- 
 quires the charge to be reasonable, is itself a regulation as to 
 price. Without it the owner could make his rates at will, 
 and compel the public to yield to his terms, or forego the 
 use. * ^ * To limit the rate of charges for services 
 rendered in a public employment or for the use of property 
 in wh'ch the public has an interest, is only changing a regu- 
 lation which existed before," and, therefore, the court de- 
 clared that it is not "a taking of property without due pro- 
 cess of law." The court further said, "We know that this 
 is a power which may be abused, but that is no argument 
 against its existence. For protection against abuses by legis- 
 
26 
 
 latures, the people must resort to the polls, not to the courts." 
 This is a 
 
 VERY PLAIN AND STRAIGHTFORWARD DECLARATION 
 
 of the immeinorial law, and if tbat court, under tremendous 
 pressure, has since intimated that the courts might supervise 
 legislative action if the rates should ever be such as to de- 
 stroy the value of prop'^rty, it has never infringed upon its 
 declaratioii that the people, through its representatives in the 
 law-making body, could prescribe rates, and the court, in fact, 
 has never venturea to set aside the legislativ-^e rates in a single 
 case pver brought before it as unreasonable, nor has it fixed 
 the piecise line at \^hich it would assume to intervene. 
 
 By all the decisions the right to fix rates being cot a judi- 
 cial but a legislative power, to be exercised by the legislature 
 iiself or through a commission created by it, it logically fol- 
 lows as the court said in this case, aud reaffirmed in Budd vs. 
 New York, 143 U. S., 516, the remedy for a harsh exercise 
 of the power (if it should ever happen) is a recourse to the 
 people at the ballot-box, not to the courts. For an unwise or 
 oppressive use of its powers, the Legislature is not subject to 
 the supervision of the judiciary, which is merely a co-ordinate 
 branch of the government. It is only when the Legislature 
 passes an act — whether wisely or unwisely —which is not 
 within the scope of its powers, that the courts can declare it 
 unconstitutional. 
 
 In this same case (Munn vs. Illinois) the court further holds 
 that the provision of the Fourteenth Amendment, that no 
 State shall "deny to any person within its jurisdiction the 
 equal protection of the laws," has no application, for "cer- 
 tainly," it says, "it cannot be claimed that this prevents the 
 State from regulating the fares of hackuien or the charges of 
 draymen in Chicago, unless it does the same thing in every 
 other place in its jurisdiction." This rule has since been re- 
 iterated in Dow vs. Beidelman, 125 U. S., 680. 
 
27 
 Some time has been given to the consideratioa of 
 
 MUKN vs. ILLINOIS, 
 
 as it is the leading one, in wbich tbe force of great combina- 
 tions of capital was brought to bear to remove tbe ancient 
 landmarks which protected the people from excessive and un- 
 reasonable charges, No case has been more often cited since 
 and approved. If at common law the public had a right to 
 regulate the charges of stage lines, grist mills, bakers, chim- 
 ney sweeps, inn- keepers and the like, as to whom the public 
 conferred no franchises, for an overwhelming reason it must 
 possess that right as to the modem carriers by rail, whose 
 companies receive their eKistence from the public « ill and 
 have the breath of life breathed into them by legislative act. 
 Beyond that, railroad corporations are vested with the power 
 of eminent domain, since power is given to them to take pos- 
 sesion of the lands of others, against their will, in order to 
 build their tracks. This could only be done if these corpora- 
 tions are created for the public benefit, since the Constitution 
 forbids private propertv to be taken "except foi public uses." 
 In the very next case to Munn vs. Illinois, the Supreme 
 Court of the United States held (Chicago R. R. vs. Iowa, 94 
 U. S. , 155) that railroads being common carriers for hire 
 are "subject to legislative control as to their rates of fare 
 and freight" and that the State not having exercised the 
 right for a long series of years made no difference, for a gov- 
 ernment could Jose none of its powers by non user; and fur- 
 ther that it did not "affect the case that before the Legisla- 
 ture had fixed the maximum rate the company had pledged 
 its income as security for debt and had leased its road to a 
 tenant who paid a higher rent because the rates had not be-en 
 reduced by legislative enactment, since the company held its 
 franchise 
 
28 
 
 SUBJECT TO THE LEGISLATIVE POWER 
 
 to regulate rates, and could not convey either to its mortga- 
 gee or its lessee greater rights than it had itself." The 
 opinion in this case also was written by the Chief Justice. 
 The same decision (cited and approved in Kuggles vs. R. Co., 
 108 U. S., 526, and R. Co. vs. Illinois, 108 U. S., 541, and 
 in other cases) sustained the power of the Legislature to clas- 
 sify railroads according to the amount of business done, and 
 to prescribe "a maximum of rates for each of the classes," 
 the court saying that a uniform rate for all railroads in the 
 State might possibly operate unjustly, and that at any rate 
 it was in the discretion of the General Assembly to classify 
 the roads and fix different rates. In fact in the latest case, 
 Covington vs Sanford, 164 U. S., 578, it was held that it 
 was in the legislative power to prescribe a different rate for 
 each road. 
 
 In Peik vs. Chicago, 94 U. S., 164, the court held, the 
 Chief Justice again delivering the opinion, that where a rail- 
 road was chartered by two or more States, each State had, 
 nevertheless, the right to fix the rates between any two points 
 in its own territory, and further said, quoting Munn vs. Illi- 
 nois, that the Legislature and not the courts, must say what 
 are reasonable rates, for the legislative rate "binds the courts 
 as well as the people. If it has been improperly fixed, the 
 Legislature, not the courts, must be appealed to for the 
 change." And on the next page, Chicago vs. Ackeriy, 94 
 U. S., 179, the court again held that the maximum fixed by 
 the Legislature is binding, and the railroad company will not 
 be permitted to collect more by showing in the courts that 
 the prescribed rate is unreasonably low. This has since been 
 reaffirmed in Budd vs. New York, 14c) U. S., 516, at pp. 547. 
 
 This question, however, cannot arise as to rates which shall 
 be fixed by the railroad commission of this State, since 
 
29 
 
 THE LEGISLATUEE IN ITS LIBERALITY 
 
 expressly provides in the act of 1891, creating the Railroad 
 Commission, that if any common carrier shall deem the rates 
 prescribed too low, the company may appeal to the Superior 
 Court. In that court a jury of twelve men can pass upon and 
 settle the fact in dispute whether the rate is reasonable or not. 
 Nothing can be fairer than to submit the question to the same 
 tribunal which settles all disputed issues of fact when the 
 lives, liberty, rights and property of any citizen are at stake. 
 
 The right of the public to regulate rates is not restricted to 
 those avocations which are essendally monopolies, as railroads 
 and the like, but it applies to all matters which are afifected 
 with a public use. This was carefully considered by the 
 Court uf Appeals of New York in People vs. Budd, 117 ]\". 
 Y., 1, in which it was declared that the right of regulation 
 by the public is not restricted to cases in which the owner 
 has a legal monopoly or some special government privilege or 
 protection^ but extends to all public employments and prop- 
 erty. In that case a statute fixing a minimum charge for 
 grain elevators was sustained. This decision upon a writ of 
 error was alfirmed by the Supreme Court of U. S., Budd vs. 
 'N. Y., 1-13 U. S., 517, and to the same effect is Brass V5. 
 North Dakota, 153 U. S., 391. 
 
 The right of regulation applies also to water comj)anies, 
 Spring Valley vs. Schottler, 110 U. S.', 347, and in a recent 
 Texas case, the right to regulate the charges of cotton com- 
 presses is recognized, and there aie also cases recognizing the 
 rioht to regulate charges of tobhacco warehouses and of Avare- 
 houses for storing and weighing cotton, and to regulate ser- 
 vices and charges of general warehousemen. Delaware vs. 
 Stock Yard, 45 N. J. Eq., 50. 
 
 The same right of public i egulation of rates applies to street 
 railways, Buffalo R. Co. vs. Buffalo, 111 N. Y., 132; Stern- 
 
30 
 
 berg vs. State, 36 'Neb., 307; Parker vs. Railroad, 109 Mass., 
 506. And to eanals Perriae vs. Canal Co., 9 Howard U. S., 
 172, and to /envies, Stephens vs Powell, 1 Ore., 283; State 
 m. Hudson Co., 23 N. J. L., 206; Parker vs. Railroad, 109 
 Mass., 506 ; to toll roads and bridges, Covington vs. Sanford, 
 94 Ky., 689; Ibid, 164 U. S., 578; California vs. R. Co., 
 127 IT. S., 1. 
 
 And wharf charges, Ouachita vs Aiken, 121 U. S , 444; 
 and to telegraph rates. Mayo vs. Tel. Co., 112 N. C, 343; 
 R. Commission t'«. Tel. Co., 113 N. C, 213; Leavell vs. R. 
 Co., 116 N". C, 211; People w«. Badd, 117 N. Y., 1; States 
 vs. Edwards, 86 Me., 105; and to telephone charges, although 
 the telephone is covered by a United States patent, Hcckett 
 vs. State, 105 Ind., 250; Telephone Co. vs. Bradbury, 106 
 Ind., 1; Johnson vs. State, 113 Ind., 143; Telephone Co. 
 vs. State, 118 Ind., 194 and 598; Telephone Co. vs. B. & O. 
 Telegraph Co., 66 Md., 399. 
 
 AS TO GAS COMPANIES, 
 
 the right of the State to regulate rates either itself nr through 
 power conferred upon municipal corporations is beyond con- 
 troversy. Toledo W.S. Gas Co , 5 Ohio State, 557; State vs. 
 Gas Light Co., 34 Ohio State, 572; Zanesville vs. Gas Light 
 Co., 47 Ohio State, 1; JSTew Memphis vs. Memphis, 72 Fed. 
 Rep., 952; Capital City y.-?. Des Moines, Ibid, 829; Gas Light 
 Company vs. Cleveland, 71 Fed. Rep., 610; State vs. La- 
 clede, 102 Mo., 472; Foster vs. Findlay, 5 Ohio C. C, 455; 
 Manhattan vs.^ Trust Co., 16 U. S. A pp., 588; State vs. Cin- 
 cinnati, IS Ohio State, 262. The power to regulate water 
 rates has already been cited as decided in Spring Yalley vs. 
 Schottler, 110 U. S., 374, and the right to authorize muni- 
 cipal bodies to regulate ibe price, weight and quality of bread 
 is declared upon the precedents to be settled law. Mobile vs. 
 Yuille, 3 Ala., 137; Munn vs. People, 69 IlL, 80. 
 
 The power to regulate the tolls of public mills is declared, 
 
31 
 
 citing many precedents, in State vs. Edwards, 86 Me., 102; 
 West vs. Rawson, 40 \V. Va., 480; also, the power to fix 
 the rates for the salvage of logs. West Branch vs. Fisher, 
 150 Pa., 475; Pere Marquette vs. Adams, 44 Mich., 403; 
 Underwood vs. Pelican Boom Co., 76 Wis., 76. The above 
 are but a few of the cases recognizing the inherent public right 
 to regulate those matters, and there are still any others recog- 
 nized as subject to public regulation. 
 It must not be forgotten that there is a 
 
 BROAD DISTINCTION IN THE LAW, 
 
 running through all the ages, between the above and similar 
 avocations "affected with a public interest," as to which the 
 sovereign or the public has the right to regu^.ate anri fix rates 
 and purely private matters, as farming, selling merchandise, 
 manufacturing and similar matters, which are purely private 
 in their nature, and as to which the public has never claimed 
 or exercised the right of regulation. It is by ignorance, or 
 an affected ignorance, of this broad distinction in the law and 
 which is based on the essential difference in the nature of 
 things, that denial has been sometimes attempted (by those 
 not lawyers) of the right of public regulation in matters as to 
 which the public has always possessed that right. 
 
 From the beginning of this State as a Colony, our statute 
 books have borne provisions regulating the tolls of public 
 mills, and until very recent years the county courts fixed the 
 charges of inn-keepers, hotels and bar-rooms. The latter 
 regulations have been abandoned of late years, not because 
 the power does not still exist, but because its exercise was no 
 longer required to protect the public, tbe multiplication of 
 inns and hotels furnishing sufficient protection by reason of 
 competition. The regulation of the tolls of grist mills, fer- 
 ries and the like is still exercised. 
 
32 
 
 AS TO RAILROADS AND PUBLIC CARRIERS 
 
 the complete list of decisions uniformly sustaining the public 
 right to fix their charges, both in State and Federal courts, 
 'would fill many pages. Enough has been cited to enable the 
 student to see that the principle is absolutely settled beyond 
 possibility of question, and he can trace up other decisions to 
 that efl'ect if so inclined. 
 
 In the great case of People vs. Budd, 117 N. Y., 22, the 
 highest court of Wew York, speaking through one of the 
 ablest and purest judges, said: "Society could not safely 
 surrender the power to regulate by law the business of cora- 
 mon carriers. Its value has been infinitely increased by the 
 conditions of modern commerce under ^\hich the carying trade 
 of the country is to a great extent absorbed by corporations, 
 and as a check upon the greed of these consolidated interests 
 the legislative power of regulation is demanded by imperative 
 public interest. The same principle upon which the control 
 of common carriers rests has enabled the State to regulate 
 in the public interest the charges of telephone and telegraph 
 companies, and to make the telephone and telegraph, these 
 important agencies of commerce, subservient to the wants and 
 necessities of society. These regulations in no way interfere 
 V7ith a rational liberty — liberty regulated by law." This de- 
 cision was alfirraed by the Supreme Court of the United 
 States. 
 
 DELEGATION OF POWER. 
 
 The authority of the Legislature to empower a railroad com- 
 mission to prescribe reasonable rates for common carriers is 
 held constitutional in numerous cases, among them Railroad 
 Commission case, 110 IT. S., 307; Reagan vs. Trust Co., 154 
 U. S., 362, 393; State <ys. Chicago, 38 Minn., 281; Chicago 
 vs. Day, 35 Fed. Rep., 866 ; Tilley vs. Savannah, 4 Woods. 
 
44:9; Clyde -^6'. Ilailroad, 57 Fed. Rep., 436; Chicago vs. 
 Jones, 149 111., 361; Stone -y^. Railroad, 62 Miss., 602; Stern 
 vs. N'atchez, 62 Miss., 646; McWhorter vs. Railroad Co., 24 
 Ma., 417; Storrs vs. Railroad, 29 Fla., 617; State vs. Fre- 
 mont, 22 Neb., 313, and in our own State. Express Co. vs. 
 Railroad, 111 IST. C, 463; and the Legislature may prescribe 
 that such rates shall be deemed prima facie reasonable, State 
 vs. FreiDont, supra; Chicago vs. Dey, supra. 
 
 JUDICIAL INTERFERENCE. 
 
 The rights of the courts to interfbre with the rates fixed by 
 the law-making power was denied in Munn vs. 111., aud seve- 
 ral other cases in 94 U. S., and in Budd vs. K. Y., above 
 cited, but in Reagan vs. Trust Co., 154 U. S., 362 and 413, 
 and St. Louis vs. Gill, 156 U. S., 649, it has been since de- 
 clared that the fixiog and enforcement of unreasonable and 
 unjust rates for railroads was unconstitutional. But just 
 what rates will be considered unreasonable and unjust has 
 not yet been stated by the United States Supreme Court. 
 The discussion in the cases just cited, as well as in others, 
 plainly shows a disposition to interfere and condemn legisla- 
 tive rates only \^ hen it is clear that their enforcement amounts 
 to a destruction of the value of the property. In Munn vs. 
 People, 69 111.. 80, and Chicago vs. Dey, 35 Fed. Rep., 866, 
 it was held that rates fixed by legislative authority that will 
 give some compensation, however small, to the owners of 
 railroad property, cannot be held insufficient by the courts. 
 "This rule leaves large power to the Legislature, and would 
 sanction statutes which ^ut down railroad dividends to a mere 
 pittance. But it is hard to see how any other rule can be 
 adopted which will not in effect deny the right of the Legisla- 
 ture to make regulation of such rates, or else leave little more 
 than a shadow of such power in the Legislature while the real 
 power is assumed by the courts." The effect of the reduced 
 rates on the entire line of road is the correct test and not that 
 3 
 
34 
 
 they are unreraunerative on a certain part of the line. St. 
 Louis t'5. Gill 156 U. S., 649; Missouri vs. Sncith, 60 Ark., 
 221. 
 
 In Dow vs. Beidelman, 125 U. S., 680, it was held that 
 rates which w'ould pay 
 
 ONE AND ONE-HALF PER CENT. 
 
 on the original cost of the road v\ ere not illegal, when the road 
 is held b}^ a re-organized company or its trustees after fore- 
 closure, lu Missouri vs. Smith, supra, it was held that rates 
 sufficient to defiay current expenses and repairs and. some 
 profit on the reasonable cost of building the road could not 
 be interfered with, though they were not high enough to pay 
 interest on all its debts, since they may have been incurred 
 through extravagance or mismanagement. 
 
 In Chicago vs. Wellman, 143 U. S., 339, the Act of the 
 Legislature of ^yisconsin fixing 
 
 RAILROAD FARES AT TWO CENTS PER MILE 
 
 was sustained, the court saying that "before the courts would 
 declare such an act unconstitutional because the rates pre- 
 vented stockholders receiving an}^ dividend or bondholders 
 any interest, the court must be fully ad\ised as to what was 
 done \^ith the earnings, otherwise b\' exorbitant or unreason- 
 able salaries or in some other improper way the company 
 might tax the public with unreasonable charges. Unless such 
 • things are negatived by proof of reasonable salaries and ex- 
 ' penses, or if the record is silent, the legislative rate will be 
 sustained." This is a valuable and noteworthy decision, and 
 no judge dissented from so just a ruling. The same principle 
 is re-affirmed in Reagan vs. Trust Co., 154 LT. S., at p. 412. 
 In the most recent case, Livingston vs. Sanford, 164 U. 
 S., 578 (decided December, 1896), the court, while maintain- 
 ing that ordinarily the rates must not be such as to leave the 
 owners no profit at all, says: "We could not say that the Act 
 
35 
 
 \^as unconstitutional because the company (as is alleged and 
 admitted) could not earn more than four per cent, on its capi- 
 tal stock. It cannot be said that a corporation is entitled as 
 of right and without reference to the interest of the public to 
 realize any given per cent, on its capital stock. When the 
 question arises whether the Legislature has exceeded its con- 
 stitutional power in prescribing the rates to be charged by a 
 corporation controlling a public highway, 
 
 STOCKHOLDERS ARE NOT THE ONLY PERSONS 
 
 whose rights and interests are to be considered. The rights 
 of the public are not to be ignored.'" The court further says 
 that the inquiry as to whether rates are reasonable and just 
 includes whether they are reasonable and juijt to the public, 
 and adds: "The public cannot properly be subjected to un- 
 reasonable rates in order simply that stockholders may earn 
 dividends. * * "■'" If a corporation cannot maintain such 
 a highway and earn dividends for stockholders, it is a misfor- 
 tune for it and them which the ('Onstitution does not reejuire 
 to be remedied b}^ imposing unjust burdens upon the public.'" 
 
 CHARTER EXEMPTIONS. 
 
 In Stone vs. Farmers' Co., 116 U. S., 307, it was held (re- 
 versing the Supreme Court of Mississippi) and also in Stone 
 vs. 111., 116 U. S., 349, that a provision in a railroad charter 
 that "the company may from time to time fix, regulate, and 
 receive the tolls and charges to be received'' did not consti- 
 tute a contract restricting the State from fixing or reducing 
 charges within the limits of its general power to declare what 
 shall be deemed reasonable rates. So a charter provision 
 giving a railroad company "pov.er to charge such sums for 
 transportation of persons and property as shall seem desira- 
 ble" or "it shall deem reasonable,'' does not preclude the 
 Legislature from prescribing a maximum of charges which it 
 
36 
 
 may make. Peik vs. Chicag'O, 94 U. S. 164; Chicago vs. 
 Ackley, Ibid; Stone m. Wis. 94 U. S. 181; Chicago vs. 
 Munn, 134 U. S., 418; Paicgles vs. Railroad, 108 U. S., 526; 
 Laurel Fork vs. V^est Va. Co., 25 West Ya., 314; and this 
 is true though the charter expressly gives the corporation 
 power "to fix its own rates," since this is impliedly subject 
 to legislative power to require them to be reasonable. Rail- 
 road vs. Miller, 132 U. S., 75; Ruggles vs. People, 91 111., 
 256; Railroad t'5. People, 95 111 , 313; Wells vs. Oregon, 8 
 Sawy., 600, and the same has been repeatedly held as to gas 
 companies and water companies. A chartei giving a railroad a 
 right to fix its rates, if not beyond a rate stated in the charter, 
 is held not a contract but subject to the legislative power to 
 fix other reasonable rates as a maximum from time to time as 
 money chanires in value or operating costs diminish. Georgia 
 vs. Smith, 70 Ga., 794; Winchester vs. Croxton, 97 Ky. — 
 (1896.) 
 
 The statutory regulation of the rate to be paid for the use 
 of noney is another striking instance of legislative authority 
 to regulate rates. And ^ho would contend that the courts 
 have pow er to intervene and say the legislative rate is too low? 
 
 The Supreme Court of the United States has tersely put 
 
 THE TRUE STATUS OF KAILROADS 
 
 thus: "They are chartered and built for public benefit. The 
 pecuniary profit of their owners is purely incidental." Many 
 railroad owners and managers would reverse this if they could, 
 and as far as they are permitted they act upon the maxim 
 •^'Railroads are operated for the benefit of their controllers 
 and managers. The public benefit is purel^^ incidental." 
 
 The great hindrance to achieving the public beeefit which 
 is the legal object for which these corporation are created is 
 
 THE RELUCTANCE OF THEIR MANAGERS 
 
 to concede reasonable and just rates. Some of them act as 
 if they believed that common carriers were a private business 
 
37 
 
 and that they have the right to lay upon the public any rate 
 they think fit to raise money enough to pay whatever salaries 
 they see proper to allovsr themselves, and whatever expen- 
 ditures they care to raal<e and interest on three or four times 
 the stock and bonds the property really cost. Yet nothing is 
 farther from the law. 
 
 Railroad, telegraph, telephone and express companies are 
 quasi public corporations, the charges are 
 
 IN thp: nature of public taxation, 
 
 and the public have the right to look into the nature of their 
 expenditures and to fix the rates at a reasonable net profit 
 above economical and necessary disbursements. The public 
 right in this regaid is fully shown by the uniform and numer- 
 ous decisions of the courts I have cited to you. ^ith the 
 enhanced value of money and the corresponding fall in the 
 prices of farm produce and of labor, there should be a cor- 
 responding fall in passenger and freight rates. This would 
 conduce to the public benefit and convenience, and would at 
 the same time redound to the benefit of the corporations, 
 which instead of carrying a few cars half full of passengers 
 or freight, would f5.nd it ^-o their benefit as well as that of the 
 public, to reduce their rates and carry two or three times the 
 number of cars with full loads. The present charges are an 
 embargo on travel and tralfic alike. 
 
 This has been amply shown by experierice in those States 
 in w^hich the public has succeeded in reducing the rates, and by 
 the experience of a line in our oivn State whose receipts nearly 
 doubled during its reduction of rates. Another striking in- 
 stance is the reduction of postage rates, which has always 
 been followed by enormously increased receipts. Indeed the 
 two cents per mile passenger rates already prescribed in so 
 manv States, and vvhich 
 
38 
 
 thp: people of this state are demanding, 
 
 is admitted by the corporations here to be just, since their 
 reports show that their receipts average 2 1-5 cents only per 
 mile to each passenger — the enormous addition which makes 
 the charge of S-j cents to the public is caused by the immense 
 number of free passes issued to officeholders, large shippers, 
 and other influential people or favorites — the very people who 
 need them least — but the corporations need their influence to 
 keep the public quiet under exorbitant exactions. Thus, in 
 effect, roughly speaking, every three passengers who pay 3:^ 
 cents per mile for their own travelling are paying also for the 
 free riding of another, for the railroaas carry the dead heads 
 at the expense of the public. 
 
 Governor Pingree, of Michigan, who has won his fight for 
 three cents street car faies, and two cents per mile railroad 
 fares, and lower freight rates, in a recent speech in Boston, 
 truthfully said: "Eailroad operators are the only inen in the 
 country who do not understand that the 
 
 REMEDY FOR SHORT RECEIPTS IS TO LOWER PRICES. 
 
 Yet manufacturers, merchants and ever3'body else understand 
 this." Railroad men would understand this, too, but that 
 they rely on having a monopoly. In 1874, when the Legis- 
 lature of Wisconsin opened the fight for two cent fares and 
 lower freight rates, their action was sustained by the Supreme 
 Court of the State, Chief Justice Ryan delivering a remark- 
 ably able opinion, in the course of which he saitl (Attorney 
 General us-. Railroad, 35 Wis., 583): "It may well be that 
 the high rates charged by the railroads have lessened their 
 own receipts by crippling the public interests. The affidavits 
 of experts have been read to the contrary, but they are only 
 opinions, founded indeed od past statistics. Such opinions, 
 founded on such statistics, would have defeated cheap postage. 
 
39 
 
 and are helping to day to defeat a moderate tariff. Experi- 
 ence often contradicts such theories. The interest of the pub- 
 lic in this regard seems to be identical with that of the rail- 
 road. We think that there must be a point where the public 
 interest in railroads, and the private interest of the corpora- 
 tors meet, where the service of the public at the lowest prac- 
 ticable rate will produce the largest legitimate income to the 
 railroad. It seems to us an utter delusion that the highest 
 tolls will produce the largest income. The companies have 
 hitherto absolutely controlled their own rates. The Legisla- 
 ture now limits them. The companies say the limit is too low. 
 Eut there is no occasion for heat or passion on either side. 
 The people and the Legislature understand well the necessity 
 of railroads to the State £.nd the necessity of dealing fairly 
 and justly, and even liberally with the companies." 
 
 And the same can be said of the people of North Carolina. 
 They are 
 
 A JUST AND SENSIBLE PEOPLE. 
 
 They understand the necessity and the beuefit of railroads. 
 There is no hostility to railroads as such. We want more 
 of them. There is no disposition among any of our people 
 to deal other than liberally with these corporations. There 
 is no desire to fix rates unreasonably low. But we know that 
 rates are unreasonahly high. We know that when one great 
 line voluntarily reduced its rates one-third, it nearly doubled 
 its receipts, and that these lower rates were stopped by an in- 
 junction illegally granted at the instance of a rival corpora- 
 tion. Our people know that the railroads were built nearly 
 entirely with our money, and largely with ironey from the 
 public treasury. We know that by shrewd manipulation the 
 owners of the original stock were forced to sell at a small per 
 cent, of the original cost, and that the controlling manage- 
 ment is now chiefly dictated by non-resident multi-million- 
 aires, living in London and ISTew York, and that these rail- 
 
40 
 
 roads, which in the eye of the law "were chartered and built 
 for the public benefit, the pecuniary profit of the owners be- 
 ing incidental only," are now run at "the highest the traffic 
 will bear," for the enrichment of non-residents and with 
 precious little regard to our advantage. We know 
 
 THE ENORMOUS SALARIES 
 
 paid its higher officials, who are also provided with sumptuous 
 private palace cars and staffs of servants, private secretaries, 
 lawyers and newspapers at our expense. We know that all 
 of these expenses come out of the toiling masses, from whom 
 they are collected by the station agents as surely and more 
 rigidly than the taxes are collected by the sheriffs and col- 
 lectors for your State and Federal Governments. And we 
 kno\\ too that we have full power through our representatives 
 to fix every charge made by every railroad in the State. 
 
 The Supreme Court of the United States has decided in the 
 cases I have quoted to you that the public in fixing rates have 
 the right to know the amount of the salaries of railroad 
 officials and the nature of their disbursements, that it may be 
 seen how high it is necessary to fix rates. If the expendi- 
 tures are extravagant, as for high salaries, or illegal, as for 
 lobby expenses or running new^spapers, those iterns may be 
 disregarded. The public have the same right to be informed 
 as to all these matters as in regard to the salaries and expenses 
 of its State Government, for it pays them both equally. The 
 railroad managers need to learn that 
 
 THIS IS NO IMPERTINENT CURIOSITY, 
 
 but that these are matters of legal right, and that their man- 
 agement and rates are of vital interest to the public who pay 
 every expenditure they make. Yet last winter, when a reso- 
 lution asking information as to the salaries of the higher rail- 
 road officials was introduced, some of them affected to treat 
 
41 
 
 it as an inquiry into private matters, and secured the defeat 
 of the resolution in the House, though it passed the Senate. 
 They knew the investigation ^ould be damaging, and they 
 dared not let the people know hov^ much they were taxed for 
 railroad salaries and illegal expenses. We know from their 
 own sho\i<ing that the pro rata part of the salaries on one 
 tolerably short railroad was double that paid Dy the entire 
 State to the Governor and all the other Executive oftiers of 
 the State Government, and that the salaries and emoluments 
 of more than cne official of corporations operating in this 
 State amount to more than a dozen times what the State 
 pays its Governor, and yet both are paid by the people, and 
 come out of their earnings before they can use a dollar for 
 themselves. 
 
 In coming to these conclusions, you will see that I have 
 advanced no idea that is not based upon the reiterated deci- 
 sions of the highest courts in the land. In saying these 
 things I have no desire, nor has anyone, co excite any pre- 
 judice against any corporation, except that opposition which 
 should always be aroused in the breasts of freemen by seeing 
 their fellows illegally oppressed, and their meager subsistence 
 taken from them to support the luxury and idleness, and too 
 often the vices of others. We should be men who ^^l'7ioiv 
 their rights, and knowing, dare maintain theiny 
 
 I know that in all history whenever anj' man has dared to 
 tell the people their rights, and to tell them that the\' are op- 
 pressed, and that they have the legal right to stop the oppres- 
 sion, it makes him a mark for every hired arrow, and every 
 mercenary bowman. But in the language of Martin Luther, 
 at the Diet of W^orms, ^^ Here 1 stand — God help me — I can 
 do no other.'''' When the immortal Vance w^as asked to say 
 nothing about the abuses of the conscription, that it would 
 all be arranged, he replied: "God forbid that the rights and 
 the honor of North ('arolina, and the welfare of her people, 
 should depend upon the grace and mercy of a conscript 
 
42 
 
 bureau." And so I say now in your hearing, that "6^o<^ 
 forbid that the freedom of North Carolina from unjust exac- 
 tions^ aud the toelfare of her people^ should depend upon the 
 grace and mercy of Pierpont Morgan^ and' such as he.'''' We 
 are entitled to regulate these charges of common carriers 
 among us, as an immemorial right of a free people in all 
 times, and we will accept no petty abatement as a favor 
 from them. The decisiocs I have quoted conculsively show 
 that the public not only have a right to fix rates, but in do- 
 ing so they justly should allow nothing for exorbitant salaries, 
 f^xtravagant expenses, illegal disbursements, nor, after dis- 
 carding these, anything above the expenses of economical 
 management and a moderate interest on the real value of the 
 property, for the law is just, and does not tolerate dividends 
 on watered stock and bonds. 
 
 1 could easily show you that the sum illegally wrung from 
 the people of Nurth Carolina above the legal requirements 
 above stated is anuuallv more than 
 
 DOUBLE THE ENTIRE AMOUNT OF TAXES 
 
 levied for your State Government, If the men of 1776 
 are to be commemorated for all time for their resistance to a 
 little illegal tax upon tea, the men who shall hereafter step 
 forward and shall succeed in rescuing Korth Carolina from 
 the enormous pillage exacted from her and from which her 
 people are staggering without always knowing the reason, 
 will deserve to be remembered 
 
 " Far, far on, in summers that we shall not see." 
 
 All corporations in North Carolina have not been virilling 
 plunderers of her people. Some would reduce rates if others 
 would permit thein. Tw^o conventions of the m?nufacturers 
 and other great industries in the middle and western part of 
 our State, which have been unduly depressed by discrimina- 
 tions against us, and unjust raies, have met and have taken 
 
43 
 
 steps looking to some relief. In the eastern part of the State 
 the truckers attempted action last year, but received slight 
 attention. The great railroads, by demanding a pooling bill 
 at the hands of Congress, have admitted that competition is 
 at an end. As that safeguard no longer remains for the pub- 
 lic, it is more than ever essential that we should assert and 
 maintain the protection given the public by its right to regu- 
 late rates. Let the body of our reople consider the great sums 
 they are unjustly paying as 
 
 ILLEGAL TRIBUTE MONEY TO THE STRANGER, 
 
 and they will send to the next Legislature a bndy of men who 
 will right these wiongs. They can as a right secure a relief 
 for seeking which they will be laughed at when it is asked as 
 a favor. I have shown you that they have full power to 
 secure their own relief, and I could say these things nowhere 
 more appropriately than to ihe more than four score young 
 men in the largest law school in the State, and in a college 
 maintained by a bod}' of people whose love of civil liberty and 
 human rights is surpassed by none. 
 
 "When the wicked sor of Omri reigned as King over Israel, 
 he was vexed by the free speech of Elijah, and on meeting 
 him he cried out in iierce tones and with flashing eyes, '^Art 
 thou he that trouhleth Israel ?" The prophet of Carmel an- 
 swered him back, ''It is not I that trouhleth Israel, but thou 
 and thy house.'''' And we know that when the supreme test 
 came, and t'le po\^ er was revealed which drove those oppres- 
 sions and abominations out of the land, the servants of Baal 
 stood in the presence of the mocking servant of God and an- 
 swered him not a vvord. 
 
POLITICAL TLACHINGS OF THE GOSFKL. 
 
 Addkess Before Raleigh District Sunday School Conference, 
 Franklinton, N. C, June 15, 1807. 
 
 Ladies and Gentlemen: 
 
 The very handsome terms used in introducing me by one 
 whom I am proud to call my friend (Col. W. F. Green), but 
 add to my embarrassment for no words of mine could come up 
 to the promise of such a preface. 
 
 [ cannot feel myself a stranger before you. The bones of 
 my ancestors for many generations repose in the soil of this 
 grand old county, ray relacives are living among you to-day, 
 scattered throughout its limits and I may well call the county 
 itself my friend, for never has my name been presented for 
 any honor that the men of Franklin have not supported it as 
 loyally and solidly as if I had been a native born son of her 
 soil. Whenever my feet press the hills of Franklin, I feel 
 that I am at home and in the house of ray friends. 
 
 I am glad to meet j'^ou in this Sunday School convention of 
 our church. The convention and its prescribed program in- 
 dicate an interest in the Sunday School work which can only 
 come from faithful and successful effort in the past, and 
 which must win a still larger success in the future. 
 
 Each centur}'^ since Christ has had its especial feature of 
 relio:ious development. To go no farther back, the fifteenth 
 century was marked by the awakening which resulted in the 
 next century in the Great Reformation. It was in the lif- 
 teenth century that printing was invented and the Ijible be- 
 gan to be placed in the hands of the people. It was then 
 
45 
 
 that Wycliff, the "bright rnorning star of the Reformation," 
 
 began that movement After the fashion of that time, they 
 
 attempted to suppress the great truths he taught by throA^ - 
 
 ing his ashes into the river Avon. But some prophet of that 
 
 day said: 
 
 " The Avon to the Severn runs, 
 The Severn to the sea, 
 And Wyclif s dust shall spread abroad 
 Wide as the waters be." 
 
 It was truly prophetic, for the next century saw the'great 
 flame break forth, whose torches were carried by Martin Lu- 
 ther, John Calvin, Melancthon, Zwingle, John Knox and a 
 host of others. Then came the seventeenth century, which 
 was marked by the union of the forces of religious and civil 
 freedom, when Cromwell and his Ironsides swept away the 
 enemies of both. But God's truths need no aid from vio- 
 lence and their march has always been retarded, not aided, 
 by the use of the sword. 
 
 The eighteenth century was marked by the organization of 
 the great progressive missionary church under the Wesleys. 
 It was the most striking movement of that century, and its 
 effect will be the most lasting. It has grown as no other 
 mov^emeht has grown. It has embraced the continents and 
 islands in its rapid march, until, to paraphrase the words of 
 another, it has dotted the world with its steeples, and begin- 
 ning with the sun in its rising, and keeping company with 
 th3 hours, it has encircled the globe with one unbroken suc- 
 cession of the sacred songs of Zion. As the rise of the Me- 
 thodist church and its triumphs marked the last century, so 
 the development of the Sunday School is the striking religious 
 feature of this. It has placed the Bible in the hands of the 
 children, just as Wycliff and the great Reformation placed it 
 in the hands of the laity. 
 
 There were isolated instances of Sunday Schools like that 
 opened by John Knox in Scotland in 1550, by Bishop Framp- 
 
46 
 
 ton and Joseph Alleine in England about a century later, and 
 by John Wesley in Georgia in 1735. But none of these took 
 root. The present vast system begun with Robert Raikes at 
 Gloucester in England in 1780. Though bitterly opposed at 
 first by Bishops and other Church authorities, it spread at 
 once, and its development has been little short of marvellous. 
 To-day, only a little more than ll>0 years after its institution 
 by Raikes with four teachers, it is estimated that there are 
 more than 200,000 Sunday School teachers, ana perhaps 
 25,000,000 of scholars. This, too, is only the Protestant 
 branch. In the Roman Catholic church the same system has 
 been adopted, and it contains a Sunday School membership, 
 probabl}" equal to that of the combined Protestant churches. 
 The vast power thus exerted for the reformation and eleva- 
 tion of the human race is beyond the power of calculation. 
 
 Whenever an effort is made to educate a people or a na- 
 tion, it is always of course by the establishment of schools for 
 the children. Who ever thinks of erecting schools and col- 
 leges for grown people, and ignoring the children? Yet that 
 is what tbe church attempted to do for seventeen centuries. 
 It endeavored to Christianize the world by instilling the prin- 
 ciples of our religion into those of mature growth, leaving 
 untouched the vast masses of children through whom this 
 work could be best done. Such an instance of blindness to 
 a palpable truth is unparalleled in history. 
 
 When the great Dr. Samuel Johnson, «ho hated and un- 
 derrated all Scotchmen, was cited to the instance of Lord 
 Brouo-ham, who, havincr removed to England when voung, 
 bad risen to the highest position in the kingdom, the testy 
 old doctor said he was an instance of what "could be done 
 with a Scotchman v;hen caught young." 
 
 AH over the wcrld the masses of earnest and active Chris- 
 tian workers who have been redeemed trom evil influences by 
 Sunday School work, and who have becorue powerful forces 
 for the christianization and betterment of the world, are 
 
47 
 
 standing proofs of what can be done with any race \^ hen 
 * 'caught young," and trained up as they should be. 
 
 It is very certain that but for Sunday School training vast 
 numbers of men would grow up without any knowledge of 
 the teachings of the Bible, and without any impression upon 
 their lives of its precepts. Once grown up as heathens, the 
 majority of them would remain all their lives really heathen, 
 as so many men still are, to all intents and purposes, though 
 living in so-called Christian lands. 
 
 The effectixe work of the Sunday School is not limited to 
 the pupils. It has its influence upon the teachers themselves, 
 "who, by teaching others, are themselves taught the great 
 truths of the Book of Bonks, as they would not come to know 
 them in any other way. And it is a striking benefit too that 
 in this mode so large a portion of the lay element is utilized 
 and put to work for the cause. Strike out the zeal and in- 
 fluence of Sunday School workers and relegate the church as 
 formerly, solely to the influence of its overworked clerical 
 element, and there would be almost a paralysis in the church, 
 and I say it with the greatest deference to our able and de- 
 voted clergy. 
 
 The study of the Scriptures in the Sunday School gives an 
 accurate knowledge of the Bible to both teachers and schol- 
 ars, which it is impossible to communicate by sermons how- 
 ever able and frequent. Everyone knows this. 
 
 The Sunday school is an agency in developing the highest 
 type of character in the membership of the church. It not 
 only creates zeal in the teacher and brings home to teacher 
 and scholar alike the influence of the sublime precepts of the 
 gospel, to an extent not otherwise obtainable, but it educates 
 Christian people in liberality by teaching children the duty 
 and blessing of giving. It shows them the beauty of Chris- 
 tian lives devoted to the instruction of others. It brightens 
 the lives of little waifs who are brought into contact with 
 children in a happier condition of life, and they are thus le- 
 
48 
 
 claimed to the services of humanity and God by seeing that 
 they are not outcasts, but that Christian people care for them 
 and have regard for their welfare. Whea the children of the 
 poor have the truth impressed upon them, it opens wide the 
 door of their opportunity and advanceirent in life. Count- 
 less numbers are thus brought to become useful and prosper- 
 ous members of society who otherwise would have been the 
 enemies of social government, and of an authority which 
 would mean to them only repression and continued degrada- 
 tion. 
 
 These and many other reasons can be given for the vast 
 benefit Sunday Schools have been, not only to the church, 
 but to civilized government as well, for the history of our 
 civilization in every age has been its degree of Christianity. 
 In fact our civilization begins with the incarnation at Bethle- 
 hem. The seed of mustard has grown till it has become a 
 great tree, and all nations may repose under its branches. 
 
 The morality, the virtues, the faith, the benevolence, the 
 resignation under trials, the good will among noen taught the 
 children, and their teachers too, by the thorough Knowledge 
 of the Scriptures acquired in the Sunday schools have not 
 only a wide and lasting effect upon the tone of society and 
 the conduct and life of those receiving this instruction, but 
 there is another distinct benefit which has probably not been 
 called to your attention. 
 
 The highest ideal of government which the ages have 
 evolved, is that of a government of the people, by the people, 
 and for the people. Have you ever thought where it came 
 from? The central idea in the teachings of Christ is that 
 between the supremest of supreme power and the hu.rr blest 
 individual the dignity of manhood requires and permits no 
 human intermediate. There ^'■ou have the great thought of 
 the equality of mankind. ISTo one ever conceived, or an- 
 nounced, that idea before, i^^o heathen philosopher ever 
 dreamed it. In every pronouncement He ever made. He 
 
49 
 
 taught the nothingness of human rank, the worthlessness of 
 distinctions of wealth. He first taught the brotherhood of 
 man. He taught that men should live not for themselves but 
 for the race, for their fellow men. He told the rich young 
 man to sell all that he had, to give it to the poor and follow 
 Him. He himself taught, by the sublimity of His example, 
 for he went about doing good. Freedom and liberality were 
 barely conceived of before Plis day. They were not so much 
 as named even, save in the short-lived republics of Greece 
 and Rome. And in them, having no true basis, they soon 
 withered and perished. In Christ alone the basis of real and 
 lasting freedom was first laid in the equality and brotherhood 
 of the human race. 
 
 "We may speak of Tell, of Bruce of Bannockburn, of Wash- 
 ington, but viewed as a man, the great apostle and annunoi- 
 ator of human liberty and equality is the Carpenter of Naza- 
 reth. If, as the poet has said, Jesus \^as the first true gen- 
 tleman that ever lived, it is equally true that he was the 
 founder of our civil and religious freedom. The freedom 
 with which Christ made us free is certainly a moral freedom, 
 a freedom from the shackles of sin, but it is also a freedom 
 of thought and action from tyrannical restraint. 
 
 The world was slow to perceive the full force of the new 
 ideas taught by the Sermon on the Mount, and by every act 
 and speech of the Master. Indeed the world does not yet, 
 after nearly nineteen centuries, fully grasp and comprehend the 
 true intent and meaning of his words. Having eyes to see 
 and ears to hear, we do not understand. The words are yet 
 too strong for us. We paraphrase them, we give them a 
 milder meaning, but vie are growing into the light. We are 
 beginning to discern in dim outline the pathway upon which 
 shines the Star of Bethlehem. There are a fe^ who begin 
 to understand fully whither it leads, to the vast masses of 
 men the words are yet too strong for poor hunaan nature. 
 But all now know that the teachings of Christ are the real 
 4 
 
50 
 
 source of all democratic forms of government. I do not use 
 the word in a party sense, but in the broader meaning of a 
 government which is in the interest of the people and not in 
 behalf of the privileged few —privileged as in some countries 
 because of inherited wealth, or as in this country, by acquired 
 wealth. In the eyes, and in the plain words of the Master, 
 wealth confers no privileges, but imposes fearful responsibili- 
 ties and duties. 
 
 Mr. Stevens, in his great work on the "War Between the 
 States," well says, that there is a political force in ideas, 
 and that before it ''constitutions and compacts are but as bar- 
 riers of sand before the resistless march of the ocean." The 
 powers and forces of this world, and the spirits of darkness 
 have slowly but steadily retreated before the Christ-taught 
 doctrines of the equality of men before God, the essential 
 unity of the human race, the brotherhood of man and free- 
 dom of soul, mind and body. No other religion, no other 
 teacher ever enunciated these great truths. In those ideas 
 lay the embryo of the political equality of men. If before 
 the Great Creator the humblest creature stands the equal of 
 the highest and greatest, then it follows that all distinctions 
 of birth, all inequalities of fortune and rank, all ditferences 
 of opportunity, education and capacity are mere accidents 
 and not to be counted as merits. If these distinctions are 
 artificial and not inherent, then the civil equality of man and 
 the brotherhood in political rights are undeniable truths. 
 The liberty that is based on equality and fraternity is widely 
 different from the liberty which was the ideal of the short- 
 lived Greek and Roman republics. 
 
 Our liberty, based upon the gospel of equality and brother- 
 hood, gives us freedom of thought, freedom of speech, free- 
 dom of conscience, freedom of action. 
 
 The world could not at once receive these great ideas. 
 They needed time, centuries, to permeate the social fabric, 
 to leaven political institutions, to work their way. When 
 
51 
 
 emperors and kings essayed to patronize the church, they but 
 corrupted it by choking the free operation of its cardinal 
 principles. When popes and cardinals took charge, they ob- 
 structed the developraeot of the church, for to them equally 
 with king and emperor, the equality, the brotherhood, the 
 liberty of men were incomprehensible and antagonistic. The 
 master had said, he who would be greatest among you, let 
 him be your servant, and in a true republic the highest offi- 
 cial is not a ruler but a servant. 
 
 But in spite of king and cardinal, pope and emperor, the 
 political force of the Christian ideas has won its way. The 
 right to think, to speak, to act freely has b«en more and 
 more asserted as men came to feel that in the eye of the ulti- 
 mate tribunal, rich and poor, king and peasant, master and 
 slave, stood on the same level. The political effect of such 
 teachings is democracy. The true source of political self 
 government is the religion of Christ, and there is no 
 force more potent for the maintenance of that form of gov- 
 ernment thau these schools, which sow the thoughts of 
 equality, brotherhood and liberty in the minds of children. 
 Here is the seed bed of civil and religious freedom. 
 
 Born in a stable and cradled in a manger, the Christ came 
 not to enforce the tyranny of hereditary rank, without afoot, 
 of land to call his own he did not exalt the claims of wealth, 
 without a roof to cover his head, and with poor fishermen 
 for his companions, he came not as the champion of power, 
 but to assert the truth that "where the Spirit of the Lord is, 
 there is libert}i." 
 
 From Marathon to Morgarten, from Bannockbura to Bunk- 
 er's Hill, fields have grown red in the struggle for the free- 
 dom of man, but the teachings of Christ, viewed from a po- 
 litical standpoint alone, have undermined the governments 
 which were based upon force and fraud, upon rapine and in- 
 justice, upon wealth and corruption, and have shaken the 
 forces of tyranny with more fatal effect than the spears of 
 
52 
 
 the Fhalanx at Marathon or the rush of the serried columns 
 of liberty at Morgarten. The leaven of His ideas has leav- 
 ened the political measures of meal. The fire which went 
 out from the lowly teacher of Nazareth has devoured the 
 cedars of Lebanon — the great thrones of the world. The 
 small stone hewn without hands has grown to a mountain and 
 overshadows the whole earth. 
 
 We have not yet grown to a full and just comprehension 
 of His words. We are slowly approximating it, and a new 
 light shines on the paths of men. In these schools you are 
 teaching the young to study the scriptures for themselves. 
 They are taking in, without the prepossessions and prejudices 
 of age, the true intent of the words of the Master. The Sun- 
 day Schools are becoming the true nurseries of the republic. 
 As the ages pass by and men comprehend more and more the 
 words and teachings of Christ, human conduct will shape our 
 institutions into a likeness to the equality, justice and benev- 
 olence which shall in some golden age of the future make 
 v^ant and misery impossible among men. 
 
 When, on July 4, 1776, from the steeple of Carpenter's 
 Hall, in Philadelphia, the clangor of the Liberty Bell first 
 rang out. was it a mere chance co-incidence, or was it a pro- 
 vidential recognition and prophesy of heaven's blessings on 
 our cause, that the historic bell, cast as it was years before, 
 bore the legend "Proclaim liberty to all the land and to ail 
 the inhabitants thereof," and that inscription ^^as copied 
 from the Holy Scriptures ? Certain, however, it is that le- 
 Jigious and civil freedom have ever gone hand in hand, one 
 never exists without the other, and wherever freedom to teach 
 this word is granted, there is taught the sayings which lie at 
 the basis of all human equality, fraternity and liberty. 
 
 Every age has its special vices as well as its special reli- 
 gious development. The past centuries w ere often marked by 
 great fame, and sometimes great fortunes, acquired by mili- 
 tary triumphs. But there at least was the redeeming feature 
 
63 
 
 that the despoilers had the manhood to risk their lives and 
 persons on the battlefield. This age is marked by the ac- 
 cumulation of still vaster fortunes, but it is done -without per- 
 sonal risk, without heroism, by the wholesale deprivation and 
 spoliation of the masses of the people, the creators of this 
 wealth, in the interest of a few great combinations of capital. 
 Do you think that if Christ came to-day He would be bet- 
 ter received in this so-called Christian age and land than He 
 was in Judea nineteen centuries ago? Eemember that He 
 was a carpenter and His apostles were poor laborers and fish- 
 
 ermen. . Suppose some obscure carpenter, in this day and 
 generation, accompanied by such companions, should go about 
 the country denouncing the robberies of the rich and the cor- 
 ruption in high places, suppose He should say that salvation 
 could only be had by believing on Him, and that it was more 
 possible for a camel to pass through the eye of a needle than 
 for a rich man to enter the kingdom of God; suppose such 
 an one should enter your rich churches where the preacher, 
 reclining on soft cushions, offers incense and adulation to the 
 millionaire bondholders gorged with the wealth they have il- 
 legally wrung from the people in this and all other parts of 
 the country, and with his knotted cord, should scourge those 
 ministers and those worshippers of mammon from these tem- 
 ples erected for the worship of Almighty God, how would he 
 fare? Suppose he should teach the naked gospel as Christ 
 taught it, that wealth confers not privileges but imposes great 
 duties and responsibilities. Suppose, further, that when these 
 men who daily rob a whole people of their just earnings shall 
 be wont to give a hundred dollars here, a thousand yonder, a 
 million to this hospital, two millions to yonder college, and 
 every time they thus give back a small part of their stealings 
 they should cause every newspaper in the land to proclaim 
 their magnificent generosity, and that this obscure carpenter, 
 with his bare-footed followers, should denounce such hypo- 
 crites, as He of jS^azareth did those in His day, who in like 
 
54 
 
 ■manner when they gave their alms, had a trumpet blown 
 before them, and suppose that obscure man, who was no re- 
 specter of persons, had aroused their fears as tvell as their 
 hate by his miracles which should cause the common people 
 to hear him gladly, and what, I a&k, would this generation do 
 to such a man? If it did not crucify him, it would be only 
 because of the influence of His teachings which in the lapse 
 of nineteen centuries have given the masses a power they did 
 not have in Judea. The millionaires and their tools, the 
 preachers that worship +hera, the papers, whether church or 
 secular, that deify them, and all the other followers of Mam- 
 mon would hate Christ, as those other rich men hated Him 
 in the coasts of Jordan and Galilee nineteen centuries ago. 
 and as they to-day reallv hate every one who truly teaches 
 His sayings in their purity, and as these children read them in 
 their Sunday Schools, If the rich syndicates and trusts and 
 other robbers of the people of this day and their toadies and 
 beneficiaries were not allowed to crucify Christ, they would 
 M ish to do it. They would surely hale Him into prison and 
 denounce Him and His followers as anarchists, socialists, and 
 communists. 
 
 Is not this true, men and brethren? 
 
 If Christ came to-day who would receive, and who would 
 crucify Hira? Have you ever thought about it? The pure 
 minded little children ^v ould receive Him. They did so when 
 he came nineteen centuries ago. "Suffer little children to 
 come unto me, for of such is the kingdom of heaven." Then 
 the good women of this land would gladly receive him, for 
 they also did it nineteen centuries ago. 
 
 " Not she with trait' rous kiss her Master stung, 
 " Not she denied Him with unfaithful tongue, 
 " She, when apostles fled, could danger brave, 
 " Last at His cross and first at His grave. ' ' 
 
 There are dancing daughters of Herodias and other women 
 wrapped up in self, and the deceitfuiness of this world now 
 
55 
 
 as then, but nov^ as then all good women would gladly follow 
 Him, And then among the men He would recruit His fol- 
 lowers, just as of old, for the "common people heard Him 
 gladly." Those "ohose faces are darkened by the searching 
 glances of the sun and their hands hardened by toil, would 
 figure largely among His followers. And so woald the hon- 
 est men of whatever profession and whatever calling, who 
 are striving for modest competence, and in whose hearts the 
 greed of gold has not burnt out all traces of humanity and 
 fair dealing- and of "that divinity which should be within 
 us." But not many mighty nor man}'' rich shall be called. 
 It was so of old. They who form great syndicates and trusts 
 to rob the people, and they who gather where others have ' 
 sown would be foremost among those v^'ho would crucify 
 Him. For it was He nho said it and we know that His say- 
 ing is true, that a rich man can no more enter into the king- 
 dom than a camel can pass through the eye of a needle. 
 This saying may offend some. His saying did so in His day 
 and "many left off following-after Him." 
 
 The great evil of this day is the worship of wealth, anrl it 
 makes no matter to its worshippers that we know that every 
 vast estate is necessarily accumulated by robbery of the peo- 
 ple — for there is a modest limit in the nature of things to the 
 accumulations which can be made by diligence, and thrift and 
 economy and honest industry. The free opportunity for 
 honest accumulations is the glory of our institutions, but 
 these vast estates are not made in that way. They are made 
 by processes which should consign their holders rather to 
 your penitentiaries. Their very size proves they are not 
 honest accumulations. Was Christ the Son of God? He 
 said that such rich men could in no wise enter the kingdom 
 of God. H it was true when He said it, it is true to-day. 
 The so-called ministers of God who pardon such offences be- 
 cause of the gift of a small part of the sums stolen to colleges, 
 to churches, and sometimes to the ministers themselves, are 
 
56 
 
 QO u-hit better than the sellers of indulgences whom Luther 
 scourged out of Germany. 
 
 Our people are being robbed by wholesale. They do not 
 receive the just re^vards of their labors. They are being pau- 
 perized and kept in want while a few men, by trick and com- 
 binations, are gathering to themselves the earnings of a con- 
 tinent. Yet how many ministers, how many leading church 
 members, how many church papers are denouncing the rob- 
 bers and the wrong as the Master did, and as it is still writ- 
 ten in His word? How many indeed are pursuing an oppo- 
 site course? I condemn no man. Let each one's own con- 
 science answer him. 
 
 Search all history, and you will find no age when the rob- 
 bery of the just earnings of the masses was more systematic, 
 more shameless and less resisted than to-day. There was 
 never a time when the worship of great riches, however bad- 
 ly acquired, was more open than now. While the pure in 
 heart are communing with the invisible God on the summit, 
 amid ihe clouds and darkness that are round about Him, vast 
 numbers, and among them, as of old, many Levites are bow- 
 ing down to the Calf of Gold, and they say to us, "these be 
 thy Gods, O Israel." You know that when Moses and Joshua 
 reproached him with his conduct, Aaron laid the fault 
 on the people, and said that to please them he had thrown 
 the gold ornaments into the fire and "there had come out 
 this calf," implying that it was accidental (though he did not 
 dare to say so) and that he was in nowise responsible. So in 
 this country, in which the public opmion of to-day can be- 
 come the law to-morrow, he, who, like Aaron, does not en- 
 lighten it, but on the contrary, without resistance to the rob- 
 bery of the people, bows down to those who have acquired 
 their earnings, in effect says with the idolaters of old, w^e did 
 not do it, we merely cast the gold into the fire, or permitted 
 it to be done, and "there came out this calf." Hence we 
 are not to blame for worshipping it. For my part, I believe 
 
57 
 
 that something more is required, and that resistance to wrong 
 is obedience to God. The Bible these cnildren read is not a 
 mere collection of moral sayings, but it is intended to govern 
 the private and public conduct of men and of nations. 
 
 The Talmud of the Hebrews has a true saying that if "the 
 v^orld shall ever be reformed and saved it will be by the 
 breath of the school- children." And if this world is to be 
 redeemed from this subservience to wealth which subjects our 
 people to robbery and our children to poverty, it will be be- 
 cause of the saving words of the Master which are being im- 
 pressed upon the tender hearts of the children in the Sunday 
 Schools of the land. There is a saving strength in His words, 
 which if received in simple faith, can redeem the world, both 
 for the time that now is as well as for that which shall be 
 hereafter. 
 
Revision of Constitution of United States— Election 
 
 of Judges, Senators and Postmasters 
 
 by the People. 
 
 ABDKESa TO THE BaR ASSOCIATION OF TENNESSEE, 
 
 At Nashville, July 30th, 1897. 
 
 Gentlemen of The Bar Association: 
 
 There is a kind of freemasonry among lawyers, which, like 
 that "touch of nature which turns the whole world kin," 
 makes a lawyer feel at home wherever there is a gathering 
 of lawyers. I am glad to meet your Bar Association and to 
 congratulate you upon the success you have won. Such as- 
 sociations raise the standard of the profession, and indicate 
 an esprit du corps which is both highly honorable and bene- 
 ficial. 
 
 To North Carolinians, the success and progress of Tennes- 
 see are almost as gratifying as our own. Tennessee is the 
 daughter, and the mother State can never forget it. When 
 N"orth Carolina was recognized as a sovereign State by the 
 treat}'^ of 1783 with Great Britain, her limits extended from 
 the storm-lashed Atlantic to the mighty inland river, which 
 was then the boundary of Spain, When we set you up in 
 housekeeping, we acted most generously. We gave ycu that 
 portion of our soil which Tennesseeans will claim was the 
 richest and choicest part of our domain. In extent we gave 
 you nearly half of our possessions. North Carolinians first 
 settled your territory and then we sent you from time to 
 time, as reinforcements, a large part of the most energetic 
 
59 • 
 
 and enterprising element of our population. You were not 
 unappreciative. Three men whom we sent you, you made 
 
 PKESIDENTS OF THE UNITED STATES. 
 
 We sent you others whom you made governors, senators, 
 judges, generals and bishops, and besides, you have dotted your 
 map with the names of counties and tov^ns which duplicate 
 numbers of those in the old home. We have a common inheri- 
 tance of glory. No small part of the N^orth Carolinians w ho 
 swarmed up the fiery crest at Kings Mountain were men from 
 flolston and JSTolachucky. When the stress of the great civil 
 war came we were not divided, but the two States stood to- 
 gether in good and in evil fortune, and alike demonstrated 
 the native valor of the same hardy race. If Tennesseeans 
 rode with Aforgan 'Ho the farthest Xorth" beyond the Ohio, 
 it w^as North Carolinians who carried the cross-barred emblem 
 of our fiery Southern faith farthest beyond the stone wall at 
 Gettysburg. Together we endured the unspeakable horrors 
 of Eeconstruction, and together we have emerged from the 
 furnace to tai^e our places in building up a restored and glo- 
 rious Union of indestructible and co-equal States. 
 
 In peace and in war we have stood together, and if Louis 
 XIV. could say after his memorable treaty with Spain, 
 "There are no Pyrenees,'' we can more truly say that be- 
 tween North Carolina and Tennessee there are no mountains — 
 the land merely slopes both ways from an imaginary line 
 which marks but where we join each other and which has 
 never divided us. You have now in progress a cani^ass for 
 a revision of your Constitution — a movement which, I am in- 
 formed, was largely set on foot by your Bar Association. Of 
 course, hov\;ever, on that subject there are lawyers on both 
 sides. Our profession is too broad-minded and subtle not to 
 perceive that there are two sides to every question, and we 
 take to arguing them as naturally as a duck takes to water. 
 Of the merits and probable fate of the pending question of 
 
60 
 
 the revision of your Constitution, I am not informed, and it 
 would be highly improper in me to express any opinion upon 
 a subject which concerns 3'^ourselves alone. But the pen- 
 dency of that question has suggested a cognate one which 
 concerns the citizens of all the States, and which is beginning 
 to exercise the minds of men everywhere — 
 
 THE REVISION OF THE CONSTITUTION OF THE UNITED STATES. 
 
 Indeed, it is strange that the subject has not heretofore 
 more powerfully attracted the attention of the electorate of 
 the Union. Our Federal Constitution was adopted 110 years 
 ago. In that time every State then existing has, one after 
 another, radically revised its Constitution, and mcst of them 
 more than once. Indeed there is no State which has not revised 
 its Constitution except those most lately admitted, and such 
 have been the rapid changes from our growth in population 
 and wealth and the new dangers arising to be guarded against 
 that the Constitution of New York imperatively requires that 
 the question of a constitutional convention shall be submitted 
 to the people every tiventy years, and permits it oftener than 
 that if the Legislature shall think prosper. 
 
 Even in so conservative a State as North Carolina we have 
 had three Constitutional conventions since the war, and have 
 besides adopted sundry amendments by the legislative mode 
 prescribed in the Constitution. If this is true as to the States 
 and that we so rapidly outgrow the organic law prescribed 
 but a few years before, for a stronger reason it is true of the 
 Federal Constitution, which adopted at Philadelphia in Sep- 
 tember, 1787, for an entirely different people and amid vastly 
 different surroundings, is now like the clothing of boyhood 
 worn by the nearly mature man, which galls and binds his 
 massive limbs and interleres with his development. To say 
 that the Federal (constitution of 1787 
 
61 
 
 IS NOW A MISFIT. 
 
 in many respects, is a self-evident proposition. It could not 
 be otherwise. Great and wise as that instrument in many 
 respects was, it was intended for the people and the surround- 
 ings of that day. Therein was such a fitness as it had. 
 
 Its creators could not foresee the requirements of this time, 
 our present development and propositions were beyond their 
 wildest dreams. They foresaw, however, that in the process 
 of time, the Constitution must become a misfit, and hence 
 that instrument provides two distinct methods for its own 
 amendment. If by any possibility they could have foreseen 
 what provisions were most suitable in a Constitution fitted 
 for this day and adopted it, such a Constitution would have 
 been unfitted for that time and unacceptable. Each genera- 
 tion has a right to enact its own laws and shape its own in- 
 stitutions. This is the sacred right of self-government, l^o 
 dead hand from the past should lay its paralysis upon the liv- 
 ing and check our progress and leave us defenceless against 
 the enemies created by the rapidly changing conditions of 
 modern life. 
 
 How could a Federal Constitution of 110 years ago be suit- 
 able to this day, when each State has so often had to change 
 its organic law? Not withholding any meed of the praise be- 
 stowed upon our Federal Constitution, it must be remembered 
 that it was so far from being acceptable, even when first pre- 
 scribed, that many States ratified with the understanding 
 that amendments would be made, and suggested amendments 
 at the time of their rati£cation. Accordingly, ten amendments 
 were suggested by the very first Congress which met, that of 
 1789, and were adopted by the States. 
 
 Another defect was made apparent by a decision of the 
 Federal Supreme Court in the case of Chisholm vs. Georgia, 
 and the eleventh amendment protecting the States against that 
 
62 
 
 assumption of power, by the court, was submitted by Con- 
 gress in 1794, and promptly ratified. The contested presi- 
 dential election of 1801 showed another dangerous defect in 
 the organic instrument which was patched up (imperfectly, 
 as the contested election of 1876 showed) by the twelfth 
 amendment submitted by Congress in 1803, and ratified by 
 the States within nine months thereafter. Three other 
 amendments follov^ ed in the wake of the great civil war. 
 How far it would have been possible to have averted the vast 
 loss of life and property, and the resultant taxation since, if 
 the original Constitution had been more wisely and clearly 
 drawn, or if timely and proper amendments had been made, 
 it would be a sad and a 
 
 , PROFITLESS TASK TO CONSIDER NOW. 
 
 When the Federal Constitution of 1787 was sent forth, it 
 was provided for a people of 3,000,000, scattered along the 
 Atlantic slope. 
 
 We are now trying to make it do duty for 80,000.000, set- 
 tled from ocean to ocean, and from the great lakes to the 
 gulf. Then our population was mostly rural, for three years 
 later, in 1790, we had but five towns in the whole country'- 
 which had as many as 6,500 inhabitants each, and only two 
 others had over -IjOOO; now we have the second largest city 
 on the globe, and several that have passed the half million 
 mark. Then we had seventy-five postoffices, with §37,000 
 annual postoffice expenditures. Now we have 75,000 post- 
 offices, and an annual postal expenditure of $90,000,000. 
 
 During the first ten years the expenditures of the Federal 
 government, including payments on the revolutionary debts, 
 averaged about §10,000,000 annually. In the last few years 
 they have averaged fifty times that. When the Constitution 
 was adopted, Virginia was easily the first State in influence 
 and population, having one-fourth the population of the 
 whole country, and North Carolina was third, while New 
 
63 
 
 York, which then stood fifth, now has double the population 
 of the whole Union of that date, and many other States have 
 now a population greater than the original Union, whose very 
 names were then unheard of, and over whose bosoms the sav- 
 age and the buffalo roamed unmolested. 
 
 The steamboats, railroads, gas, electricity (except as a toy 
 in Franklin's hands), and a thousand other inventions and dis- 
 coveries whioti have profoundly modified the life and thought 
 and wants of the people and governmental requirements and 
 dangers were still in the womb of the future. 
 
 CORPOEATIONS WERE THEN SO FEW 
 
 that not till four years later, in 1791, did New York incorporate 
 its first bank, and the charter for the second bank was only 
 obtained by the subtility of Aaron Burr, who concealed the 
 banking privileges in an act incorporating a water company. 
 Not to particularize further, we are farther from those times 
 in point of development and changes than those days from 
 the times of Elizabeth, and in many respects even more dis- 
 tant are we from that era than it was from the age of AVil- 
 liam or Alfred. Indeed the convention, in some respects (as 
 shown by prompt amendments), did not correctly express the 
 feelings and wants of its own day. It was a small body, 
 only fifty-five in number, of whom only thirty-nine concurred 
 in the final result. They had no benefit from the public 
 opinion of their own day, but sat within closed doors. Their 
 work was barel}^ ratified by conventions in several States, 
 and in no instance received the imjyrimatur of the people of 
 a single State. 
 
 That the Constitution was as good as it was is a marvel, 
 and it has been eulogized accordingly. But had it been per- 
 fect then — and it was not — it could not fail in the wonderful 
 development of more than half a century to be in many re- 
 spects inadequate for this generation, and it must become 
 
64 
 
 moie and more so as the years pass. It cannot be long be- 
 fore vie shall ha\e 100,000,000, and even that is small to 
 -what is just beyond. We have as yet only 
 
 " The first low wash of waves 
 "Where soon shall roll a human sea. " 
 
 Alaska, -vrhose climate forbids hope of its ever becoming a 
 State, and the expected admissioQ of Hawaii, vrhich indicates 
 a colonial policy, are features unprovided for by a Constitu- 
 tion which contemplated merely a Union of co-equal States 
 and not permanent territories or colonies. Time and your 
 patience would fail me to discuss the many particulars in 
 which the 
 
 PRESENT FEDERAL CONSTITUTION 
 
 needs revision, even if I possessed the ability and authority 
 to indicate all its shortcoir ings, wherein the ancient garment 
 should be let out, wherein it should be gathered in, what 
 rents should sewn up, and double proofed where the sword 
 has cut; what holes and tears should be darned which the ju- 
 diciary have made, or where the executive or Congress has 
 worn the garment too thin. Sucb matters require more ela- 
 boration and most careful thought. 
 
 I shall only indicate in a broad way the inherent defect 
 which was in the original instrument, and which time has but 
 accentuated. In the first place, the Constitution of the 
 United States was never democratic. The experiment of self- 
 government was then new, and the masses were not educa- 
 ted. The schoolmaster was not abroad in the land. The 
 dominant minds in that convention, almost without exception, 
 feared to trust the people. There vvere leaders like Hamil- 
 ton, who preferred a monarchy, and who made small conceal- 
 ment of a belief that "to that complexion it must come at 
 last." There was quiet talk of calling to the throne the 
 second son of George the Third, he who was afterwards the 
 
65 
 
 infamous Frederick, Duke of York. As I have said, that no 
 breath of public opinion might blow upon the convention, the 
 doors were hermetically sealed — closed in the faces of the 
 people upon whose welfare they were assuming to act as 
 guardians. 
 
 That an instrument so constructed, and by such men. and 
 for people averaging so far in point of education below the 
 present generation, should have been undemocratic was to 
 have been expected. That it has remained so till this day is 
 the unexpected. The preamble itself: "We, the people of 
 the United States," is a misrecital, for neither the Constitu- 
 tion, nor any amendment thereto, has ever been submitted to 
 the people, as is usual with changes in a State Constitution. 
 Of the great departments of government, the Executive, the 
 Judicial and the Legislative, the 
 
 CONSTITUTION GAVE THE PEOPLE 
 
 only a voice in selecting one-half of the legislative. And 
 that remains, so far as constituDional forms go, to this day 
 the share of the people in the Federal Government, one-half 
 of one-third, i. e., one-sixth. In all the rest the people were 
 given no voice whatever. 
 
 The executive was made elective by electors, and it was 
 contemplated that those electors should be as free to select 
 the president as the members of the State legislatures in the 
 selection of a Federal senator. In fact, down till after the 
 memorable contest between Adams, Clay, Crawford and Jack- 
 son, in 1824, in the majority of States, the presidential elec- 
 tors were chosen by the State Legislatures, and they were 
 still so chosen by South Carolina till after the late war. 
 Even since the choice of electors was committed to the peo- 
 ple by State action, the constitutional provision still gives the 
 electors the absolute right to vote irrespeccivb of the will of 
 their constituents, and that electors have ordinarily (though 
 5 
 
66 
 
 not always) obeyed the will of those voting for them is a tri- 
 bute to the force of public opinioD, which in this respect has 
 been more powerful than the vJonstitution, and without 
 forn a] amendment has reversed the mode of election pre- 
 scribed and contemplated by that instrument. 
 
 The Senate is still not elective by the people. In many 
 Stales the people have attempted to apply to 
 
 THE ELECTION OF U. S, SENATOR 
 
 the same method which has captured the choice of the execu- 
 tive by making the members of the Legislature quoad hoc 
 electors, pledged like presidential electors to vote for the 
 nominee named by a popular convention. But the plan has 
 not always worked satisfactorily and has been tried in onl}' 
 some, not all, the States. A constitutional amendment to 
 elect the senators of each State by the votes of its people, in- 
 stead of its Legislature, has more than once passed the lower 
 house of Congress, and once at least by a unanimous vote, 
 but the Senate itself has always defeated this measure to give 
 the people more power in their government. 
 
 In this day, when we have so many startling instances of 
 the power of vast corporations in determining the choice of 
 senators, and the scandal and expense of prolonged sessions of 
 State legislatures taken up with the selection of a senator — 
 a duty which the people could discharge more satisfactorily 
 and without any expense, by electing the senator on the same 
 day members of Congress are chosen- it is more than ever 
 imperative that the Constitution should be revised and made 
 democratic in the mode of choosing the senators. 
 
 Not only did the Constitution bar the people from a voice 
 in the election of senators and president, but as a further 
 check it placed in the hands of the executive the veto power 
 upon any action of the representatives chosen by the people 
 to the lower house if by any chance that will should also be 
 
67 
 
 voiced by the Senate. The veto power has not been exercised 
 by the monarchy or ministry in England for 
 
 NEARLY TWO CENTURIES. 
 
 It certainly has no proper place in a republic in which the 
 will of the people duly expressed, in an orderly and pro- 
 per manner, by their chosen representatives should be the law 
 of the land till changed in the same mode. The veto is an 
 anachronism, and is in fact a survival from times when the 
 people's representatives could not legislate without the assent 
 of the monarch, expressly given to each act. Gold win Smith, 
 in his "Political History of the United States," correctly de- 
 scribes our president as being "an elective king," with pow- 
 ers very far surpassing those of the English sovereign and 
 equalled b}'' very few autocrats. 
 
 But by far the most dangerous, the most undemocratic and 
 unrepubiican feature of the Constitution, and the one most 
 subject to abuse, is the mode of selecting the Federal judges. 
 They are not only selected without the people having any 
 voice whatever iji the choice of this important class of their 
 servants, but they are selected by the executive, whom by 
 the Constitution, the people were to have no voice in choos- 
 ing, and are subject to confirmation by that branch of 
 Congress in whose selection the people still have no voice. 
 To aggravate the matter still further, these servants are ap- 
 pointed for life, and mistakes, or bias, or private influence 
 exerted in their selection are beyond correction. Our gov- 
 ernment is 
 
 BASED ON PUBLIC OPINION. 
 
 A "decent regard for the opinions of mankind" was averred 
 in the great Declaration of the Fourth of July, 1776. Pub- 
 lic opinion, when formally expressed by our servants, freely 
 chosen is our statute law. And when expressed with more 
 formality is our organic la^ . Yet by a process in which the 
 
68 
 
 people have no voice we place in position those vrho look 
 down upon and revise, and negative when they see fit, the 
 actions of the executive and the legislature, and there is no 
 check upon the unlimited and wilful exercise of this power 
 save in cases of corruption, and then only by the cumbersome 
 and impractical method of impeachment. 
 
 In England the judges can be removed by a simple address 
 of Parliament, and the Constitutions of Massachusetts and 
 ISTew Hampshire have the same provisions. But the Federal 
 judges are not subject to any restriction from that public 
 opinion, which is the corner-stone of a republican form of 
 government, either in the manner of their selection or by the 
 power of removal upon an address of the legislature, as in 
 England, or by being subject to review as by holding for a 
 term of years. They are as truly beyond the will of the peo- 
 ple as the Czar of all the Russias. That under such a sys- 
 tem abuses have been as infrequent as they have been (though 
 they are not unknown) is due not to the system, but to the 
 usaally high character of the la\v}'ers on that bench, who, 
 though selected by a vicious method, have, been ordinarily 
 superior to the temptations within their reach. 
 
 With the growing power of corporations, and the evils at- 
 tendant thereupon, we are not without warnings that we can 
 not trust so medieval a mode of selecting juages any longer 
 with safety. This much is to be said in excuse of the fra- 
 mers of the Federal Constitution, that at that time few judges 
 were elected by the people, and besides the vast power since 
 developed in the judiciary of setting aside and annulling le- 
 gislative and executive action was unsuspected. It had been 
 asserted in one or two cases of small importance, but its scope 
 and effect were not discerned, and hence its abuse tvas not 
 provided against in the Constitution. The duty has devolved 
 upon us. 
 
 So generally, so universally, indeed, has the evil of 
 
69 
 
 A LIFE JUDICIARY, 
 
 selected by others than the people, and without supervision, 
 been seen and provided against in the several States, that in 
 forty-two States out of the forty-five, the judges now hold 
 for a fixed term of years, and thus their conduct comes up 
 periodically for review. As to the other three States — in 
 Ehode Island the judges hold only from year to year, for any 
 judge can be dropped by a majority vote of the annual legis- 
 lature. In Massachusetts and ISTew Hampshire, as I have 
 stated, the judges can at any time be removed by the execu- 
 tive upon an address voted by a majority in the legislature, 
 so that in every jurisdiction save the United States, the con- 
 duct of the judges is subject to supervision and disapproval. 
 
 It cannot be that the popular sentiment and the public ne- 
 cessity which have made the judges elective in so many States 
 do not obtain as the United States judges. The Constitution, 
 therefore, should not only be made democratic as to the elec- 
 tion of United States senators, but the judges should be also 
 chosen by the people, and for a term of years, and for the 
 same reasons that the people of the States have made their 
 state judges elective. The same reasons that apply to the one 
 apply to the other with equal force. ISTo State which has once 
 made its judges elective, has gone back lo the appointive sys- 
 tem. A proposition of that kind submitted to the people of 
 ISTew York was overwhelmingly voted down. It must be ad- 
 mitted, under our theory of government, that the people aie 
 the best judges of whom they should have for their public 
 officials. There is indeed but one objection \\ hich can be 
 made to the proposition to make judges elective by the peo- 
 ple, and that is a flat denial that the people are capable of select- 
 ing the best servants, and the assertion that some one else 
 can do it for them better than they can for themselves. 
 
 It was in 1820, long after he had retired from the heated 
 theatre of action, that Mr. Jefl'erson made his 
 
70 
 
 CELEBBATED DECLARATION 
 
 that the Federal judges were "a corps of sappers and miners 
 steadily undermining the Constitution." It was two years 
 later — in 1822 — that he wrote his letter to Mr. Barry in 
 which he eApressed his view that the Constitution should be 
 amended by restricting the Federal judges to terms of six 
 years. 
 
 When the Federal judges are made elective by the people, 
 the United States district judges and district attorneys can be 
 elected by the people of their districts, as State district judges 
 and district attorneys and members of Congress are chosen; 
 the circuit judges by the people of their circuits, and the Su- 
 preme Court judges by the people of the States composing 
 their respective circuits and the chief justice by the whole 
 Union. 
 
 That the public sentircent is in favor of this reform is not 
 only evidenced by the same change as to the manner of 
 electing State judges, but is common observation. As long 
 ago as 1891, a distinguished judge and law w^riter, and the 
 editor of a leading law magazine in this country, a gentleman 
 ■whom we have the pleasure of haviag with us to-day, wrote 
 (25 Am. Law Kev. 288, March, 1891), "If the proposition 
 to make the Federal judiciary elective instead of appointive 
 is once seriously discussed before the people, nothing can stay 
 
 THE GROWTH OF THAT SENTIMENT, 
 
 and it is almost certain that every session of the Federal Su- 
 preme Court will furnish material to stimulate that growth." 
 In what I have said there has been no intention to reflect 
 upon the Federal judges, either singly or in a body, but the 
 present mode of their selection and tenure is undemocratic 
 and medieval and capable of untold abuse. No depository 
 of power in this country should be above the power of public 
 
71 
 
 supervision of his conduct. It is time this matter was fully 
 and thoroughly discussed, and the reform brought about. It 
 is no injustice to the public servants who happen to occupy 
 offices which may be affected, to agitate for a reform required 
 by the public interest. 
 
 I am aware that every Federal Judge below the Supreme 
 Court, though nominally holding for life, can be abolished by 
 an Act of Congress, since the power which creates a Federal 
 district or circuit can abolish it at will. If it can abolish one 
 district, it can abolish all at once. Several districts have 
 from time to time been abolished, notably two in 1801, /\.nd 
 we know that the sixteen circuit judges created by the Judi- 
 ciary Act of 1801 were abolished eighteen months later. 
 
 It is tru*i that under the stress of a great public sentiment, 
 every U. S. district and circuit judge can be legislated out of 
 office by a simple Act of Congress, and a nev; system re- 
 created with new judges, but that would be a strong measure 
 and unlike a constitutional amendment, might be a reflection 
 upon the present incumbents. It is also true, as has been 
 pointed out by distinguished lawyers, that while the Supreme 
 Court cannot thus be abolished, it exercises its appellate func- 
 tioEs "with such exceptions and under such regulations as 
 Congress shall make;'- (Constitution, Article III, Section 2), 
 and that as Congress enacted the Judiciary Act of 1789, it 
 can modify or repeal it at will. 
 
 In 1831, the attempt was made to repeal the twenty-iifth 
 section of the Judiciary Act of 1789, by virtue of which writs 
 of error lay from State Supreme Courts in certain cases. 
 Though the section was not repealed, the repeal was support- 
 ed and voted for by such men as Henry Clay and James K. 
 Folk, names which have not yet lost their music in your ears. 
 
 But what is desired is not the exercise of any such powers 
 by Congress which it undoubtedly possesses, and in an emer- 
 gency would exercise, but a constitutional revision by which 
 
72 
 
 the Federal judges, like other public servants, should be cho- 
 sen by the people. 
 
 But it may be said that the Federal judges are now in office 
 for life, and it would be unjust to dispossess them. So it 
 ■was with the State judges in each State when it changed from 
 life judges to judges elected by the people, but this argument 
 in no case staj'ed the reform. Indeed all the Federal judges 
 except the Supreme Court, being subject to be abolished at 
 any time by an Act of Congress, occupy an inferior position 
 in this respect to the State life judges who could only be abol- 
 ished by a new Constitution. 
 
 It will be a great reform when public esteem and confidence 
 shall become the source of honors instead of 
 
 COURT FAVOR AT WASHINGTON. 
 
 When this constitutional amendment is made, as will in- 
 evitably be done at no distant day, it would be well to avoid 
 the expense and conflict of the douhle judiciary system we 
 now have, by reducing the number of the Federal judiciary, 
 and amending and restricting their jurisdiction to the excise, in- 
 ternal revenue, postolfice, admiralty, customs and like matters 
 which are purely Federal. As to all other matters in which a 
 Federal question could arise, ample protection would be given 
 b}'' writs of error — as now — from the State courts. Certainly 
 with the great increase of intercommunication and the decay 
 of local prejudice, a large mass of litgation which now goes 
 into the Federal court should be elimmated, for the non-resi- 
 dence of a party should cease to be a ground of taking juris- 
 diction from the State courts. To a large extent this is now 
 simply a pretext for corporations and syndicates to escape the 
 jurisdiction of State courts, and an incentive to them to secure 
 the appointment of their favorites, whenever they can, upon 
 the Federal bench. 
 
 ANOTHER UNDEMOCRATIC FEATURE 
 
 of the Constitution is that which requires all Federal officials 
 
73 
 
 to be appointed by the President or heads of departments. 
 This has grown to be a great evil. When for instance there 
 were seventy-five postmasters, it was contemplated that the 
 President or Postmaster General would really appoint. With 
 75,000 postmasters this is impossible. As a practical result, 
 they are in fact selected neither by the President nor the 
 Postmaster General, but in an unconstitutional mode by Sen- 
 ators, members of Congress, or political bosses. 
 
 liot so long since we saw the pressure of ofBce-seel^ers upon 
 Congressmen used dexterously by the Executive to secure 
 the passage by Congress of an act \^ hich otherwise could not 
 have been adopted. 
 
 A REVISION or THE CONSTITUTION 
 
 should at least empower Congress to authorize the election of 
 postmasters by each locality whenever, and to what extent, 
 it may deem advisable. 
 
 It is idle to say that we have grown and prospered under 
 this Constitution. It would be as logical to say that we have 
 done so in spite of it. The Constitution is not a fetish to be 
 ■worshipped, nor did it come down from heaven a perfect 
 work. It had to be patched up ere it was in working order. 
 Its defects nearly brought us catastrophe in 1801, in 1820, 
 and again in 1876. That which happened in 1861-65 we all 
 remember. Those features of the Constitution which time 
 has approved, and which are still suited to our needs, will be 
 retained. Those Avhich are otherwise should be amended or 
 removed, as has been the case with our State Constitutions. 
 The vast power of the President, his great patronage, giving 
 him power to make war, his election by electors, who are 
 under no legal obligation to voice the sentiment of their con- 
 stituents, these are pregnant with future trouble. So also is 
 the election of U. S. Senators, by the majority of a caucus, 
 i. e., by one-fourth of the small number of men in a State 
 legislature, whose nomination and election can be easily 
 
74 
 
 manipulated by the money power. But the greatest danger is 
 in the appointive and life system of the judges who dominate 
 the other two departments. The helmsmen who can appoint 
 at will the course of the ship of state are selected without any 
 consultation with the crew, and are subject to no control by 
 them. The Constitution is at the mercy of organized and 
 powerful combinations of money, and it is imperative that 
 we rescue it from their hands. 
 
 In a condensed w^ay I have discussed the most striking con- 
 stitutional features needing revision. There are doubtless 
 others. The revision is needed. It will and must come. It 
 is appropriate that the bar should open the discussion. After 
 the lapse of 110 years, constitutional revision cannot be pre- 
 mature. In view of the dangers which now face us, and the 
 certainty of greater ones if we delay, it is time that the mat- 
 ter was receiving careful and patriotic consideration. 
 
 It cannot receive other treatment at the hands of an able 
 non-partisan and patriotic organization such as that which I 
 have had the honor to address on this occasion. 
 
 Tennesseeans and brother lawyers, I thank you for your 
 attention. 
 
San Miguel de Guandape— Jamestown Settled 81 
 Years Before John Smith. 
 
 In "Wake Forest Student" (Magazine), May, 1897. 
 
 It has long been the habit of historians to treat the coloni- 
 zation at Jamestown, in 1607, as not only the first pernaanent 
 settlement in the United States north of St. Augustine, but 
 as the first tentative settlement except the three ill-fated 
 colonies of Sir Walter Raleigh at Roanoke Island, in 15S4-87, 
 but besides the permanent settlement of the Spaniards at Santa 
 Fe, in what is now New Mexico, in 1574, and the abortive 
 settlement of the French at Arx Carolina, and the Spanish 
 colony at Port Royal, in South Carolina, there was another 
 attempted settlencent of the Spaniards on the very site of 
 Jamestown itself, eighty-one years befor-^ John Smith ven- 
 tured upon that historic scene— indeed years before his adven- 
 turous spirit had visited this m undane sphere. Com paratively 
 recent discoveries in the Royal Library at Simancas, in Spain, 
 established the fact, though it was unknown to Bancroft, and 
 indeed only one historian has even noted it in any manner 
 whatever. The expedition, too, was more pretentious, and 
 far better supplied with men and material, than the subsequent 
 English expedition, whose memory is inseparably connected 
 with memories of Captain John Smith and Pocahontas. 
 
 "As early as 1520, Lucas Vasquez de Ayllon, one of the 
 Auditors of the Island of St. Domingo, though possessed of 
 wealth, honors and domestic felicity, aspired to the glory of 
 discovering some new land, and making it the seat of a 
 prosperous colony." This was the year that Cortez invaded 
 
76 
 
 Mexico, and more than forty years before Menendez made his 
 settlement at St. Augustine. Having procured the necessary 
 authority, D'Ayllon despatched a caravel in 1521, under 
 Francisco Gordillo to explore the North American coast. He 
 fell in with another Spanish caravel under Quexos, Avhom he 
 persuaded to join him, and they finally landed at a point on 
 the coast, which by their calculation was about thirty-three 
 degrees and thirty minutes, at the mouth of a river which 
 was possibly the Cape Fear river, in North Carolina. They 
 sent men ashore and formally took possession of the country 
 in the name of the King of Spain. Though strictly enjoined 
 to open friendly relations with the natives, they seized some 
 seventy Indians to carry off to sell as slaves, and made no 
 attempt at colonization. On their return the act was con- 
 demned by a commission presided over by Diego Columbus, 
 and the Indians were declared free, and directed to be con- 
 veyed to their native land. D'Ayllon proceeded to Spain 
 with Francisco — one of the Indians — who told of a giant 
 King and many provinces, and on June 12, 1523, obtained a 
 Toysii cedula, giving him many and exclusive privileges for the 
 purpose of colonizing the country and converting the Indians — 
 ' their enslavement being expressly prohibited. He sent out 
 two caravels to the new continent under Pedro de Quexos, 
 who explored the coast for 750 miles, setting up at various 
 points stones to commemorate taking possession of the 
 country in the name of Charles V. He returned to Santo 
 Domingo in July, 1525, bringing one or two Indians from 
 each province to act as interpreters in the contemplated ex- 
 pedition of colonization. At this juncture D'Ayllon was 
 hindered by the law suit of a rival who sought to invalidate 
 his grant from the King, and also by the delay in the arrival 
 from Spain of a store of artillery and supplies. 
 
 At length D' Ayllon set sail from Puerto de la Plata with 
 three large vessels early in June, 1526. As missionaries he 
 took the famous Dominican, Antonio de Montesinos, who 
 
77 
 
 was the first to denounce Indian slavery (some years prior to 
 Las Casas), and with him Father Antonio de Cervantes, and 
 Brother Pedro de Estrada, both of the same order. The 
 ships carried six hundred persons of both sexes, including 
 physicians, both for the souls and bodies of the colonists, and 
 100 horses. The expedition, it will be thus seen, was far 
 superior both in numbers and supplies to the English expedi- 
 tion, eighty-one years later, which contained 105 men, of 
 whom we are told "only twelve were laborers, and very few 
 mechanics, forty-eight were gentlemen, and four carpenters. " 
 D'Ayllon reached the coast at the mouth of the river, which 
 he named the Jordan, and which is supposed to have been 
 the Wateree in South Carolina. Here he lost one of his ves- 
 sels, but built a smaller vessel to supply its place — the first 
 ship built on this continent. Francisco, his guide, here de- 
 serted, and the reports of the country being unfavorable, 
 D'Ayllon moved along up the coast. At the entrance of 
 Chesapeake Bay, being pleased with the view, he entered and 
 proceeded up James river. He selected as a site for his 
 colony a fair peninsula on the northern bank of the river, 
 and fifty miles from its mouth, which he named Guandape, 
 and on which Jamestown was afterwards located. On its 
 future site he founded a settlement which he christened San 
 Miguel de Guandape. Here he found only a few scattered 
 Indian dwellings, each 100 feet long, formed of pine posts 
 and covered with thick tops of piae trees, capable of housing 
 large numbers of Indians. The land was low and swampy, 
 and thfe location proved to be malarial, as the English found 
 to be the case nearly a century later. The Spaniards began 
 work in good earnest, the heaviest labor being done by negro 
 slaves, the first ever introduced upon this continent, which 
 the institution v\as destined to curse till near three and a half 
 centuries had passed away. Winter came on before the build- 
 ings were completed, and proved to be unusually severe. 
 Some men were frozen to death on board the vessels lying in 
 
78 
 
 the river, but before that the malaria of the ill-chosen spot 
 had proaounced itself, and many colonists sickened and died. 
 D'Ayllon, having probably exposed himself to the sun and 
 weather freely, to encourage his men, was severely attacked 
 with fever and died on the 18th of October, 1526. He left 
 the temporary command of the colony to Francis Gomez, till 
 his nephew, John Ramirez should arrive from Porto Rico. 
 Troublous times were at hand, for a mutiny sprang up, headed 
 by Gines Doncel and Pedro de Bazan, who seized the con- 
 stituted authorities, including the temporary Governor, and 
 placed them all in confinement This was resented by a 
 counter-plot which restored them after a civil war, and Bazan 
 was tried and put to death. 
 
 This continent was destined to become not Spanish, but En- 
 glish, not Catholic, but Protestant. The Colony which had 
 such an unfortunate and stormy beginning was soon abandoned. 
 The next Spring the body of D'Ayllon was placed on a ten- 
 der, and the remnant of the expedition set sail from San 
 Miguel, but the tender foundered at sea, and the ocean rolls 
 above the resting place of the restless adventurer whose keel 
 had tracked its waters in a vain quest for fame, wealth and 
 honors. Of the 600 souls who had left Santo Domingo with 
 hearts beating high with hope, 150 dejected and fever-worn 
 survivors regained that island. The records and maps of the 
 expedition fully demonstrate that D'Ayllon's settlement at 
 San Miguel de Guandapo was on the identical spot afterwards 
 settled by the English. Ecija the P'doto mayor of Florida, 
 and who had in his possession these early charts, was sent in 
 1609 to find out what the English were doing at Jamestown, 
 and he reported that the later settlement was on the same 
 spot as that selected by D'Ayllon for his colony of San 
 
 Miguel.^ 
 
 The principal material for the history of the expedition is 
 
 preserved in unpublished manuscript in the Royal Library at 
 
 * Ecija Relacion del Viaje June-Sept. 1609. 
 
79 
 
 Simancas in Spain. Indeed the details are fully given in the 
 legal proceedings which resulted from as the}'^ had also pre- 
 ceded the expedition. For what little is known, the world 
 is largely indebted to the researches of one conscientious and 
 accurate delver in the records of the past. But it fell not in 
 the scope of his labors to explore more fully the history of 
 this ill-starred colony, the earliest on the continent North of 
 Mexico. Doubtless some one who has the time, learning and 
 patience to decipher the pages of the long forgotten litiga- 
 tion, will yet give to the world the full details of this tragedy 
 on our shores, which was so poignant and full of grief to 
 many at the time, but which has now been brought to life 
 again only after the waves of more than three centuries and a 
 half of oblivion have rolled over and submersed them. 
 
 "There were brave men before Agamemmon," and we now 
 know that nearly a century before the Englishman, John 
 Smith, there was the Spaniard Lucas Velasquez D' Ay lion, 
 and that eighty-one years before the English Colony of James- 
 town on the same spot stood the Spanish settlement of San 
 Miguel de Guandape. 
 
THE PROGRESS OF THE LAW. 
 
 The American Law Review, May- June, 1897. 
 
 Motion is the law of life. E pur si muove, "but it does 
 move though," indign?ntly exclaimed Galileo, rising from 
 his Knees on which he had been forced by the holy Incjuisition 
 to recant his declaration that the world rftvolved on its axis. 
 With many it has been thought that the law, or at least legal 
 proceedings, should be an exception to this universal rule — 
 move on or perish. 
 
 The survival of so many legal anachronisms, and the occa- 
 sional re-appearance of others, after so many statutes, and so 
 many decisions, and when the reason for there , and a know- 
 ledge of their origin even has passed away, .is fitly recalled by 
 the fact that our time-pieces still mark the fourth hour with 
 IlII, which, we are told, is due to the fact that the King of 
 France, to whom the first watch w^as carried, unable to un- 
 derstand its mechanism, criticised the IV, and ordered it to 
 be replaced by the letters, which, wath Chinese exactness of 
 imitation, are used by us to-day. 
 
 This is paralleled by many features of what we know as the 
 common law, whose origin has been fictitiously claimed to be 
 "as undiscoverable as the sources of the Nile. " The sources 
 of the Nile have now long since been discovered, and as to 
 the common law we know that its real origin was in the cus- 
 toms of our- barbarous and semi-barbarous 'ancestors, added 
 to by the decisions of judges of more recent centuries, most 
 of whom were neither wise nor learned beyond their age. 
 One of these, in haste to get to his supper^ or half core pre- 
 
81 
 
 hendiiig the cause, or prejudiced, it may be, against a suitor, or 
 possibly boczy (and such have been kenned), has rendered a 
 decision, another judge, too indifferent to think for himself, 
 or oppressed by the magic of a precedent, has followed, other 
 judges have followed each other in turn, and thus man}?- in- 
 different decisions being interwoven with a greater number 
 of sound ones, there was built up, pieue by piece, precedent 
 by precedent, that fabric of law, that patch- work of many 
 hands, that conception of divers and diverse minds, created at 
 different times, that jumble of absurdities, consistent only in 
 inconsistency, which those whc throve by exploiting its 
 mysteries, were v^ont to style "the perfection of human rea- 
 son, the Common Lav; of England." As a system it re- 
 sembles Otv\ay's Old Woman, whose patched gown of many 
 colors bespoke 
 
 "variety of wketchedness." 
 
 An eminent lawyer thus characterized it: "In the old vol- 
 umes of the common law we find knight service, value and 
 forfeiture of marriage, and ravishment of wards; aids to 
 marry lords' daughters, and make lords' sons knights. We 
 find primer seisins, escuage and monstrans of right; we find 
 feuds and subinfeudations, linking the whole community to- 
 gether in one graduated chain of servile dependence; we find 
 all the strange doctrines of tenures, dov/n to the abject state 
 of villenage, and even that abject condition treated as a fran- 
 chise. We find estates held by the blowing of a horn. In 
 short we find a jnmble of rude, undigested usages and maxims 
 of successive hordes of semi-savages, who, from time to time, 
 invaded and prostrated each other. The first of whom were 
 pagans, and knew nothing of divine laws; the last of whom 
 came upon English soil when long tyranny and cruel ravages 
 had destroyed every vestige of ancient science, and when the 
 Pandects, from whence the truest light has been shed upon 
 English law, lay buried in the earth. When Blackstone, who 
 6 
 
82 
 
 had a professor's chair and a salary for praising the common 
 law, employs his elegant style to whiten sepulchres and var- 
 nish such incongruities, it is like the Knight of La Mancha 
 extolling the beauty and graces of his broad- backed mistress, 
 "winnowing her wheat or riding her ass.'' The same writer 
 further pertinently asks, ""When is it that w^e shall cease to 
 invoke the spirits of departed fools? When is it that in 
 search of a rule for our conduct we shall no longer be bandied 
 from Coke to Croke, from l^lowden to the Year Books, from 
 thence to the Dome-day Books, from ignotum. to ignotius in 
 the inverse ratio of philosophy and reason; still at the end of 
 every weary excursion arriving at some barren source of 
 pedantry and quibble?" 
 
 To adapt this incongruous learning to the development of 
 an advancing civilization, recourse was had to the Roman or 
 Civil law, a system known as Equity, by which a different 
 kind of justice was administered in a separate court, so that 
 the spectacle was often presented of a suitor recovering in the 
 law court, being restrained from availing himself of the judg- 
 ment by an order issuing out of chancery, cr failing in the 
 law court because he should have instituted proceedings in 
 equity, or vice versa. Strange as it may now seem, there 
 was a time w^hen many eminent la\^yers held to this absurd 
 and illogical division between equity and law, as something 
 fore-ordained in the very nature of things, and indispensable 
 and as being, in some indefinable way, connected with the main- 
 tenance of our liberties. Yet that system would permit a 
 man to obtain a judgment, as a sacred right, on one side of 
 Westminster Hall, when on the opposite side of the great 
 hall of William Rufus, another court would be sitting which 
 would hold him an unconscionablt; rogue if he offered to 
 enforce his judgment, and would lay him by the heels if he 
 attempted to do so. 
 
 Then even on the law side of the docket remedies were 
 divided into divers forms of action, so that if one brought an 
 
83 
 
 action of trespass when he should bring trespass on the case, 
 assumpsit instead of covenant, or replevin in the cepit instead 
 of replevin in the detinet, he lost his action. And yet a royal 
 commission in England reported so late as 1831, "there is at 
 present no authentic enumeration of all the forms of action." 
 Indeed, of the forms most commonly in use, the divisions and 
 purposes were much in controversy, and it \\as diiEcult in 
 very many cases to be sure that you had your client properly 
 in court. It was said that old Judge Cowen, of the New 
 York Supreme Court, died in the belief that we had "not yet 
 sounded the depths of trespass on the case," and the great 
 Judge Story was possessed of the belief that equity could re- 
 form a policy of insurance. 
 
 It is only about fifty years since the movement was started 
 which in England, and in most of her colonies, and in the 
 greater part of the United States, has swept away the distinc- 
 tion between law and equity, and between the forms of ac- 
 tion, and has substituted for them one form of action in 
 which the plaintiff shall plainly and intelligibly, without un- 
 due repetition, state his ground of complaint, and the de- 
 fendant shall reply in the same way, so that the case shall be 
 tried in a business-like mode, upon its merits. Unfortunately 
 the reformed procedure had to be intrusted for its successful 
 working at first to judges and lawyers who had grown up 
 under the old technicalities, and consciously or unconsciously 
 they endeavored to constitute the new system to be as much 
 like the old one as possible. It was the old case of putting 
 "new wine into old bottles." But the reform has made its 
 way, and the generation of lawyers now on the stage are 
 astonished at the attachment of theif predecessors to a system 
 which in this State and some others they yielded only under 
 the stress of the upheaval following in the wake of a great 
 war. 
 
 The substance of the law, no less than the forms of its ad- 
 ministration, has been from time to time so modified and 
 
84 
 
 modernized by statute that there abides the faintest per- 
 ceptible relic of the old English common law. Strange to 
 say the reform in England has been complete, and the new 
 system is simpler than in any State in this country. Such a 
 thing as a demurrer, and the delay incident to it, is now un- 
 known in the English practice, every defense being taken by 
 answer, and legal defects in the complaint, if curable, being 
 eliiEinated by amendment without delaying the trial. 
 
 Yet such is the force of habit, that in some of the less pro- 
 gressive la\^ schools, until very recently, intedigent professors 
 wasted almost the entire time of their students in teaching 
 them the absurd farrago ^vhich used to be, a century or more 
 ago, the law in a foreign countr}^ but which for long years 
 has not been the law there or anywhere else on the planet, 
 under the delusion that because our grandfathers had learned 
 law in that fashion we should still so teach it. At the same 
 time, no learning was imparted to the students of what a 
 young lawyer most needs know , the law, and the practice of 
 the law as it exists to-day in the student's own State. 
 
 Happily this system has probably been abandoned in the 
 last of the schools, and a modern and practical education is 
 now vouchsafed to the young student everywhere. 
 
MALADMINISTRATION OF THE POSTOFFICE 
 DEPARTMENT. 
 
 The "Working Staff Is Faithful and Honest — But There Are Vast 
 Defects and Criminal Shortcomings, Involving the Service and 
 Preventing Improvement — The Corporations Responsible. 
 
 Published in "Arena," May, 1897. 
 
 "Go, my son," said the great Chancellor Oxenstierna to 
 his son, who was setting out on the grand tour of Europe. 
 "Go, and see with what little wisdom the kingdoms of the 
 Morld are governed." It is true to-da}'^, as then, and of re- 
 publics no less than monarchies. We need not take time to 
 refer to Carnegie and the iron-armor matter, as to which the 
 government was shown to have paid $520 per ton for steel 
 armor which the same establishmeat was furnishing at the 
 same time to the Russian government, laid down in Russia, 
 at $247 per ton. There are many similar incidents, though 
 smaller perhaps in the amount of the frauds, to be found in 
 other departments of the government. The object of this 
 article, ho»vever, is not to expose frauds. It seems an endless 
 and a bootless undertaking — but to point out some of the 
 maladministration of that great department of the govern- 
 ment which comes nearest the citizen and visits him more 
 frequently than any other, the tax collector not excepted, 
 and whose agents constantly go in and out among us and 
 whose tolls are a daily tax upon our pockets — the postoffice 
 department. 
 
.86 
 
 The growth of this department is more phenomenal than 
 that of the republic itself. Starting with seventy-five post- 
 masters, and an annual expenditure of $37,000 under Wash- 
 ington, it had grown in 1SS6 so as to report 53,000 post- 
 masters and 8tl:-i,000,000 of expenditures, and this, with a 
 constantly decreasing rate of charges, which, by that date, 
 had come down to three cents for the carriage of one-half oz. 
 letters anywhere in the republic. The ten years since 1S86 
 have seen postage reduced to two cents for one ounce letters, 
 and the postoflSce department increased to near 75,000 post- 
 masters and $92,000,000 expenditures. What it v^ill be even 
 ten years hence if the proposed reduction of Jetter postage to 
 one cent shall be made, and especially if telegraph or tele- 
 phone offices shall be established by the government, with low 
 rates, at every postoffice in the land, in town and country, 
 no man can estimate. 
 
 In the main, the subordinates of the postofBce do their 
 work efficiently and honestly. There is no department or 
 organization working a large force of men, scattered widely 
 apart, which can show a smaller percentage of defalcations or 
 fewer derelictions in duty. There is no complaint of thft 
 working staff, of the vast mass of men who do the drudgery 
 and the labor of the great machine which is so material to 
 the comfort and convenience of the public. If there had 
 been shortcomings in them there would have been reform long 
 since. Where the department immediately touches the 
 people it is usually regular and irreproachable. Yet there 
 are vast defects, criminal shortcomings, i\'hich, stupendous in 
 amount of losses, prevent betterments and ameliorations in 
 the service rendered the public. It is of these that this article 
 wishes to treat. 
 
 The two gravest defects in the administration of the post- 
 office department are the enormous overcharges paid to the 
 railway service, amounting to fully $15,000,000 annual loss 
 to the government, and the prevention by corporate infiu- 
 
87 
 
 encesof the adoption of the telegraph and telephone as a post- 
 oftice betterment and facility, although they have been 
 adopted by the postoffice department in ninety-five per cent, 
 of all the postoffices in the other civilized governments of the 
 world. 
 
 And firstly, the overcharges paid the railways for mail 
 service are such as to stagger belief. According to the post- 
 master-general's reports the government pays eight cents per 
 pound for the transportation of mail matter in addition to 
 paying rental for the postal cars, while the express companies, 
 which make large profits, are charged one cent per pound 
 and less for the same service. And not only this, but while 
 the average life of a postal car is twenty years, the govern- 
 ment pays on an average 200 per cent, on the cost of a 
 postal car as yearly rental in addition to paying eight times 
 the charge per pound paid by express companies for hauling 
 the car. 
 
 To get down to details: Jfostmaster General Bissell's re- 
 port for 189:1-, p. 53, and Wilson's for 1895, p. 31, show that 
 the average price for carrying the mail was eight cents per 
 pound, and this for an average distance of 41:8 miles. The 
 Texas & Southern Pacific railway carries caps, boots, cassi- 
 meres and hardware for eight-tenths of a cent per pound, 
 from ISTew Orleans to San Francisco, 2,500 miles, five times 
 the average haul of the mail for which eight cents a pound is 
 paid, '/. e., the government pays fifty times as much. On an 
 investigation before the interstate commerce commission, 
 Geo. R. Blanchard testified tbat the express companies carried 
 milk to l>lew York, a distance of 396 miles, at a charge of 
 one-sixth of a cent per pound, returning the cans free, and 
 that the distance could be increased to 1,000 miles and there 
 would still be a profit at ooe-sixth of a cent, while the govern- 
 ment pays for the transportation of the mails over the same 
 lines eight cents for an average of 4:48 miles, besides paying 
 for the annual rental of the cars largely more than 200 per 
 
cent, on their cost. Joseph H. Choate, who appeared for 
 the railroads at the same investigation, testilied that at the 
 rate of one-third a cent per pound on forty-quartcans of milk 
 there would be a profit of two to three hundred per cent.* 
 
 The amount paid the railroads for the rental of the postal 
 cars is $3,600,000 annually, a sum more than enough to build 
 outright nearly double the number of postal cars the govern- 
 ment has in use. There are 500 postal cars in use, costing 
 .153,500 to $4,0u0 each. These the govermiient could build 
 for less than $2,000,000, and their average life being 20 years, 
 it follows that at the present rentals of $3,000,000 the gov- 
 ernment is paying §T2,():)0,000 lo\. property it could acquire 
 for §2,000,000. On the Pennsylvania raih^ay the govern- 
 ment pays annually $7,327 per car for the rent of sixty-nine 
 cars, which could each be bought outright for less than half 
 the money, thus over 200 per cent, is paid by the government 
 as rental of postal cars which it should own. On the New 
 York ('entral the government does worse and actually pays 
 $8,500 each for annual rental of postal cars which can be 
 bought for 83,500 or less, nearly 250 per cent, interest. In 
 this way $3,600,000 a year are spent for the rentals, whereas 
 if the government would build the 500 cars at, say $3,500 
 each, a full estimate, the outlay would be $1,750, ''00, being 
 less than half the annual r«^ntal. Three per cent, interest on 
 this sum would be only $52,500 per annum. The life of a 
 car being twenty years, the annual depreciation would be 
 $87,500, and the repairs added \;vould not make the entire an- 
 nual cost exceed ,|200,00(» instead of the present $3,600,000. 
 
 Besides the annual $3,600,000 for rental of postal cars, the 
 sum appropriated to railroads for hauling the mails is 
 $29,000,000, an amount which many deem full $15,000,000 
 in excess of a fair and moderate charge. Not only this, but it 
 is in evidence that in the month set apart for the quadrennial 
 weighing of the mails, many railroads, if not all, are in the 
 habit of shipping vast numbers of sacks of congressional mail 
 
89 
 
 books and pamphlets to points on their lines, and then reship- 
 ping them again and again to s\^ ell the gross weight on which 
 they are to receive pay ior the next four years, and so com- 
 mon is the habit that when soiie were caught red-handed, 
 the excuse of their officers was, "they all do it," and the de- 
 partment was not powerful enough to secure any punishment 
 meted out to the corfessed offenders. 
 
 So well known are these abuses that when Senator Butler 
 offered an amendment to the postal appropriation bill, that 
 the government should not pay for the annual rental of any 
 postal car more than ten per cent, of its value (double pay, 
 for the life of a postal car is twenty years), nor more for the 
 transportation of mails than express companies pay per pound 
 for like services, the senators did not dare to go on record 
 upon the motion, and protected themselves by refusing an 
 "aye and no" vote upon it. 
 
 In the discussion in the Senate, February, 1897, Senator 
 Yilas, formerly postmascer-geaeral, concurred in the substance 
 of the above statements, and the necessity of great reduc- 
 tions. He stated the rate for railway mail had been hurried- 
 ly tacked en to an appropriation bill in 1873, that the rate 
 was exorbitant then, and though railroad charges generally 
 had been reduced forty per cent., their charges to the gov- 
 ernment, which v^ ere extravagant even in 1873, had not been 
 reduced at all. Senator Gorman, who has never been sus- 
 pected of being on unfriendly terms with great corporations, 
 made the following frank speech: "I do not impute to the 
 men who are in the postoffice department or those who pre- 
 ceded them a want of ability or courage to act; but the fact 
 is, Mr. President, that the great power of those corporations 
 who control everything, who are powerful enough to dictate 
 policies and make and unmake public men, is so omnipotent 
 that no executive officer has been found in the last twelve 
 years, except in the single instance and to the extent I have 
 
90 
 
 indicated, who has attempted to reduce the compensation for 
 mail transportation." 
 
 Were the government to build and own its o'vn postal cars 
 and merely pay the railroad companies for hauling them, as 
 the millionaires have their private palace cars hauled, over 
 $15,000,000 a year would be readily saved out of the present 
 yearly expenditures of the postoffice. With this done, not 
 only would there be no annual deficit as now, and not only 
 could letter postage be reduced to one cent, and postal cards 
 to one-half cent, but even the postage on books and news 
 papers and pamphlets could probably be somewhat reduced. 
 There could be no further attempt by a "Loud bill" to stop 
 the circulation of free-silver and anti-monopoly literature 
 under the pretext of a necessity to increase postal rates to 
 prevent a deficit. The way to prevent a deficit is for the 
 government to own its own postal cars and pay the railroads 
 the same rates only for hauling them that others pay. 
 
 The second great defect in the postal service is that the 
 swift mail service, the electric mail, is illegally turned over 
 to private companies who operate it at "the highest figure that 
 trafiic will bear," and furnish offices only at the points which 
 will pay handsomely, thus giving the smallest possible benefit 
 to the great mass of the people and the largest possible profit 
 to the multi-millionaires who have confiscated the lightnino^ to 
 their sole profit. This is done illegally, as the Constitution 
 places the postoffice in the exclusive control of Congress, and 
 no one bat the government has a right to operate this best 
 part of the mail service. What would be our condition if the 
 steam mail service had been turned over to private companies 
 as the electric mail has been? 
 
 In practically .every country except the United States and 
 Canada, the telegraph and telephone are a part of the mail 
 service. The average rate for telegrams in Europe is ten 
 cents for twenty fvords, and the average cost thirteen cents 
 each. The average charge for telegrams in this country is 
 
91 
 
 tbirty-one cents each. Then, too, in other countries the 
 postofiBce department has a telegraph and telephone at nearly 
 every postofiQce in the country as well as in the town. It 
 should be so here. It w ould go far to destroy the isolation 
 of farm life, and v^ould enable those living in the country to 
 procure the services of physicians in less than half the time, 
 and with less expense than sending a messenger. The market 
 prices in tocvn would be known daily, and whether ir would 
 be well to carry in produce or not. Then many a useless trip 
 to the railroad station for freight that has ^not come, or to 
 the county town as witness in a cause that has been post- 
 poned could be avoided. Then, too, by increasing the number 
 of postoffices, most of the advantages of country free de- 
 livery could be had, as messages requiring dispatch could be 
 telephoned. 
 
 The Western Union Telegraph company is bonded and 
 capitalised at $120,000,000, on which regular dividends of 
 six and eight per cent, are paid, besides ^100,000 salary to 
 the president and large salaries to other high officials. Yet 
 the stockholders of that company have never paid into its 
 treasury but $440,000. The other $119,560,000 (or so much 
 of it as is not water) has teen created by exorbitant rates. 
 This has been raked out of the public by high rates in addi- 
 tion to the annual dividends on its watered stock, high sala- 
 ries to high officials and lobbying expenses and franks to pub- 
 lic officials. The plant of the Western Union is estimated 
 to be really worth $20,000,0:X), so an eignt per cent, divi- 
 dend on its nominal capital of six times that amount} is in 
 truth forty -eight per cent. A tirra in N"ew York offered the 
 government a few years ago to put up a thoroughly equipped 
 line for $35,000,000, not only to the 21,000 select points the 
 Western Union now operates, but to each of the 75,000 post 
 offices throughout the Union. 
 
 As every postmaster could use the telephone, probably that 
 instrument could be put in at each of the 75,000 postoffices 
 
92 
 
 in addition to using the telegraph, at 1 5,000 of the postoffices, to 
 forward long distance messages. With the vastly increaBed 
 number of messages which would follow loiv rates and the 
 extension of the service to every postolBcf^, experts express 
 the opinion that a uniform five-cent rate for ten words bs- 
 tween any two points in the Union would be profitable 
 to the government. In England, when the telegraph passed 
 from private hands to the government, with a reduction of 
 rates to twelve cents for twenty words, the messages prompt- 
 ly increased thirty-fold in number. Other countries had sim- 
 ilar experience, the increase in the number of social messages 
 being simply marvelous. 
 
 Another great objection to the present system is that while 
 the higher officials are, like the higher railroad officials, paid 
 enormous sums wLich they cannot, and do not, earn, the vast 
 mass of operatives are screwed down to the lowest possible 
 figure and are in constant danger of losing their places. This 
 would bo otherwise when the telegraph and telephone are 
 operated under the postoffice dejmrtraent. The high officials 
 would not, as now, all speedily become millionaires, and the 
 men who do the work would receive reasonable salaries, and 
 would have, like other postoffice officials, some stability of 
 tenure. 
 
 The object of government in operating the telegraph and 
 telephone service will not be to extort high rates to pay great 
 salaries and dividends on a six-fold watered stock, but to ope- 
 rate this department of the postal service as it does the others, 
 upon fair salaries to men and officers, at as near cost as possi- 
 ble —no profits will be desired. Then, too, instead of restrict- 
 ing itself to 21,000 selected points, the government would 
 utilize the 75,000 postoffices and steadily increase their num- 
 ber. The increased business would greatly increase the pay 
 of country postmasters, now inadequate, while the telephones 
 and telegraph instruments, being placed in the postolfices, the 
 
93 
 
 rents now paid for offices by the private companies, would be 
 a clear saving to the government. 
 
 It has been objected by the Western Union lobbyists that 
 the telegraph and telephone systems could, then be controlled 
 for partisan purposes. But we know that the postoffice offi- 
 cials in ihe last campaign were not s(» controlled, while capi- 
 talistic pressure was brought to bear as far as possible upon 
 nearly e\ ery telegraph operator who could be reached. There 
 is every reason to believe that under government control mes- 
 sages would be more sacred than under the present system. 
 As to telephones for private use, the government in Switzer- 
 land rents theiE at $<d per annum, and even in Paragua}'", the 
 government charges only $12 per annum. 
 
 But it ma}^ be asked why the government has not been 
 pressed to take this step when all other governments have 
 adopted electricity as a motive power in their postoffice econ- 
 omy. 
 
 The telegraph in this country originally (1 844-4:7) belonged 
 to the postoffice, and when from mistaken notions of economy 
 Congress permitted it to go into private hands, Eenry Clay, 
 the great Whig leader, and Cave Johnson, the Democratic 
 Postmaster General, earnestly protested and prophetically 
 foretold the evils that have followed. Repeated attempts to 
 restore these betterments to the postoffice have been made, 
 supported by leading men of all parties, including five pobt- 
 masters-general. Xo less than eighteen congressional com- 
 mittees have from time to time reported upon bills restoring 
 the telegraph to the postoffice; of these sixteen have reported 
 in favor of it, one report w as non-committal, and one slightly 
 adverse. The telegraph monopoly, vvhich finds its revenue 
 better than a gold mine, has always fought for delay, and 
 by its powerful lobby at Washington, its lavish issue of franks 
 to congressmen and other public officials and its influence over 
 the daily press, to which it furnishes telegraphic news, has 
 always so far prevented a roll call on the measure. They 
 
94 
 
 will continue to do so as long as possible. There caa be no 
 doubt that if the measure could come to a vote public opinion 
 would force a result in the interest of the people. 
 
 In 1868, indeed, the Western Union was virtually whipped, 
 and promised to surrender if given two jesirs to ^^ind up, and 
 the act was passed, which is till on the statute book, that all 
 telegraph lines built after that date should be built with the 
 notice that the government could at will take them over upon 
 an appraisement of the value of the plant — without fr'anchise 
 being allowed for. But by the njxt Congress the Western 
 Union was strong enough to prevent a vote and has been so 
 in every Congress since. 
 
 Boards of trade in Boston, Xew York, Chicago and other 
 leading cities have petitioned Congress for a postal telegraph. 
 As far back as 1870 the Legislatures of Massachusetts, x'Vla- 
 bama and Nebraska did the same, and the Legislatures of 
 IS'evada and Nebraska in 1873, and the Legislatures of other 
 States have followed their example. 
 
 The report of Postmaster-General Wanamaker, several 
 years since, contained a list of official bodies, and labor and 
 other organizations m hich had asKed Congress for this great 
 boon and betterment, and the bare list copered several pages. 
 But the people have so far aslced in vain. The Western Union 
 systematically distributes its franks to every Senator and 
 member of Congress who will accept them, ana to every in- 
 fluential official at Washington, and elsewhere, whom it 
 deems advantageous to influence. It controls the daily press 
 largely, through its dispensation of news; it has, too, the 
 active co-operation, sympathy and support of the money 
 power, especially of the great trusts, a system of which it is 
 thn pioneer, and it constantly maintains a powerful lobby. 
 
 Seeing the great difficulty in getting a postal telegraph and 
 telephone bill through Congress, owing to the dilatory and 
 obstructive tactics of the Western Union lobby, and while 
 waiting the passage by Congress of a postoffice telegraph and 
 
95 
 
 telephone act which shall ^ive us a uniform rate of five cents 
 between any two points in the Union, each State whose Legis- 
 lature represents the people, and not the corporations, should 
 pass an act providing for a maximum rate for telegrams of ten 
 cents for ten body words fur a message between any two points 
 in its own borders, and a maximum annual rental for tele- 
 phones of $12 at a residence and $18 at an office or store. 
 
 This will (1st) give the people immediate relief, as the 
 larger part of telegraphing is done within state limits, and it 
 will incidentally cause a reduction in interstate rates. 
 
 (2nd). By accustoming the people to lower rates and legis- 
 lative control of telegraph and telephones, it will hasten pub- 
 lic ownership, 
 
 (3rd). It will reduce the exorbitant profits and salaries of 
 these overgrown corporations, and disable theix from spend- 
 ing so much money io lobbying and franks to prevent post- 
 office ownership of telegraph and telephones. 
 
 The power of State Legislatures to regulate the charges of 
 telegraphs and telephones within their own limits is well 
 settled by the decisions of the United States Supreme Court. 
 
 If the postoffice were operated in the public interest, postal 
 savings banks and a parcel post would also long since have 
 become efficient parts of our postoffice s_;Stem. They are so 
 operated in nearly every other civilized country, to the profit 
 of the goveroment, and thts greatest benefit of the masses. 
 There being no risk of broken savings banks, earnings are 
 more generally deposited, and the parcels post largely saves 
 the public from the high rates of our express system. 
 
 We miscall this a government "of the people, by the people, 
 and for the people " A consideration of the above defects 
 in our postoffice management shows, beyond cavil or question, 
 that in consideration of the benefit of the public we are far 
 behind most other countries, even those making small preten- 
 sions to popular government. Taking our postoffice depart- 
 ment as a sample, it could be said that ours is a "government 
 
96 
 
 of the corporations, by the means of the lobby, and for the 
 benefit of the millionaires." 
 
 As was said by the inspired prophet of old, "The ox knoweth 
 its owner and the ass its master^s crib, but Israel doth not 
 know, this people do not consider." "With the wealth of a 
 continent, entirely the creation of their own ha.nds, they per- 
 mit a few thousand men to confiscate it for their personal 
 profit. With the wonderful discoveries of steam and electricity 
 given by Providence for the betterment of the condition of 
 the masses, with apathy they see railroads and telegraph and 
 telephones used to increase the wealth of millionaires and to 
 bind themselves and their posterity in the chains of hereditary 
 serfdom, and standing upon the shoulders of more than sixty 
 centuries, with the advantage of the lessons they should^teach, 
 without effort, almost without a struggle, they see the "power 
 of the purse" pass from them, and know not that without it 
 freedom is an empty form, and the taskmasters of Goshen, 
 their certain and earlv doom. 
 
TWELVE REASONS WHY THE TELEGRAPH 
 
 SHOULD BE RESTORED TO THE 
 
 FOSTOFFICE. 
 
 In "New Time" Magazine, July, 1897. 
 
 Among the many reasons why the telegraph and telephones 
 should be owned and operated exclusively by the postoflBce 
 department, there are no less than twelve of such weight that 
 any one of them should be sufficient to cause the adoption of 
 that measure by Congress. 
 
 1. The Constitution requires it. That instrument (Art. 1., 
 Sec. 8), places the establishment of postal facilities exclusively 
 in the government. Under that provision, originally the 
 mail was carried on horseback; then by stage coach; then 
 with the advent of steam it was carried by railroad and steam- 
 boat. When messages began to be sent by electricity, the 
 government (18i4:-47), therefore, logically adopted and 
 operated the telegraph. When, in a fit of economy, it was 
 turned over to private corporations, Henry Clay, the great 
 Whig leader, and Cave Johnson the Democratic Postmaster- 
 general, earnestly opposed this unconstitutional action. Lead- 
 ing men in all parties since, including five Postmasters-gen- 
 erals, have endeavored to restore the electric mail to the post- 
 office, but the powerful telegraph lobby has been too power- 
 ful in Congress to permit a vote upon the question. Yet, out 
 of eighteen committees to whom successive bills for govern- 
 ment ownership have been referred, sixteen have reported fa- 
 vorably, one was non committal, and only one was adverse. 
 
 2. If the government owned the electric mail, a telegraph 
 
 7 
 
98 
 
 or telephone would be established at each of the 75,000 post- 
 otfices, aud, indeed, the number of postoffices would be greatly 
 increased, whereas new the telegraph goes to only 21,000 
 selected points, for the private conpanies, operating purely 
 for piofit, naturally seek only points that pay well, while the 
 object of the government would be to serve the greatest num- 
 ber of people, the whole people, if possible, and at bare cost, 
 no profits being desired. The high rates and restricted num- 
 ber of offices now make this great discovery of no benefit to 
 the great mass of the people. 
 
 3. The government desiring only to earn expenses could 
 give a uniform low rate of five cents between any two points 
 in the Union. This is the opinion of experts. 
 
 4r. The government could operate it more cheaply. There 
 would be no enorncous salaries to the higher officials, nor 
 would great sums be paid out, as now, to maintain a lobby at 
 Washington, and at each State capital, and to retain lawyers 
 and editors to influence public opinion. Then the govern- 
 ment could save the rent now paid by the companies, as it 
 could use for the telegraph and telephones the same buildings 
 it now owns or rents for postoffice purposes at each point. 
 
 5. The government, while not paying, as the private com- 
 panies do, enormous sums — from $100,009 down— as salaries 
 to the higher oiBcials, would, on the other hand, not follow 
 their example in giving starvation wages to the vast army of 
 employees who do the real work. The object of the govern- 
 ment not being to earn big salaries and dividends on a six- 
 fold watered stock, it could and tvould pay a living wage to 
 the operators. Besides, the increased business would largely 
 increase the pay of postmasters at country postoffices. 
 
 6. The operators would have some fixity of tenure, being 
 postir asters, and hence not liable to be turned out for voting 
 their choice. In the last campaign every pressure was 
 brought to bear upon the employees of the great corporations. 
 
99 
 
 but public sentiment would not ha.ve permitted the postofBce 
 oflRcials to apply the same pressure to the postmasters. 
 
 7. Messages would be, like the mails, more secret. Now 
 the business of every man is at the mercy of the heads of 
 private corporations, which are in no wise subject to public 
 opinion. 
 
 8. It would emancipate the press, who are now in the 
 power cf the private companies, acd must tak'e such news as 
 they send, and dare not be free in discussing certain questions. 
 
 9. The cheap rates would enable every weekly paper to 
 take telegraphic dispatches. This would benefit printer and 
 the public by starting new papers, and extending the circu- 
 lation of old ones. In England, when the government took 
 over the telegraphs and adopted cheap rates, the number of 
 press dispatches instantly increased thirty fold — not thirty 
 per cent, merely, but thirty times the former number. 
 
 10. All other countries, practically, except Canada, have 
 the telegraph and telephone operated by the government, 
 and at low rates, and in all it has been a success for the govern- 
 ment, and a vast bt-nefit to the public. We claim to be a busi- 
 ness people, but we are guilty of turning over the best pay- 
 ing part of the postoffice — the quick, rapid electric mail — to 
 private corporations, and operate the slow, non -paying part, 
 by the public at a loss, of course. 
 
 11. The government placing a telephone at every country 
 postoffice, and increasing the number, of course, would, to a 
 large extent, amount to rural delivery, without the expense 
 that an extension of the present city delivery to country districts 
 would be. This would also destro}^ the isolation which is 
 now the drawback to country life, by putting the country 
 districts in speaking distance of the town. It would enable 
 those in the country to summon a doctor, inquire for freight, 
 ascertain the daily state of the markets, and to communicate 
 with the courthouse tvhen needed as witnesses, or on other 
 business. 
 
100 
 
 1 2. No millionaires would be created, as now, out of the 
 surplus earnings, but the money, beyond the bare cost of 
 operation would remain in the pockets of the people, while 
 at the same time these facilities would be extended to erery 
 nook and corner of the Republic, and become a convenience 
 to the whole people, instead of being, as now, a mere ad- 
 vantage to a few, which is very often to the detriment of the 
 many. 
 
LETTER TO THE RAILEOAD COMMISSION OF 
 NORTH CAROLINA. 
 
 Railroads Have Taken $13,000,000 Too Much from 
 North Carolina In Six Years. 
 
 Making 15 Per Cent. Net— Over $2,000,000 Illegally Carried 
 Out of the State Yearly— The Fares Should Be Two Cents— 
 The Freight Rates Charged in North Carolina Are Also Too 
 High, and Railroad Taxes Are Much Too Low. 
 
 In "News and Observer" July 13, 1897. 
 
 To the Honorable The Gentlemen of the Railroad Commis- 
 sion : 
 
 In compliance with your request, I respectfully submit some 
 of the reasons which occur to me why you should accede to 
 the public demand, already granted in some States, for a sub- 
 stantial reduction of passenger and freight rates. At no time 
 in the last six years have numerous, able and skillful counsel 
 been lacking to represent to you the opposition to any con- 
 cession to the public wishes. I wish, therefore, that your 
 invitation lo present the people's side cf the question had 
 been extended to some one far abler than I to express the 
 justice of that demand, and with power to persuade you to 
 grant it. 
 
 The right of the public, either through a legislative act or 
 by means of a commission, to 
 
102 
 
 REGULATE AND FIX THE RATES 
 
 of all common carriers, and especially of railroads, has always 
 been recognized as law. Repeated decisions of the United 
 States Supreme Court have of late years re-afRrraed this law, 
 and so conclusively and clearly, as to be beyond chance of 
 recall. 
 
 The somersault of a judge of that court, which reversed 
 the precedents of 100 years, in order that an income tax of 
 $60,000,000 might be transferred from the rich syndicates, 
 corporations and millionaires, to the backs of the toiling pro- 
 ducers sent a thrill of indignation through the country, whose 
 last vibration has not yet been felt. But a decision which 
 should attempt to change the immemorial law and put in the 
 hands of the railroad corporations the unrestricted power to 
 fix the tolls we should pay on the internal commerce of the 
 country, would place the value of every man's land, of every 
 man's cotton, or other produce, at the mercy of these cor- 
 porations. 
 
 To turn over the fixing the tariff upon our foreign com- 
 merce, absolutely and without disguise, to the syndicates and 
 trusts who grow rich upon it is not a circumstance to the 
 effect upon the public welfare, and the public mind, which 
 would follow the turning over this tariff on our internal com- 
 merce (which is many hundred times greater than that which 
 comes from foreign countries through our custom houses), to 
 be fixed, at their will, by those who are to receive the profits 
 of their own action. If the millers were to combine to fix 
 the tolls of their mills without regulation by the public, it 
 would place the bread of the people at their mercy. But that 
 combination is absolute!}' nothing to the power (if they 
 possessed it) of corporations to levy at will their own rate of 
 toll upon every pound of freight, and every passenger that is 
 moved by steam in this land. 
 
103 
 
 The very act of assembly to which you owe your existence 
 expressly confers upon jou the power to fix rates for passen- 
 gers and freights, and for telegraph ana telephone messages. 
 Unless your Commission is a nullity you have the power, and 
 you were 
 
 CREATED TO EXEKCISE IT. 
 
 The public demand for a reduction of railroad charges must 
 have been strong indeed, which in spite of the well-known 
 influence of those corporations and their long experience in 
 defeating legislation con Id force through the act which created 
 your commission. It was not established to compliment three 
 gentlemen with office, nor to add to our taxation an expense 
 of some $12,000, annually, but the Commission was created 
 because the public was overwhelmingly convinced far back — 
 certainly prior to 1891 — that the railroad charges were ex- 
 cessive, and oppressive, and that relief could not be had from 
 the voluntary reduction of them by those receiving railroad 
 incomes, but must be ordered by the people, in right of their 
 sovereign power to fix the rates of common carriers. 
 
 The only restriction upon your power to fix rates ever sug- 
 gested by any court, is that the rates should not be too low to 
 afford a reasonable interest upon the actual value of the prop- 
 erty. This valuation you have placed at $26,000,000, upon 
 all the railroads in this State. The railroads have contended 
 that even this is too high. 
 
 There being about 3,450 miles of railroad in this State, this 
 is an average of about $7,800 per mile. If this sum in cash, 
 would replace, as is probable, the railroads of the State, then 
 it is a sufficiently high valuation. You have said, after careful 
 investigation, I presume, that it is the actual valuation of the 
 railroads, including their franchise. Acts 1895, chapter 119, 
 section 45. 
 
 The q'lestion then is what is 
 
104 
 
 A REASONABLE INTEREST 
 
 upon the investment of $26,000,000. Upon so large an in- 
 vestment as ttiat three per cent, is a good interest, for govern- 
 ment bonds at that figure are at par. Or take the North 
 Carolina value of money; our State four per cent, bonds are 
 at par, and even Raleigh five per cent, bonds lately sold at 
 $9 above par. Even in small loans to individuals bearing six 
 per cent, not more than four per cent, net, after paying taxes, 
 is received by those living in towns. The Supreme Court of 
 the United States in the late case of Livingston vs. Sanford, 
 164 U. S., 578, say that rates high enough to earn four per 
 cent, net will not be disturbed by the courts, and in Dow vs. 
 Beidelraan, 125 U. S., 680, the same court says that rates 
 high enough to earn 1^ per cent, are sufficient when the pres- 
 ent holders have bought the railroad, or its stock, below par, 
 as is the case w ith all the large railroad systems in this State. 
 
 You have fixed the railroad valuation at §26,000,000, but 
 the bonds and stocks of the railroads in this State amount to 
 $94,000,000. It is clear, therefore, that rates high enough 
 to pay interest or dividends upon the latter sum are grossly in 
 excess of what is just to the public. Freight and travel are 
 thus being taxed to pay dividends and interest on nearly 
 $70,000,000 of fictitious capital. 
 
 There are 
 
 THREE DIFFERENT METHODS, 
 
 each of which will denonstrate that the present rates are 
 grossly excessive. 
 
 1. Take the three great railroad systems of the State, which 
 embrace nearly four-fifths of the total valuation. Your re- 
 port for 1896 shows as follows: 
 
105 
 
 Yaluation. ISTet Earnings. Miles. 
 
 Atlantic Coast Line, 16,852,000 $963,000 685 
 
 Southern E. R. System, 8,104,000 1,345,000 1,034 
 
 Seaboard E. E. System, 5,265,000 667,000 618 
 
 ,221,030 $2,975,000 2,307 
 
 That is to say, property invested of $20,000,000 (but cost- 
 ing present owners far less), is allowed rates high enough to 
 earn nearly $3,000,000, net or fifteen per cent, interest an- 
 nually out of the people of North Carolina. Your report says 
 the property is worth $20,000,000, including franchise. Your 
 report says the net earnings are nearly $3,000,000, and even 
 in this we are at the mercy of the corporations. There has not 
 yet been a cross examination or inspection of their books. We 
 do not know whether in pro rating they have allowed the 
 North Carolina portion of their roads as much as an impartial 
 calculation nright prove to be just. We do not know how 
 much the net earnings would swell if only moderate salaries 
 ■were allowed, and improper charges disallowed, and the Su- 
 preme Court of the United States say in Wellman vs. Rail- 
 road, 143 U. S., and they say it again in Eeagan vs. Trust 
 Co., 154 U. S., at page 412, that no rates will be held loo 
 low until the salaries are shown to be not excessive, or that im- 
 proper charges have not been made, and that the rates fixed by 
 the public authority cannot be supervised till these matters 
 are shown up. In the absence of any examinations by your 
 board of the original books, it is proper to say this in support 
 of a suggestion that an auditino; of the books might show that 
 the net earnings upon calculation by impartial accountants 
 are probably 
 
 FAR MORE THAN FIFTEEN PER CENT. 
 
 The railroad returns as made to you are ex parte, and 
 among very many things requiring explanation is this: In 
 
106 
 
 1891, the gross receipts were returned by the railroads at 
 $8,551,000, and net earnings as $3, 120,000. In 1896 the 
 gross earnings had increased nearly $1,203,000, but in some 
 unaccountable way there is an increase of operating expenses 
 of over $1,050,000, or in other words, the more business these 
 corporations do the larger the percentage of expenses, which 
 is contrary to experience. Besides, we know that improve- 
 ments cheapening the cost of operation ha\e been constantly 
 made in the railroad world, and that the wages of the men, the 
 rank and file, have been rather decreased than diminished. 
 The Inter-State Commerce Commission report a sharp reduc- 
 tion as to the pay of the men, and an increase only in the 
 salaries allowed by the higher officials to themselves, but it 
 would take a great deal of this to account for the addition of 
 $1,050,000 to operating expenses in North Carolina in five 
 years out of an increased business of less than $1,200,000. 
 
 Then the North Carolina Kailroad, 223 miles long, reported 
 its pro rata contribution to salaries of "general officers" in 
 1891, $21,500; the same item in 1894 was $24,089 (more than 
 the total salaries paid by this great State to the Governor and 
 all the heads of the Executive Departments combined), while 
 in 1896, after public criticism, this same item has shrunk 
 without explanation to $5,875. This and many other mat- 
 ters which seem unaccountable, may, it is true, be explained. 
 
 THEY NEED IT. 
 
 As I have said, the value of "the investment" of these 
 three chief lines in North Carolina is reported by you as be- 
 ing $20,000,000. At four per cent, net the rates should be 
 high enough to allow them $800,000 net earnings, but the 
 actual net earnings reported upon the showing of these three 
 companies for 1896 is $2,975,000, i. e., they carried off to 
 their non-resident owners the sum of $2,175,000 in excess of 
 the fair and legitimate rate of four per cent, on the invest- 
 ment. The excess extorted out of us alone is, therefore, far 
 
107 
 
 more than double the entire sura we pay to support our State 
 government and public schools, and this illegal excess goes 
 to New York and London bankers. 
 
 It must be remembered that this j^roposed four per cent, net 
 is above charges for railroad wrecks, betterments, repairs, law 
 expenses, taxes, high salaries, and every possible charge which 
 the corporations have; seen fit to'crowd into their expenses, 
 for the sum total of the money received by these three lines 
 for their operaiions in North Carolina in 1896 is admitted to 
 by i^S, 476.000. 
 
 Thus the sum in excess of a reasonable allowance of four 
 per cent, on the investment which these three systems have 
 carried out of North Carolina since the day your Commission 
 was established to reduce rates — the excess above legal rates 
 in these six years — has been 
 
 NEAR THIRTEEN MILLION DOLLARS, 
 
 exclusive of interest. This sum under the decisions of the 
 highest court in this land could justly and properly have been 
 kept here, and its presence to-day would make this State 
 blossom like a rose. Talk about frightening capital from 
 coming into the State by "knowing our rights, and daring to 
 maintain them." What we need is to keep a just part of our 
 own capital in the State, and not to permit it to be carried 
 off, to be used by Wall street and London bankers to wreck 
 other corporations elsewhere; to bid them in at an under 
 price and thus repeat the process over and over again. 
 
 It may be adroitly urged that you cannot reduce through 
 rates. True enough, but you can protect our own people by 
 reducing fares and freights between any two points in this 
 State, so that the gross receipts of all kinds, through and local, 
 shall not net more than four per cent, on the value of the 
 money invested. Peik vs. Chicago, 94 U. S., 164. 
 
 2. But there is another proof that 
 
108 
 
 RATES ARE TOO HIGH. 
 
 The value of money began increasing with the demonetization 
 of silver and went on decreasing, as evidenced by the fall in 
 the prices of everything else, till 1891, At that time your 
 Commission was established to reduce railroad rates. It is 
 impossible to understand the tenor of the debates for and 
 against the measure in that and in previous Legislatures, nor 
 the intense struggle by the railroad lobby and the railroad 
 newspapers against it upon any other basis. Indeed the 
 power to do that is the very kernel of the act creating the 
 Commission. 
 
 Whatever change your Commission felt able to make did 
 not amount to any "cut," but was a " raise" lor comparing the 
 Kailroad Commission report of 1S92 with that of 1891, it 
 appears that while gross earnings had increased $80,000. the 
 net earnings had increased $83,000 — a greater profit than 
 before. Had rates merely remained the same, an increase of 
 $80,000 in gross earnings would have shoM n 830,000, not 
 $83,000 increase in net earnings. If the public demand, as 
 evidenced by the establishment of your Commission, could 
 have been complied with, there would haye been a sub- 
 stantial cut in 1891. For a stronger reason there should 
 be a greater one now. Since the repeal of the purchasing 
 clause of the Sherman Act the value of the money in which 
 we pay our freights and fares has gone on increasing, but 
 railroad charges 
 
 HAVE REMAINED THE SAME. 
 
 Cotton, which for the six years ending 1891, had averaged 
 eleven cents, in the six years since has averaged barely 
 seven; a fall of over 331- per cent. The railroad rates ought 
 in fairness to be 33 per cent, less than the figure to which 
 they ought to have been cut in 1891. 
 
109 
 
 We know that the great railroads contributed great sums 
 in the last campaign to caaintain the gold standard. We are 
 now paying these sums back by high rf tes, and thus paying 
 them to increase the load resting upon us. A commission 
 established by our people ought, it is respectfully submitted, 
 to have that mercy upon us which we cannot expect from 
 the non-resident owners of these corporations who knovi no 
 more about us and care as little, as the English landlords do 
 for their Irish tenants, or their Hindoo subjects. 
 
 One of these great systems saw the justice of the public 
 demand and ihe wisdom from a business standpoint, of recog- 
 nizing the enhanced value of money by reducing races. Its 
 owners made a very handsome cut, with great profit to them- 
 selves and to the gratification of their patrons. 
 
 WHY THOSE REDUCED RATES 
 
 were stopped, and the public and the line deprived of an 
 arrangement so highly satisfactory to both, anH by what 
 methods it.was done, is known by your commission already. 
 
 3. There is still another demonstration that rates are too 
 high as to passenger rates. The rate now, as in 1891, is still 
 3^ cents per mile, and it is higher than that on some of our 
 roads, yet the railroads report the average received per passen- 
 ger per mile two and one-fifth cents. Clearly, therefore, 
 there is a vast number cf people who riJe either absolutely 
 free or at less than the general public pay. The Railroad 
 Commission act contemplates that there shall be no discrimi- 
 nation, and could there be worse discrimination thau to pile 
 up 3^ cents on the general public so that they shall pay 
 enough not only for their ov\n riding, but for reduced rates 
 and free rates to others. 
 
 There are occasionally excursions, and the immense crowds 
 which go upon them show the demand for lower rates. If a 
 reasonable permanent rate of two cents per mile were given 
 all the time it would save the public great inconvenience from 
 
110 
 
 overcrowding, and the railroads from the pressure for cars on 
 these semi-occasional fits of concession. There would be a steady 
 stream of travel which would be equally, and probably more, 
 remunerative to the railroads (as has been the experience else- 
 where), and it would be far more satisfactory to tbe people, 
 who, after all, are the only support of the railroads. 
 
 Then the system of granting 1,000 mile tickets at two cents, 
 or 2^ cents to men who have $1:0 or $50 to spare, and exact- 
 ing 3:^ ceots from those ^^ho need the reduction still more is 
 only less 
 
 OBJECTrONABLE THAN FREE PASSES, 
 
 I commend to your consideration the following extract from 
 the report of the Eailroad Commissioner of Michigan: "To 
 sell 1,000 mile tickets at a less rate per mile than that for a 
 less number of miles is a gross discrimination between passen- 
 gers entitled to the same treatment. It violates the prin- 
 ciples of justice the same as if 100 car loads of freight could 
 be carried at a less rate per car than ten car loads between 
 the same points.'' The doctrine of "equal rights to all, and 
 special privileges to none" is especially applicable to the 
 rights of the public o?er a common carrier. No man should 
 be charged higher for the same accommodation because he is 
 poorer, 
 
 I do not advocate a two cents per mile rate on all railroads, 
 but wherever one man travels at two cents another should 
 not be charged more for the same grade of accommodation. 
 The rate shoald be graded, as in many States. Those whose 
 gross receipts exceed $4,000 per mile should not charge more 
 thao two cents per mile. Those whose gross receipts are 
 over $3,000, but less than $4,000, should charge not over 2^ 
 cents per mile, and all others not over three cents. The sarce 
 or similar reduction and grading should be made in freight 
 rates, the object being to allow a fair, just per centage of net 
 profits on the actual value of the "plant.'' 
 
Ill 
 
 There are 180,000 miles of railroad in the United States. 
 They have been built with great difference in cost and through 
 sections differing vastly in the amount of travel and freight. 
 Ingenious tables could be made, which by skill in grouping, 
 would make almost any given rate the average. There are 
 roads charging 
 
 LESS THAN ONE CENT PER MILE, 
 
 and a few charging as high as the highest allowed in this 
 State. The German government recently sent a commission 
 to this country to investigate our system. With German 
 patience and plodding thoroughness as to detail, they reported 
 that upon a fair average two cents per mile was the average 
 American rate. Lloyd Brice, in an article written in the 
 railroad interest in the North American Review for March, 
 1897, also says that the average American rate is two (2) cents 
 per mile. As far as I can judge, it is about the figure, and 
 considering the enhanced value of money, it would require a 
 larger quantity of cotton, corn, or labor to buy a passage for 
 100 miles now at two cents per mile, than would a few years 
 back have brought a passage for 100 miles at 3^ cents per 
 mile. 
 
 I hope your Commission will see proper to grant the pub- 
 lic this concession, which is so eminently just. I am confi- 
 dent that the railroads would make more money as well as 
 more friends b}'^ themselves voluntarily conceding this reduc- 
 tion. These agitations for two (2) cents fares, wherever they 
 have been begun have never ceased till the demand has been 
 granted. The demand is so just and reasonable in itself that 
 it could not be otherwise. 
 
 I have preferred the above methods, which demonstrate 
 clearly from your own reports that the rates here are too 
 high, to entering into a comparison with rates elsewhere, 
 which are so various and so numerous that contention could 
 
112 
 
 easily be raised on this collateral question by railroad advo- 
 cates, anxious to divert attention from the real issue. That 
 inter-State rates to North Carolina are higher than either to 
 Virginia or South Carolina, was clearly shown by two late 
 conventions of manufacturers at Greensboro and Charlotte, 
 and it is not to be supposed that these corporations in their 
 local rates have been more considerate of a people who have 
 been so forbearing and patient under corporation imposition 
 as those of this State have so long been. But my own in- 
 vestigation has been thorough, and has satisfied me that the 
 rail re ad rates in this State, everything considered, are the 
 highest on the continent. 
 
 I learn that the answer filed by the Seaboard Air Line, 
 when it was contending (against an injunction brought by a 
 rival line) for the privilege of reducing their rates, set out this 
 fact. But, however, it may be as to the answer, I am con- 
 fident as to the fact that our rates are the highest. Wherever 
 the rates elsewhere approximate ours it will be found that 
 they are in those States where the railroads have almost with- 
 out disguise taken possession of the government. 
 
 It is true that some States have more people than this, but 
 they have more railroads, too. Only ttvleve States have as 
 many people per mile of railroad as North Carolina. 
 
 The reduction of transportation charges 
 
 IS NO SMALL MATTER 
 
 to the public. The railroad freights for twelve months in 
 the United States amount to eight hundred millions of dollars. 
 It is the most burdensome tax we pay, and is equal to four 
 times what this year's cotton crop will sell for, estimating it 
 at ten millions of bales at five cents per pound. Adding the 
 receipts from passengers, carrying mails, and other sources 
 the people of this country annually pay the railroads five 
 times the total receipts from the entire cotton crop of the 
 country. Each family in the U. S. pays on an average $60 
 
113 
 
 a year for freight alone. As the government statistician, 
 Commissioner Wright, estimate the average income of each 
 head of a family at $500 per annum, each family works one 
 and a half months per year to pay the freight. There is no 
 escaping this tax. It is added into the cost of every yard cf 
 cloth, every pair of shoes, every pound of sugar, coffee or 
 flour that is bought, and is deducted from the price of every 
 pound of cotton, or bushel of wheat, oi corn, or other pro- 
 duct sold. A reduction of this internal tariff will give the 
 greatest relief. If all freight could be carried as cheaply as 
 wheat is carried from Duluth to Buffalo this burden would be 
 cut down to one-tenth of 'what it is now, from S800,000,000 
 to ^80,000,000, a saving to the wealth producers of 
 $720,000,000 per year. You can not do that, but you can 
 justly reduce freights and fares in North Carolina to four per 
 cent, net on what you yourselves say is the true value of the 
 railroad property, and this would lift from the backs of our 
 people, at a stroke of the pen, $2,300,000 per annum, which 
 is now illegally and unjustly extorted out of them for the use 
 of the London and New York bankers who have bought up 
 our railroads at a song. 
 
 The taxes paid by the railroads here are admitted by that 
 one of the officials of the lines in this State who is perhaps 
 best acquainted with the subject to be the lowest pa'd by rail- 
 roads in any of the States. The property tax paid by them 
 here is not supplemented by any tax on gross earnings, or 
 stocks, as is usual elsefvhere. 
 
 I know that there is always the threat that we will drive 
 capital from the State. That was threatened if the six per cent, 
 interest law was passed, but to-day North Carolina 4's are at 
 par, and Ealeigh five per cent.'s are §9 above par. AVhat we 
 need is to keep our own capital in the State, and with 
 $13,000,000 saved every six years, as above shov\n, could be 
 done, we can build railroads and get us a good school system 
 upon our own money. Foreign capital will come here, not 
 
114 
 
 because we are humbly respectful and submissive to the own- 
 ers of it, but because four per cent, net above taxes and all 
 other charges is iroie than can be had by investing in United 
 States three per cents. 
 
 In conversation recently w ith a director on one of these lines, 
 though a Xorth Carolinian himself, he said: "The truth is, this 
 is getting to be an old country. Our laborers must come 
 down to European wages and our farmers must live cheaper 
 and be content with European small profits. They cannot 
 help themselves." That is the way in which the banker- 
 owners of our railroads, and all within their influence look — 
 with perfect complacency, too — upon the situation. But if it 
 is true that our farmers must surelv and steadily be 
 
 TURNED INTO PEASANTRY 
 
 and tenant holders, and our laboreis into serai-serfs, the net 
 reduction should be all round — top as well as bottom — and 
 the capitalists who have 8:^0,000,000 invested in our three 
 systems should take two per cent, net profits — for two per 
 cent, per year is the bank rate in London and Paris. 
 
 But I take it the railroad owners would now be perfectly 
 satisfied x^ith the four per cent, net which the Vanderbilt 
 roads in New York pa\'. They would not gruir ble at that. 
 What ihey strenuousl}' object to is getting four per cent, only 
 on tbeir invest^nent. They would be satisfied with four per 
 cent, on the §26,000,000, but they v\ant you to go on and 
 allow them four per cent, on something which you and they 
 both say does not exist., i. e., their property in these roads 
 above $26,300,000. There is the sore point. 
 
 They want dividends on that $26,u00,000, which they say 
 is even more than they have invested here, and which your 
 Commission says is every cent they have here, and then they 
 wish to tax the people fares and freight high enough to pay 
 four per cent, on, on, on up to 894,000,000, i. e. , on 
 $70,000,000, for which they have not paid a cent, nor struck 
 
115 
 
 a lick of work, but which is evidenced simply by so many 
 pieces of paper on which they have stamped their decree that 
 the people of North Carolina are mortgaged to pay them in- 
 terest, and it is their decree also that unlorn generations of 
 North Carolinians must come in the world to pay them inter- 
 est thereon. One generation does not satisfy their greed, 
 but their long fingers must reach down into the pockets of 
 those who are to come after us. We neither gave nor author- 
 ized that mortgage and we will not be bound by it. 
 
 THEKE IS A REASON, ' 
 
 personal to yourselves, permit me to say, with the greatest 
 respect, why you ought to grant a reduction. In the last 
 Legislature bills to reduce fares and freights were defeated by 
 only one majority in each house, and two of your commission 
 went before the committees against the bills. It is reasonable 
 to suppose on that narrow margin that but for your opposi- 
 tion those bills would have passed. It was understood that 
 you opposed them because you thought that it would be a re- 
 flection on you for the Legislature itself to make the reduc- 
 tion which you had the power to make. It is certain that 
 members A\ho voted against these bills have attempted to 
 justify thpir course to their constituents at home by the alle- 
 gation that they expected fully that you would yourselves 
 make the reduction. 
 
 If ^26,000,000 will replace the property that is the value 
 of the plant, and an enormous addition for the valuation of 
 franchise can only be niade on the basis that the excessive 
 rates and proi:ts make the property worth that much more 
 than it could be built for. I think the valuation should be 
 placed at whatever the plant is really and truly worth, and 
 that fares and freights should be reduced, taking the previous 
 years' figures as a basis, so that four per cent, on that valua- 
 tion, above taxes and all expenses of every kind ^^ill be the 
 net earnino-s. 
 
116 
 
 To swell the valuation by an estimate of $28,000,000 as 
 one of your number has jDroposed, for t'ie value of the fran- 
 chise is simply an admission of grossly excessive rates of fares 
 and freights. It would merely put into the treasury a tax 
 which cannot exceed two-thirds of one per cent, on that sum, 
 while letting the corporationii put their fares and freights high 
 enough to earn six, ten or fifteen per cent, on this ^28,000,000 
 of "wind." If the treasury prefers it as a method of taxa- 
 tion, the rates might be fixed to yield six per cent, net on 
 $26,000,000 (above property tax and all other expenses) and 
 then a tax could be laid by the Legislature on the gross earn- 
 ings sufficient to reduce the net earnings to four per cent. 
 
 THIS IS RESORTED TO IN SOME STATES. 
 
 This method would give much of the desired reduction of 
 freights and fares and at the same time add considerably to 
 the tax receipts. In Massachusetts the railroads pay 
 $3,680,000 taxes in addition to the property tax. This is 
 about nine per cent, on their gross earnings Irom passengers. 
 In Illinois the Central Railroad pays the State seven per cent, 
 on gross earnings. In many other States a similar tax is 
 levied. In Indiana the railroads pay §2,250,000 tax, and 
 even in Pennsylvania, \\hose government openly belongs to 
 them, they pay $3,500,000. In New York the railroads, in 
 one way or another pay over $8,000,000 taxes annuall}'. VVis- 
 consin,which has about our population, collects over $1,200,^00 
 taxes from railroads. In Minnesota the tax on railroad gross 
 earnings is $1,000,000, and the railroads in the little State of 
 New Jersey pay over a million dollars taxes. In North 
 Carolina all the railroads combined pay the State a little over 
 $100,000 on their $26,000,000 of property, and not one 
 cent on their nearlji $10,000,000 cf annual gross earnings, 
 or on their $3,285,000 of net earnings. The three great 
 railroads of the State earn fifteen per cent, usury on their 
 
117 
 
 investment and pay the State back less than $100,000, in 
 taxes. 
 
 But should your Honorable Commission think it wise to 
 increase the valuation for taxation by some millions for valu- 
 ation of the franchise, as has been suggested, I earnestly ask 
 you, 
 
 IN JUSTICE TO THE PUBLIC, 
 
 not to overlook the fact that in fixing rates they should not 
 be high enough to give the railroads four or six per cent, net, 
 on the franchise valuation. They are only entitled to four or 
 six per cent, (as you may grant) on the value of the plant, i. 
 e., on their investment. If that is $26,000,000, then the net 
 earnings should be calculated to be earned on that. The 
 franchise valuation is simply the ''wind," the "water" added 
 by reason of the excessive profits and this "wind" having 
 cost them nothino; to allow them a net earning on that would 
 be the very matter against which our people have most earn- 
 estly protested. 
 
 Our people, have no hostility to railroads. The charge is 
 an old device of their officials whenever justice is demanded 
 in regard to them. There is hostility against the methods of 
 some of their managers and against the free pass system, 
 which in many instances is a thin veil for corruption ; and 
 ag?iDst the enormous sums in excess of reasonable net earn- 
 ings which are being exacted by the present high rates and 
 sent out of the State never to return, to the permanent im- 
 poverishment of this Commonwealth. It is these abuses, not 
 the proper uses, of railroads, "which are repugnant to us. 
 
 You are North Carolinians entrusted with a great and sa- 
 cred responsibility. 
 
 TOU HAVE IT IN TOUR POWER 
 
 to render long delayed justice to a long suffering people. 
 You can lighten the load which a blind and exacting avarice 
 has bound on their shoulders and makes heavier and heavier 
 
118 
 
 with the passing years; for money is still enhancing in value 
 and hence the rates for freight and passengers are increasing 
 in effect, though not in nominal amount, each year, and al- 
 most each month. 
 
 I pra_y you grant the people that justice and that relief in 
 the contident hope of which your commission was created. 
 In 3''our wisdom you have thought proper to d^fer it till now. 
 Six years is a long time for a ^^hole people co suffer. The 
 facts and figures I have laid before 3''ou are taken from your 
 own reports. They tell a sad tale of insatiable avarice on 
 the one hand and of patient endurance on the other. 
 
 I thank you for the compliment of asking me to present 
 the cause of the people in this matter. Nothing is nearer to 
 m}'^ heart than their welfare. Nothing will be a higher honor 
 than to be able to secure at your hands some alleviation of 
 the burden so unsparingly laid upon them. I would that I 
 possessed eloquence that I might present their cause with the 
 force its justice and its importance demands. 
 
 As plainly and as clearly as I could, in my humble way, I 
 have called this matter to your attention. In the name of 
 300,000 voters in North Carolina, I ask that you harken to 
 their cause. However arrogant, however domineering, how- 
 ever omnipotent in our government the railroad kings seem 
 to be, the real sovereigns, are the patient burden-bearers, the 
 voters of the State. 
 
 They have been very patient, they have been patient a long 
 time, but they may be patient no longer. Two and a quarter 
 millions of dollars of illegal exactions each year is too heavy 
 a burden to carry much longer, and our history tells us that 
 when these toil-worn and sun-burned men of North Carolina 
 have been moved by tyrannical exactions and justice too long 
 delayed, they know how to assert their sovereignty. 
 
 Into your hands I now commit their prayer for relief. 
 Most respectfully, 
 
 Walter Clark. 
 
THE ELECTION OF U. S. SENATORS BY THE 
 
 PEOFLE. 
 
 In Indianapolis Magazine, July, 1897. 
 
 In 1787 scarcely a State elected its Governor and higher 
 officials by popular vote. 'Now there is no State in the forty- 
 five which elects its Governor by the Legislature. Why should 
 each of ihose States continue to elect its two Senators by a 
 method it has condemned as to the election of its Governor? 
 The interest of consolidated wealth in the election of Senators 
 is far greater than ii is in the choice of Governors, and the 
 corrective of popular choice is therefore more needed. 
 
 A little consideration will show that under the present sys- 
 tem it is possible for a skilful combination (and money com- 
 binaticns are always skilful) to secure the United States Sena- 
 tor in each of the close States if it can obtain control of one-six- 
 teenth of the voters or even less. Let us see. Take a close 
 State which casts 400,000 votes. A majority of the Legisla- 
 ture is elected from counties having 200,000 votes, or less 
 when (as is often the case) there is a gerrymander. A ma- 
 jority in the caucus, which controls the party's choice, is 
 therefore chosen from counties having 100,000, votes. But 
 nearly half of these were of the opposite political party, leav- 
 ing the majority of the caucus chosen by 50,000 voters. 
 These members wer'e nominated in the conventions in their 
 respective counties by a majority only of their party, i. e., 
 by delegates representing say 25,000 voters or less, which is 
 one-sixteenth of the 400,000 voters of the State, The money 
 combinations to whom the choice of Senatoi*S is all-important 
 
120 
 
 have money and skillful manipulators. They pick their coun- 
 ties. With freepassestotheconventionsover railroads and by 
 other methods, it is easy to secure the requisite delegates in 
 the county party conventions, who represent these 25,000 
 voters, and thus name the nominees who shall, when elected, 
 constitute a majority of the caucus which shall name the 
 Senator. The counties belonging to the minority party are 
 neglected by the manipulator^j as also are the counties be- 
 longing to the majority party, which are difficult to handle. 
 Ttie money combination wastes no money. That this is not 
 a fanciful sketch will be recalled by the many instances in di- 
 vers States in which the caucus nominee of the money power 
 has received one or two majorit}'^ in the caucus. It is true 
 this great disparity could happen only in close States, but it 
 demonstrates that in any State the election of Senator can be 
 controlled by a small but skillful minority under the present 
 system. 
 
 There is another objection to the election of the United 
 States Senators by the Legislature, in that the voters of the 
 dominant party residing in counties in which the party is in 
 a minority are utterly without influence or voice in the selec- 
 tion of Senator, whereas in the election of Senator by popu- 
 lar vote every voter, irrespective of the county of his resi- 
 dence, would have an opporturity to express his wishes. In 
 such an election the United States Senator must be the ex- 
 pressed choice at the ballot box of morr voters than shall cast 
 their ballots for any other man, and his nomination must be 
 Bcade by the majority in the nominating convention of the 
 successful party representing, say one-fourth of the voters, 
 subject to approval by a majority of the whole people at the 
 ballot box. By this method of election, a United States 
 Senator must be the choice of the State he represents as fully 
 as the Governor is,- In the present mode of legislative elec- 
 tion, the voice of his own party is stifled and unrepresented 
 in all those counfies in which, being in the minority, it shall 
 
121 
 
 fail to elect the member of the Legislature, Then, again, the 
 voters of the counties electing members of the Legislature be- 
 longing to the dominant party are also disfranchised if those 
 members do not belong to the majority faction of the caucus. 
 
 Another very serious objection to the legislative mode of 
 choosing Senators is the frequent "dead-locks," or protracted 
 contests, which take up a large part of the time which should 
 be devoted to the legitimate dutj' of legislation. The ex- 
 pense to the public is nc small item, and the frequent attend- 
 ant scandals are not edifying, and all this could be avoided 
 by choosing United States Senator the same day and by the 
 same method the members of the lowec house of Congress are 
 chosen. The selection of members of the Legislature (>ften 
 "with an eye solely to their preferences for Senator and in to- 
 tal disregard of their fitness for legislation or views on public 
 questions or their personal characters, frequently leads to se- 
 rious inconvenience. It is no proper part of a legislator's 
 functions or duties to be an elector for Senator, and the t\^ o 
 duties should not be combined. Members of Congress are 
 not constituted electors for President. Yet they might be 
 ■with as much appropriateness. 
 
 The present mode of electing Senators does not give any 
 approximate security of selecting the choice of the State as 
 its representative to the Hall of Federal Embassadors, each 
 cf whom should be able to speak for the State, and not as the 
 agent of the corporations doing business therein, or a small 
 manipulated fraction of its voters. 
 
 The change to election by the people would greatly lessen 
 the chances for corruption. The men bers of the party con- 
 vention of the State, brought together directly from the peo- 
 ple and so soon dispersed again amonc them, are not so sub- 
 ject to the subtle arts of the corporation lobbyists and wire- 
 pullers which are brought to bear on the ra-ember of the Legis- 
 lature as soon as his nomination is probable (if, indeed, they 
 do not procure his nomination) and continued till after the 
 
122 
 
 election of Senator is over, ^hen, like a squeezed lemon, he 
 is thrown aside. Besides the party convention is accessible 
 to public opinion, being conscious that its choice, if not wise- 
 ly made, is liable to rejection at the polls. ISTo such respon- 
 sibility attaches to the deliberations of a legislative caucus. 
 A mistake there made, or a defiant disregard of public senti- 
 ment, is subject to no ratification by the people and is with- 
 out remedy for six years. There can be a further check 
 upon delegates to State party conventions, in that the popular 
 choice for Senator can be indicated by a primary election. 
 
 A Senator in office may be tempted to disregard the will 
 of his State if he knows he can, by use of public patronage, 
 or other means, secure, as above shown, the control of the 
 one-sixteenth of the voters who compose a majority in the 
 nominating conventions of those counties which send a ma- 
 jority of the legislators of the aominant party. But he will 
 pause, when he knows that his re- nomination mast command 
 the approval of a raajorit}' of his party convention, and that 
 its action in turn must be ratified by a majority — or at least 
 a plurality (if there are more than two parties) of the voters 
 of the entire State at the ballot box. 
 
 The two Senators are intended to represent the State. 
 They cannot truly do so unless chosen by the whole State. 
 At present, as already pointed out, large sections of each 
 State are absolutely disfranchised and have no weight what- 
 ever in the choice of its Senators, because not sending to the 
 Legislature members belonging to the dominant party. 
 
 The bill to modernize the choice of Senators by transfer- 
 ring it from the Legislature to the people of each State has 
 passed the lower house of Congress several times, and once 
 at least by a unanimous vote and once with only two dissent- 
 ing votes, but the measure has heretofore found its grave in 
 the Senate itself, which does not wish to go on record on the 
 question. The Legislatures in at least fourteen States have in- 
 structed in favor of the measure, Oregon, California, Idaho, 
 
123 
 
 Iowa, Wisconsin, Indiana, Kansas, Kentucky, Nebraska, New 
 York, Louisiana, South Carolina, West Virginia, and Illinois, 
 and there may be others The Constitutioo of Nebraska re- 
 quires that the choice of Senator shall be submitted to the 
 people at the ballot box the same day members of the Legis- 
 lature are chosen, but this, necessarily, has onl}' a moral force 
 which would certainly be disregarded whenever (as is not un- 
 usual) the majority in the State on the popular vote should be 
 for one party while the majority elected to the Legislature 
 should belong to the opposite party. In many States, the U nited 
 States Senator is nominated by the State party ccmventions, 
 and the nominees of that party for the Legislature are deemed 
 pledged to vote for him, according to the similar custom now 
 obtaming as to electors for President. There are also many 
 States whose statutes provide for primary elections for United 
 States Senator. This expedient is the best possible under the 
 circumstances, perhaps, and should be resorted to till we can 
 amend the Constitution by frankly giving to the people of 
 each State the right to choose the two men who are to repre- 
 sent their State in the Senate. But to be of value, the pri- 
 mary should be for the whole State and not merely by coun- 
 ties. If the people are competent to choose the members of 
 the lower house of Congress and Gnvernors, why are they not 
 competent to name the Senators? 
 
STLJF^F^LElVtElNtTr. 
 
 THE PHYSICAL NAPOLEON. 
 
 In Godey's Magazine, February, 1897. 
 
 The many current articles on IS^apoleon the First attract 
 renewed attention to the great Emperor. He has been viewed 
 from every standpoint except an unbiased and impartial one. 
 "Possibly the time has come when that can be done. Ills 
 phenomenal intellectual capacity is admitted on all hands. 
 Small attention has been directed, hov^ever, to his physical 
 development, which alone enabled him to bear the fatigues 
 and labors necessary to sach a career. Indeed it v\ as no less 
 woQderfal than his mental characteristics. He had "a frame 
 of adamant" as well as "a soul of fire." His labors would 
 have worn out physically half a dozen ordinary men. He 
 ■was insensible to heat or cold or fatigue. 
 
 Attention has been called to the great capacity of his skull, 
 but another physiological fact, which probably had a most 
 important bearing on his success, has passed almost unnoted. 
 His normal pulse, or heart beat, was only 40 to the minute. 
 Doubtless this had a direct influ'^nce in enabling him to stand 
 fatigue and to ihink coolly under the pressure of the most 
 trying circumstances. It w^as noted that he rarely perspired 
 and, toiling along Ubder the summer's sun through the desert 
 in the Egyptian campaign, not a drop of perspiration ^^as 
 seen on his brow. Physiologists may, perhaps, be able to 
 determine other effects upon his physical and mental activity 
 
125 
 
 from this abnormal slowness of circulation. His chest meas- 
 urement was as phenomena] as that of his skull. Both were 
 extraordinary for a man of his height. He wore a No. 8 hat, 
 and his scalp was so tender that the hat had to be always 
 very soft and padded. By the way, his height has been 
 stated differently at 5 feet 3 inches and 5 feet 6 inches. The 
 truth is, both are correct, for 5 feet 3 inches old French 
 measurement is 5 feet G inches English measurement. A for- 
 getfulness of this fact has caused the apparent conflict of 
 statement. 
 
 His marvelous good health was an indispensatle factor in 
 his success. It was noted by his teachers at school. It did 
 not fail him once in his long and eventful career, till the close 
 of the great battle of Borodino, under the walls of Moscow, 
 in 1812, when, the victory being w^on, bis Marshals and Gen- 
 erals were amazed to see him fail to crush the flying enemy. 
 The Emperor seemed to be in a daze. In truth, three days and 
 nights of constant watchfulness had for the first time over- 
 come that iron frame, and, his physical man failing, the em- 
 pire of the world was then and there wrenched from his 
 grasp. The fatal retreat from Russia was the inevitable conse- 
 quence of these two or three hours of inactivity at the crisis 
 and acme of his wonderful career. 
 
 The next failure was after the battle of Dresden, in 1813, 
 when a few hours of indisposition save the allied army and 
 probably cost him his empire. His physical deterioration 
 lost him the Waterloo campaign. His mind was as bright as 
 ever. His planning was never better, but there was lack of 
 vigor in execution, and the physical man, which had aided in 
 so many successes, was wanting in him. 
 
LETTERS FROM MEXICO. 
 
 From Fayetteville "Observer." 
 
 Jalapa, 17 de Enero de 1896. 
 
 Major E. J. Hale: 
 
 Muy 8r mio y distinguido amigo : 
 
 After travelling through the northern part of the ''^United 
 States of Mexico,''^ and spending several da3^s in the Federal 
 capital, I went down to Vera Cruz by the Mexican railroad 
 (coramonl}'^ known as the ''Queen's Own,-' having been built 
 with British money), and am returning by the Interoceanic. 
 I have stopped over here to see the coffee plantations, or 
 haciendas. The coffee, as you know, grows on trees which 
 bear fruit verj'^ much resembling cherries, each cherry con- 
 taining two seed which are the coffee grains. The business is 
 very profitable, as raising coffee costs about nine 'cents on a 
 silver basis, and it is sold in San Francisco at 22|- cents in 
 gold, this, owing to the legislation by Avhich in the United 
 States we have artificially doubled the value of the dollar, is 
 about forty-one cents in silver. The coffee opens continuously 
 the year round, and the coffee tree, like all others here, is an 
 evergreen. 
 
 The scenery on both these roaJs, in passirg from the table 
 lands of Central Mexico down to the Tlerra Caliente or tropi- 
 cal low lands of the Gulf coast, is grand beyond description. 
 Above the little village of Maltrata, the train crawls around 
 the side of an almost perpendicular precipice 2,500 feet above 
 the village, into which we could almost toss a biscuit, and 
 the churches and house? look like toy houses, and the people 
 like pigmies, and the track, by many a devious turn and 
 
127 
 
 twist, passes then over twelve miles before we get down to 
 the village. Tate the scenery along these two railroads as 
 they descend and I have seen nothing to equal it in the High- 
 lands of Scotland, in the Swiss Alps, or in California. It is 
 worth a trip here to see. For instance, I stopped over one 
 afternoon at the little town of Orizaba, half way dov\n the 
 mountains. From one window of my room I could see the 
 grand summit of Orizaba, over 18,000 feet high, the tallest 
 peak on this continent (and a, full half mile higher than Mont 
 Blanc, the highest point in Europe), his head covered with 
 the snows that ne^er melt, while around me the roses were 
 blooming, and the strawberries were ripening in the open air, 
 and the little children were playing barefooted in the streets; 
 and far to the lefc, stretched out at our feet the vast plain of 
 the fertile Tlerra Caliente where the sugar cane was green, 
 and the corn tasseling, and the mango trees and the bananas 
 were swaying in the breeze down to where sixty miles awav 
 could he seen the line of the Gulf and the white houses of 
 Vera Cruz, and the big ocean steamers resting like ducks on 
 the waters, -and seemingly, even in this clear air, no larger. 
 So looked Italy, "with her fatal gift of beauty," as she 
 lay smiling at the foot of her mountains when Goth and Van- 
 dal gazed down upon her, and when Hannibal and Napoleon 
 poured doivn their troops from the Alpine passes. 
 
 It is strange Americans should go to Europe when here 
 close at hand is far moye magnificent scenery. Travel offers 
 more novelty here in every way than in the beaten pathways 
 of Germany, and Switzerland, and the expense is not one- 
 third as much. 
 
 Jalapa is one of the oldest and quaintest towns in the Re- 
 public, a bit of the sixteenth century clinging to the side^ of the 
 mountain — nothing modern save the railroad, the electric 
 lights and street cars, and the hotel which has all the com- 
 forts of New Tork. But once inside the hotel, you will find 
 that you are not in New York, for there is not a chimney, 
 
128 
 
 and never any need of one, and the house, like all hotels and 
 private residences hereabouts, is built around an open court 
 yard where the fountain plays and flowers and roses are bloom- 
 ing. Jala pa has a medicinal reminiscence as Jalap came from 
 hence, but you would never knov\ it here, for the people call 
 the'w oMy IIalap''per. It is indeed very ancient. When Cor- 
 tez, 376 years ago (a full hundred years, by the way, before 
 the Pilgrims landed at Plymouth rock) made that dare devil 
 march with 400 men to take the City of Mexico with its 
 quarter of a million of people, and took it, he passed through 
 Jalapa, and it v/as already then a city. The two principal 
 churches here were budt by the Spaniards long before Sir 
 Walter Kaleigh made the first attempt at an English settle- 
 ment on this continent at Roanoke Island. And forty-nine 
 years ago Jalapa saw another army come up from the sea- 
 ward, from the white walls, dimly discerned, where nestles 
 Vera Cruz hy the deep waters. And the bugles rang out full 
 and free, and the drums rolled, and the long blue lines came 
 marching through, and in their ranks but unnoted then were 
 young captains and lieutenants, Robert E. Lee, and U. S. 
 Grant, and Stonewall Jackson, and McClellan, and Thoncas, 
 and Longstreet, and many another whose names have passed 
 into history now and are 
 
 " written high 
 " On the dusty roll the ages keep." 
 
 They had first met the enemy and driven him back at the 
 National Bridge, which we passed a station or two back, and 
 then at Cerro Gordo {angUce "round hili'') the conical top 
 mountain which lifts its head out yonder. Sharing the same 
 fare, following the same leaders, drinkiugfrom the same can- 
 teen, they passed by the door of this hotel, up the street yon- 
 der, througn the pass that opens beyond, up the mountain, 
 on and on, ever on and upwards till now they live amid the 
 stars. And down this same street rode since at the head of a 
 
129 
 
 retreating army, with the triccloi: floating over him, and the 
 imperial eagles of a Napoleon borne before him, a Marshal of 
 France \^ho left a reputation behind hira to find the infamy 
 of an Arnold on the green and golden slopes of Lorraine — 
 Bazaine — the only man in all history v^ ho has surrendered an 
 army of 175,000 fightino; men. And so Jalapa with her 
 bright sunshine, and her narrow streets and her pretty women 
 and laughing children and bubbling fountains, has seen history 
 pass by her, and she remains unmoved and unchangino* as 
 Orizaba, which stands out yonder the monarch of this repub- 
 lican continent, with his slumbering fires beneath and his un- 
 melting snows above, the sentinel of the ages, unchanged, 
 ■while generations of men and empires pass by and disappear 
 like fleecy clouds noelting into the infinite azure of the past. 
 I have met and talked with all classes of men, from the 
 President and the Chief Justice of the republic, to the peon 
 as he mends the roadway or follows his plow, and I have 
 seen, too, countless numbers of our own countrymen who are 
 here on business, or as tourists, and they are coming in 
 steadily increasing numbers, attracted by the great and grow- 
 ing prosperity here, and repelled by the distress in our coun- 
 try produced by the financial legislation of a government con- 
 trolled by monopolistic influences. I have formed an idea of 
 the future of this country, and I might give it utterance, but 
 that there is good authority that a prophet is ''not without 
 honor, save in his own country, and among his own people." 
 It will be safer to prophecy aj-ter the event. If there could be 
 found a prophet, who would be heeded and listened to, he 
 would render more service to utter warning to a people and 
 a land that is dearer to us than this, a land, alas! 
 
 " Where wealth accumulates and men decay." 
 
 I will say, however, as to what is present and before us, that 
 the financial legislation in the United States which has dou- 
 bled the value of the dollar while oppressing us. has for many 
 
 9 . ' 
 
130 
 
 reasons given an impulse to this conntrv, so that in a few 
 years she has made the progress of decades. By doubling 
 the value of the dollar, at the dictation of Wall Street and 
 London banl^ers, vre have in effect doubled our National, 
 State and municipal bonds (which was the end in view), there- 
 by in effect doubling also the rate of interest on the same, 
 and the quantity of produce and the amount of days' labor 
 requisite to pay the taxes to meet them, and also, of course, 
 doubling the cost of railroad freight and passenger fares — all 
 of which have to be met with cotton at seven cents a pound, 
 and wheat at fifty cents a bushel. In Mexico, where taxes 
 and railroad charges and debts remain the same the dollar 
 also remains at the same value it was ten or fifteen years ago, 
 consequently her debts, taxes and railroad charges are paid 
 with cotton at sixteen centsper pound, and wheat at $1.20 per 
 bushel. The uncoined silver dollar has not depreciated either 
 in the United States or here. An ounce of silver is worth 
 exactly the same in wheat, cotton, corn, &c., as it ever was, in 
 either country. The difference is that here they have not 
 demonetized it, while with us legislation has been procured 
 by the bondholder and monopolv influences which has de- 
 monetized silver and created a mythical gold dollar which the 
 masses never see and never handle, and by making that my- 
 thical dollar the standard to measure values they have shrewd- 
 ly doubled the value of all public and private debts, of all taxes 
 and the cost of railroad transportation. The sum, by this legis- 
 lative legerdemain, thus annually transferred from the pockets 
 of the masses to that of the monopolies, from the wealth pro- 
 ducers to the wealth consumers, is far be3'ond the millions 
 levied by Germany on conquered France, or by any army m 
 all history on a foreign pec pie. This was done v^ithout a 
 bugle blown, a lance set in rest, or a cannon fired. A suffi- 
 cient number of the representatives of the people were cap- 
 tured, some before and some afte/ election, and then as Samp- 
 son was surrendered to the Philistines, we were "delivered, 
 
131 
 
 bound, into the hands of our enemies." No wonder that, 
 staggering under such a levy, our country, which should be 
 the most prosperous in the world, is financially depressed, 
 while Mexico, even Mexico, is prosperous, and American 
 energj'' and capital is pouring in to develop it. — Adios. 
 Soy de Uated su afino atento amigo y S. S. 
 
 Walter Clark. 
 
 Letter to "News and Observer.' 
 
 OiTT OF Mexico, January, 1896. 
 
 This country is developing more rapidly probably than any 
 other on the planet, and could not help being prosperous as 
 matters stand. The dollar is exactly *h.e same value it was 
 ten or fifteen years ago, not having been artificially doubled 
 in value by legislation, as has been the case with us. Con- 
 sequently, cotton is still sixteen cents per pound and wheat 
 is 11.20 per bushel, while fixed charges, as taxes, passenger and 
 freight rates, public and private debts, &c., remain actually 
 (as well as nominally) the same. With us in the United States 
 by virtue of the legislation in favor of the bondholders, these 
 fixed charges, while nominally the same, are, in fact, doubled 
 as it takes twice the amount of cotton, corn, wheat. &c., to 
 pay them. One does not get a full idea of the enormity of 
 this transaction till he gets here and sees the prosperity of 
 this country and see the capitalists who, by securing this legis- 
 lation, have doubled the value of their United States bonds, 
 investing the principal and interest of their enhanced value 
 in this country at old prices, thus securing $2 of property 
 here for $1 loaned the United States government, that is, 
 they will sell a $1,000 United States bond for gold, buy 
 $2,000 of silver, which remains at the old value, and invest 
 in $2,000 of property here. 
 
132 
 
 The looting of Koine by Genseric and the Vandals, of In- 
 dia by Hastings and Clive, of this very Mexico by Cortez and 
 the Spaniards, or of Peru by Pizarro, all pale into insignifi- 
 cance, compared with the magnitude and injustice of this 
 robbery practiced upon the seventy-five millions of the 
 American people in the interest and by the procurement of 
 the half million of millionaires and their agents and depend- 
 ents, through the device of r.o controlling legislation that 
 every dollar of National, State, county and individual indebt- 
 edness is doubled by doubling the value of the dollar. Gen- 
 seric, Clive, Cortfz, Pizarro, risked their lives and had brave 
 men behind them, and they at least pillaged foreign nations. 
 But this crime has been the manipulation of the tools of the 
 bondholders, there has been nothing heroic and the only 
 greatness in it has been in the magnitude of the plunder, 
 which surpasses all that has ever yet fallen to a conquering 
 army in the wealthiest country. 
 
 There was no excuse for it, since silver, when demonetized, 
 was worth more than gold, and there has been nothing since 
 to depreciate it. That silvei, in fact, has not depreciated in 
 the least may be seen right here in Mexico, and throughout 
 the 50,000,000 of people living on this hemisphere, south of 
 the Eio Grande, in all which countries the silver dollar will 
 pay for as much taxes, as much railroad freight and passen- 
 ger fare, as much public and private indebtedness as forirer- 
 ly — and farm products and land bring as much as ever. 
 Neither has silver depreciated with us, but it is the gold dol- 
 lar which has been doubled in value; hence debts, public and 
 private, taxes, railroad rates, &c., are actually though not 
 nominally doubled, while the produce has tc be sold at half 
 price to pay them. Every farmer who sold a pound of cot- 
 ton in the United States last year was in effect taxed six cents 
 a pound, or $30 a bale, and fifty cents in the bushel on 
 wheat. The robbery perpetrated on the farmers of the South 
 by the legislation procured by the machinations of the com- 
 
133 
 
 bined capital of London and New York, on the cotton crop 
 alone, of 8,000,000 bales at $30 per bale, is $240,00(),0(mi for 
 the 3'ear of 1895 alone. The profits reaped by the capitalists 
 by the legislation which has doubled the value of their claims 
 against the public and individuals, is practically beyond com- 
 putation. It "fatigues the indignation" to consider it. The 
 wonder is not that therie is widespread and incurable depres- 
 sion, but that we can continue to exist under sucb a state of 
 things. Were we not the wealthiest and most energetic and 
 most patient peojile on the face of the globe, we would sink 
 under it. 
 
 It is by no means certain we shall continue always to be the 
 most patient. Those who have thus pillaged us, and \s ho, 
 elated with iheir success so far, threaten to still further con- 
 tract the greenback and thus still further increase the value 
 of the dollar, may learn a lesson right here in Mexico. The 
 Catholic church by three centuries and a half of policy as de- 
 liberately and as carefully planned as that of the monopolies 
 and the money power in the United States to day, came to 
 own absolutely one- third of all the property in this country and 
 controlled the balance. The masses were kept in ignorance 
 and the leaders and the intelligence of the country were in- 
 timidated or bought. But there cane e an end to such things. 
 In 1859 the property of the church was confiscated. The 
 church party called in the English, the Spanish and the 
 French, and the latter gave them an emperor. But the 
 French have been driven out, the emperor has been shot, and 
 to-day throughout this great country, four times as large as 
 France or Germany, the Catholic church does not own a foot 
 of soil or a dollar of money. The church buildings, hoary, 
 some of them, with nearl}'' four centuries of use, belong to 
 the government, and services are conducted in theiu only by 
 permission of the authorities elected by the people. Not a 
 priest can walk the streets in his official robes. Mexico re- 
 mains Roman Catholic in her religion, hut when the alterna- 
 
134 
 
 tivo was presented, whether the church should own the coun- 
 try or the country should o\vn the church, Mexico, in spite 
 of the centuries of veneration for religious authority and the 
 influence of consolidated wealth and the ignorance and pov- 
 erty of her no asses, was able to vindicate the rights of the peo- 
 ple. What this priestly monopoly was to Mexico, the money 
 power is to the United States, The multi-millionaires, the 
 bondholders, the trusts and monopolies already own over one- 
 third of our coantry and are reaching out for the rest. Many 
 leaders they nominate and elect to office, others they intimi- 
 date or corrupt. But our people, while patient, are not ig- 
 norant, and if the course of the monopolies and combinations 
 continues unchecked, they will wake up someraorcing to find, 
 as the Catholic church did here, that the sovereign people 
 own the country and all that is in it. The Catholics here 
 venerated the church fully as much as we ever did the rights 
 of individual ownership of any species of property, but the 
 welfare of the people is the highest law, and when that be- 
 comes imperiled, as it tvas in Mexico by the mone}'' power in 
 the shape of the church, and as it is in the United States by 
 the same deadly enemy in the guise of multi-millionaires and 
 monopolies, the manhood and the brains and the honesty of 
 the people will assert themselves and we shall not go down under 
 the same enemy that destroved Rome, and so many other 
 nations in the past. The world is older and wiser. 
 
 The gold dollar in the United States may well be called a 
 mythical dollar. Kot one man in a hundred ever sees one. 
 It is not used to buy corn, or vvheat, or flour, or railroad 
 tickets, or dry goods. It is only for the sacred use of the 
 idle rich when they wish to measure by a high standard, 
 doubled in value, the principle and interest of bonds, which 
 on their face, by the contract, are payable ic coin — i. e. , in 
 either gold or silver. 
 
 In drawing these lessons from the past experience and the 
 present prosperity of Mexico, there are those who will say 
 
135 
 
 Mexico is inferior to the United States in education, in civili- 
 zation, and in many other respects. And so it is — and so 
 much the worse for the objectors. For if Mexico, notwith- 
 standing all these disadvantages, is prosperous and going for- 
 ward by leaps and bounds by keeping her standard of values 
 at the same level, so much the greater is the condemnation 
 of the men Mho, in spite of our great and manifest superiori- 
 ty, have brought the curse and blight of a long enduring de- 
 pression upon us by robbing the wealth-producers in the in- 
 terest of the wealth-consumers, through the device of doub- 
 ling, by crooked legislation, the value of the dollar. And if 
 Mexicans, with 350 years of priestly rule, 300 of which were 
 also under a foreign yoke, and 50 more passed amid inter- 
 national dissensions, could assert themselves and throttle the gi- 
 gantic money power which oppressed them, what cannot, 
 and what will not, seventy-tive millions of the foremost peo- 
 ple of the earth be able to do when satisfied that they owe it 
 to themselves and their posterity to break the yoke which 
 galls them? 
 
FREE COINAGE INDISPENSABLE, BUT NOT A 
 PANACEA. 
 
 Passenger Fares, Freight Charges and Free Passes. 
 
 In The "Arena," November, 1896. 
 
 The question has been often asked whether the free coin- 
 age of silver would be a panacea for the depression under 
 which the country now drags out a lingering life. The 
 friends of free coinage do not consider it a universal remedy, 
 but an indispensable one. The single standard is the rock 
 which has been placed against the door where our hopes have 
 been buried, and until it is rolled away there can be no resur- 
 rection of our prosperity. Dives is urgently opposed to the 
 removal of the stone, but certainly Lazarus cannot come forth 
 till it has been taken away. 
 
 Among the many oppressions visited upon the masses by 
 their present masters who have "laden the people with bur- 
 dens grievous to be borne, but which they will not touch vv^ith 
 so much as one of their lit*tle ringers,'' are the freight rates 
 and passenger fares which have not decreased with the de- 
 crease in the value of our products, but have enhanced with 
 the enhanced value of the dollar, the owners of the great rail- 
 way lines being among the most active agents in procuring 
 the adoption of the gold standard, and they are the largest 
 Dontrinbutors to the campaign fund to be used against the 
 restoration of silver to free coinage. 
 
 J. Pierpont Morgan, who was conspicuous in procuring Mr. 
 Cleveland to issue the $262,000,000 of new bonds, and whose 
 
137 
 
 firm shared largely in the $18,000,000 of profits the syndi- 
 cate made by the handling of the issue, is the principal owner 
 of the Southern Kailway Co's lines. When cotton was fif- 
 teen cents a pound (as it still remains in Mexico) one pound 
 of cotton would pay for five miles of passenger fare on his 
 railroads; now, though he and his combination have increased 
 the value of money till cotton brings only six and seven cents 
 a pound, he has not reduced his fares nor freights, and a 
 pound of cotton will only carry its producer two miles, in- 
 stead of five as formerly. Freights remain as high as ever 
 and trucking, v\^hich should be a very profitable business, ha 
 been reduced to the same level as other farming business, and 
 in both alike all the profit is absorbed by the transportation 
 charges. 
 
 Inter- State Qommission. — Is there no protection for the 
 people? Certainly there is, but it is in their own hands. It 
 cannot be found in the railroad commissions. The Inter- 
 State Commission has proved so utterly inefficient that two 
 of the great parties have recently put into their platforms 
 demands for its being made really efficient. In fact the In- 
 ter-State Commission has practically restricted itself to pro- 
 tecting the corporations against hurting each other by reduc- 
 ing rates, with no protection to the people against exorbitant 
 rates, nor against secret rebates to large or favored shippers, 
 "which were the objects in view in creating the commission. 
 Whenever that commission has shown any disposition to 
 serve the object of its creation, it has been promptly shackled 
 by injunctions, or highly technical rulings, by the Federal 
 judges, holding their positions for life, and a large propor- 
 tion of them having secured their appointments by the influ- 
 ence of the corporations in whose behalf they extend their 
 powers by every possible construction. Besides, it is not 
 certain that all the appointments to the Inter-State Commis- 
 sion itself have been made without the influence, more or less 
 
138 
 
 activ^e, of great railroad systems interested in the future ac- 
 tion ofsuch appointees. 
 
 State Railroad Commissions. — After this result with the 
 Inter-State Commission, could the record of the State Com- 
 mission be other than di&appointin«^? In some cases, as a 
 Western railroad president cynically ana openly declared, the 
 railroads have " simply added the railroad commission to 
 their assets." In the majority of instances, however, the 
 members of the State Railroad Commissions have been gen- 
 tlemen of unimpeachable character, but elected by Legisla- 
 tures instead of the people (a radical defect which the corpo- 
 rations carefully looked to), they have in rare instances had 
 a majority of progressive members in close sympathy with 
 the people. They have generally been intensely conservative 
 listening to the assertions of impending ruin, literally made 
 by railroad managers if rates were reduced, and not seeing 
 the patent ruin to the people if they were not. As a rule, 
 railroad commissions have limited themselves to a cheese par- 
 ing reduction of one-fourth or one-eighth of a cent per mile 
 on passenger fares, and a similar microscopic reduction on 
 freight rates, and with ordering a few railroad stations built, 
 where the corporations were not over much indisposed to 
 bnild them. Some times they have somewhat raised the 
 valuation of railroad property for taxation over which those 
 corporations have raised a sham battle, knowing that the 
 extra taxation would really be paid by the people, by quietly 
 raisino^ the freisfht rates on certain articles. When the Stan- 
 dard Oil Company was assessed for a part of the taxes it 
 justly owed, RocU'efeller said, "add one-fourth of a cent to 
 the price of oil till the people have paid our taxes." 
 
 The only wav to reduce the burden on the people is by a 
 bona fide genuine cut in passenger and freight rates. It may 
 be said of more than one railroad commission, that at a re- 
 spcetful distance they imitate the ways of Providence in one 
 particular. It has been said, "He takes a step — and ages 
 
131) 
 
 have rolled away." All railroad commissions probably when 
 first appointed have made a show of reform by cutting off 
 some infinitely small amount from railroad charges as one- 
 eighth or one-fourth of a cent from passenger fares and then 
 — two or three generations hence, if the people wait so long, 
 they may possibly cut off another one-eighth of a cent. In 
 the meantime the multi-raillioDaires who own these roads, li\- 
 ing m their marble palaces in London and New York, with 
 their yachts, fast women and fast horses, have gone on with 
 their fellow conspirators enhancing the value of the dollar, 
 reducing the value of produce and thereby more than doub- 
 ling their passenger and freight, rates. 
 
 Effect of Excessive Rates. — It is in this way that Ireland, 
 naturally one of the foremost countries on the globe, has been 
 pauperized. All the profits of the soil have been drawn in 
 the shape of rents by non-resident land owners to London 
 and nothing going back, the country has been impoverished 
 like a field from which all the crops are cut and nothing re- 
 turned. In like manner to-day, the South and West are im- 
 poverished by -all the profits of agriculture being tak«n to 
 London and J^ew York in the shape of excessive transporta- 
 tion charges and nothing being returned or spent among us, 
 the South and West are rapidly being reduced to the con- 
 dition of Ireland. 
 
 In honest fact, the railroad commissions of the several States 
 have merely served as buffers lo protect the railroads from 
 real criticism by the people, and from direct legislation to 
 reduce their rates, while the States have uselessly taxed them- 
 selves to pay the several commissions" salaries to seem to do 
 something . 
 
 In the public distress we demand real relief and we must 
 have it, and not its phantom 
 
 What is the remedy? The remedy is to cut the rates and 
 exactly in proportion as these multi-millionaire railroad kings 
 
140 
 
 have, in combination with others of their kind, cut the pricss 
 of our produce. 
 
 United States Supreme Court Decisions. — The Supreme 
 Court of the United States has decided (Chicago Railrcad vs. 
 Wellman, 143 U. S., and in several other cases) that rates 
 which will allow a moderate interest on the actual value of 
 the railroad property are valid. In that case itsustained apas- 
 senger fare of two cents per mile. Upon the same basis, every 
 passenger and nearly every freight rate should be cut in two. 
 Itiswhathas been done with the prices of our produce and will 
 simply restore railroad charges to their former basis. Can 
 the railroads stand it? Upon the basis of watered stock, 
 making the railroad patrons pay dividends and interest on 
 three or four times the value of the railroad, they cannot. 
 But upon the legal requirement of moderate interest on the 
 real value of railroad property, they can. Besides the divi- 
 dends and interest on stock and bonds on three or four times 
 the value of the property is not all the present high rates 
 are levied for. In the drst place the freight shippers and 
 passengers are taxed to pay ec or mo us salaries to railrocid offi- 
 cials, ranging from 8100,000 per year down. The officials 
 are as numerous as their salaries are exorbitant. J. Pierpont 
 Morgan pays out of this levy upon the poor Southern people, 
 $50,000 a year to his chief manager. President Spencer, while 
 his, like all other big railroad systems, has three or four hon- 
 orary sub- presidents at approximate salaries, each equipped 
 with palace car and staff of servants, and a host of other offi- 
 cials with high sounding titles, salaries in proportion and 
 duties in the inverse order, while the real work is done by 
 hard working subordinates with moderate salaries. In addi- 
 tion, the travelling and shipping public is loaded with the 
 sums used in running newspapers, editors and lawyers, the 
 maintenance of expensive lobbies at all the State capitals and 
 at Washington, and with the free travelling of all those whom 
 the corporations think can be influenced in that way, for the 
 
141 
 
 cost of the passage of those who travel free must be added to 
 the charge against those who do not. It must be noted that 
 this host of $100,000, $50,000, $25,000, and $10,000 salaries 
 — not one of which can be really earned — is collected out of 
 the people by the station agents as surely as the salaries of 
 the Governor and other State officers are collected by the 
 sheriff. The people of the greatest and wealthiest States do 
 not pay their highest officials upon any such scale and they 
 have the same right to regulate the salaries of railM ay offi- 
 cials, unless they can be paid inside the six per cent, interest 
 upon the real value of the roads, to which point and below 
 it, the Legislature has power to cut down the rates. The 
 Supreme Court of the United States in many cases say that 
 these high salaries and other unnecessary expenses need not 
 be considered by the Legislature in fixing reasonable railroad 
 rates. 
 
 People Pay Lease Money. — H3re may be noted another 
 favorite extortion practiced on the traveller and freight ship- 
 per. One railroad will lease another. The leaseo road is 
 only entitlea to rates that will produce not exceeding six per 
 cent, on the value of its property and these rates should not 
 be increased by leasing to another, yet the lessee road will 
 put its rates so high as to earn the six per cent, rental con- 
 tracted for and six per cent, to twenty per cent, additional 
 for itself besides the high salaries to the great officials, news- 
 papers and lobbies of the lessee. This is making the people 
 pay the rental for them and the operating company — though 
 not spending a dollar to build a road — taxes the people an 
 additional six per cent, to twenty per cent, on a paper capi- 
 tal. Reduce the charges for fares and freights to the legiti- 
 mate six per cent, on the cost of the leased roads, and we 
 would cease to see competition stilled by leasing rival roads. 
 
 Two Cents Per Mile. —li the people insist on the relief 
 they are entitled to, there is scarcely a passenger or freight 
 rate that cannot be cut in two. Two cents per mile is the 
 
14-2 
 
 highest that can fairly be allowed for first-class fare on any 
 railroad, and on most of them economists say that one cent 
 per mile would pay a fair interest oa the property actually 
 used. We should make fewer milliouaires; railroad salaries 
 would be more moderate, railroads would run fewer newspa- 
 pers and lobbies. But on the other hand, the country v ould 
 be prosperous. Instead of a few cars half filled with people, 
 and a large part of them with free passes in their pockets, 
 there would be more trains and cars, filled with people. The 
 freight rates would not afl'ord a few residents of New York 
 and London palaces with all their adjuncts, 
 
 "Where low-browed baseness wafts perfume to pride," 
 
 but there would be countless thousands of happy homes 
 when the producer can get his produce to market without all 
 the margin being taken oS to pay for transportation. 
 
 The Remedy. — How can these moderate rates be obtained? 
 Clearly, experience has demonstrated that we cannot get them 
 from the railroads themselves nor from the railroad commis- 
 sions, either State or National. The remedy is by an act of 
 the Legislature as to rates \\ithin the States, and by act of 
 Congress as to Inter- State rates, which acts should 
 
 (1) Cut down passenger and freight rates to, on an aver- 
 age, to one-half those now exacted to accord with the doubled 
 value of money and the halving the prices of produce. 
 
 (2) More powers should be given the railroad commissions 
 with stricter penalties foi the non-observance of their regu- 
 lations. 
 
 (3) Free passes snould be rigorously forbidden, as is now 
 
 done by the Constitution of New York and several other 
 States. 
 
 And lastly, railroad commissions should be made independ- 
 ent of corporate influence, as far as possible, by being in al 
 cases, made elective by the people instead of by the Legisla- 
 ture. The railroad lobby cannot control elections by the 
 
143 
 
 people as easily as it can have a decidirg influence in a legis- 
 lative caucus. 
 
 There is no influence more debasing in legislation than that 
 of the lobby. Every well wisher ol' his country would wish 
 to see it broken up. Chief Justice JVlaxwell, of Nebraska, 
 discusses this subject and the reruedy for it in a late number 
 of the American Law Review. He calls attention to the fact 
 that very recently the Governors of Illinois and Missouri were 
 forced to call special sessions because the corporation lobbies 
 had defeated necessary legislation at the regular session. 
 But instances abound. It is notorious that in all the South- 
 ern States the corrupt legislation of carpet-bag days was pro- 
 cured by railroad lobbies. 
 
 Free Passes. —Attention should now, and pending the elec- 
 tion of members to the Legislature, be pointedly called to the 
 fact that the most potent lever of the corporation lobby is 
 the free pass. As these favors are not sent to members be- 
 fore they become such, and cease when they cannot longer vote 
 on railroad measures, that fact alone should prevent accept- 
 ance by any -member. The excuse is "they all do it," and 
 hence an aroused public conscience must procure an act for- 
 bidding free passes. This the people have now forced into 
 the Constitution of I^ew York and several other states. A 
 similar provision should be in every State Constitution. 
 There is no excuse ir any member of the Legislature taking a 
 free pass, as he is one of the few officers expressly provided 
 by the State with mileage, and the sum allowed is enough to 
 pay his actual railroad fare to the State Capital and home 
 again, not once only, but several times. Yet the free pass 
 is the railroad lobbyists strongest pull. A railroad official 
 has been heard to defend it on the ground that he could "'in- 
 fluence many a man by a free pass to whom he dare not offer 
 money direct." In the last Norih Carolina Legislature a bill 
 to forbid free passes, copied from the provision in the JSew 
 York Constitution, w^as introduced and favorably reported by 
 
144 
 
 the committee, but it was not allowed to pass, being stolen 
 from the files no less than three times by som.e railroad 
 lobbyist. A legal investigation resulted in the desired delay 
 and nothing more. The bill had heen drawn by myself, 
 being copied from the Kew York Constitution, and a well 
 known railroad official called on me in person to secure the 
 withdrawal of the bill. On being told that the bill had not 
 only been prepared by request, but that it \^as in the interest 
 of honesty and honest legislation, he used the following lan- 
 guage, which may be pondered over by all honest men outside 
 of North Carolina as well as within its bounds. Said he: 
 "It might as well be withdrawn. It can never pass. The 
 fellow^s who come here to the Legislature are always anxious 
 to be raped with a pass. There is A (naming a prominent legis- 
 lator), wh}^ on yesterday he asked for a pass for himself, his 
 wife, his sister, his tw^o children, and his aunt, and do you 
 think such d — d cattle as that v\ill vote against free passes?'' 
 
 SucJi. Cattle As That. — "Such cattle as that" is the opinion 
 railroad men have of legislators who are to vote on their 
 measures, and yet take railroad money in the shape of free 
 passes. Now is the time the people should discriminate and 
 see whether they are sending railroad cattle or men lo repre- 
 sent them in the Legislatures of the several States. 
 
 If proper care is taken, Legislatures in the several States can 
 be elected this fall, as well as a Congress, which will give a 
 hona fide honest reduction in railroad charges, so material in 
 amount as to stop the manufacture of millionaires, necessitate 
 moderate salaries for railroad olijcials, the dropping of rail- 
 road ownership of newspapers and lobbies, and which shall 
 restore prosperity to the wealth -producers of the land. All 
 this can be done by electing Legislatures that will not be hum- 
 bugged or lobbied, and that will faithfully cut rates down to 
 the legal limit of six per cent, or less, on the actual worth of 
 the roads "without trimmings" for high salaries, lobbies, and 
 other expensive gear. 
 
145 
 
 Control hy Lefjislation. — In Wellman's case, 143 U. S, Re- 
 ports, the court says that the power of the Legislature to cut 
 down and fix all railroad charges "is not subservient to the 
 discretion of the railroad corporation, which may by exhorbi- 
 tant and unreasonable salaries, cr in some other improper 
 way, transfer its earnings into what it is pleased tc call 
 'operating expenses/ " In other words the salaries and 
 other railroad expenses being collected out of the people by 
 one of their own creatures, their representatives in Legislature 
 assembled, have a right to supervise and pass upon all rail- 
 road salaries and expenses when they come to fix the reason- 
 able rates the railroads shall be allowed to charge. The 
 people have the relief in their own hands. 
 
 In the South one great railroad system has been more con- 
 siderate of the poverty of our people than the railroad com- 
 missions, and has itself presented the public voluntarily with 
 a reduction of 33|^ per cent, on their rates. Another still 
 nore liberal, has granted a reduction from their former high 
 rates of eighty per cent., though it has been charged — I know 
 not how truly — that the latter at once procured from a judge 
 an injunction against their own liberality. If railroad com- 
 missions will not give the people the benefit of an order re- 
 ducing rates, they should at least be a "ratchet and pawl" 
 to prevent their going up again. The railroad companies 
 having voluntarily reduced rates are estopped to say the new 
 rates are not high enough. They have never been accused 
 of not taking care of their own interests or of being too 
 benevolent to the public. 
 
 10 
 
THE TELEGRAFH IN ENGLAND. 
 
 In "Arena," August, 1895. 
 
 As taxes upon the diffusion of intelligence among men and 
 deficiencies in the postal service affect every one, I condense 
 the following from the official report of the workings of the 
 Go^'^ernment Telegraph in England, made to our Government 
 by the United States consul at Southampicn (Eng.), and 
 printed in the last report of the "Consular Keports." He 
 says : 
 
 "On January 29, 1870, all the telegraphs in the United 
 Kingdom were acquired by the Government from the corpora- 
 tions which had previously operated them and thenceforward 
 became an integral part of the postoffice. The English people 
 owed this great measure in their interests, like so many 
 others, to Mr. Gladstone, who bore down all opposition from 
 the companies who were making big profits. Till then the 
 districts paying best had ample service, though at high rates 
 (as is still the case with us) while whole sections off the lines 
 of railway were destitute of telegraphic facilities. The Gov- 
 ernment at once extended the telegraph to all sections and 
 reduced the rate to one cent a word. The following is the 
 result: In 1870, under private o\i nership, seven millions in- 
 dividual messages and twenty-two millions words of press dis- 
 patches were annually sent. Now that the telegraph is 
 operated by the postoffice, the annual number of individual 
 messages sent is seventy millions, (ten times as many) and 
 over six hundred millions words of press dispatches (thirty 
 times as many), are used. This, at a glance, demonstrates 
 
147 
 
 the overwhelming benefit to the public of the change and 
 their appreciation of it. 
 
 "The press rates have been reduced so low that every w eekly 
 countr}'^ paper can afford to print the latest telegraphic dis- 
 patches as it goes to press, and a telegraph or a telephone is 
 at every country postolSce. In London the telegraph has 
 largely superseded the mail for all the small and necessary 
 details of life — to announce that you are going to dine at a 
 certain house, or to inform your wife that you are detained 
 on business, and not to keep dinner waiting and the like, — 
 over 30,000 telegranas being sent daily in that city alone. 
 The following is quoted from the consul verbatim: 'The ser- 
 vice is performed with the most perfect punctuality. It is 
 calculated that the average time employed to-day in the trans- 
 mission of a telegram between t\^o commercial cities in Eng- 
 land varies from 7 to 9 minutes, while in 1870 (under private 
 ownership), two to three hours were necessary." 
 
 The rate of one cent a word includes delivery within the 
 postal limits of any town or within one mile of the postoffice 
 in the country. 
 
 Beyond that limit the charge is twelve cents per mile for 
 delivery of a message. The telegraph being operated as a 
 constituent part of the postal service, it is not possible to state 
 how much profit the government receives from it, but the 
 English government does not consider that it should be treated 
 as a source of revenue. It regards it as a means of informa- 
 tion and education for the masses, and gives facilities of all 
 kinds for its use and its extension in all directions." 
 
 This unbiased and impartial report, officially made to our 
 Government, is worthy of thought and consideration. It may 
 be added that in every civilized country, except this, the tele- 
 graph has long since been adopted as one of the indispensable 
 agencies of an up-to-date Postoffice Department. Even in 
 half civilized Paraguay (as we deem it), they have better 
 postal facilities than we, for the postoffice there transmits 
 
148 
 
 telegrams at one cent a word and rents out telephones at $1 
 per month. 
 
 At present, owing to high rates, forty-six per cent, of all 
 telegrams in this country are sent by speculators (who thus 
 get an advantage over producers), and only eight per cent, 
 are social or ordinary business messages. In Belgium, v^here 
 the government rate is less than one cent per word, the 
 social and ordinary business messages between man and man 
 are sixty-three per cent, of the whole. Figures could not be 
 more eloquent as to the vast benefit this confers upon the 
 great mass of the people who bear the bulk of the burdens of 
 any government, and receive so few of its benefits. With 
 the telegraph and telephones operated by our postoffice, at 
 moderate rates— -say five or even ten cents per message — a 
 similar change would take place here. Individual aud news 
 messages would increase ten to thirty fold as elsewhere — and 
 probably more-— and the monopoly now held by speculators 
 would cease. 
 
 The average telegraph rates now charged in this country 
 average by the reports to Congress, thirty-one cents per mes- 
 sage — three times the average rates in all the countries un- 
 der postoffice telegraph service — and experts say that our 
 Government could probably afford, with the vast increase of 
 business, a uniform rate of five cents, as the average cost of 
 a message is much less than that. The telegraph plants now 
 in use could be superseded by the government, according to 
 experts, with a superior plant at a cost of 115,000,000, while 
 the present corporations are strangling commerce to earn 
 heavy dividends on a watered stock of over 8150,000,000. 
 According to English experience the transfer of the telegraph 
 to the Postoffice Department would result: (1) In a uniform 
 rate of ten cents for ten words, between all points, or possibly 
 less. (2.) An increase in individual messages of at least ten 
 for every one now sent. (3.) A.n increase in press dispatches 
 of thirty words or more for every one now sent. (4.) A 
 
149 
 
 popularization of the telegraph for all uses, social or business. 
 (5.) An increase in promptness of delivery, the average there 
 being now seven to nine minutes as against two to three hours 
 formerly. (6.) No section would be destitute, but at each 
 one of our 70,000 postoffices there would be a telephone or 
 telegraph. By adopting the telefhone at most postoffices, in- 
 stead of the telegraph, the increase in the number of post- 
 office employees would be inconsiderable The vast influence 
 of the great telegraph monopoly can be used for political pur- 
 poses by coloring news and in other more direct ways. When 
 the telegraph service is made a part of the postoffice, and 
 placed under civil service rules, and subject to the ciirect force 
 of public opinion, the experience in other countries has been 
 that it exerts no more power on party politics than the army 
 or judiciary. Originally the telegraph (184-l:-47), belonged to 
 the postoffice. When it was abandoned to private corpora- 
 tions on account cf its supposed expense, lienry Clay, Cave 
 Johnson, and other leaders of both parties had the foresight 
 to foretell the mischief done in abandoning an essential gov- 
 ernmental fu-nction to private monopoly. 
 
 To prevent this great benetit of a modernized postal ser- 
 vice being given to the masses, and to preserve to consoli- 
 dated capital control of the most eflicient avenues of intelli- 
 gence, with the great advantages thus given that element, in 
 addition to the enormous tolls it can levy on the rest of the 
 nation, there is practically only the inexorable will of one 
 powerful and exacting corporation which has fastened itself 
 on the body politic. It is the oldest trust in this country. 
 It is the pioneer on which so many others have patterned. 
 It is the most burdensome because its oppressive tolls restrict 
 communication between men, and is a tax on knowledge. It 
 is iUegal (since the Constitution requires Congress to establish 
 the postoffice), to leave this most essential function of a 
 modern up-to-date postal service in the hands of private cor- 
 porations. It is a source of gigantic emolument to them, 
 
150 
 
 while the government restricts its postal service to antiquated 
 and more dilatory processes. It is no wonder that such a 
 postal service is not self-sustaining, and shows an annual de- 
 ficit, while the telegraph companies pay enormous dividends. 
 In other countries where the telegraph is a part of the Post- 
 office Department that Department shows annual profits. 
 But the monopoly fastened on us is intrenched in the sym- 
 pathy of all other trusts. It has th<^ support of the large city 
 dailies (all owned by large capitalists), who fear the competi- 
 tion of dailies in sncall towns and of the weeklies if news 
 should become free, and its transmission cheaper, over a gov- 
 ernment postal telegraph. It is backed by the powerful lob- 
 by it constantly maintains at ^Yashington, paid out of the ex- 
 cessive telegraphic rates (still exacted io this country alone), 
 out of a long suffering and too patient people. And not 
 least, it is said that it distributes franks to every Senator and 
 every member of Congress. How many accept these favors 
 and how many are influenced by them no one knows except 
 the corporation officials, but that they do know may be seen 
 from the fact that tenders of such favors have not ceased. 
 
THE ELECTION OF POSTMASTERS BY THE 
 PEOPLE. 
 
 "Arena," June, 1894. 
 
 The Constitution of this Union of States, adopted by our 
 forefathers at Philadelphia, in 1787, was a very remarkable 
 instrument. In many respects it was the most admirable 
 framework of government which the ages had produced. 
 But like all human productions it had its faults. The gene- 
 ration which made it added no less than twelve amendmentB. 
 Three have since been added. Another, providing tor the 
 election of United States Senators by the people, instead of 
 by the Legislatures of, the respective States, commands pop- 
 ular approval, and will no doubt be adopted. The neces- 
 sity for it has been fully demonstrated. It is, besides, 
 practically adopted in several States already by the custom 
 of the State party conventions nominating a candidate for the 
 approaching vacancy in the Senate, and the members of the 
 Legislature being elected upon an implied or express pledge 
 to vote for their respective party's candidate for Senator, 
 in conformity to the custoiu which requires electors to vote 
 for the Presidential candidate designated by their party con- 
 vention. 
 
 But there is another amendment which time has also 
 demonstrated to be a necessity. Public sentiment has crjs- 
 talized in its favor wherever the subject has been discussed. 
 The v^elfare of the republic requires its adoption. The pro- 
 vision which vests the appointment of postmasters in the 
 President and heads of departments, according as Congress 
 
152 
 
 may direct the classification, was doubtless a suitable and 
 proper one when the Constitution was adopted. The num- 
 ber of postmasters was then a fevi hundred. It was thought 
 then that the President, or the Postmaster-General, in one of 
 whom all these appointments were vested, according to the 
 classification by Congress, would make inquiry and be in- 
 formed as to the fitness of the appointee — in short, that they 
 wotld really be the appointing power, 
 
 Now that the number of postmasters approximates 75,000, 
 this is entirely impracticable. Counting 300 working days 
 per year, and six hours per day given entirely and solely to 
 appointments, with an average of only fifteen minutes con- 
 sideration to each each case, the four years of the Postmaster- 
 General would expire before 29,000 appointments v\ere made, 
 or two-fifths of the postmasters; this, too, with a total neg- 
 lect of all the other and more important duties of that office, 
 unless outside of official hours. The appointing is in fact 
 done by a power not recognized as possessing the right to 
 appoint, and on whom it would not have been cooferred in 
 1787 if the suggestion had then been made. Nor could sucn 
 provision be placed in the Constitution if it were attempted 
 to-day. 
 
 We have thus, in fact, an army of 75,000 men appointed 
 to office illegally, in a mode not provided by the Constitu- 
 tion, and which could not be placed in the Constitution to- 
 day by the people's will. The appointment of this array of 
 officeholders is as to the Presidential postmasters practically 
 vested in the Senators fron the State, and of the lesser post- 
 masters in the member of Congress for the district, when 
 these are of the same political party with the President or in- 
 fluential with him. When these legislative officers are of the 
 opposite political party, or not personally in favor with the 
 President, the appointment is virtually .vested in local party 
 leaders, who act without the responsibility and publicity of 
 office. 
 
153 
 
 Aside from the fact that such modes of appointment are 
 unconstitutional and illegal, and that as matters stand it is 
 impossible for the mode to be cnanged, since neither President 
 nor Postmaster-General can possibly become acquainted with 
 the fitness and character of such a host of appointees, there 
 are many other objections to the system in force as to the ap- 
 pointment of postmasters, among which may be named as the 
 most potent the following: 
 
 1. It gives the executive an overshado'-ving influence with 
 the legislative department. This is always dangerous in a 
 free government. As it is recognized that the Senator or 
 Congressman, as the case may be, is the real appointing 
 agency, subject to the President's option to place the exercise 
 of such power in some party leader, every candidate for an 
 appointment is so much pressure brought to bear upon the 
 Senator or Congresraan that he shall conform his views to the 
 President's upon leading questions. Our Constitution, framed 
 under ideas prevalent over one hundred years ago, gave the 
 executive what has heretofore proven undue weight and in- 
 fluence in the government. He is in fact an elective king, 
 for a term of years, with an authority exceeding that of any 
 crowned head in Europe, except the Czar of all the Russians. 
 But this additional influence, not contemplated by the Con- 
 stitution, makes his authority and influence overv\ helming. 
 
 It is but recent history that the President declared his wish 
 and intention that a certain important financial matter nearly 
 affecting the people at large should pass Congress. There 
 was no secret made that Senators and Congressmen not sup- 
 porting the executive view would find no favor at the White 
 House. It is also generally belived that the pressure of ap- 
 plicants for office, and their friends, was so great upon Sena- 
 tors and Representatives that many of them deserted their de- 
 clared, and often announced convictions of a lifetime, that 
 they might receive executive approval of the appointment 
 which they wished to make in behalf of their personal or party 
 
154 
 
 friends, according to customary usage, and as a part of the 
 perquisites of their legislative offices. It is no secret that 
 this was the most potent influence in carrying the measure 
 through Congress. Without this Presidential influence, can"it 
 be doubted that the measure would have failed? AVhat was 
 then so easily done can be done again and again on impjrtant 
 occasions, until Congress shall be little more than the beds of 
 justice of the old French Parliaments, which met simply to 
 register the decrees of the sovereign. 
 
 2. The system practically in force is injurious to the legis- 
 lative department itself, which should not be invested with 
 the appointments. It often leads to "trades" and combina- 
 tions for the appointment of individuals as postmasters, on 
 account of their influence instead of their fitness and accept- 
 ability to the public. In this way, not infrequently, nomi- 
 nations and elections are secured. As the "patronage" is 
 yearl}^ increasing, with the value and number of postmaster- 
 ships, this source of public forruption -^ill grow. 
 
 It is no answer to say that many Senators and Congress- 
 men — let it be said if you will, a pery large majority of 
 them — do not bestow these appointments with any view to 
 reward past services or secure future support, but with an 
 eye single to the public good. Still the Constitution is per- 
 verted by the bestowal, in practice, of any part of the ap- 
 pointing po\;^er upon members of the legislative department. 
 That some of them abuse it, and that the SN'stem affords, nay 
 invites, misuse, is a condemnation of it. The only test of a 
 postmaster's appointment should be fitness and acceptability to 
 the public of the locality he is to serve. The best judges of 
 those qualifications are the people themselves, expressing 
 their opinions and wishes in the matter as collected from the 
 ballot box. 
 
 P>esides, it interferes with the discharge of their proper 
 functions that legislators should be practically thus invested 
 with the appointing power, and called upon to decide upon 
 
155 
 
 the advantages of this or that appointment. Then, too, as 
 already stated, it destroys the independence of the legislative 
 department by making it subservient to the executive, in 
 order to avoid the veto which the latter can place upon a 
 senator's or representative's appointments and thus destroy 
 all chances of renomination. The best men in both branches 
 of Congress would be g'ad to be relieved of this thraldom, 
 and to be relegated to their constitutional duty of legislating 
 for the best good of the people, unswayed by outside and per- 
 sonal considerations. 
 
 3. From the standpoint of the people, the present system 
 is equally injurious. It is educating a host of men to look 
 not to the people themselves as the source of all power and 
 authority, but to regard the appointing power as something 
 beyond and above the people. It is creating a mass of cour- 
 tiers and political traders, who rely for appointment not upon 
 fitoess or public approval, but upon the "pull" they may have 
 on the virtual appointing power — the Senator or Representa- 
 tive whom they have aided to bring into office or to whom 
 they have advanced money, either bona fide, or sometimes, 
 it may be, under the guise of subscription to the campaign 
 fund. The opportunity which corruption is afforded is great. 
 Let us hope it is not often used. 
 
 These being some of the evils, and they are great ones 
 — which will assuredly become greater — what is the rem- 
 edy? There is but one. It is the only one which free- 
 men have ever found with which to breai: the force of execu- 
 tive tyranny or prevent corruption in the appointing power. 
 That is to resume the power themselves, and to select their 
 servants at the ballot box. 
 
 This would not only remove the evils above indicated, and 
 others, but would have the most important results. 
 
 1. In the first place a presidential election is now a strain 
 upon the whole country. The postmasters and other officials 
 connected with the postal service number one hundred thou- 
 
156 
 
 sand. These, with their families and others closely allied to 
 them, form a vast army of a half million of people who are 
 dependent upon the success cf a Presidential candidate. 
 Doable as many more expect appointments if the other side 
 shall win. If each postmaster were elected by the people of 
 the locality, this would be no longer the case. Whether post- 
 masters should be selected at the ballot box by personal pre- 
 ferences or on party lines, still the wishes of that particular 
 locality would succeed, irrespective of the success of any par- 
 ticular candidate for the Presidency, This would remove one 
 of the great inciting causes of a contiict, which, exciting 
 enough in any view, has been so aggravated as to have caused 
 a civil war in 1860 and nearly caused its repetition in lf^76. 
 
 2. The change would relieve the President of a personal 
 strain from applications for office which has contributed to, 
 if not directly caused, the death of more than one incumbent 
 of that high office and crippled the usefulness of others. It 
 would give the executive, as well as the legislative, depart- 
 ment time to devote to proper and appropriate duties. 
 
 3. The change would check the growing tendency to cen- 
 tralization wnich threatens to absorb local self government in 
 the centripetal attraction of public office. 
 
 4. This would deprive the opponents of a governmental 
 telegraphic and telephonic service of their only valid argu- 
 ment against it, which is that it would increase the number 
 of Federal appointees. The number of postoffices might be 
 largely increased with a telephone at each office, exce;.it at 
 one or two large offices in each State, which might be tele- 
 graphic for the purpose of relaying and forwarding long-dis- 
 tance messages. With low governmental, rates this change 
 would more than double the benefits and usefulness to the 
 people of the postoffice department. With postmasters elected 
 by the people, there can be no longer objections urged against 
 increasing the number of Federal appointees from fear of au- 
 gumenting the pressure for patronage, which now threatens 
 
157 
 
 to paralyze both the executive aud legislative departments of 
 the government. 
 
 Nor are there any practical difficulties as to the manner of 
 election. The territory around each postoffice could be di- 
 vided off into a precinct by a board provided for the purpose 
 by statute, with provision for sub-divisions and changes by the 
 department in a manner which would guard against abuse. 
 Each four years when a President is elected, a postmaster for 
 each of these postoffice precincts could be chosen, exactly in 
 the same manner that a constable is elected in each township 
 when the Governor and other officers are voted for by the 
 State at large. This would not add perceptibly to the ex- 
 pense of elections. 
 
 The postmasters thus elected would give bond and be sub- 
 ject to removal for cause, just as the appointed officials are 
 now, aud \\ould be in all respects subject to the same regula- 
 tions as now, except that when removed for cause the cause 
 might be tried at the next Federal court. If the charges 
 were not sustained the officer would be reinstated. In case 
 the charge were proven, a new postmaster would be elected 
 for the unexpired term at the next Congressional election, if 
 it should not be a Presidential election year. 
 
 The strongest objection against the election of postmasters 
 by the people is, that it was not provided for in the Constitu- 
 tion of 1787. But neither was the present system of virtual 
 appointment by Senators and representatives provided for by 
 that Constitution, It is a fungus growth and dangerous to 
 the health of the republic; it should be removed. 
 
 It is said that this world of ours has three motions — one 
 its diurnal revolution on its own axis, another its wide an- 
 nual sweep around the sun, the third as it is drawn along 
 with the whob planetary system in the rush of the sun to- 
 wards the distant point in the heavens to which it has been 
 flying with more than the velocity of a cannon-ball since cre- 
 tion's dawn. The three motions combined describe a spiral. 
 
158 
 
 As the earth thus spins dov\n the spiral stairway of the stars, 
 the lapse of every t\vent3'^-four hours sees us removed three 
 millions of miles from the point in space occupied by us at the 
 same hour the day before. With the whole world thus earn- 
 estly "on the move," can it be seriously contended that the 
 Constitution alone should stand still? That it had its imper- 
 fections has been shown. The generation that made it was 
 wise enough to amend it, and succeeding generations have 
 done the same. Now we are face to face with other imper- 
 fections which have come viith the lapse of time — the man- 
 ner of electing Senators, and the immense growth of, and 
 perverted methods of dispensing, patronage or appointment 
 to office. Is not this generation wise enough and strong 
 enough to grapple with these questions? 
 
 Whatever may be said in favor of civil service as applica- 
 ble to clerkships and other subordinate positions, it is very 
 clear that life appointment under civil service rules is not 
 desirable for postmasters who are thrown directly in contact 
 with the people, and whose acceptability to the people they 
 serve is cf the first importance. Nor is favor in the eyes of 
 a congressman, ambitious perhaps of further honors or mind- 
 ful of past favors, a proper basis for appointment. If the 
 people are wise enough to elect presidents and congressmen, 
 governors and judges, why can they not be trusted to select 
 senators and postmasters? 
 
 When the Constitution of 1787 was framed, there was a 
 large element cautious of committing much power to the peo- 
 ple. It wsis an unknown and untried experiment. Senators 
 were to be chosen by the Legislatures. It was feared to trust 
 their election to the masses, but time has demonstrated that 
 the latter would have been the better plan. Judges were to 
 be appointed for life by the president. Yet hardly a State 
 Constitution retains now such a feature. The few hundred 
 postmasters vsere to be appointed by the President or the 
 Postmaster-General. Now that they number nearly three- 
 
159 
 
 fourths of a hundred thousand, and are increasing in number 
 at the rate of three to five thousand per annum, their appoint- 
 ment is practically changed and is made by menrbers of Con- 
 gress and Senators or unoiScial political leaders. A century 
 of experience in self-government and the spread of education 
 among the masses hap^e been of little value, if -they have not 
 brought proof of, and increased conndence in, the capacity 
 of the people to select their own officers. The development 
 of republicaa government must take that direction. The 
 continued bestowal of so large a number of offices, increasing 
 steadily in number and value, by patronage, can only result 
 in increasing and widespread corruption. Trust the people. 
 While they remain honest and intelligent the}'' are the proper 
 and only safe depositories of the power of selecting their Ovvn 
 servants. Whenever the day shall come when they shall 
 cease to discern their own interest or shall become corrupt, 
 a stronger form of government, not resting on the people's 
 "v^ill, may be found, but not a purer one. 
 
 The w;riter is one of those who steadily believe in the ca- 
 pacity of the people for self-government, and that progress 
 in the direction of a purer, better government, a government 
 which shall be for the people, is to be found only in the ex- 
 tension of a government, which is by and for the people. In 
 the curtailment of patronage, which is a survival of govern- 
 ment b}'' officials, and the selection of postmasters and all 
 other officers as far as possible by the people, is to be found 
 the only solution of many of the difficulties and evils which 
 now surround us. This will not be the "conclusion of the 
 whole matter," b&t it will be a long step in the right direc- 
 toin. Other difficulties will arise with our development in 
 wealth and population. Wisdom will be found to solve them 
 as they press on us. 
 
 " There are great truths that pitch their shining tents 
 Outside our walls ; and though but dimly seen 
 In the gray dawn, they will be manifest 
 When the light widens into perfect day." 
 
CLAIMS OF LONG DESCENT." 
 
 "We are all the Lineal Descendants of Kings and Queens. 
 
 Reprinted by Special Permission from the "North American Review," 
 
 December, 1894. 
 
 " Honors best thrive 
 "When rather from our acts we them derive 
 "Than our foregoers. "— All 's Well, Act II, Sc. 3. 
 
 To any who does not consider the vanity inherent in hu- 
 man nature, it is astonishing to note the number of people, 
 even in this country, where every ixan is a sovereign, who 
 lay claim to royal descent. The third edition of "Americans 
 of Royal Descent" has recently been issued, with 900 pages 
 and several additional peaigrees. Not so very long since a 
 Richmond (Va.) paper had several columns giving in great 
 and edifying detail the pedigrees of divers and sundry fami- 
 lies in that State who ran back their genealogical line to some 
 king of England. And farther north the nouveaux riches^ 
 overwhelmed with all the good things of the present, and 
 feeling secure for the future, not infrequently proceed to pro- 
 vide for the past also by purchasing themselves a comfortable 
 pedigree with some king as tenni7ius a quo. These genea- 
 logical acquisitions, like the similar traditional claims of the 
 F. P. V.'s in the Old Dominion, are deemed by the public 
 exceedingly doubtful. Tennyson (himself of undoubted royal 
 ancestrj"-) has said: 
 
 " From yon blue sky above us bent 
 The grand old gardener and his wife 
 Smile at the claims of long descent." 
 
101 
 
 "While claims of royal origio could be of no benefit to the 
 claimants if proven, and certainly could be of small credit, 
 seeing that the average royalty has been a rather disreputa- 
 ble character, there is another side to this question, which 
 has been little considered. And that is that these claims, 
 notwithstanding the public incredulity, are probably all true. 
 Let us consider. AVilliara the Conqueror ascended the throne 
 of Eng'land A. D. 1066. Allowing thirtv-three vears as a 
 generation, there have been twenty-six generations since, 
 counting his children then living as the first generation. 
 Many people leave several children, others leave more. It 
 is certainly not an immoderate calculation to average each 
 descendant as leaving three children. For if each descend- 
 ant with his wife left only two children, the population would 
 have stood still; whereas the less than a million inhabitants 
 of the British Isles of that day have grown to be nearly forty 
 millions there, and seventy millions on this side of the water. 
 William the Conqueror had four sons and six daughters. 
 Averaging each of these as having three children, with the 
 same average for ea.ch of their descendants down to the pre- 
 sent, and the ten children of William in the present or 
 twenty fifth generation, by a simple arithmetical calculation, 
 would have 2,824,295,314,810 descendants now living in the 
 British Isles, in America, in the colonies or wherever men of 
 British descent are to be found. As this is fully 25,000 times 
 as many as there are people of British descent on the globe, 
 there must be an error in the above calculation. There are 
 two. First: while an average of two children to each de- 
 scendant is too small, since that average would have kept the 
 population stationary, an average of three is too high, as that 
 is an increase of fifty per cent, every thirty years, an average 
 which lew countries other than the United States could show. 
 The second error is that intermarriage among descendants 
 must be allowed for. Say that owing to these errors the result 
 of the calculation is 25,000 times too much, it would still re- 
 11 
 
162 
 
 suit that every man of the English-speaking race is descended 
 from the Conqueror. Roduce it as much more as you like, 
 and the chances are yet strong that any ^iven man of your 
 acquaintance, as well as yourself, is probably a descendant of 
 the victor of Hastings. Carry the propositus — as lawyers 
 call him — back a few generations further, say to Alfred the 
 Great or Charlemagne, and the chances are almost inevitable 
 that any given individual is the'r descendant. Indeed, in the 
 light of arithmetic it may be doubted if to-day there is any 
 person speaking French, German, or English, who is not a 
 lineal descendant of Charlemagne. It is at least a mathe- 
 matical certainty that to-day there lives no one in any civil- 
 ized country who is not a lineal descendant of some king or 
 other eminent historical character. So true is it that he has 
 made "all people of one blood," and so puerile are claims of 
 anyone whatever to superior descent over his neighbor. 
 
 The six wives of Henry YIII of England came from three 
 different countries and different ranks, but each, as tvell as 
 Henry himself, was descended from Edward III, The fact 
 is commemorated on the windows of the chapel of the Royal 
 Palace at Hampton Court, as will be remembered by all who 
 have been there. In London, too, there is to-day a butcher 
 (and many others of like rank) who can prove unbroken lineal 
 descent in a legitimate line from a king of England. 
 
 There is another view, too, of this matter. While taking 
 any historical character as a terminus a quo, his descendants 
 widen out in every generation like a pyramid from its apex; 
 yet taking any given person, yourself for instance, and trac- 
 ing back his ancestors in like manner, they double in each as- 
 cending geneiaticn, till in a few hundred years they become 
 "like sands on the seashore for multitude." The rirst error 
 in the above calculation as to descendants is eliminated. The 
 ancestors in each ascending generation must be exactly dou- 
 ble the number of those in the generation below it. The 
 only error to be allowed for is the duplication of ancestors 
 
163 
 
 by intermarriage of relatives, till finally, by the operation of 
 this fact in the remote past, the whole haman race is nar- 
 rowed to one pair for its origin. But taking each individual 
 living to-day as the apex of an inverted pyramid, with his 
 ancestors doubling with each ascending generation, those an- 
 cestors become countless. Putting the population of the 
 British Isles in William the Conqueror's day at l,OuO,000, it 
 may be doubted if any English-speaking man breathes to-day 
 who is not descended, not only from William himself, but 
 from each other of the great majority of the whole popula- 
 tion of that da}^. It is true families die out; but if they sur- 
 vive and increase to the third and fourth generations, with 
 each successive generation decrease greatly of course the 
 chances of all the branches dying out. Even where descend- 
 ants apparently fail in the direct line there always is a chance 
 that descendants exist who have become obscure and been 
 lost sight of, or there may be descendants through illegitimate 
 and hence unrecognized descendants. Every man may safe- 
 ly count on the fact that among his innumerable ancestors 
 are not only kings, and other historical characters, but also 
 as certainly tramps and criminals of every description. For- 
 tunately, criminals do not, as a rule, "live out half their 
 days," and their line is more apt to become extinct in the 
 first or second generation succeeding, yet he who 
 
 " The ancestral line would ascend 
 Will find it waxed at the otjier end 
 With some lineal progenitor." 
 
 True, indeed, it is that every, man is descended not only 
 from heroes, kings, princes, poets, but also as certainly from 
 murderers and thieves. 
 
 The doctrine of heredity has some force in it, but much 
 that is called heredity is simply the effect of environment. 
 A man may be a thief or tbe opposite because his father was 
 such, but it is much more likely that his bent toward larceny 
 
164 
 
 or good v^orks is due rather to his surroundings and early in- 
 fluences than to qualities transmitted in the blood. Inas- 
 much as the grandchild is only one-fonrth, his son one-eighth, 
 his son one-sixteenth, and his son one-thirty-second (and so 
 on in geometrical ratio) the possessor of inherited qualities 
 from any given ancestor, the effect of descent speedily min- 
 imizes Nothing is more absurd and unfounded than the 
 claims of an aristocracy based upon the supposed continued 
 transmission, of virtues and talents, as is the British House 
 of Lords, or of a monarchy, all of which have been founded 
 by some great chieftain of his da\\ But more absurd still is 
 the spectacle of any one individual seeking to attract imputed 
 honor to himself by asserting claims to descent from one who 
 held some post of honor centuries ago. If the chain of de- 
 scent can be made out, countless others are equally as cer- 
 tainly descended from the same origin, and furthermore the 
 claimant is equally as certainly descended from numerous dis- 
 reputable characters, whose qualities he has the same chance 
 to have inherited with those of his more conspicuous and hon- 
 ored ancestors. No conception is more false in fact than the 
 current conceit that any man is descended from a single line 
 of ancestors. The lines of descent approach infinity. And 
 nothing is more certainly destroyed by the inexorable logic 
 of figures than any assumed merit based upon "claims of long 
 descent." ■ "We are not only all descended from Adam and 
 Eve, but probably every German, Frenchman, Spaniard, 
 Italian, and Anglo-Saxon is likewise a descendant of Julius 
 Csesar and Charlemagne. It is true royal dynasties have 
 died out, but no account is taken of illegitimate descendants, 
 usually numerous, in such cases. Btsides, luxury and vfar 
 decimate dynasties, and intermarriages reduce the number of 
 descending lines. Ca3sar has no legal heir in the direct line, 
 but according to what Seutonius and Plutarch tell us of him 
 he doubtless left man}'- descendants. Famine and war have 
 destroyed whole populations, but when after a few genera- 
 
165 
 
 tions a man's descendants have multiplied into many lines, 
 no disaster could within apy reasonable probability cut off all 
 his descendants. The modern ''claimants" have no monopo- 
 ly. The begga*" next door is probably a genuine lineal de 
 scendant of Charlemagne, As Pope says: 
 
 " What can ennoble fools or slaves or cowards? 
 Not all the blood of all the Howards." 
 
 Or as Sancho I'anza hath it : 
 
 " Every man is the son of his own works." 
 
 Every man leaving descendants who survive beyond the third 
 or fourth generation will, in- all probability, io a few centu- 
 ries, be one of the ancestors of every maa of his nationality 
 then living on the globe. But if there is any element of un- 
 certainty as to a man's descendants there is none as to his 
 ancestors. The ''past at least is secure." Every man has 
 necessarily had millions of ancestors, and equally of necessity 
 has "royal blood in his veins." 
 
THE TRUE REMEDY FOR LYNCH LAW. 
 
 In American Law Review, December, 1894. 
 
 In the United States, by the State official reports for 1892 
 the last which have been compiled, there 'were 6,791 homi- 
 cides. In that year, for homicides and all other capital 
 offences (number of latter not given), there were 107 execu- 
 tions b}'- process of law and 236 by lynching. Taking the re- 
 ports for ten years, 1883 — 1892, the average has been more 
 than two executed by lynching for one executed by law. 
 Notwithstanding the many new laws passed against lynch- 
 ings, and the efforts of ttie various executives and the fuimi- 
 nations of the press against ''mob-law," the ratio of lynch- 
 ings to the number of legal executions shows a decided and 
 steady increase. New laws to repress lynching have had, 
 and can have, no effect. It has always been murder to take 
 the life, even of a criminal, without warrant of law, and no 
 new law can make it any greater offence. The remedy must 
 be sought in this case just as a physician, or a machinist, 
 seeks the remedy in any matter intrusted to him. The £rst 
 step is to ascertain the cause of the trouble. That being 
 known, the remedy can be intelligently applied. 
 
 The cause of lynching is not a spirit of lawlessness. As a 
 rule, the men who participate in it wish ardently to enforce 
 justice. The truth is, society feels that it must be protected 
 against crime. Whenever society has lost confidence in the 
 promptness and certainty of punishment by the courts, then 
 whenever an offence sufficiently flagrant is committed, society 
 will protect itself by a lynching. There is the whole story. 
 It is the caae of the vigilance committees of San Francisco 
 
167 
 
 over again. They cleared out the murderers and felons from 
 that city when the law showed itself ineffectual for their pun- 
 ishment. The number of homicides in 1892 being 6,791, the 
 other capital felonies committed would doubtless raise the 
 total to 10,000 or over. That for this number of offences 
 only 107 were legally convicted and executed is significant. 
 Its significance is deepened by the fact that society, despair- 
 ing of a due execution of the law, hung 236 others without 
 process of law. How many others of the 10,000 were guilty 
 and yet escaped just and merited punishment, both by law 
 and lynching, can never be known. It is safe to sa}'^ that it 
 was no inconsiderable number. 
 
 The remedy for lynching is to restore the confidence of so- 
 ciety -in the just, pron:pt and eflicient trial and punishment 
 of criminals. Courts are very expensive to the people. Yet 
 in most cases if a criminal can procure the services of able 
 and skillful counsel, the advantages granted to the prisoner 
 in a trial for a capital offence are such that a verdict for the 
 State is almost impossible, no matter how flagrant the offence. 
 Or if a verdict is had, so numerous are the technicalities that 
 it is very difficult for the trial judge to so conduct the trial 
 that a reversal will not be had on appeal. The trial of a 
 capital case when the prisoner is guilty, generally, is not so 
 much an investigation of the truth of the real matter at issue 
 as a display of legal skill on the part of counsel, which is 
 usually sufficient to prevent the execution of the just sentence 
 of the law. 
 
 Let the trial be speedy, and the punishment, if there is a 
 conviction, be prompt and certain. Eemove the technicali- 
 ties which render so many trials a travesty. Abolish the de- 
 lays and continuances which baffle justice, and which make 
 punishment at the end of a long chase, take on the appear- 
 ance of revenge rather than justice. Do these things, and 
 not only lynchiugs will disappear, but the grand annual total 
 oi over 10,000 capital offences will shrink wonderfully. 
 
168 
 
 Take an ordinary trial for murder. Tlie first step is de- 
 lay. The second step is delay, and then as many more de- 
 lays as possible. The clearer the gailt of the defendant, the 
 more zealous his counsel is, of course, for all the dela}'' he can 
 get. Witnesses re ay die or leave the State, or their merao- 
 r}'^ of the transaction becomes less exact and the puolic senti- 
 ment in favor of the execution of the law becomes hojjeless 
 and dulled. The remedy for this is to require the trial to be 
 at the term at which the indictment is found. Or, if for any 
 reason, a continuance is necessary, the term of the court 
 should be adjourned, after the transaction of other business, 
 to a day named in the continuance which shall be the earliest 
 day practicable. 
 
 Then we come to the trial. There every possible advan- 
 tage is given to the defendant and every possible disadvan- 
 tage is imposed upon the prosecution. Theprisoner in mostof 
 the States is allowed many more challenges than the State. 
 In North Carolina he is allowed tvventy-three while the State 
 has only four. The prisoners guilt must be shown beyond 
 a reasonable doubt. Twelve jurors must concur in finding 
 him guilty. He has the great advantage that erroneous rul- 
 ing of the presiding judge in his favor cannot be corrected; 
 w^hile a single erroneous ruling against him vitiates the whole 
 proceeding. The sympathy of the jury in favor of a fellow 
 being in jeopardy of his life is easily appealed to and readily 
 evoked. Technicalities surround the trial from start to finish 
 and are quickly availed of by skillful counsel, if one is vio- 
 lated. No wonder that under these circumstances co.iviction 
 and punishment for a capital offence are almost impossible 
 when the prisoner or his friends can procure able counsel, 
 and that society, feeling outraged at the useless expenditure 
 for its courts, so often executes justice without the sanction 
 of law. In vain do the executive and legislative departments 
 strive to lessen the growing evil. As long as the judicial de- 
 partment fails, or is prevented, from promptly and justly in- 
 
169 
 
 vestigating the charge and denouncing sentence upon the 
 guilty, so long will tbis irregular species of justice grow and 
 abound more and more. Whether capital punishment should 
 be abolished or not rests with the people of any State, acting 
 through their accredited representatives. But as long as the 
 penalty of death is prescribed by the statute, it should be 
 borne in mind that a trial for a capital offence is a solemn, 
 serious proceeding, which society has decreed as necessary 
 for its well being and safety. It is not to be approached 
 from its sentimental side. The sole object should be the cold 
 impartial ascertainment of the facts pertaining to the charge. 
 The enormous disadvantages at \^ hich the Slate is placed 
 in such trials, and the numerous technicalities of which the 
 prisoner can avail himself, were invented by the humanity of 
 the courts, at a time when the prisoner was neither allowed 
 the benefits of counsel nor to cross-examine the vutnesses 
 against him, nor to have witnesses summoned in his own be- 
 half, unless he could pay for them. This state of things hav- 
 ing long ceased to exist, the disadvantages then imposed upon 
 the State sho.uld also cease. It will be a sufficient protection 
 for the innocent to retain the requirement that his guilt must 
 be shown beyond a reasonable doubt, and that the verdict of 
 guilty can only be pronounced by the unanimous verdict of 
 a jury. The sympathy of a jury for a fellow-being on trial 
 for his life will always be stronger than the desire to vidicate 
 the outrage upon society, and such sympathy can always be 
 readily appealed to by eloquent counsel. But bf^yond these 
 things, any further disadvantages imposed upon the State is 
 not in favor of the innocent, but of the guilty. Tte number 
 of pcemptory challenges should be reduced, and an equal 
 number (say, six) allowed the State and the defendant. 
 This has already been done in a few States: Illinois, New 
 York, Connecticut, Ehode Island, Florida, and Colorado, 
 while in Massachusetts the State has more challenji-es than 
 the defendant. Where, as in Xorth Carolina, the State has 
 
170 
 
 only four peremptory challenges, while the prisoner has twen- 
 ty-three, in addition to unlimited challenges for cause, it vir- 
 tually amounts to the prisoner selecting the jur\'^ to try him- 
 self. He can usually get at least enough friends on the jury 
 to prevent the requisite unanimity. Then the state should 
 be allowed to except to erroneous rulings of the judge, as 
 well as the defendant, and to appeal from a verdict of not 
 guilty obtained by such rulings. This was formerly the law 
 in North Carolina, and elsewhere. It is, lor potent reasons, 
 necessary to return it. As to the numerous technicalities 
 which are so sure to be evoked for the prisoner, the proper 
 course is the one pointed out in the resolution adopted at the 
 last meeting of ihe State Bar Association of Georgia, which 
 was in effect, "That on all appeals in criminal as well as 
 civil cases the appellate court shall not grant a new trial for 
 any error in the instruction of the jury, or in the allowance 
 or disallowance of challenges, or in rulings upon evidence or 
 in any other rulings of the presiding judge, unless it shall 
 appear to the satisfaction of the appellate court that such 
 error probably and reasonably affected the result adversely 
 to the appealing party." In a common sense view of things 
 it is clear that there should not be a new trial except in such 
 cases. The foUow^ing resolutions adopted at the same time 
 are so much to the point that they are copied entire: "Our 
 law is too technical and has been carried too far on the sub- 
 ject of incriminating evidence. Any evidence obtained in 
 good faith from tracks, clothing, personal marks or peculiari- 
 ties, papers, weapons, or other things found on his person by 
 compulsory examinations, made in good faith by the arrest- 
 ing officer, or person having a prisoner in custody, or obtained 
 under order and direction of the court, should, upon prin- 
 ciples of common sense, reason and justice, be allowed to go 
 to the jury; such evidence to be weighed and considered for 
 what the same may be worth, under all circumstances and 
 facts of the case." 
 
171 
 
 "In the administration of the criminal law the dead man 
 or victim of the burglaiy, the robbery, the murder, the rape 
 or other crime, ou^ht at least to be put on equality with the 
 criminal and the guilty. The law, and our forms of judicial 
 procedure ought to be so changed as to allow the state the 
 same number of challenges as the prisoner, and to move for a 
 new trial, and to have a writ of error. We have gone too 
 far in the direction of throwing legal protection around the 
 prisoner. There is too much crime in the land, and it is 
 greatly to be feared, that if we, of th3 legal profession, 
 search our own hearts and consider as to whether we have 
 done our whole duty in at least endeavoring to bring about 
 reforms looking to more speedy, as well as exact and just 
 results in criminal trials, we could not say with Paul, "I am 
 quit of the blood of all men." 
 
 To which resolution was added this timely caution on the 
 subject of lynch law: 
 
 "The startling statement has been made in the public press, 
 and nowhere denied, that in many grou[)s of, say a score, of 
 counties in the United States, there are more homicides than 
 in all of Scotland, or in all of England, or even all of Prussia. 
 Throughout the United States we have these fancy notions 
 by which, when a criminal is on trial, the judge is a cipher, 
 and the jury is left in the dark, whilst the criminal is the 
 only man in the courthouse who has any rights that are 
 sacred. Our civilization has gone too far, and has overdone 
 itself in these matters. We deplore the lynchings which 
 occur so frequently, and are growing more and more frequent 
 throughout the land. The reason, at least one great reason, 
 why lynchings o'^cur is because there is a distrust, and a con- 
 stantly growing distrust, in the promptness and efficiency of 
 the law. Justice is one of the innate principles of the human 
 heart, and public justice \^ ill assert itself. You may fill your 
 newspapers with proclamations, and crowd your thorough- 
 fares with the sheriff's officers and militia, but you will never 
 
172 
 
 stop lynchings until the public is given to understand that 
 the judge and jury have povver to exercise sure and imme- 
 diate justice. In a thousand ways the evils herd mentioned 
 are very great. The remedy for them requires courage, as 
 ■well as prudence, moderation and wisdom; but like the evd, 
 the remedy should be radical and complete." 
 
 Legal reforms cannot avail without the cordial support of 
 the bar. If there is a concurrence among them in the views 
 above set out by the bar association of Georgia, and in which 
 the bar association of some other States have in effect con- 
 curred, then confidence w\\\ be restored in the administration 
 of justice by the courts in capital cases. The requisites of a 
 unanimous verdict, and that guilt must be shown beyond a rea- 
 sonable doubt, and the natural bias. of the jury in favorof the 
 prisoner, will give an innocent man every just chance of an ac- 
 quittal which he now possesses. The abolition of the other bur- 
 dens now unequally imposed upon the State in such trials will 
 only have the effect of making it possible to convict the guilty. 
 Let these reasonable reforms be refused, and society will con 
 tinue in flagrant cases to dispense with judges, juries, and 
 lawyers in viudicating its right to protection against mur- 
 derers and those who commit rape. The purpose of hanging 
 a man is not to reform him, but to deter others. To have 
 that effect the punishment must be prompt and certain when- 
 ever guilt is clear beyond all reasonable doubt. This prin- 
 ciple which is so often ignored by the courts is the one which 
 instinctively actuates lynching mobs. The principle is in it- 
 self right and just, and courts should act upon it, and not 
 leave it to be at once a motive and a plea for the illegal exe- 
 cution of justice. 
 
CONTENTS. 
 
 ADDRESSES. 
 
 1. Where Shall Governing Power Reside? — Urdversity Medical College, 
 
 Richmond, Va. , 29ih April, 1897. 
 
 2. Right op Public to Regulate Freight and Fares. — Wake Forest Col- 
 
 lege, 24th June, 1897. 
 
 3. Political Teachings of Christ. — Sunday School Convention, Franklin- 
 
 ton, N. C, 15th June, 1897. 
 
 4. Revision of United States Constitution. — Bar Association, Nashville, 
 
 Tenn., 30th July, 1897. 
 
 ARTICLES. 
 
 5. San Miguel de Guandape. — "Student" Magazine, April, 1897. 
 
 6. Progress of the IjAW.— American Law Review, May, 1897. 
 
 7> Maladministration of the Postopfice. — "Arena," May, 1897. 
 
 8. Twelve Reasons for Postal Telegraph.s. — " Neiu Time," July, 1897. 
 
 9. Letter to Railroad Commission. — 12th July, 1897. 
 
 10. Election op United States Senators by .the People. — Indianapolis, 
 
 Magazine, July, 1897. 
 
 SUPPLEMENT. 
 
 11. The Physical Napoleon. — Godey's Magazine, February, 1897. 
 
 12. Letters to Major E. J. Hale from Mexico. — January, 1896. 
 
 13. Free Silver Indispensable, But Not a Panacea. — "Arena," August, 
 
 1896. 
 
 14. Telegraph in England. — "Arena," June, 1896. 
 
 15. Election of Postmasters by the People. — " Arena,^^ June, 1894. 
 
 16. Claims of Long Descent. — North American Review, December, 1894- 
 
 17. True Remedy for Lynch Law. — American Law Review, December, 1894. 
 
CHIEF JUSTICE IN 
 TO 
 
 Views of Edenton Jurist On 
 
 Suffrage Are Vigorously 
 
 Assailed 
 
 thought. There is some hope that he 1 
 may some day even reach the altitude ] 
 lof ox-Prejntlept Taft, who now an- 1 
 i iiouiiceH that lie will be for equal Buf- j 
 I irage, "whenever the women become J 
 'iitted for it." | 
 
 Jiiilge Bond will have to again revise , 
 liis opinion {tf to the intelligence of wo-; 
 jiicn. They have the capacity nnd in- 
 formation to write the article — in spite 
 Oi thin lia^k handed lick he givee them. 
 It if) himself and men like him who arc 
 lacking information because they will 
 not read the argiimente and facts which 
 the women have so ably and •ff«ctively 
 
 (To The Editor: For some time Judge 
 W. M. Bond has been very much dis- 
 turbed in his mind at the progress the 
 ladies were making in the equal suffrage 
 movement, and has been telling the 
 grand juries all about it. After his late 
 performance of that kind in Baloigh, 
 the president of the league hit back as i 
 she had no grand jury, in an article to 
 the greater jury, tlie public, through 
 your widely read columns. 
 
 On Sunday week ago he rushed into 
 print to praise himself for his perform- :i 
 ances at Kinston where after telling 
 the grrand jury he had "4,000 men at | 
 Camp Glenn" ready to move at bis com- ^ 
 mand, he did procure one man to be 
 I indicted, but in his elation said nothing 
 about the pin the lady had stuck into 
 him. But it must have hurt for Sun- 
 day, after nursing the wooind for^^- 
 week by the balmy waters of the Albe- 
 '^ marie, he again rushes into print to tell 
 about that. He evidently thinks the 
 ladies were no better than lynchers in 
 daring to criticise so noble and perfect 
 a column of justice as himself. 
 
 He complains that the president of 
 the Equal Suffrage League was misin- 
 formed and made erroneous statements. 
 He does not point out a single errone- 
 ous statement but the pin point hurt 
 him or fortunately for him she did not-, 
 use a hair pin or the temple of justice 
 might have been shaken in a convulsion 
 
 "From turret to foundation stone.'' 
 
 He eays the article must have been 
 written on information furnished by 
 some man who was hiding from him for 
 it showed too much reading and knowl- 
 edge for a woman to have written it all 
 by herself, though he condescendingly 
 admits now that women have intelli- 
 gence and indicates, without naming 
 any one, that I am the man. In this ad- 
 , mission that women have intelligence, 
 
 presented in their plea for justice and a 
 fair chance, that all the great parties 
 are now pledged to grant it to them, 
 and that President Wilson, Vice Presi- 
 dent Marshal. Speaker Champ Clark, 
 and all the Cabinet Officers, as well aa 
 ex-President Boosevelt, ex-Speaker Can- 
 non and floor leader J. B. Mann and a 
 majority in the U. S. Senate announced 
 themselves in its favor even before the 
 great conventions met and ex-President 
 Taft and others of lees weight were at 
 the mourner's bench. 
 
 Judge Bond expresses the opinion 
 that some vdcked but unnamed man 
 gave Miss Haywood information and is 
 now in hiding from him. No one would 
 wish to, or could shake the Judge's es- 
 timate of himself but his magnituw, as 
 viewed by others, is not such, either 
 physically or intellectually, as to cause 
 any man, of average nerve to wish to 
 hide from his wrath. 
 
 There is no reason why I, or any oth- 
 er man, should have hesitated to give 
 Miss Haywood information, if she had 
 asked it, and as he points out no error, 
 he has no cause to complain. It so hap- 
 pens that I have not seen or spoken to 
 her or had any communication with her 
 since the public speaking in the Senate 
 Chamber some months ago. But if hia 
 Honor "jest naterally wants some man 
 to tear him to pieces," I will assume re- 
 sponsibility for the article and in his 
 battle against the women I will make 
 the fight my own. The ladies can stand 
 aside and Judge Bond can proceed. 
 When he orders up the "4,000 men at 
 Camp Glenn,'" which he said he had at 
 his command, to avenge the lynching j 
 the ladies have given his dignity, I will " 
 meet the gallant boys in khaki at the ' 
 foot of Fayetteville street and shake ■ 
 hands with them. Respectfully, 
 
 WALTER CLARK. ' 
 
 [A reply to Judge Bond from Misg? 
 Martha Haywood, president of thfllj 
 Equal Suffrage League of Raleigh, hasi 
 been received, but owing to lack of; 
 space ia withheld until tomorrow morn-j 
 
[REPRiNTf:D FROM 152 N. C, 565-583.] 
 
 BANK V. CORPORATION COMMISSIONERS. 
 
 Clark, C. J., dissenting: Though much has been said on the 
 argument in regard to this decision affecting the price of State 
 bonds, reference to the complaint and the judgment of the Cor- 
 poration Commission discloses that the sole purpose of the ac- 
 tion, and the only point presented, is as to whether the stock- 
 holders in a bank which holds State bonds are exempt to the 
 amount of these bonds from the payment of taxes on their indi- 
 vidual property — the shares which they buy and sell at will and 
 which is as much their private property (though paying larger 
 profits) as the horses and plows with which the farmer makes 
 his living or the taxed tools which a mechanic uses. When the 
 State issues its bonds, it has never been denied that it can ex- 
 empt them from taxation by State, county and municipal au- 
 thorities. This is on the principle that the issuance of bonds 
 is an agency of government. Besides, the State in effect does 
 collect tax by deducting it in the rate of interest which the bonds 
 bear. 
 
 The $55,000 of State bonds in this case are owned by the 
 Raleigh Savings Bank and Trust Company and have not paid 
 one cent of tax to the State, county or city, and no one has ever 
 suggested, or does now suggest, that they should. By reason of 
 such exemption from taxation the bank saves some $1,375 an- 
 nually, which swells to that extent the fund annually available 
 to be divided among its stockholders. l^J'ot content with that, 
 the stockholders in this case are asking for a second exemption, 
 another $1,375 annually, by again deducting the same $55,000, 
 in assessing the value of their private property, the shares of 
 stock, for taxation. The shareholders do not own these bonds. 
 They are owned by the bank itself, and the bank has been 
 already exempted from taxation on $55,000 on account of the 
 bank's ownership of them. 
 
 N^othing is better settled by the uniform decisions of this 
 Court and of the United States Supreme Court than that the 
 property of a bank and the shares of the stockholder are en- 
 tirely separate and distinct, and that the taxation, or exemption, 
 of the one is in nowise a taxation or exemption of the other. 
 Belo V. Coinmissioners, 82 'N. C, 415; Commissioners v. To- 
 bacco Co., 116 ]Sr. C, 446. Indeed, so thoroughly is this prin- 
 ciple settled by repeated decisions of the Supreme Court of the 
 United States that in Shelhy Co. v. Bank, 161 U. S., 140, it is 
 declared that no one noiv disputes that they are separate and 
 distinct classes of property. 
 
 In numerous cases in which stockholders in banks, holding 
 United States bonds, have contended that their shares in such 
 
bank were exempt from taxation to the extent of such United 
 States bonds and that the vahie of their bonds should be de- 
 ducted in assessing the shares of stock for taxation, that Court 
 has imiformly rejected the contention upon the ground that the 
 bonds were the property of the bank and exempt as such, and 
 that the shares were the property of individuals and not entitled 
 to any exemption in assessing their value on account of the 
 bonds so held by the bank. This is the very contention which 
 the plaintiffs are making in this ease and which has been re- 
 jected whenever presented by the highest Court in the land. 
 Va7i Allen v. Assessors, 3 Wall., 573; Bradleij r. People, 4 Wall., 
 459; Trust Co. v. Lander, 184 U. S., 111. 
 
 In Coynmissioners v. Tobacco Co., 116 X. C, 447, following 
 the decisions of the Supreme Court of the United States and 
 the previous decisions of this Court, it Avas said : "The capital 
 stock belongs to the corporation. The shares or certificates of 
 stock are entirely a different matter. They belong to the share- 
 holders individually, and under the Constitution must be taxed 
 ad valorem like other property belonging to the holder, inde- 
 pendentlv of the taxation upon the corporation, its franchises, 
 etc." 
 
 If it is now held otherwise as to the plaintiffs, shareholders 
 in a bank, as to our State bonds, in this case reversing all pre- 
 vious decisions, we may not only strike from the tax books 
 $4,000,000 in value of shares of stock in State banks, but we 
 may very probably be exempting all National banks from any 
 taxation whatsoever. The State cannot discriminate against 
 United States bonds. 
 
 The act before us exempts three classes of property: 1. The 
 bonds themselves are exempt from all taxation, direct or indi- 
 rect, general or special. 2. The coupons paid on such bonds 
 are not subject to taxation as an income tax. 3. The surplus 
 of any bank, when consisting of such bonds, shall be exempt 
 from taxation. N^ot a word is said about exempting shares of 
 stock. 
 
 The argument that the shares of stock in the plaintiff's bank 
 are nontaxable because their value is due in part to the fact 
 that if the bank was Avound up and the surplus divided, the pro- 
 ceeds of such nontaxable bonds, derived from the sale thereof, 
 would be divided among the shareholders, is fallacious because 
 it confounds the surplus, owned, held and controlled by the bank, 
 with the shares of stock, which are owned, held and controlled 
 by individuals. The Corporation Commission is required by 
 law to assess the value of shares of stock in all banks for taxa- 
 tion against the owners of the shares. When this matter was 
 presented to that body, it assessed the value of the plaintiff's 
 shares of stock at $104.40 per share, and its decision was in the 
 following words : 
 
 I 
 
"In assessing the shares of stock in this bank the Corporation 
 Commission followed the direction of the statute, as it did not 
 appear such shares had a market value, by adding together the 
 capital stock, surplus and undivided profits and deducting there- 
 from the amount of real and personal property owmed by said 
 institution on which it paid taxes, as follows : 
 
 Capital stock $15,000.00 
 
 Surplus 60,000.00 
 
 Undivided profits 342.25 
 
 making a total of $75,342.25, and deducting therefrom the as- 
 sessed value of real and personal property, as follows : 
 
 Office furniture $3,000.00 
 
 Commercial ISTational Bank stock 8,700.00 
 
 Fidelity Bank stock 1,000.00 
 
 making a total of $12,700, leaving a balance of $62,642.25, 
 which, divided by 600, the number of shares of stock of said 
 bank, ascertained the value of each share to be $104.40, subject 
 to taxation. 
 
 "There was no allegation that there was any insolvent debt 
 due this institution. 
 
 "This assessment is not satisfactory to John T. Pullen, who 
 owns fourteen shares of stock in this institution. He contends, 
 and the report on which this assessment is based shows, that the 
 bank has a surplus of $60,000, and has invested $55,000 of this 
 surplus in N^orth Carolina State bonds, issued under chapter 
 512, Laws 1909, and he claims that this amount should also be 
 deducted from the aggregate value of all the shares of stock. In 
 other words, the contention is that, in addition to the assessed 
 value of real and personal property on which the corporation 
 pays taxes, $55,000 should be deducted, because this much of 
 the surplus of the bank was invested in the above-named bonds. 
 
 "The Corporation Commission failed to see the force of this 
 contention, as they were not assessing the capital stock, or sur- 
 plus, or undivided profits of the bank, but a distinct species of 
 property, to mt, the shares of stock of the bank i7i the hands of 
 the shareholder. The bank is not required by law to list any 
 of its property, whether capital stock, surplus, undivided profits 
 or other property, except so much of it as is invested in real 
 estate inside of the State. And this bank has alread_y had the 
 full exemption from taxation of its I^orth Carolina State bonds. 
 The only property listed by the bank for taxation was office 
 furniture, $3,000; Commercial ISTational Bank stock, $8,700; 
 and Fidelity Bank stock, $1,000, and these amounts were de- 
 ducted. 
 
 2 
 
4 
 
 "The General Assembly did not intend that the value of the 
 property exempt from taxation which is owned by a corporation 
 should be deducted from the aggregate value of all the shares 
 of stock in said corporation in order to ascertain the value of 
 such shares for taxation, as appears from the plain directions 
 of the statute : 'The value of such shares of stock in the hands 
 of shareholders shall be the market value. If they have no 
 market value, the value shall be ascertained by adding together 
 the capital, surplus and imdivided profits and deducting there- 
 from,' not such property as is exempt from taxation, but 'the 
 amount of real and personal property owned by said institution 
 on which it pays taxes.' See Machinery Act, Laws 1909, ch. 
 440, sec. 33. There is no conflict between this statute and chap- 
 ter 512, Laws 1909. 
 
 "That the shares of stock in the hands of shareholders are a 
 distinct species of property from that owned by the corporation, 
 and that the General Assembly can require it to be taxed at its 
 value, notwithstanding that a part or the whole of the bank's 
 funds are invested in property exempt from taxation, has been 
 held in our courts in Belo v. Commissioners, 82 N. C, 415; 
 Commissioners v. Tobacco Co., 116 N. C, 441, and numerous 
 other cases; and by the Supreme Court of the United States in 
 case of Cleveland Trust Company v. Lander, 184 U. S., Ill, 
 46 U. S. R. L. Ed., 456. Notwithstanding the number of words 
 used to exempt the same, namely, 'The bonds and coupons shall 
 be exempt from all State, county and municipal taxation or 
 assessment, direct or indirect, general or special, whether im- 
 posed for general revenue or otherwise, and the interest paid 
 thereon shall not be subject to taxation as income, nor shall 
 State bonds or coupons be subject to taxation when constituting 
 a part of the surplus of any bank, trust company or other cor- 
 poration,' we are of the opinion that the same cannot be con- 
 strued so as to authorize the deduction contended for by the 
 plaintiff, in view of the authorities cited above. 
 
 "Franklin McI^eill, 
 
 "Chairman." 
 
 The sta:tute requires that taxation on the shares of hank stock 
 in the hands of individual owners shall be laid upon the value 
 of such stock, which valuation shall be reached: (1) Taking 
 the market value of the stock; (2) Deducting the value of the 
 real and personal property of the bank, which has been already 
 taxed; (3) By dividing the remainder thus left by the number 
 of shares. By these processes the Corporation Commission 
 found that the balance was $62,672 and that the shares of stock 
 are worth $104.40 per share. The plaintiffs are seeking, in 
 this case, to deduct $55,000 (on which its owner, the bank, has 
 
already had exemption), leaving the taxation value of the total 
 shares in this bank for taxation $7,642, being a little more than 
 $12 a share. 
 
 It is a matter of universal knowledge that within the last 
 three months a large part of this stock — in fact, more than five- 
 sixths thereof — has been purchased by another bank at $175 
 per share, or seven times its par value ($25). On the shares for 
 which the purchasers paid $175 it is now asked that assessment 
 for taxation against said purchasers shall be laid at a little more 
 than $12 per share. 
 
 The statute law of the State, Laws 1909, ch. 440, sec. 33 (p. 
 705), provides: "The residents of this State who are sharehold- 
 ers in any bank, banking association or savings institution 
 (whether State or ISTational) shall list their respective shares in 
 the county, city or town, precinct or village where they reside, 
 for the purpose of county, school or municipal taxation. * * * 
 All shares, whether owned by residents or nonresidents, shall be 
 listed at the time for listing taxes. The county commissioners, 
 list takers and other county and municipal officers shall have 
 the same power to enforce the listing of shares of stock in any 
 such bank, banking association or savings institution, whether 
 held by residents or nonresidents, as they have for enforcing the 
 listing of their personal property. The taxation of shares of 
 any such bank, banking association or corporation, or savings 
 institution, shall not be at a greater rate than is assessed upon 
 any other moneyed capital in the hands of individual citizens, 
 whether such taxation is for State, county, school or municipal 
 purposes." And the next section provides that in assessing the 
 value of the shares of stock the highest price of sales of stock 
 during the year and the average price of sales of stock during 
 the year shall be taken into consideration. These provisions 
 shoAv that the lawmaking powers are at one with the decisions 
 of the courts in considering that the shares of stock are entirely 
 separate and distinct property from the property held by the 
 bank itself. 
 
 The Constitution of the State, Art. Y, sec. 3, provides : "Tax- 
 ation shall he hy uniform rule ad valorem. Laws shall be passed 
 taxing by uniform rule all moneys, credits, investments in bonds 
 and personal property according to its true value in money." 
 And then follows section 5 of the same article, which authorizes 
 the General Assembl}^ to exempt cemeteries and property held 
 by schools, churches, charities, and the like, and also personal 
 property, not to exceed $300 to each taxpayer. 
 
 The statute law of the State, Laws 1909, ch. 440, sec. 63, in 
 accordance with the provisions of the Constitution, provides 
 (p. 725) : "The following personal property and no oilier shall 
 be exempt from taxation, State and local." Then follow the 
 exemptions of property, school and charity property and an 
 
6 
 
 exemption (p. 726) "not exceeding $25" of wearing apparel, 
 etc., to each taxpayer. And then, to prevent any possible mis- 
 understanding, Laws 1909, ch. 438, sec. 5, repeals all other ex- 
 emptions of any other kind than that above enumerated which 
 have heretofore been granted. This legislation shows conclu- 
 sively that there was no intentioii on the part of the Legislature 
 to extend an exemption to the shares of bank stock held by the 
 plaintiffs. Such property is proverbially the best in the State, 
 and the shareholders of a bank whose stock, by good management 
 and exemption from taxation, has increased in value to "7 for 1," 
 certainly do not own an interest in "an infant industry" requir- 
 ing a subsidy from the State in the shape of exemption from 
 taxation. Owing to increased demands for public purposes, the 
 Legislature has not felt that the State was able to grant to less 
 prosperous taxpayers the exemption of $300 per head, which 
 it is authorized to do by the Constitution, but restricts the ex- 
 emption to $25. It is not reasonable to assume that it intended 
 to exempt many thousands of dollars from taxation in the shape 
 of shares in the banks. 
 
 As the statute, Laws 1909, ch. 440, sec. 141/2 (p. 696), de- 
 fines the market value as the amount for which property is sold 
 for cash in the ordinary course of dealing, it would seem that 
 the error in the action of the Corporation Commission is in not 
 assessing this property at $175 instead of $104.40, and the share- 
 holders certainly cannot complain, as they have thus, already, 
 received an exemption of $70 per share deducted from the "true 
 value," or a 40 per cent exemption. 
 
 It was further argued by the plaintiff that, inasmuch as the 
 statute provided that in assessing the value of the shares in the 
 hands of the shareholders, the Corporation Commission shoi;ld 
 deduct "the real and personal property on which the bank has 
 paid taxes," that, therefore, the Corporation Commission should 
 also deduct the property on which the bank has not paid taxes. 
 It is impossible to adopt this as logic. If the Legislature had 
 meant to do so, it would certainly have said it, and in a 
 simpler way, by saying that "all shares of bank stock shall be 
 exempt from taxation," since that is what it would amount to. 
 
 But the Corporation Commission, in this case, have deducted 
 the value of such real and personal property "on which the 
 bank has paid taxes," to wit, $12,700, before arriving at the 
 amount at which the plaintiffs' shares were assessed. Though 
 the point is not presented, it is well to call attention, here and 
 now, to the fact that unless we deny, what all the courts have 
 held, that the shares of stock in the hands of individuals are 
 separate and distinct from the property of the corporation, the 
 exemption in favor of the shareholders of the value of the prop- 
 erty on which the ha^ik has paid taxes is in violation of the 
 provision of the Constitution which forbids exemption, and the 
 
 I 
 
State has lost many tliousands of dollars in taxation annually 
 by this point not having been considered. It is very clear that 
 one man cannot have an exemption on his property because 
 another man has paid taxes on his own property. 
 
 It was contended in the argument, by the plaintiffs' counsel, 
 that the effect of a decision by this Court that the stock in the 
 hands of shareholders would be exempted from taxation to the 
 amount of the State bonds owned by the bank, would create a 
 demand which would take up possibly the whole of the issue of 
 $4,000,000 of bonds. It is no part of the province of a court of 
 justice to render decisions because of the effect, one way or an- 
 other, on the financial market in which bonds and stocks are 
 traded for. The questions before us are only, whether the Leg- 
 islature attempted, and had the power, to exempt the shares of 
 stock in the hands of the shareholders when it provided that 
 ''the bonds and coupons shall be exempt from all State, county 
 and municipal taxation or assessment, direct or indirect, general 
 or special, whether imposed for general revenue or otherwise, 
 and the interest paid thereon shall not be subject to taxation as 
 for income, nor shall bonds and coupons be subject to taxation 
 when constituting a paj't of the surplus of any bank, trust com- 
 pany or other corporation." These bonds have not been sub- 
 ject to any tax, direct or indirect, general or special, either as 
 sui'plus or in any other way. The exemption is to the bonds 
 and is given to the oivner, whether an individual or a bank, and 
 when constituting a part of the surplus of the latter. 
 
 But it is" contended that the word "indirect" should be con- 
 strued to extend the exemption, not only to the bank which has 
 already had the benefit of exemption, but further to the share- 
 holders. There is no such intimation in the statute. The ex- 
 pression "indirect taxes" is well known, and in this connection 
 it can only mean taxes "direct or indirect, general or special," 
 on the bonds themselves in the hands of the owner, to wit, the 
 bank. To give it the construction contended for would give the 
 w^ord "indirect" a construction which has never been placed 
 upon it by any court. A tax on the shares in the hands of the 
 owner cannot possibly be a tax on the property of the bank. 
 
 If the plaintiffs' contention is correct, the Legislature has 
 passed an act which has this singular effect : If any individual 
 or corporation other than a bank owns one of these bonds it is 
 exempt from all taxes in the owjier's hands — a single exemp- 
 tion; but if a bank owns it, as part of its surplus, the share- 
 holders get an exemption to the like amount on their individual 
 property, their shares of stock — a double ez^emption from taxa- 
 tion. 
 
 The owner of more than five-sixths of the shares of the Ra- 
 leigh Savings Bank and Trust Company is another bank, and 
 the only effect of the decision, if rendered in favor of the ex- 
 
emptiou, "would, be to increase vastly the value of the shares of 
 stock in the Raleigh Savings Bank and Trust Company, and 
 also the value of the shares of stock in the bank Avhich now 
 holds five-sixths of the shares of the former bank. 
 
 The complaint frankly avers the true object of this suit, 
 which is to obtain a coveted and most valuable exemption from 
 taxation of the shares in the hands of the shareholders. It 
 does not aver that the plaintiffs are seeking to benefit the State 
 by raising the value of the State bonds, nor that they are here 
 to advance the intei'ests of the State. They are seeking an ex- 
 emption of their shares because of State bonds which the bank 
 has already bought, and it is not reasonable to suppose that 
 they should wish to advance the value of State bonds which 
 either bank may hereafter desire to purchase. Counsel for the 
 plaintiffs, however, have contended that such would be the effect. 
 If it is proper for the Court to consider such matter, it may be 
 well to insert here, from the defendant's brief, the answer 
 which they make to the suggestion : 
 
 "The capital stock of the plaintiff's bank is $15,000. Its sur- 
 plus is $60,000. It holds $55,000 of these nontaxable bonds as 
 a part of its surplus. The life of these nontaxable bonds is 
 forty years. Let us see what would be the result to the State if 
 the law requires the taxing power to deduct these $55,000 of 
 bonds from the actual value of the capital stock of this bank in 
 order finally to ascertain the value of the shares of stock 
 therein : 
 
 "The total tax rate in Raleigh is about $2.50. Two and one- 
 half per cent of $55,000 equals $1,375. Forty times $1,375, 
 that is to say, the loss of taxes each year, multiplied by the 
 number of years that the bonds run, equals $55,000. So the 
 State in forty years would lose the principal of the bonds ; and 
 for what ? — to gain one point by way of premium when first sold 
 (record, p. 2). A pretty costly whistle, to be sure! It will 
 be noted that the 'controversy without action' states that by ex- 
 empting the shares of stock from taxation the premium upon the 
 bonds will be increased one point. Taking, therefore, these 
 $55,000 of bonds as a basis, the State would receive by way of 
 extra premium, if sold with the exemptions contended for, 1 per 
 cent, or $550. But at the end of forty years the State, etc., 
 would lose, as above, $55,000, and under the contention of ex- 
 emption, if allowed because the tax is not on the shares but on 
 the corporation, all N^ational banks would go scot free of all 
 taxes. And yet we are authorized to state from the Corporation 
 Commission that it is not the financial view of this matter 
 which they would call to the attention of the Court, but the 
 legal phases of the same. We simply contend that a statute 
 which results in such disastrous consequences financially to the 
 State should not be, by the Court, interpreted as contended for 
 
by the appellant, unless the meaning of the statute is clear be- 
 yond doubt, without inference and without presumption. And 
 we maintain that the plaintiffs have not shown and cannot show 
 that the intention of the Legislature is clear beyond all doubt 
 in respect to this matter." 
 
 In reply to that, the plaintiff's counsel subsequently con- 
 tended that only a very small part of the bonds would be bought 
 by the banks in this State. If so, such a very small demand 
 could not materially affect the price of the bonds. Indeed, the 
 only evidence adduced before the Corporation Commission, that 
 the exemption of the shares of stock would affect the price of 
 these bonds, is that of a witness who thought, perhaps, the price 
 would be raised % of 1 per cent. That was only his opinion, 
 and the contrary opinion that the price of the bonds would not 
 be affected at all is probably entertained by a large majority of 
 the bank officials of this State. 
 
 Exemption of any property from its fair and just share of 
 public burdens increases the taxation paid by all other property. 
 Such exemption has, therefore, been expressly prohibited by the 
 State Constitution. Indeed, it may with truth be said that no 
 legislation can be more unjust or more odious. For many years 
 the State contended for the annulment of an exemption from 
 taxation which had been granted to two great railroads in the 
 State. Such grant had been made at a time when railroads 
 were an "infant industry," and the State thought their construc- 
 tion should be encouraged by contribution from the other tax- 
 payers by exempting those railroads from taxation. Besides, 
 at that time there w^as no provision in the Constitution, as now, 
 forbidding the exemption of any property. Yet the State 
 strongly contended for years that the exemption was unjust and 
 illegal, and finally the repealing act was held valid by this 
 Court in R. R. v. Allshrook, 110 IST. C, 137, which opinion was 
 affirmed upon a writ of error by the United States Suj)reme 
 Court. In that opinion by this Court, 110 JST. C, p. 117, it was 
 said, quoting from Chase, C. J., and Miller and Field, J J., in 
 Washington v. Rouse, 8 Wall., 441 : "We do not believe that 
 any legislative body, sitting under a State Constitution of the 
 usual character, has a right to sell, to give, or to bargain away 
 forever the taxing power of the State. * * * jf ^\^q Legis- 
 lature can exempt, in perpetuity, one piece of land, it can ex- 
 empt all land. It can as well exempt persons as corporations. 
 They go on to say that rich men and rich coi*porations with the 
 appliances they are known to use, may obtain perpetual exemp- 
 tion 'from taxation and cast the burden of government and the 
 payment of debts on those who are too poor or too honest to 
 buy such immunity' ; and they say further, 'with as full respect 
 for the authority of former decisions as belongs, from teaching 
 and habit, to judges trained in the common-law system of juris- 
 
10 
 
 prudence, we think that there may he questions touching the 
 powers of legislative hodies which can never he finally closed by 
 the decisions of the courts, and the one we have here considered 
 is of this character.' We are strengthened in this view of the 
 subject by the fact that a series of dissents from this doctrine 
 by some of our predecessors shows that it has never received 
 the full assent of this Court, and I'eferring to those dissents for 
 more elaborate defense of our views, we content ourselves with 
 thus renewing the protest against a doctrine which we think 
 must be finally abandoned." 
 
 In the above case we were holding invalid an exemption from 
 taxation gi'anted under a Constitution which did not forbid 
 such exemption, and purely on the gi'ound that the Legislature 
 could not grant an irrevocable exemption. In the present case 
 the exemption is not given by any words which refer to shares of 
 stock or to shareholders, and is a most far-fetched deduction 
 from the use of the word "indirect," and if it can be construed 
 to convey the meaning the plaintiffs contend, then the exemp- 
 tion is in direct violation of the Constitution of the State. 
 
 It has been unifonnly held by the United States Supreme 
 Court, by courts of other States, and by this Court, that in 
 respect to coi*porations ''the Legislature can levy any two or 
 more of the following taxes, simultaneously: (1) on the fran- 
 chise (including dividends); (2) on the capital stock; (3) on 
 the tangible property of the corporation; and (4) on the shares 
 in the hands of the shareholders. The tax on the two subjects 
 last named is imperative." Commissioners v. Tobacco Co., 116 
 ]Sr. C, 441, and cases there cited. That action was brought by 
 an eminent lawyer, now a member of this Court, whose conten- 
 tions to the above effect were sustained. ^Notwithstanding that 
 it was there held that a corporation must pay tax on all its 
 property, like every one else, the counsel for defendant says truly 
 that "not a hank in North Carolina to-day pays one cent of tax 
 to the State, county or town, for franchise tax, income tax, nor 
 any tax whatever upon its capital stock (which taxes are op- 
 tional with the Legislature), nor upon any of its property 
 (which last tax is imperative by the Constitution) , save the 
 tax on its hanking house and furniture and the like" (in this 
 case $12,700), and even that tax is recouped by unconstitution- 
 ally deducting the amount of the property thus taxed from the 
 assessment of the shares against the shareholders. This is in 
 direct violation of the Constitution. If the farmers, and other 
 citizens and all other corporations, Avere treated to a like total 
 exemption from all taxation, they, too, would show a great de- 
 gree of prosperity. ISTeither railroads, cotton mills nor any 
 corporation, other than banks, are thus practically exempted 
 from all taxation, nor are shareholders in any corporations 
 
11 
 
 otlier than banks authorized to deduct in estimating the value 
 of their shares for taxation the amount of property on which 
 the corporation has paid any tax. 
 
 To sum up : "Exemptions from taxation are regarded as in 
 derogation of the sovereign and of the common right, and, there- 
 fore, not to be extended beyond the exact and express require- 
 ments of the langaiage used, construed stmctissimi juris." R. R. 
 V. Thomas, 132 IT. S., 174. Here there are no Avords conferring 
 an exemption upon stockholders in the banks, and it requires 
 an ingenious and most unusual interpretation of the words ''in- 
 direct tax" to confer an exemption upon the plaintiffs. 
 
 ''Where a doubt arises as to the existence of the exemption, 
 it is to be decided in favor of the State." BanJc v. Tennessee, 
 104 U. S., 495. Here it requires an ingenious construction, an 
 unusual one, of a single word to raise a doubt in favor of the 
 exemption. 
 
 "The exemption must be clearly stated and will not be in- 
 ferred from facts which do not irresistibly point to the exist- 
 ence of a contract." Judson on Taxation, sec. 86. There can 
 be no lawful contract of exemption made, even if the Legisla- 
 ture had so intended, because their action would be in violation 
 of the Constitution. 
 
 "No claim of exemption from taxation can be sustained un- 
 less established beyond all doubt." R. R. v. Super-visors, 93 
 TJ. S., 595; R. R. v. Missouri, 120 U. S., 569. In this case, of 
 the nine judicial officers to whom, under the laws of this State, 
 this matter has been submitted, only three, a bare majority of 
 this Court, considered that such exemption has been granted. 
 The three Corporation Commissioners, the judge of the Superior 
 Court, and two judges of this Court, have a contrary opinion. 
 Surely, the point is not "established beyond all doubt''' — the 
 test which the Supreme Court of the United States applies. 
 
 Such exemptions must be expressed in clear and unambigu- 
 ous terms. R. R. v. Allsbrooh, 110 JST. C, 158. Can any one 
 claim that such is the case here when neither "shares" nor 
 "shareholders" nor exemption to them are named in the statute, 
 which only refers to exemption of the bonds when owned as the 
 surplus of the bank ? 
 
 The buyers of the bonds, upon the holding of the Court that 
 the shareholders are exempt on their stock, may claim that the 
 decision of this Court is a contract, an exemption of bank shares 
 annexed to the exemption of $4,000,000 of bonds, being a double 
 exemptio7i, for forty years, and that such exemption is irrevoca- 
 ble, even though the Legislature should strike out the act, or 
 the Court should hereafter express a contrary opinion, either 
 in another suit or by a rehearing in this case and change of 
 opinion by one member of the Court, as now constituted, or by 
 a change in its personnel. The dissenting opinions will not be 
 
12 
 
 witiiout value, for they put the bond buyers upon notice that if 
 the act, as thus construed, is unconstitutional, no valid contract 
 of exemption of shares has been granted. There is nothing in 
 the judgment of the Corporation Commission of Avhich the 
 plaintiffs have a right to complain. 
 
 Hoke, J., dissenting: I am constrained to differ from the 
 Court in its decision of this case, and the question presented 
 being a matter of importance both to the parties litigant and to 
 the public, I deem it proper that I should state briefly the 
 reasons for my position. 
 
 It has been long an accepted principle that shares of stock 
 in a bank, when owned by individuals, are entirely separate and 
 distinct from, the corporate property and assets. This Avas held 
 for law in Van Allen v. Nolan, and several other cases of like 
 import, sometimes called the bank tax cases, decided as far 
 back as 1865, and reported in 70 U. S., p. 573. The question 
 there chiefly determined was whether the bonds of the United 
 States Government should be first deducted in estimating the 
 value of shares of stock in the hands of individual owners for 
 the purpose of State taxation, permissible under the Federal 
 statute; and it was held that while the bonds of the Federal 
 Government were exempt from any and all forms of taxation, 
 direct or indirect, yet the shares of stock owned by individuals 
 being an entirely distinct and separate species of property, the 
 Government bonds, though held and owned by the bank, should 
 not be deducted in determining the value of these shares. 
 
 In the case referred to, Associate Justice Nelson, delivering 
 the opinion, thus states the principle and the reason for it as 
 follows : 
 
 "But in addition to this view, the tax on the shares is not a 
 tax on the capital of the bank. The corporation is the legal 
 owner of all the property of the bank, real and personal; and 
 within the powers conferred upon it by the charter, and for the 
 purposes for which it was created, can deal with the corporate 
 property as absolutely as a private individual can deal with his 
 own. This is familiar law, and will be found in every work 
 that may be opened on the subject of corporations. 
 
 rj: * H! * H: * * 
 
 "The interest of the shareholder entitles him to participate 
 in the net profits earned by the bank in the employment of its 
 capital, during the existence of its charter, in proportion to the 
 number of his shares; and, upon its dissolution or termination, 
 to his proportion of the property that may remain of the cor- 
 poration after the payment of its debts. This is a distinct. 
 
13 
 
 iiidependent interest or property, held by the shareholder like 
 any other property that may belong to him." Van Allen v. 
 Nolan, 70 U. S., 573. 
 
 While this principle was originally established by a divided 
 Court, it has been since repeatedly affirmed and applied by the 
 Supreme Court of tlie United States, as in Bank v. Tennessee, 
 161 U. S., 134; Bank v. Des Moines, 205 U. S., 518, and many 
 other cases; and has been so long recognized and acted upon by 
 courts and Legislatures that in the impressive language of Asso- 
 ciate Justice Moody, delivering the opinion in the case last 
 cited, "It has come to be inextricably mingled with all taxing 
 systems and cannot be disregarded \^dthout bringing them into 
 confusion that would be little short of chaos." 
 
 The decisions of our own State are equally pronounced in 
 recognition of this principle. Commissioner's v. Tobacco Co., 
 116 JST. C, 441 ; Belo v. Commissioners, 82 N". C, 415. In the 
 last case, Chief Justice Smith, speaking to this question, said: 
 
 "In an able opinion of the author of that valuable work on 
 railways, commenting on the law, he says : 'We here find the 
 clear recognition of this kind of corporate property, taxable to 
 the corporation, and the shares in the hands of the corporators, 
 distinctly defined as a fourth species of corporate property, tax- 
 able only to the oioners or holders: (1) The capital stock; (2) 
 the corporate property; (3) the franchise of the corporation, 
 all of which is taxable to the corporation ; and the shares in the 
 capital stock, which are taxable only to the shareholders.' 1 
 Red. Am. R. Gases, 497. 
 
 "A tax on the shares of stockholders in a corporation is a dif- 
 ferent thing from a tax on the corporation itself, or its stock, 
 and may be laid irrespective of any taxation of the corporation 
 where no contract relations forbid it. Cooley Const. Lim., 169 ; 
 Field on Corp., 521. 
 
 "In Van Allen v. Assessors, 3 Wall., 573, it is held that shares 
 in a iN'ational bank may be taxed to the holder, although the 
 whole capital is invested in securities of the National Govern- 
 ment, which an act of Congress declares to be exempt from tax- 
 ation by State authority." 
 
 This being the doctrine as it now universally prevails, the 
 Revenue Acts of the State establishing the method of taxation 
 applicable to banks provide that the shares of stock of all banks 
 of this State, both State and jSTational, shall be taxed as the 
 property of the individual owners, and for that purpose said 
 shares shall be assessed at their market value, and, if they 
 have no market value, then at their actual value ; that this 
 actual value, when there is no market value, shall be ascer- 
 tained and determined by adding together the capital stock, sur- 
 plus and undivided profits and deducting therefrom the value 
 
14 
 
 of the real and personal property on which it pays tax under 
 local assessment, and insolvent debts, if properly itemized and 
 sworn to, may also be deducted. 
 
 It will be noted here that the shares of stock are assessed and 
 taxed, and the deductions are to be made only in determining 
 the value of these shares as property of individual owners, and 
 separate and distinct from the property and assets of the bank, 
 and the only deductions allowed by the law are the real and 
 personal property locally assessed and taxed and insolvent debts. 
 
 This, then, being the provision of the law under which the 
 taxes are assessed, the Legislature of 1909 enacted chapter 510, 
 Laws 1909, entitled, "An act to issue bonds, etc., to care for the 
 insane of the State"; and, after providing for such issue to an 
 amoimt of $500,000, the statute contains the following section : 
 
 "Sec. 4. The said bonds and coupons shall be exempt from 
 all State, county or municipal taxation or assessment, direct or 
 indirect, general or special, whether imposed for purposes of 
 general revenue or otherwise, and the interest paid thereon 
 shall not be subject to taxation as for income, nor shall said 
 bonds and coupons be subject to taxation when constituting a 
 part of the surplus of any bank, trust company or other cor- 
 poration." 
 
 It is contended that under and by virtue of this provision, 
 the bonds to be issued imder this act shall not be considered 
 in determining the value of shares in the hands of individual 
 owners for purposes of taxation under the revenue laws above 
 referred to. 
 
 This being a claim for exemption from taxation, it can only 
 be allowed in case the claim is clearly established. R. R. v. 
 Allshrook, 110 N. C, 137 ; R. R. v. Missouri, 120 U. S., 569 ; 
 R. R. V. Supervisors, 93 U. S., 595 ; Judson on Taxation, sec. 86. 
 
 In AUshrooTc's case, supra, it was held: 
 
 "2. The grant of an exemption from taxation must be ex- 
 pressed by words too plain to be mistaken ; if a doubt arise as 
 to the intent of the Legislature, that doubt must be resolved in 
 favor of the State." 
 
 In R. R. V. Missouri, supra, it was held : 
 
 "Immunity from taxation will not be recognized unless 
 granted in terms too plain to be mistaken." 
 
 These decisions, while quoted as indicating the only condi- 
 tion under which an exemption from taxation should ever be 
 allowed, can hardly be considered apposite to the question pre- 
 sented ; for, bearing in mind that cardinal principle that shares 
 of stock in the hands of individual owners are entirely distinct 
 from property of the bank, the statute in question nowhere pro- 
 vides that the valuation of these shares, as the property of the 
 individual holders, should be in any way diminished by reason 
 of the ownership of the bonds in question on the part of the 
 
15 
 
 banks, nor in my opinion does it use words that justify or per- 
 mit of any doubt on that question. The section quoted pro- 
 vides : 
 
 1. That the bonds shall be exempt from all taxation, direct 
 or indirect, etc. 
 
 2. That the interest thereon shall not be subject to taxation 
 as for income. 
 
 3. Nor shall they be taxed when constituting a part of the 
 surplus of the bank. 
 
 And in language both plain and explicit these are all the 
 exemptions which the statute sanctions or allows. There is 
 nothing obscure or ambiguous in them, and in such case the 
 courts have no power to add what is, to my mind, an entirely 
 distinct provision, to wit : ''Nor shall said bonds be considered 
 in determining the value of the shares when assessed and taxed 
 as the property of the individual stockholders." 
 
 The first exemption specified in the law, "shall not be subject 
 to taxation, direct or indirect," comes clearly under the deci- 
 sions referred to, which hold that United States Government 
 bonds shall not be deducted in estimating the value of the shares 
 in National banks for purposes of taxation. An exemption by 
 statute cannot be expressed in terms more comprehensive and 
 searching than that which arises from the principle that the 
 bonds of our National Government may not be taxed by the 
 States. Such a power involves its very existence as an inde- 
 pendent sovereignty, and, notwithstanding this, these bonds, 
 when oviTied by a bank, are not deducted in determining the 
 value of the shares, because, as stated, the shares are an entirely 
 distinct and separate species of property. 
 
 The terms of the second exemption in the statute are not 
 relevant to the discussion, and the third, "Nor shall the bonds 
 be taxed when constituting part of the surplus of the bank," in 
 clear and express terms applies to the bonds when constituting 
 part of the coi-porate property, and in no way affects the valua- 
 tion of the shares, which are the property of the individual. 
 
 It is insisted, in support of the proposed change from the 
 express terms of the law, that unless it shall be interpreted as 
 affecting the valuation of the shares it would be meaningless; 
 and it is further urged that the history of this legislation and 
 the action of the Executive Departments of the State Govern- 
 ment should lend force to the position taken in the principal 
 opinion ; but these are considerations and rules of construction 
 and intei-pretation permissible only when the language of a 
 statute is of doubtful meaning, and have no place when its ex- 
 pressions are plain and do not permit of construction. 
 
 In Black on Interpretation of Laws, sec. 26, quoted with ap- 
 proval In re Applicants for License, 143 N. C, 3, it is said: 
 
16 
 
 "Sec. 26. The meaning of a statute must first be sought in 
 the language of the statute itself. 
 
 "And further: 'If the language is plain and free from ambi- 
 guity and expressed a simple, definite and sensible meaning, that 
 meaning is conclusively presumed to be the meaning which the 
 Legislature intended to convey.' 
 
 "And in Lewis' Southerland Statutory Constiniction (2 Ed.), 
 sec. 267, it is said: 'When the intention of the Legislature is so 
 apparent from the face of the statute that there can be no ques- 
 tion as to its meaning, there is no room for construction.' " 
 
 In 2IcClusl-ey v. Cornwell, 11 ]Sr. Y., 601, Allen, J., quotes 
 with approval the rule as expressed by Johnson, J., in Newell 
 V. The People, 3 Selden, 1897, as follows: 
 
 "Whether we are considering an agi'eement between parties, 
 a statute or a constitution, with a view to its interpretation, the 
 thing we are to seek is the thought which it expresses. To 
 ascertain this, the first resort, in all cases, is to the natural 
 signification of the words employed, in the order and grammat- 
 ical arrangement in which the framers of the insti-ument have 
 placed them. If thus regarded the words embody a definite 
 meaning, which involves no absurdity and no contradiction be- 
 tween different parts of the same writing, then that meaning 
 apparent upon the face of the instrument is the one which alone 
 we are at liberty to say was intended to be conveyed." 
 
 And in the same opinion it is said further : 
 
 "In the construction both of statutes and contracts, the in- 
 tent of the framers and parties is to be sought first of all in the 
 words and language employed, and if the words are free from 
 ambiguity or doubt, and express plainly, clearly and distinctly 
 the sense of the framers of the instrument, there is no occasion 
 to resort to other means of interjiretation. It is not allowable 
 to interpret what has no need of interpretation, or, when the 
 words have a definite and precise meaning, to go elsewhere in 
 search of conjecture in order to restrict or extend the meaning. 
 Statutes should be read and understood according to the nat- 
 ural and most obvious import of the language, without resorting 
 to subtle and forced construction for the purpose of either lim- 
 iting or extending their operation." 
 
 These views are quoted with approval both in the opinion and 
 dissenting opinions in Nance v. R. R., 149 JST. C, 366, and ex- 
 press a well-recognized principle of law. As heretofore stated, 
 there is nothing in the statute which in express terms, or by any 
 permissible intendment, refers to the omission of these bonds in 
 determining the value of shares when taxed as the property of 
 individual holders, and the courts, in my opinion, are without 
 power to add such a provision to the law. 
 
17 
 
 Speaking generally to tlie question presented, Associate Jus- 
 tice PecMiam, delivering the opinion of the Court in Banlc of 
 Commerce v. Tennessee, 161 U. S., 146-147, says: 
 
 "These cases show the principle upon which is founded the 
 mle that a claim for exemption from taxation must be clearly 
 made out. Taxes being the sole means by which sovereignties 
 can maintain their existence, any claim on the part of any one 
 to be exempt from the full payment of his share of taxes on 
 any portion of his property must on that account be clearly 
 defined and founded upon plain language. There must be no 
 doubt or ambigTiity in the language used upon which the claim 
 to the exemption is founded. It has been said that a well- 
 founded doubt is fatal to the claim; no application will be in- 
 dulged in for the purpose of construing the language used as 
 giving the claim for exemption, where such claim is not founded 
 upon the plain and clearly expressed intention of the taxing 
 power. 
 
 "The capital stock of a corporation and the shares into which 
 such stock may be divided and held by individual shareholders 
 are two distinct pieces of property. The capital stock and the 
 shares of stock in the hands of the shareholders may both be 
 taxed, and it is not double taxation. Van Allen v. Assessors, 
 3 Wall., 573 ; People v. Commissioners, 4 "Wall., 244, cited in 
 Farrington v. Tennessee, 95 TJ. S., 687. 
 
 "This statement has been reiterated many times in various 
 decisions by this Court, and is not now disputed hy any one. 
 
 "The sui-plus belonging to this bank is 'corporate property,' 
 and is distinct from the capital stock in the hands of the cor- 
 poration. The exemption, in terms, is upon the payment of an 
 annual tax of one-half of one per cent upon each share of the 
 capital stock, which shall be in lieu of all other taxes. The 
 exemption is not, in our judgment, greater in its scope than the 
 subject of the tax. Recognizing, as we do, that there is a dif- 
 ferent property in that which is described as capital stock from 
 that which is described as corporate property other than capital 
 stock, and remembering the necessity there is for a clear expres- 
 sion of the intention to exempt before the exemption will be 
 granted, we must hold that the surplus has not been granted 
 exemption by the clause contained in the charter under discus- 
 sion. The very name of surplus implies a difference. There 
 is capital stock and there is a surplus over, above and beyond 
 the capital stock, which surplus is the property of the bank 
 until it is divided among stockholders." 
 
 There is no one who is more jealous for the honor and repu- 
 tation of this State and its government than the writer. I 
 know full well that it is their desire and fixed purpose to meet 
 every obligation and duty incumbent upon them as an enlight- 
 
18 
 
 ened, progressive and Christian people, and where such pur- 
 pose has been enacted into law their courts should at all times 
 and under all circumstances be swift to enforce it; but this 
 sentiment, deep as it is, does not permit — on the contrary, it for- 
 bids — that in expounding their laws we should depart from 
 fixed principles of interpretation, or read into their statutes an 
 effect and meaning contrary to the clear import of their terms. 
 I am of opinion that the judgment below should be affirmed. 
 
Uissatisiaction. 
 
 To tho Editor: It seems probable 
 that the age limit aa extended will in- 
 clude those from 18 to 21. There is al- 
 ready talk of exempting those who oth- 
 erwise would go to college. 
 
 I am old enough to remember during 
 the Confederacy, when an exemption 
 was made of those who owned fifteen 
 negroes. The specious excuse then 
 
 those 17 years of age. 
 
 JjaFaye'tte was a major general in th 
 I 'uitod "states army, commanding a divi 
 sion of four brigades when he was 1 
 years old. 
 
 In the Confederate army, as a matte 
 of fact, there were hundreds, possibl 
 thousands, under 17. 1 entered the Con 
 federate army myself at 14, and thoug 
 
 negroes. Ihe specious excuse then.j resigned being under military ag( 
 made was that they were doing more^^j^^i j,^ September, 18G3, went to th 
 for the Confederacy by supervising the wrjj-^,g^gi^y f^r nine months in an a1 
 
 raising of supplies and preventing any). 
 possible insurrection among the ne- 
 groes. This did not deceive the public 
 for it was instantly undetstood that it 
 was an exemption of a favored and 
 privileged class. No heavier blow was 
 ever struck the Confederacy by the 
 enemy. 
 
 Our college professors naturally think 
 that the colleges should be kept up and 
 
 .empt to complete my education, th 
 very next day after the spring ten 
 closed in 18(i4, I again joiiied the arm 
 and "saw it through," being parole 
 with .Johnston's army, May, 1865, bein 
 then 18 years of age. There Avere man 
 others with a similar record as to agi 
 Dr. Dixon, the late Auditor, being on 
 of them. Among those still living ai 
 Capt. .1. J. Laughinghouse, of Pitt 
 
 fond fathers and mothers naturally ue-j^^^^ ^ A. Bristol, clerk of the supenr 
 'lieve that their sons will bo better em- ^^^^.^ J^ Burke, and others. In ISC 
 ployed and safer in the college lialls , ^^^^^ .g^ North Carolina had at the fror 
 than on the German front. But, the boy ' - ' ^ 
 
 between the plow handles, who may be , 
 the chief laborer on the farm or the 1 
 
 over 4,000 Junior Reserves, boys 1 
 j years old;, and better and brave 
 
 the chief laborer on the farm or the Ig^j^-^j.^ ^^^^^^ stepped into a line c 
 support of a widowed mother, is doing j'^^^^j^^ j j^^^^ ^ goj^ j,i ^ijp Spanish we 
 fully as much for his country out of I - — . ^ , i — . — 
 
 the army as the boy whose father isj. 
 able to send him to college. A dis- 
 crimination along these lines will cause 
 the deepest dissatisfaction, although 
 those who will feci the injustice keenly 
 are not always influential people and 
 may not have much to say in the news 
 
 Spanish 
 before he was 21, and I have two sor 
 in this war, though neither of them w£ 
 liable to the draft, one of them bein 
 over 31, and the other was in the d( 
 ferred class. I dislike to speak of pe: 
 sonal matters but this will show that 
 speak from experience and have no pe: 
 
 may not nave mucn to say in the news- ^'^^^j interest to serve, 
 papers. We have no privileged class in ^^^^ means discomfort, dirt, diseas 
 this country and should have none andK^^^ . possible mutilation or deat: 
 the son of the laborer or the farmer ! j^^^^^j^^^.^ ^^ ^^ illusion, it is no dre; 
 should not be sent to the army if the- .^^^^ rpj^^ ^^. ,^o,_,,g thing about i 
 son of, the man who is wealthy enough ^^, ,' , • ;„,,„„,i noble and grand, 
 
 . - , igli 
 
 to educate him, is kept out of tlie war. 
 "Equal rights to all and special privi- 
 leges to none," was never more vitaP 
 than in this matter of the drafting ol| 
 young men into the army. ' 
 
 While we have no governing class in 
 this country, the lawyers come very 
 nearly being such, since they furnish 
 more than 60 per cent of our members 
 of '"^ongress, Presidents, members of the' 
 Legislature and (idvernors. There is 
 already soine dissatisfaction expressed 
 rthat "so many young lawyefs who should 
 be at the front have shunted themselves 
 off into safe berths, out of cannon 
 range, as judge advocates to try other 
 men for military offenses, and there ia 
 deeper dissatisfaction at the large num- 
 ber of rosy cheeked, well fed, Avell ^iress- 
 ed 3'oung colonels, majors and captains, 
 who occupy swivel chairs at Washington 
 and elsewhere. 
 
 There is a difference of opinion ex- 
 pressed whether men from 18 to 21 
 should be taken. It is the military ex- 
 perience of the ages that there are no 
 
 and, that is indeed noble and grand, 
 that such service is for others and f( 
 one's country. Is it wise or just or pn 
 dent to exempt those whose fathers a' 
 able to send them to college, while sul 
 jecting the sons of those who are not 
 the burden of the battle? The workii 
 classes are more intelligent than ev 
 and will be quick to resent injustice - 
 discrimination. They know their poi 
 er. In the face of the democracy ' 
 that death where "the bullet knows J 
 brother,' let us have the democracy 
 equality in the draft for duty. 
 
 The only true nobility is the nobili 
 of service', and the nobility of Gre 
 Britain are measuring up to that stan 
 ard. The casualty list of members 
 the families in the House of Lords rea 
 like that at Crecy, or Agincourt. Ha 
 ing recently to write to the Marquess 
 Dowushire' (not having heard of 1 
 death) the Marchioness herself polite 
 answered my letter, giving as her re 
 sou that her son, the new Marquess, 
 boy 17 or 18) was "in France, drivi: 
 an' ambulance." Lot us not have 
 
President E. K. Graham, 
 
 Mi'. Dear Mr. President :— Your 
 esteemed favor received. 3 do 
 not underestimate the value of 
 education, but it seems to me : 
 
 1. The Government is con- 
 scripting two millions of young 
 men from 18 to 21 to fight the 
 Germans, and not to educate 
 them. 
 
 2. If all were to be sent to col- 
 leges, there are not enough col- 
 leges anl professors to take charge 
 of them* 
 
 3. Only a small per cent of 
 them are sufficiently educated to 
 enter college. The result, would 
 be that those who have had the 
 advantage of education will be 
 exempted for an indefinite pe- 
 
 J nod, possibly until the war is 
 iove r, wh ile those not so fortunate 
 Wffl u^ stopping German bullets. 
 
 Sending young men to "trs inX 
 ing camps for officers" does not 
 mean sending them to college. 
 That will re(iuire only 90 days 
 and will not detain them from 
 service. The training is military 
 and not collegiate. To send to 
 college for an indefinite period 
 those who have a suffiicent edu- 
 cation to enter college will be a 
 special privilege to a small class. 
 
 In my opinion this will be as 
 dangerous as the exemption 
 given to the "owners of 15 ne- 
 groes" under the Confederacy. 
 
 So far, there has been little 
 class discrimination, and while 
 there is undoubtedly some feeling 
 against the war among many who 
 do not comorehend fiillv thn 
 
 most dangerous experiment. 
 
 My people were slave owners, 
 but in my own case I did not' 
 claim an exemption on that ac 
 count nor that 1 might get an 
 education. 1 believe that the ex- 
 cmtpion of "college students" 
 would be a most serious error, for 
 the industrial and working classes 
 are More intelligent, more num- 
 fei^^is an<i f*r hett^er bi^a'ni^fed 
 than ever before. They will not 
 stand for it. 
 
 I know you will understand j 
 from this that my reasons are pa- 
 triotic and not personal. It is a 
 question in my opinion of justice 
 and sound public policy. 
 Most truly yours, 
 
 WALTER CLARK. 
 Raleigh, Aug. 27. ' 
 
 The letter of Chief Justice Wal- 
 ter Clark in reply to a corarauni- i 
 cation to the Chief Justice from 
 President E. K. Graham of the 
 State University is given else- 
 where. 
 
 The controversy between these 
 very distinguished men is at 
 tracting considermg attention. 
 
 As we see it Justice Clark is 
 right, and we are glad that so 
 talented and influential a man in 
 his high position comes out bold- 
 ly for justice and fairness in the 
 administration of the draft law. 
 
 The injustice to the boy under 
 twenty-one years of age who may 
 not go to college is so clearly 
 pointed out and discussed by 
 Judge Clark that we have little 
 to add in commending his posi- 
 tion. THE HARNETT POST. 
 
 / 
 
CHILD LABOR 
 
 DANGEROUS PLACE TO WORK IN— PETTIT v. R. R., 
 156 N. C, 133 
 
 Chief Justice Clark Holds that a Railroad Company Should be 
 
 Held Responsible When, to Keep Down the Price of Other 
 
 Labor, it Puts an 11-Year-Old Boy to Work in a 
 
 Dangerous Place, Where He is Soon Killed 
 
 — Judge Hoke Agrees With the 
 
 Chief Justice. 
 
 Clark, C. J. (dissenting). The plaintiff was not accorded the privi- 
 lege of a jury trial to determine tlie facts. Therefore the evidence 
 must be taken in the most favorable aspect for him and in the light 
 of the most favorable inferences which could have been drawn tliere- 
 from by the jury. His intestate was a child, small for his age. which 
 was under 12, and had not fallen off knee pants. He was employed 
 at South Rocky Mount to carry messages across a yard filled with 
 IS or 20 tracks, with engines and trains moving backwards and for- 
 wards every few minutes. Among these were through trains, and also 
 the shifting engines, moving freight and passenger cars to make up 
 trains. His duties required him to carry messages over and across 
 this yard. A more deadly and perilous place could not be imagined. 
 Such duty would have taxed the discretion and judgment of a much 
 maturer person. The defendant did not attempt to show that it 
 had given the child any caution or instruction whatever. 
 
 In FitsgeraU v. Furniture Co., 131 N. C, 640, 42 S. E., 947, this 
 Court cited with approval the following language from Thompson on 
 Negligence : "The law puts upon a master, when he talvcs a child 
 into his service, the duty of explaining to him fully the hazards and 
 dangers connected with the business and of instructing him how to 
 avoid them. Nor is this all ; the master will not have discharged his 
 duty in this regard unless the instructions and precautions given are 
 so graduated to the youth, ignorance, and inexperience of the employee 
 as to malie him fully aware of the danger to him, and to place him, 
 with reference to it, in substantially the same state as if he were an 
 adult." This being a^ duty devolving upon the defendant, the burden 
 was upon it to show that such caution was given, and its nature. 
 But nothing of the Ivind was even attempted to be shown. It follows 
 that the presumption that such caution was not given is not removed. 
 
 In Ward v. Odell, 126 N. C, 948, a child 11 years old, employed in 
 a factory, in passing from one part of the mill to another stopped for 
 
a mouieut at a bench where a wire was being cut, when a piece of wire 
 flew off and put out his eye. It was held by Clark, J., that the 
 injury v\as conclusive that the work was dangerous, and that in such 
 case "these little creatures exposed to such dangers against their will 
 cannot be held guilty of contributory negligence." Nor was it a de- 
 .feuse that the child was hired to the company by the father. "It was 
 the child's eye which was put out, not the father's. The father could 
 not sell his child nor give the company the right to expose him to 
 danger. The superintendent put these children to work, knowing 
 their immaturity of mind and bo<ly, and, Avhen one of them thus put 
 by him in places requiring constant watchfulness is injured, every 
 sentiment 'of justice forbids that the corporation should rely on the 
 plea of contributory negligence." If that is ti'ue as to cutting wires 
 in a factory when the child was not on duty at the time, it is neces- 
 sarily so as to the danger ten times more deadly, of crossing IS to 20 
 tracks with engines and cars constantly moving backwards and for- 
 wards and when the child's duties re<iuired him to cross the tracks. 
 
 On this occasion there was no eye-witness how the child was killed, 
 but he was found dead upon one of these tracks with his leg cut off. 
 The inference is irresistible that he was killetl by a passing train. 
 Powell V. R. R., 125 N. C, 370. If there could be any possible doubt 
 about it, the evidence was certainly sufficient to be submitted to a 
 jury to draw the inference. The little child being found dead with 
 his leg cut oft" in such a network of tracks, among constantly shifting 
 trains, creates as strong a presumption that his leg was cut off by 
 one of these trains as, when a soldier is found dead on a battlefield 
 with a bullet through his head, that he was killed by the enemy. 
 
 It is urged that it is not shown that tiie little boy in his knicker- 
 bockers was on duty, because there is evidence tending to show that 
 he was killed on Sunday morning. The opinion of the Court says: 
 "No one testifies that he was killed on Sunday. We assume it." Yet 
 nothing is better settled than that nothing can be assumed against 
 the plaintiff on a nonsuit. The evidence is that he was employed to 
 carry dispatches across these tracks. The very nature of the work 
 as a necessity in operating trains is conclusive that it was carried on 
 every day. There is no evidence whatever that these messages were 
 not required to be sent on Sunday as well as on other days. It is 
 well known that these through trains, and that also the shifting of 
 cars and engines on these tracks, are operated on Sunday, as well as 
 on other days. His duty was such as could not cease on Sunday. 
 Reference to the decisions of this Court will show cases in which this 
 defendant was sued for the penalty in sending out its freight trains 
 from this very yard on Sunday, and the defense was upheld that it 
 had a right to send out through freight trains. The statute also per- 
 mits the dispatching of both local and through passenger trains. It 
 is in evidence in this case that other laborers were present on the 
 yard that morning. Taking the evidence in the light most favorable 
 to the plaintiff, it is a reasonable inference that the child was there 
 
iu the performauce of the duty of carryiug messages from one office 
 to another across these tracks at the time of his death. It is not 
 shown that he had occasion to go there for any other purpose, nor is 
 it reasonable to suppose that after his arduous labors on these other 
 days he would have revisited this spot on the morning in question as 
 a matter of sport or play. The child was killed where he was re- 
 quired to do his work. If for any reason he was not at work at that 
 spot on that day, it was the duty of the defendant to show it, and it 
 could have readilj^ done so, if such was the fact. It did not attempt 
 to make such proof. 
 
 It was also suggested that the child might have been killed by 
 jumping up on one of the passing trains. One witness testified that 
 he saw him riding on one of the shifting trains that morning. But 
 there is no evidence that he was killed while doing so, and, even if it 
 had been shown that he was killed while so riding, this would have 
 been contributory negligence, which this Court held in Ward v. 
 Odell, 126 N. C, 946, 32 S. E., 194, could not be set up against a child 
 under 12 years of age. Besides, contributory negligence must be 
 proven by the defendant. Rev., 483. The Court refers to "state- 
 ments in the answer," as if the answer was evidence. 
 
 If we are to observe Judge Daniel's wise injunction, quoted by the 
 Court, "that we should not be wiser than the law," we will not re- 
 verse the humane decisions of this Court, above quoted, in order to 
 defeat a recovery for the death of the little sufferer who by the 
 avarice of the defendant was sent to his death by exposure to an 
 accumulation of perils greater to him in his unguarded and un- 
 warned innocence than that which met the charging column of brave 
 men on Cemetery Ridge. Many soldiers survived four years of war. 
 This child was slain on the fourth day of his employment. 
 
 It may be asked, and it will be asked, by future ages as well as by 
 the present, why an innocent child of this immature age should have 
 been subjected to such perils, so far beyond his comprehension. This 
 record gives the answer. His mother had seven other children to 
 support. He had a stepfather. And, in this combination of cir- 
 cumstances, the mother testifying that she did not know the danger- 
 ous nature nor the character of the employment, and indeed did not 
 consent to his being employed, the defendant was able to procure this 
 child's services for the munificent sum of $12.50 per month. This 
 was truly "the price of innocent blood." Had the defendant em- 
 ployed a man or a boy of mature years, it would have had to pay a 
 sum for his services more in proportion to the peril. Such a person 
 would have known the dangers and would have charged for the risk. 
 
 By employing these little children the defendant is able to cheapen 
 to that extent, by the competition, the price of other labor. 
 
 Nor is there any reason shown why the defendant company should 
 not have put telephones across these tracks, and thus transmitted 
 the messages without exposing any one to such dangers. The only 
 answer to this is the one that was ineffectually made in the Troxler 
 
case (124 N. C, 1S9 ; 44 L. R. A., 313; 70 Am. St., 5S0), and Greenlee 
 case (122 N. C, 977; 41 L. R. A., 399; 65 Am. St., 734), that it wouW 
 have cost the defendant company some expenditure to put in the 
 automatic couplers, as here it would cost a little something to put in 
 the telephone. This Court held, without any statute, but upon the 
 principles of right and justice, in the Troxler and Greenlee cases, that 
 it was negligence per se to subject a grown man to the danger of 
 making a coupling without using automatic couplers, even when the 
 man was insti'ucted as to the danger, and that in such cases the rail- 
 road company could not set up the defenses of assumption of risk or 
 contributory negligence. This decision has been followed in other 
 States and is a well-settled law in our own courts. Our law is 
 humane. 
 
 Chief Justice Fuller, not long before his death, in a case of per- 
 sonal injury, in words of burning conviction, said : "It is a re- 
 proach to our civilization that any class of American workmen 
 should, in the pursuit of a necessary and useful vocation, be subject 
 to a peril of life and limb as great as that of a soldier in time of 
 war." Johnson v. R. R., 196 U. S., 1. 
 
 A conservative estimate of the number of workmen killed or maimed 
 in this country every year in industrial accidents is about 500,000. 
 It is said that the total number killed and wounded in the Union 
 Army during the Civil War was 385,325. In other words, the whole 
 Confederate Army was unable to kill and cripple as many Union men 
 in four years as are now killed and crippled in industrial employment 
 in a single year. We cannot expect this condition to improve if the 
 courts can be induced to place the blame upon those killed and 
 wounded, because, in order to make a livelihood, and with a purpose 
 of obeying those for whom they labor, they venture in dangerous pur- 
 suits, while under such conditions the same courts relieve the master. 
 who created the condition and gave the orders, of all liability and 
 blame whatsoever. 
 
 The courts elsewhere have not yielded their assent to the validity 
 of the considerations urged by the defendant in this case. 
 
 In Molaskc v. Coal Co., 80 Wis., 220. it was held: "The pre- 
 sumption is that a boy under 14 years of age is not competent to 
 perform duties involving personal safety and requiring the exercise 
 of a good degree of judgment and constant care and watchfulness ; 
 and, in an action for injuries resulting from negligence of a 
 boy so employed, the burden is upon his employer to show that he 
 was in fact competent. Further, no usage to employ boys of such 
 tender years to perform such duties can be upheld." Here the boy 
 was under 12, instead of 14; no negligence by him was shown, and 
 no usage to employ boys of such age for such duties. 
 
 In Wayne v. Conklin, 86 Ga., 40, it was held : "Whether 
 a boy of 13 employed by the defendant to work in a tinshop 
 was of sufficient age and capacity to appreciate his hazard and 
 provide against danger is for the consideration of the jury." In 
 
this case the boy was uacler 12, and the danger to which he was 
 exposed was full an hundredfold greater than that in a tinshop ; and 
 a North Carolina jury in all justice should have considered and de- 
 termined the question whether he was "of sufficient age and capacity 
 to appreciate his hazard and provide against the danger" to which 
 he was exposed. 
 
 In Gotf V. R. R. (C. C), 3G Fed., 289, it was held an act of negli- 
 gence on the part of a railroad company to take into its employment 
 as a brakeman a minor of such tender years as to not know the risk 
 of the service. 
 
 The rule established by Bare v. Coal Co., 61 W. Va., 28, 8 L. 
 R. A. (N. S.), 2S4, 12.3 Am. St., 066, that "it is actionable negli- 
 gence for an employer to engage and place at a dangerous employ- 
 ment a minor who lacks sufficient age and capacity to compre- 
 hend and avoid the dangers of such employment, even though the 
 employer instructs him as to the dangers incident to the work," is a 
 well-established rule, being laid down in Labatt on Master and Serv- 
 ant, sec. 251; S. and Redf. Neg. (oth Ed.), sec. 219; 4 Thomp. Neg., 
 sees. 3826, 4093, 4689; Bailey, Pers. Inj., sees. 2758-2777; Dresser, 
 Employers' Liability, 466; Buswell, Pers. Inj., sec. 203; 2 Cooley, 
 Torts (3d Ed.), 1130, 1131; 20 A. and E. Enc. (3d Ed.), 299. 
 
 It is a question for the jury to say whether or not the deceased 
 could appreciate the dangers and knew how to avoid them. Turner v. 
 R. R., 40 W. Va., 675 ; 4 Thomp. Neg., sec. 4098. 
 
 The place where the child was put to work being a dangerous one, 
 the question w^as open for the jury to pass upon the negligence of the 
 defendant. Cahill v. Stone Co., 153 Cal., 571, 19 L. R. A. (N. S.), 
 1094 ; Lynch v. Nnrdin, 1 Q. B., 29 ; Pressly v. Yarn Mills, 138 N. C, 
 410. 
 
 In this case a child under 12 years of age, undergrown, and there- 
 fore known to be immature, was set to work by the defendant in a 
 most dangerous place, exposed to be run over by the constantly pass- 
 ing trains and shifting engines crossing eighteen or more tracks, to 
 carry messages which might have been sent by telephone. He was 
 found dead on the track in the yard with his leg cut off. Under 
 our decisions the company could not show contributory negligence, and 
 did not offer to show any. It was the duty of the company to show 
 that they had instructed any employee, much more a child, placed in 
 such employment, of its dangers. The defendant did not show this. 
 The work was of a nature which required employment on Sunday as 
 on other days. The child being found dead where he would be pass- 
 ing in carrying his messages, if he was killed that day or not at 
 work that day the burden was upon the defendant to show it. The 
 defendant did not offer to do so. Upon all the evidence, taken in the 
 light most favorable to the plaintiff, it would seem impossible to con- 
 clude that there was not more than a scintilla of evidence tending to 
 show negligence on the part of the defendant. 
 
 Hoke, J., concurs in dissenting opinion of Clark, C. J. 
 
THE CONFEDERATE SOLDIER. 
 
 But they say that, nevertheless, we failed. The Confed- 
 eracy failed, but not the Confederate Soldier. Your past 
 is secure. The great soldiers of history are the Mace- 
 donian Phalanx of Alexander the Great, the Tenth Legion 
 of Caesar, the Ironsides of Cromwell, the Old Guard of 
 Napoleon. The Confederate soldier is their worthy com- 
 rade and their equal. The government which each of 
 those brave bodies of soldiers served went down into irre- 
 trievable and utter defeat, but their fame, like yours, is im- 
 mortal. 
 
 ********* 
 
 What is true of these great historic battalions is true, 
 Comrades, of the Confederate soldier. The fame of the 
 soldiers of Alexander, of Caesar, of Cromwell, of Napoleon, 
 and the principles for which they stood survived the 
 ephemeral government under whose banner they fought and 
 was in nowise affected by its downfall. Not only has the 
 fame of your valor, of your splendid soldierly qualities, 
 survived the short life of the Confederacy, but the prin- 
 ciple of local self-government has survived Appomattox 
 and will endure throughout all generations. — Extract from 
 Judge CUirJvS Speech. 
 
U. S. PENSIONS FOR N. C. SOLDIERS 
 
 ADDRESS OF 
 
 CHIEF JUSTICE WALTER CLARK 
 
 TO CONFEDERATE VETERANS AT CHARLOTTE, N. C, 25 AUGUST, I909 
 
 [Reprinted from Charlotte Papers. 25 August, 1909.] 
 Confederate Veterans, Comrades, Ladies and Gentlemen: 
 
 Face to face with the survivors of the great armies of the Confed 
 eracy, we stand in the presence of history. Those scarred and vet- 
 eran columns made history. Their fame now belongs to the ages. 
 
 No place more appropriate for this meeting could be found than this 
 spot, which first on this Continent heard the immortal declaration 
 of the right of freemen to govern themselves, and which witnessed 
 the first enactment of an Ordinance of Secession on that ever mem- 
 orable 20 May, 1775. 
 
 It is needless, soldiers, for me to attempt to recount the story of 
 your great deeds — to recall how with 600,000 soldiers, half fed, scant- 
 ily clothed, and unpaid, you kept at bay for four years nearly 3,000,000 
 of the best furnished and best equipped troops the world has ever 
 known. Cut off from the outside world by the blockade, without 
 manufactures except such as we improvised in the stress of war, with- 
 out money save depreciated paper, unable to spare enough men to 
 raise provisions because they were needed to face the enemy — with 
 nothing but our courage in our hands and our faith in God and the 
 faith of our women in us, we held the line ! 
 
 BASED ON FEDERAL RECORDS. 
 
 What you did may be based on the Federal Records. Aside from 
 those killed, and those who died from wounds in the years after the 
 war, forty years after the war began — that is, in 1901 — there wei'e 
 more than one million of men on the Federal pension rolls, each of 
 whom had sworn that he had incurred serious disability by reason 
 of opposing you, and the truth of the statement of each had been 
 adjudged to be true after full examination and report by the proper 
 tribunal. And even now, by the last official Government report, 
 which I have here, in this year 1909, over forty-eight years, nearly 
 half a century, after the war began, there are on the Federal pension 
 rolls 020,000 survivors of the war — more men than your armies had in 
 their ranks during the entire four years. 
 
 When peace was made at Tilsit, between France and Russia, the 
 Emperor Alexander paraded his guard before Napoleon. Pointing 
 to one tall veteran who had been terribly hacked by sword and 
 shot, he said to Napoleon, "What do you think of soldiers who can 
 survive such wounds as those?" Napoleon grimly replied : "What 
 
do you think of soldiers who can give such wounds as those?" By 
 the enemy's own showing you made it terribly unhealthy for them 
 down South. 
 
 THE SOUTH ALMOST SUCCEEDED. 
 
 Had the South been solid, it had succeeded beyond question; but 
 from the border States, Maryland, that part of Virginia which is 
 now West Virginia, from Kentucky, from Missouri, from East Ten- 
 nessee, from certain sections of other States, and from our colored 
 population, the North recruited over 250,000 troops — nearly half as 
 many as the whole Confederacy. These were not only taken from 
 our side, but were added to the overwhelming- numbers against us. 
 But even with this defection, soldiers, such were your splendid stay- 
 ing qualities you would have compelled success but for the short- 
 sightedness of your civil government. The battle was lost there, 
 and not in front of your lines. When in 1861 our ports were still 
 open, we sent commissioners to England and France to negotiate a loan. 
 They were instructed to negotiate for a loan of $15,000,000. They 
 reported that a loan of $600,000,000 could be negotiated, but a small 
 one could not be. The foreign money lenders knew that if $600,000,- 
 000 were invested in Confederate bonds by French and English cap- 
 italists the goveriunents of those countries would never let the Con- 
 federacy fail. Had we authorized the $600,000,000 loan, not only 
 would the governments of England and France have become practi- 
 cally sureties to our success — for they would never have permitted 
 . their subjects to lose so large a sum — but we could have kept our 
 currency at par besides importing the best arms and ammunition and 
 other supplies, and could have created a navy which would have kept 
 our ports open. Had the statesmanship of the Confederacy equaled 
 its splendid soldiery, you would have won independence ere the close 
 of the second year of the war. 
 
 But notwithstanding this and other blunders of the civil govern- 
 ment, time and time again, you nearly compelled success. To men- 
 tion a few occasions only : At Shiloh, in ] 862, the enemy were a dis- 
 organized rabble, fleeing to the unfordable river in their rear, and 
 the capture of their entire army in less than an hour was inevitable 
 when a minie-ball struck our leader, Albert Sydney Johnston, causing 
 our lines to halt. His successor delayed to renew the advance for 
 more than an hour. In that time the capable leaders of the Fed- 
 eral army reorganized their lines, put confidence in their men, and 
 brought up others so that when we did advance again, we met a mur- 
 derous reception. If that army, with Grant and Sherman, had been 
 taken, the war would have practically been ended. The Federal 
 army was in utter flight again at Chickamauga, and was saved from 
 capture only by the gross incompetence of the Confederate general. 
 Again, at the battle of Chancellorsville in May, 1863, Hooker's army 
 was demoralized and cut off from the United States ford. The fall 
 of Stonewall Jackson by a ball from our own men, who fired by 
 
mistake, stopped the advance at the critical momeut when we were 
 on the eve of capturing Hooker's army and ending the war. 
 
 At Gettysburg some of our troops, among them Hoke's Brigade, 
 climbed Cemetery Heights on the evening of the second day. Had 
 Stonewall Jackson been there we would have held our ground and 
 the enemy would have retreated precipitately, and the third day at 
 Gettysburg, so fatal to the fortunes of the Confederacy, would not 
 have occurred. Disaffection was rife throughout the North. The 
 draft riots were at that moment in progress in New York. Had the 
 Federal army been forced to retreat from Gettysburg with Lee's 
 army in pursuit, Washington and Baltimore would have been evacu- 
 ated and the Confederacy established. 
 
 It is generally thought that Gettysburg was the high-water mark 
 of our fortunes, and that thereafter the fortunes of the Confederacy 
 were hopeless. But General Horace Porter, who was on Grant's 
 staff around Petersburg, shows in his book that as late as the fall 
 of 1864 the North was tired of the war and disheartened, and that 
 McClellan, the Peace Candidate, would have been elected over Lin- 
 coln, but for the fall of Atlanta and Sherman's march through 
 Georgia — events which were due to the mistake of removing Joseph 
 E. Johnston from the command of the Western Army. 
 
 It is easy now to say that our defeat was inevitable from the very 
 beginning, but nothing is farther from the truth. Success, time and 
 again, was almost in our grasp. The qualities of our soldiers and of 
 our leaders would have insured our independence, but as Napier 
 said of Napoleon, "Fortune, that name for the unknown combina- 
 tions of an infinite power, was wanting to us, and without her aid the 
 designs of man are as bubbles on a troubled ocean." 
 
 Then there was the Trent affair, when Admiral Wilkes took Mason 
 and Slidell, our ministers to England and France, oft" an English ves- 
 sel at sea. No one would have believed that the United States would 
 humble itself to apologize and restore the prisoners. But it did so. 
 If this had not been done, England, with her great wealth and power- 
 ful navy, would have entered the war as our ally. 
 
 In 1S62. Mr. Gladstone, in his Newcastle speech, said : "The 
 leaders of the South have made an army, and they have made, gen- 
 tlemen, what is more than either, they have made a nation. We 
 may anticipate their success so far as regards effecting their separa- 
 tion from the North. I, for my own part, cannot but believe that 
 that event is as certain as any event yet future and contingent can 
 be." 
 
 The great majority of thoughtful observers in England, even among 
 the element opposed to our success, conceded that it was inevitable, 
 among them Richard Cobden. 
 
 So far from our cause being hopeless from the beginning, we again 
 and again were in reach of success. In spite of the want of judg- 
 ment on the part of our civil government, which might early in the 
 war have taken steps which would have insured Southern inde- 
 
10 
 
 pendeuce, the brilliant courage of our soldiers often would have won 
 it but that it was frustrated by circumstances so unforeseen that it 
 seems as if it were the hand of Providence. 
 
 THE SOUTH FAILED, BUT NOT THE CONFEDERATE SOLDIER. 
 
 But they say that, nevertheless, we failed. The Confederacy failed, 
 but not the Confederate soldier. Your past is secure. The great 
 soldiers of history are the Macedonian Phalanx of Alexander the 
 Great, the Tenth L^ion of Caesar, the Ironsides of Cromwell, the 
 Old Guard of Napoleon. The Confederate soldier is their worthy 
 comrade and their equal. The government which each of those brave 
 bodies of soldiers served went down into irretrievable and utter de- 
 feat, but their fame, lilie yours, is immortal. More than 2,200 years 
 ago, Alexander, a mere boj-, crossed into Asia with a small army 
 of which the Macedonian Phalanx was the flower. In three years 
 he had invaded Africa, captured Egypt, rolled up the Empire of 
 Darius and swept through Asia like a cyclone to the Indus, by 
 whose banks he sat down to weep because there were no other 
 worlds to conquer. In ten years he lay dead and his empire was 
 hopelessly shattered for all time. But the fame of that splendid 
 soldiery lives on and the superiority of Europe over Asia and Africa 
 was settled by them for all the ages. 
 
 Nearly 300 years later Caesar led the Roman Legions from "Pontus 
 into Gaul." He conquered the barbarian and destroyed the aristo- 
 cratic supremacy at Rome. The heart of his army was the famous 
 Tenth Legion. In ten years he lay dead at the foot of the statue of 
 Pompey, his great rival. Like Alexander, he left no successor, and 
 his conquests were divided and fought over by smaller men. But 
 the fame of the Tenth Legion lives always, and the superiority of 
 civilized man over barbarian established by them has not since been 
 questioned. 
 
 Coming down the ages, we meet the famous Ironsides of Crom- 
 well, that somber soldiery who at Naseby. at Edgehill, at Marston 
 Moor, shattered forever the fiction of the divine right of kings. In 
 a few short years his rule vanished and the Stuarts returned (for a 
 while). But the fame of the Ironsides lives on and the principle 
 they established cannot be shaken. 
 
 And then a century ago arose that splendid soldier, the first Napo- 
 leon, who ran up the tricolor of France over every capital in Conti- 
 nental Europe from Madrid to Moscow. The heart of his army was 
 the "Old Guard." 
 
 That famous body of men existed less than ten years, for the 
 meteoric splendor of the great captain died away as suddenly as it 
 had arisen; but the fame of the "Old Guard" will never die. They 
 represented the principle that the people of a country have a right to 
 establish their own government and change its form at will. That 
 principle abides to-day and has become world-wide and undisputed. 
 
 What is true of these great historic battalions is true. Comrades, of 
 
11 
 
 the Confetlerate soldier. The fame of the soldiers of Alexander, of 
 Ciesar, of Cromwell, of Napoleon, and the principles for which they 
 stood survived the ephemeral government under whose banner they 
 fought, and was in no wise affected by its downfall. Not only has 
 the fame of your valor, of your endurance, of your splendid soldierly 
 qualities survived the short life of the Confederacy, but the principle 
 of local self-government has survived Appomattox and will endure 
 throughout all generations. Without it, this Union of coequal States 
 would become a centralized despotism, and the head of its govern- 
 ment (whatever it might be called) a military dictator requiring the 
 constant support of a great army. 
 
 SERVICES AFTER THE WAR. 
 
 Nor will I linger, soldiers, to speak of your services after the 
 war, when unawed by garrisons in your midst and unseduced by 
 promises of offices and of public plunder, you were the mainstay of 
 public order and of private security. Your services during those 
 years are not less worthy of remembrance by a grateful people than 
 your moi'e brilliant services during four years of war. When 
 Anglo-Saxon supremacy was threatenetl and a repetition of Hayti and 
 San Domingo was imminent, it was the quiet determination and 
 shoulder-to-shoulder discipline of the Confederate soldiers that up- 
 held the tottering fabric. These men had been at Chancellorsville, at 
 Fredericksburg, at Spottsylvania, at Chickamauga. They were dis- 
 ciplined and accustomed to act together. The carpet-baggers gave 
 you but one look and then they packed their gi-ips and left. 
 
 But I do not. wish to speak to you longer of the past. The young- 
 est of those who wore the gray have long since crossed the crest of 
 the narrow ridge that divides two great oceans, and like Balboa, have 
 descried from the western slope the wide waste of waters which 
 reach beyond the sunset. Not many years shall pass ere the last of 
 those who followed the fortunes of Lee and Jackson, of Johnston 
 and Forrest, shall have set sail on that shoreless sea, and the last 
 footfall of the tread of the Old Confederate Regiments whose march 
 shook a continent shall be echoing in eternity. It is of the present 
 and of what in my judgment justice to you demands that I shall 
 now briefly speak. 
 
 PENSIONS. 
 
 In so doing, I wish to say that I speak my own sentiments, without 
 consultation with any officer of this association. Whatever responsi- 
 bility, if responsibility there be, is on me, not on them. When at the 
 close of the bloody war between those hereditary enemies, France 
 and Germany, in 1871, an indemnity of $1,000,000,000 was laid on 
 France, the entire civilized world stood aghast. If at Appomattox 
 beneath the generous terms of Grant there had been written a sup- 
 plement laying a contribution of .$1,000,000,000 upon the South it 
 would have staggered indignation. Yet that, and more tlian that, 
 has been laid upon the South as a direct war contribution. 
 
12 
 
 I speak not of the hundreds of millions which in the years after 
 the war were collected out of the South by three cents a pound tax 
 on cotton, when not a cent of such tax was or could be levied in 
 the Northern States. No court held that tax a direct tax and there- 
 fore unconstitutional, though the court held that a tax upon large 
 incomes, which were mostly at the North, was illegal because a 
 direct tax, and set it aside. 
 
 Nor do I refer to the tariff taxes which have always been inge- 
 niously framed to throw an undue share of its weight upon the South 
 and to the benefit of wealthier States. 
 
 You had returned to your devastated fields and to j'our stricken 
 homes, where amid departed hopes there too often lingered the melan- 
 choly attractions of the grave. It was not generous, it was not 
 magnanimous, that the victors, wealthy with the contracts of a suc- 
 cessful war and the profits of an enhancing currency, should throw 
 an excessive share of taxation upon you in your poverty. But let 
 that pass. I will say, however, that Congress ought to refund the 
 amoimt of the illegal cotton tax, and if the heirs of the original tax- 
 payers would be difficult to trace, the sum could be paid over in 
 proper proportions to the different cotton-growing States as a fund 
 for schools and good roads. I refer, as I have said, not to the 
 cotton tax, nor to the unjust discriminations of the tariff. I refer 
 to the more direct contributions laid upon the South to defray the 
 expenses arising out of the war. I have in my hand the Government 
 report which shows that since the war for pensions and the support 
 of "Soldiers' Homes," we have paid near $4,000,000,000. The South 
 pays one-third, at the least, of this, probably more, and has thus paid 
 over $1,300,000,000 of direct war indemnity. While the North has 
 paid, say, $2,600,000,000, nearly the whole of the $4,000,000,000 has 
 gone there, so that the pensions have not only been no tax upon that 
 section, but out of our poverty we have been making those wealthy 
 States wealthier still. Out of the more than $1,300,000,000 paid by 
 the South for pensions, almost none comes back to North Carolina, 
 and to the States farther South. If we allow for the troops in the 
 Union army that went from West Virginia, Kentucky, Missouri, East 
 Tennessee, and the colored troops, perhaps one-fourth of the $1,300,- 
 000,000 has come back to parts of the South. There remains the 
 enormous sum of $1,000,000,000, exclusive of interest, which the 
 South has paid as a war iudemnitj-, direct, pure and simple. North 
 Carolina has over one-fortieth of the population of the Union. If 
 there was no discrimination against us by reason of the tariff and the 
 Internal Revenue tax. North Carolina would still pay one-fortieth of 
 the Federal taxation. So, of the one hundred and sixty millions an- 
 nual appropriations for pensions (it is something less now) North 
 Carolina pays at least four millions yearly, and gets scarcely any- 
 thing back. North Carolina has up to date paid more than one hun- 
 dred millions into the Federal pension fund. 
 
13 
 
 I ain not opposing pensions to Federal soldiers ; indeed, I am in 
 favor of tlie system in force in Germany and England of paying old 
 age pensions to laborers, as well as to soldiers — to all who have spent 
 their lives for the good of the public, without adequate return. Nor 
 do I advocate payment of pensions to Federal soldiers out of the taxa- 
 tion levied only on the States that sent soldiers to the Union army. 
 That would be both impracticable and unconstitutional. 
 
 What I do advocate, as a matter of justice, as a matter of souud 
 public policy, as well as of magnanimity, is to place the needy disabled 
 Confederate soldiers upon the pension rolls on equal terms with the 
 soldiers already there, so far as the future is concerned, but without 
 any arrearages. And as the "Soldiers' Homes" are thinning out, get- 
 ting too large for the decreasing numbers of their inmates. Confed- 
 erate soldiers should be admitted to such of those homes as are 
 located in the South. 
 
 Why not? There is no reason, save that it has not been done here- 
 tofore. One-third of the money paid into the United States Treas- 
 ury is paid by the Southern States. The Federal Government 
 could establish old age pensions, and if so, the law would apply to 
 all the States. If they pay pensions to old men only, who have 
 served in the army between 1S61 and 1865, why not let it be paid to 
 all the soldiers of that war? 
 
 The States existed before the Union and created the Union. In 
 joining the Union many of the States expressly reserved the right 
 to withdraw. New England repeatedly asserted that right. The 
 constitutional text-book, "Rawle on the Constitution," which was 
 taught at West Point while Robert E. Lee and Joseph E. Johnston 
 and Stonewall Jackson were cadets, laid down the principle that a 
 State had the right to withdraw from the Union. In 1861 eleven 
 States withdrew. Twenty-two did not, and refused to let the eleven 
 withdraw. The Massachusetts troops went to the front because Mas- 
 sachusetts ordered them to do so, and not because the United States 
 ordered them. North Carolinians went to battle, not because the Con- 
 federate States so ordered, but because North Carolina sent them. 
 We met regiments from Massachusetts, New York regiments. Penn- 
 sylvania regiments, but rarely, if ever, met a United States regi- 
 ment. We fought alongside of Virginia regiments, South Carolina 
 regiments, Georgia regiments, but not Confederate States regiments. 
 The pension rolls to-day bear the names of men from Ohio regiments, 
 from Michigan regiments, from New Jersey regiments. North Caro- 
 lina pays annually $4,000,000 into the pension fund. Why are not the 
 surviving disabled soldiers of North Carolina upon the pension roll? 
 The men from Ohio and other Northern States went because their 
 States ordered them. Men from North Carolina and other Southern 
 States went on this side because their States ordered them. Both did 
 their duty as they saw it. The whole world admits this. The twenty- 
 two States won. The principle of an indissoluble Union won. No one 
 questions the result. Over forty-four years ago we came together. 
 
14 
 
 after four years of separation. We have had a commou treasurj' 
 ever since. Why should not pensions be paid out of it to the poor and 
 needy soldiers, who served and suffered at the command of their State, 
 whether that State was New York or North Carolina? 
 
 ENORMOUS WAR INDEMNITY. 
 
 It is neither just nor wise to continue the enormous war indem- 
 nity which the South has been paying. It is levied now on a new 
 generation, and of the four million dollars annually paid into the 
 pension fund by North Carolina, very little comes back. 
 
 It Is folly to say that these Confederate soldiers were traitors. 
 The United States Government indicted Jefferson Davis for treason, 
 but abandoned the prosecution. Not a man has been convicted of 
 treason. We are treated as an integral part of the Union when we 
 pay taxes, and when troops were needed for war with Spain. Why, 
 when pensions are paid for services in a Pennsylvania regiment, 
 should they not be paid for disabilities incurred in a North Carolina 
 regiment? 
 
 Confederate officers of rank have sat in the United States Senate, 
 in the Cabinet, on the Supreme Court bench, and have represented 
 the Government abroad. Should the punishment and disabilities for 
 treason rest alone upon the now aged and disabled private soldiers 
 who followed them? 
 
 The statue of General Robert E. Lee stands by the side of George 
 Washington in the Capitol and his name is inscribed on a tablet by 
 the side of Grant in the Pantheon of Fame, the stately building by the 
 side of the Hudson Paver in New York City. The name of Jefferson 
 Davis has been restored by command of the Federal Government upon 
 the arch of Cabin John Bridge, in sight of the Capitol, from which it 
 had been erased during the war, and his lineaments are chiseled on 
 the service of silver presented to a war vessel of the United States 
 by the State of Mississippi, and the vessel went under Government 
 orders up the river to Yicksburg to receive the gift. Nearly a half 
 century has elapsed since the war began. Most of the survivors of 
 the soldiery of the South went into the war as mere youths. Why 
 should they alone bear the punishment? As a matter of justice, the 
 private soldiers who obeyed the call of their States should receive 
 equal payment for disabilities incurred out of the treasury of a re- 
 united country, irrespective of the States from which they came. 
 
 As a matter of public policy, this step should be taken, and soldiers 
 of the Southern States admitted also to vacant places in the "Sol- 
 diers' Homes," that the last relic of the animosities aroused by the 
 war be banished forever. 
 
 As a matter of magnanimity, there should be an end to the vast 
 war indemnity which the South is paying, and which is the largest 
 and most unjust known to history. There is no other way to end it 
 than to pay pensions to soldiers of all the States. If a war indemnity 
 was just, we have paid it long enough, and the present generation at 
 
15 
 
 the South shouJd uot be burdened with the payment of a vast indem- 
 nity for a war in which they had no part and wliich was over before 
 they were born-. The whole country is proud of the fame of the 
 Confederate soldiers. Let not the few living survivors of the rank 
 and file of those armies which shed glory upon the race bear the sole 
 punishment. 
 
 Soldiers, I have spoken for justice to you, and for the justice of the 
 South. I know your pride, but we should feel that this is our Gov- 
 ernment, and it should feel that you are its citizens. This money 
 will be but part of our own money coming back to us. For forty odd 
 years we have been paying out of our poverty, and it all went the 
 other way. This of itself would have kept us poor, if we had not 
 naturally been one of the richest countries in the world. 
 
 Some will say that the conquerors do not pay pensions to the 
 soldiers of the conquered. But this loses sight of our system of gov- 
 ernment. The victorious twenty-two States are not the Government. 
 We have "come together," as they insisted we should do, and are now 
 one-third of this Government, and should not be discriminated against. 
 
 If the survivors are in the same ratio as the number of troops on 
 the respective sides during the war, this would only add 125,000 
 Confederates to the 620,000 Union survivors now on the pension roll, 
 and this only after the lapse of forty odd years. 
 
 Whether this act of justice is done or not, posterity will say that it 
 should have been done. 
 
 The "thin gray line" is growing thinner every day. We are so few 
 we rarely meet now, but pass one another as ships in the night. But 
 wherever you are. and wherever you go, may God's blessing be upon 
 you, gallant men that you are. 
 
THE TRUSTS OPPOSING CLARK FOR SENATOR. 
 
 Insidiously They Now Say, "He is Too Good a Judge to 
 Lose." Yet They Fought His Nomination and Election 
 in 1902. 
 
 [From Fayetteville Observer.] 
 
 In 1902. when Judge Claek was a candidate for nomination for 
 Chief Justice, great claims of his weal^ness were publishetl ; and yet 
 wlaen the roll call ended, the vote for his opponent was hardly visible. 
 And this, too, when the great corporations and allied special interests 
 had raised a large sum and employed all their agents to defeat his 
 nomination and election. 
 
 It is worth noting, in this connection, that, while in the nine years 
 that have elapsed Judge Clark has done nothing to win the affection 
 of these interests, the cry goes out that he is "too good a Judge to 
 be spared from the Bench" ! We do not think this cry comes from 
 those who wished Judge Clark to secure the Chief Justiceship in 1902. 
 It strikes us that the argument that he "cannot be spared from the 
 Bench" is an attempt to do what an assault would fail to do. It is 
 the tirst time, we imagine, in history that it has been used as an 
 argument against promoting a man or rewarding him, that "he has 
 done his duty." 
 
 As a matter of fact, in the present state of affairs — namely, since 
 the usurpation of legislative powers by the Supreme Court of the 
 United States — a man of the attainments and legal equipment such as 
 Judge Clark possesses can do infinitely more against the Trusts and 
 for the people in the Senate than v,here he now is. The issue pre- 
 sented by the opinion of the Supreme Court in the Standard Oil 
 decision is the most momentous that has confronted the American 
 people since the Republic was declared. When it is tried in the halls 
 of Congress, as soon it will be, the Progressive States will vie in the 
 effort to send their mightiest men there. Who can hesitate, in this 
 crisis, where the choice shall lie in North Carolina? 
 
R. R. V. POWER CO. 
 
 VOL. 171 N. C. REPORTS 
 
 Can a Great Water Power Company 
 
 Take the Water Power of 
 
 AN Individual or of a 
 
 Smaller Company? 
 
 AGAINST THE WILL OF THE SMALLER COMPANY 
 WHICH WISHES TO USE IT ITSELF? 
 
 AND WITHOUT TRIAL OF THE ISSUES BY JURY? 
 
 DISSENTING OPINIONS IN THE NEGATIVE 
 
 BY 
 
 CHIEF JUSTICE WALTER CLARK 
 
 AND 
 
 JUDGE W. A. HOKE 
 
 RALEIGH 
 
 Edwards a Broughton Printing Company 
 1916 
 
Railway Co. v. Power Co. 
 
 curred), said: "I do not think the defendant has any property in the 
 water in the stream, and that it is only entitled to a reasonable use of it 
 as it passes his land, which may include the use for manufacturing pur- 
 poses." 
 
 This last is all that ^he defendant sought, and it is for its choice to 
 say whether it shall use it by aii undershot or an overshot wheel for 
 grinding, or conduct it through a tube to a point lower down, so that 
 in that way its fall shall utilize the force of gravity which will be con- 
 verted into electricity and carried by cables to run the street cars and 
 lights of the defendant, which is exactly the use to which plaintiff 
 itself seeks to apply it. 
 
 The testimony of the witnesses E. M. Oates, W. H. Banks, J. W. 
 Seaver, and D. E. Shearer was ample to go to the jury and, indeed, 
 clear and explicit that the defendants could develop on their half of 
 the stream 1,360 h.p., and that this could be done without materially 
 interfering with the rights of the plaintiff on the opposite side of the 
 stream. As we held before, this evidence should have gone to the jury, 
 and in withdrawing it the judge assumed to himself the functions of 
 the jury and denied to these defendants their constitutional rights. 
 
 This is a proceeding by the plaintiff to take from the defendants 
 their one-half of the stream which is the boundary between the two. 
 It is admitted that the line between them runs to the middle of the 
 stream, the defendants owning one-half of the bed of the stream for 
 half a mile on the south side and the plaintiff owning the other half. 
 The plaintiff alleges that it has a right to condemn this water power 
 of the defendants, notwithstanding a statute prohibiting the condemna- 
 tion of any water power, because, as it alleges, the defendants cannot 
 utilize it for that purpose, and, therefore, the plaintiff can take it 
 against the will of 'the defendants. In R. R. v. Oates, 164 N. C, 169, 
 and in R. R. v. Light and Power Co., 169 N. C, 472, we held that upon 
 the evidence this was an issue of fact which the defendants were en- 
 titled to have a jury pass upon. The plaintiff again insists for the 
 third time that it can have the judge withdraw that issue from the 
 jury and find as a matter of law that the defendants could not use 
 their half of the stream to generate water power. 
 
 Laws 1907, ch. 74, contains this provision: "Water powers, devel- 
 oped or undeveloped, with the necessary land adjacent thereto for their 
 development, shall not be taken" under condemnation proceedings. 
 This act was sustained in Power Co. v. Whitney, 150 N". C, 34. 
 
 There are many reasons why the defendants cannot be deprived of 
 their property in this case without violating the guaranty that property 
 shall not be taken, as was said, 169 N. C. at p. 474, "without due 
 process of law and only according to the law of the land. The defend- 
 
Railway Co. v. Power Co. 
 
 ants had the right to have the issue of fact (whether they could utilize 
 their half of the stream) found by a jury, and only upon such finding 
 should the court have imposed the judgment of the law." 
 
 In Dargan v. R. R., 113 N. C, 596, it was said that ''the right of 
 "the State to take private property rests upon the ground that there is a 
 public necessity for such appropriation." It is not a public necessity 
 that the plaintiff should take from the defendants the enjoyment of 
 their property in this water power. When a railroad track is to be laid 
 out from one point to another, the construction of the railroad being a 
 gf/asi-public matter, it is a public necessity that it shall lay out its line, 
 with such restrictions as the statute requires, across the land of indi- 
 viduals, and, therefore, the right of eminent domain is conferred upon 
 the railroad company with the correlative right that, being a public 
 corporation, it can be regulated by the State; but it is not a public 
 necessity that the railroad company shall take the defendant's water 
 power, which is not needed for its right of way and is merely a facility 
 for the subsequent operation of the road. It would be as accurate to 
 say that the plaintiff could condemn a coal mine 100 miles or more 
 off its line to generate power for its engine, or a forest anywhere to 
 obtain wood for its engines or cross-ties for its track, as to say that it 
 could condemn the defendant's falling water to generate electric power 
 to move its engines. 
 
 It would be as just to say that one railroad could condemn the 
 engines or the freight cars or the passenger cars of another company, 
 because that would be a facility to operate its lines fully as much as 
 to take from the defendants the water power, which the defendants 
 purchased to aid in running their street cars in Hendersonville and 
 to furnish light and power for the citizens of that town, for the con- 
 venience of the plaintiff in running its railroad. 
 
 But if it were conceded, as it cannot be, that it is a public necessity, 
 from the nature of the property it is clear for many reasons that, while 
 it would be a convenience, it is not a necessity at all. 
 
 1. The plaintiff and defendants might build a dam, or several dams, 
 across the stream in its precipitous course and divide the water at the 
 middle of the crest, as Goat Island divides Niagara Falls into the 
 Canadian and American Falls. There is evidence, and it is also com- 
 mon knowledge, that this is practicable and has been done in many 
 cases. 
 
 2. Or, the plaintiff and the defendant might cooperate by having 
 all the water conducted into one power plant and equally divide be- 
 tween them the electricity created. It is common knowledge that this 
 has been done in many cases, and it is entirely practicable. The great 
 power plants in the State thus divide and distribute to different towns 
 
Railway Co. v. Power Co. 
 
 and to different individuals the power generated by them. Certainly 
 the plaintiff and defendants might divide it into two equal parts. 
 
 3. Or, the defendants might, by putting in a wing dam, use their 
 half of the water without in any wise diminishing the capacity of the 
 plaintiff to use the other half. There was ample evidence in this case 
 that this could be done, and that as a matter of fact it was being done 
 at other points in the State and all over the country. While the de- 
 fendants seemed to prefer this method to the other two above named, 
 they were not restricted to this. They are entitled to use and enjoy 
 their half intere-st in this water power, because it is evident that it can 
 be utilized by them for the purpose of running their street cars and fur- 
 nishing power and light. 
 
 In Linderman v. Lindsey, 8 Am. Decisions, 325, Mr. Justice Shars- 
 ivood says : "When the proprietor of the two opposite banks of a stream 
 of water are desirous of enjoying the advantage of the Avater for pro- 
 pelling machinery, a dam for that purpose cannot be built, except by 
 mutual consent, unless, indeed, it may he what is termed a wing dam 
 confined to the soil of the person who erects it, on that half of the bed 
 of the stream which belongs to him." This principle is also laid down 
 by Shaw, C. J., in Elliott v. R. R., 57 Am. Dec, 88, quoted by Brown, 
 J., in Harris v. R. R., 153 N. C, 545. 
 
 In Charnoch v. Higuerra, 52 Am. St., 197, it was held: "Since the 
 right to make use of the stream is common to all who own property on 
 its shores, there would prima facie seem to be no cause of complaint for 
 any use made by another unless he were actually injured by such use" ; 
 and all the authorities hold that whether the party is making a reason- 
 able use is a question of fact. This case also is quoted by Brown, J., 
 Harris v. R. R., 153 N. C, 544. 
 
 This stream, in the half a mile that it flows between the plaintiff 
 and defendants, has a fall of 219 feet and is capable of generating 
 2,700 h.p., of which the defendants are entitled to use one-half. The 
 witnesses give many instances in which one-half of the stream is thus 
 vitilized by wing dams, some of which are set out in this case, 169 'N. C. 
 at pp. 475 and 476. Whether the defendants can utilize one-half of 
 the water by a wing dam is a matter of fact and not of law. Prentiss v. 
 Geiger, 74 N". Y., 341 ; Bullard v. Mfg. Co., 77 ^. Y., 525 ; Gould on 
 Waters, sec. 220; Dumont v. Kellogg, 18 Am. Rep. (Mich.), 102; 
 Hayes v. Waldron, 84 Am. Dec. (N. H.), 105; Merry field v. Worcester, 
 14 Am. Rep. (Mass.), 592; UUrith v. Water Co., 4 L. R. A. (Ala.), 
 474. And the books are full of similar cases. 
 
 What the defendants purpose is not a division of the water, taking 
 it out of the stream, but to utilize the force of gravity contained in 
 the falling of one-half of this water and converting it into electricity 
 for the operation of their street railway and furnishing power and 
 
Railway Co. v. Power Co. 
 
 light to their customers in fulfillment of their contract. This is not a 
 navigable stream, and, therefore, the plaintiff cannot object that this 
 use might diminish the depth of the water on its side — if, indeed, it 
 would have that effect. 
 
 While the defendant stressed mostly its evidence that its half of the 
 water could be utilized by a wing dam, it did not abandon its other 
 rights, which have been held in many cases by the best courts. In 
 Roberts v. R. R., 74 'N. H., 217, it is said: "The question, therefore, is 
 whether they have the legal right to have the water divided and their 
 share assigned to them in severalty, if this can be done without unreason- 
 ably interfering with plaintiif's rights. It is clear that they have such 
 a right if the same rule applies to improved and unimproved water pow- 
 ers, for it is settled that the court has power to make such orders in re- 
 spect to the way the several owners shall exercise their right in the com- 
 mon property as will be for the best interests of each of them, in so far 
 as it can be done without any unreasonable interference with the rights 
 of the others." In Warren v. Mfg. Co., 26 L. E. A., 288 (86 Me., 32), 
 it is said : "As between opposite riparian owners upon the same chan- 
 nel, the court might have jurisdiction to equalize each owner's use of 
 the water and to mark out beforehand each owner's share, and this by 
 any appropriate proceedings and instrumentality. . . . Opposite 
 riparian owners upon the same channel have a common and equal right 
 to the use of a.11 the water flowing in that channel as it passes their oppo- 
 site land. If the volume and flow of water be limited, the use by each 
 riparian owner may be limited by judicial action, in proportion so 
 that the enjoyment be kept equal, like the right." To same purport, 
 Sooville V. Kennedy, 14 Conn., 349; Olmstead v. Loomis, 9 ]^. Y., 423; 
 Olney v. Fenner, 2 E. I., 211; Lyon v. McLaughlin, 32 Vt., 423; and 
 Burnhayn v. Kempton, 4:4: IST. H., 78. 
 
 The defendants' interest in this stream is either a water power or 
 it is not. If it is a water power, then whether they can utilize it or 
 not is an issue of fact for the jury upon the evidence which they have 
 offered. If it is not a water power, it is not subject to condemnation, 
 for the plaintiff does not seek to condemn it for right of way. If the 
 defendants' interest in this water is not a pawer power, neither is the 
 plaintiff's interest, and the statute does not authorize it to create a 
 water power by taking the defendants' interest which is not a water 
 power. Besides, if the plaintiff could do this, the defendants could do 
 the same. 
 
 The plaintiff occupies a most extraordinary position. It says, in 
 effect, to the defendants : "We will not permit dam or dams across the 
 stream and a division of the water at the middle of the crest whereby 
 you may enjoy your half of the water power. We will not cooperate 
 with you in putting up a plant to generate electric power and divide 
 
Railway Co. v. Power Co. 
 
 the power ijrodueed. We will not permit you to put in a wing dam 
 whereby you may utilize only your half of the water without detriment 
 to us. We will not permit you to have a jury to decide upon the evidence 
 whether either of these three methods can be used. We have offered 
 you $1,000 for your half interest in this stream and you have offered 
 us $40,000 for our half. We will not accept your offer nor put the 
 property up to the highest bidder. And having thus prevented you 
 from enjoying your half of this water power, we will cause the court 
 to decree that you cannot utilize it, and, therefore, we will take your 
 property." 
 
 It may be possible that some other plaintiff has thus boldly stated 
 his intention to take the property of another because he has prevented 
 that other from using it. But, if so, such case cannot be found by 
 ordinary research. The plaintiff's attitude reminds us of the fable in 
 ^sop. Irritated at the resistance of the OAvner, the plaintiff says, in 
 effect, to the defendants: "Anyway, I need your property in my busi- 
 ness, and I'll take it." 
 
 The defendants further contend that they are entitled to be pro- 
 tected in their rights under the provisions of the Federal Constitution 
 that they shall not be deprived of their property "without due process 
 of law, nor denied the equal protection of the law," on four grounds : 
 
 1. It is not the "law of the land" that property off the line of rail- 
 way not needed for its construction can be taken to aid in its operation, 
 such as a coal mine, or wood for fuel or for cross-ties, or water power. 
 Such property for such purpose cannot be taken under "due process of 
 law." 
 
 2. Neither can public property like that of the defendants, already 
 devoted to the same public purpose, be taken under the right of eminent 
 domain. Lewis Em. Domain, sec. 400. As well might one railroad 
 company condemn the track, or the engines, or the cars of another. 
 While one road can condemn a right of way across the track of an- 
 other, it does not take the sole and exclusive use of the track at that 
 point, as the plaintiff seeks in regard to the property of the defendants. 
 
 3. Botii the State and Federal Constitutions guarantee the right of 
 trial by jury as to disputed issues of fact. Putting the case most 
 strongly for the plaintiff, whether or not the defendants can utilize 
 their half interest in this water power is, upon the evidence, a much 
 •disputed issue of fact, and the court could not deprive them of this 
 right under "the law of the land." 
 
 4. The public policy of the Federal and State governments, as 
 shown by statutes and by decisions, notably in the judgments dissolv- 
 ing the American Tobacco Company, the Standard Oil Company, the 
 Sugar Trust, the Hartford and New Haven Railroad Combination, 
 and many other cases, is that such combinations are injurious to the 
 
Railway Co. v. Power Co. 
 
 public welfare and "contrary to the law of the land." The Department 
 of Justice is considering instituting similar proceedings to dissolve the 
 great water-power trusts which are taking into their control the most 
 vital sources of heat, power, and light, the water powers of the country. 
 A recent publication made by authority of the United States Govern- 
 ment, of which we take judicial notice, shows that in this State already 
 two companies, the Southern Power Company and the Carolina Power 
 and Light Company, own 75 per cent of the water power of this State, 
 and that eight companies control 94 per cent of the total water power 
 of the State, while forty-nine cities and towns altogether control only 
 1 per cent. If the plaintiff can through the courts wrest from the 
 defendants the enjoyment of their half of this water power which is 
 being used for the tOAvn of Hendersonville, then that much will be 
 taken from the 1 per cent of water power which these forty-nine cities 
 utilize to be added to the 94 per cent which has been gathered by the 
 eight corporations which the Government reports, even if some of 
 these eight are not merely aliases for the larger ones. It appears that 
 both the president and secretary and treasurer of the plaintiff com- 
 pany are directors in the Northern and Piedmont Railroad Company, 
 which said treasurer in his testimony states is known as "the Dukes' 
 road." It is common knowledge that the Southern Power Company, 
 one of the companies reported by the Government as engrossing the 
 water power of this State, is controlled by the same interests. The de- 
 fendants have the right, in this proceeding, to have a jury pass upon the 
 question whether the plaintiff company is not potentially the property 
 of the same financial "interests," for, if so, to grant to it the right to 
 absorb this property and take it from the defendants is in violation 
 of the "law of the land" which the Government is seeking to enforce 
 against these great trusts and combinations which would take to them- 
 selves the entire water power of the State, the source of light, heat, and 
 power of the future. 
 
 For these reasons the defendants invoke the protection of the XIV 
 Amendment at the hands of the courts. 
 
 It would seem, therefore, that the property of the defendant is not 
 subject to condemnation, and that the plaintiff cannot, by preventing 
 the defendant from using it, make it subject to condemnation, and 
 that in any aspect the defendants are entitled to a trial by jury, and 
 to deprive them of such right is in violation of both the State and Fed- 
 eral Constitutions. 
 
 Joseph B. Lee, "one of the owners and directors of the plaintiff 
 company" (as he styles himself), testified that, as such, he offered the 
 defendants $1,000 for their one-half of this water power, which he 
 "thought was a fair offer." But he admitted, on cross-examination, 
 that he refused to take $40,000 for the plaintiff's half when offered by 
 
10 
 Railway Co. v. Power Co. 
 
 the defendants. The uncontradicted testimony is that the defendants 
 had $40,000 in bank to back this offer, though it was admitted that the 
 defendants' capital was small as compared with that of the plaintiff. 
 
 The plaintiff's evidence was that it was intended to spend $2,000,000 
 on the development of' this water power. Under the statute a water- 
 power plant cannot condemn another's water pOAver, whether in use 
 or not. This is only allowed to an interurban railroad company, and 
 even then only if the water power sought to be condemned is "not 
 being used, or held to be used, for development by its owner." The 
 sum of $2,000,000 intended to be spent by the plaintiff on this plant 
 is evidence for the jury to consider whether it is seeking bona fide to 
 take the defendants' water power merely for an interurban railroad or 
 to create a water power. Indeed, the complaint avers an intention to 
 build a very short railroad and "to sell its surplus power." In the 
 latter event the plaintiff cannot condemn even an unused water power. 
 
 The plaintiff says it will not sell its half of this water power, Avhich is 
 only a small part of its holding, for $40,000, but, strangely enough, it 
 insists that it shall be allowed to use the "strong arm" of the law to 
 take all the water power of the defendants, being the other half of 
 the stream at this point, for $10,000. Such claim is not founded in 
 justice, without respect to persons, nor consonant to the sentiment of 
 the ages. "J^athan said unto David, There were two men in one city, 
 the one rich and the other poor. The rich man had exceeding many 
 flocks and herds ; but the poor man had nothing save one little ewe lamb, 
 which he bought and nourished up ; and it grew up Avith him and with 
 his children; it did eat of his own meat and drank of his own cup and 
 lay in his bosom, and was unto him as a daughter. And there came a 
 traveler unto the rich man and he spared to take of his own herd to 
 dress for the wayfaring man that had come unto him, but took the poor 
 man's lamb and dressed it for the man tha.t was come unto him." 
 2 Samuel xii, v. 1-4. 
 
 We know, too, the story of INTaboth's Vineyard, I Kings, ch. xxi. 
 They who have been to Potsdam near Berlin will remember that when 
 Frederick the Great was gathering in the lands to make the famous park 
 for his palace at Potsdam, there was a miller whose little tract was in- 
 cluded within the bounds of the park, who refused to sell it at any price. 
 When the great king was advised to take it anyway, though one of the 
 most arbitrary of men, he replied : "Let the miller keep his mill, that 
 it may be known that there is law in Prussia." The rustic mill still 
 stands, kept in repair at public expense, and on it in gold letters there 
 still abides this inscription : "Let the miller keep his mill, that it may 
 be known that there is law in Prussia." 
 
11 
 
 Railway Co. v. Power Co. 
 
 Hoke, J., dissenting : When this case was formerly before the Court 
 it was decided that the question at issue between the parties should be 
 referred to the jury. In a concurring opinion then filed my opinion 
 was stated as follows : 
 
 "Our statute, in permitting water powers to be condemned for public 
 use, withdraws from the eifect of the law any water power which is being 
 used or held to be used or to be developed for use in connection with or 
 in addition to any power actually being used for public service, etc. 
 
 "There is evidence in the record tending to show that defendant is the 
 riparian owner of land on one side of Green River, where there is a con- 
 siderable fall in the stream, giving promise of a good water power, if 
 properly developed. The officials of the company testified, further, 
 that defendants purchased and now hold this property with a view to 
 aid their power already developed and now being used under a charter 
 for the benefit of the public; that they have great need of such unde- 
 veloped power and purpose to utilize the same as contemplated and pro- 
 vided by the statute. 
 
 "Whether they can carry their purpose and utilize this power in sub- 
 stantial aid of the power already developed, and without unwarranted 
 interference with the rights of the plaintiffs, who own along the oppo- 
 site bank, is, in my opinion, a mixed question of law and fact, and, on 
 the record, requires that the issue be submitted to the jury." 
 
 On further consideration, I am confirmed in the opinion thus ex- 
 pressed, that the issue should be referred to the jury, and I, therefore, 
 dissent from the present disposition of the appeal. 
 
HISTORY OF THE SUPREME COURT REPORTS OF NOF 
 
 CAROLINA AND OF THE ANNOTATED REPRlNTSi 
 
 A (9 
 
 By WALTER CLARK 
 
 C|^-i 4-T. ^V 
 
 ' ' T'? h 
 
 The annotated reprint of our Reports has 
 •n made under the authority conferred on the 
 cretary of State by Laws 1885, ch. 309, and 
 3sequent statutes, now Revisal, 5361, whieh 
 3 been further amended by Laws, 1917, chap- 
 s 201 and 292. 
 
 [t may be of interest to the profession and 
 the public to give some data as to our origi- 
 [ Reports and the Annotated Edition ; 163 
 umes have been reprinted with annotations, 
 !se being all the volumes from 1 to 164, iii- 
 sive, excepting only volume 148. 
 rhe first 7 volumes of IST. C. Reports Avere 
 : official, but as in England till 1865, report- 
 ; was a private enterprise. When the I^. C. 
 preme Court as a separate tribunal Avas cre- 
 d in November, 1818, to take effect from 1 
 nuary, 1819, the Court was authorized to 
 3oint a Reporter Avith a salary of $500 on 
 idition that he should furnish free to the 
 ite 80 copies of the Reports and one to each 
 the 62 counties then in the State, and it 
 ms that he was entitled to the copyright, 
 ter this was changed to 101 copies for the 
 ite and counties and a salary of $300 and the 
 )yright. In 1852 the salary was raised to 
 )0 and the number of free copies to the State 
 1 counties and for exchange with the other 
 ites was increased, 103 N. C, 487. 
 rhe price charged by the Reporter to lawyers 
 1 others was 1 cent a page, so that the 63 
 C. was sold at $7 per volume, the 64 iST. C. 
 $9.50, and the 65 K C. at $8. Being sold 
 the page, it was more profitable and much 
 3 labor to the Reporter to print the record 
 1 the briefs of counsel very fully Avithout 
 Qpression in the statement of facts. These 
 ces being prohibitiA^e, the Official Reporter 
 3 abolished, Laws 1871, ch. 112, and the 
 ;ies Avere put on the Attorney-General, who 
 3 alloAved therefor an increase of $1,000 in 
 ary, and the State assumed all the expense 
 printing and distributing and selling, 5 per 
 t commission being alloAved for selling, 
 ie, 3363, 3728. 
 
 [n 1893, ch. 379, the system Avas again 
 mged and the Court was allowed to employ a 
 porter for $750. This has been amended by 
 •sequent acts, so that noAV the Reportei- is 
 
 could not be had at all and others br^ 
 per volume. To meet this condition, I 
 ch. 309, with the amendments aboA'e re 
 being now Revisal, 5361, was passed i 
 ize the Secretary of State to reprint th 
 already out of print and such other; 
 time to time should become out of p 
 a provision that no money should be 
 the purpose except that derived fron 
 of the Reports. As the price of thi 
 had been reduced to $2 per volume, ar 
 $1.50, this work of reprinting coulc 
 only by omitting briefs and by cuttii 
 the unnecessary matter in the state 
 facts, as had been done by Judge Cui 
 TJ. S. Supreme Court when he repi 
 first 58 A^olumes of that Court in 21 
 In our Reports, these statements of ca 
 a very recent date) were ahvays ma^ 
 Reporters, and not by the judges, and 
 Avere already omitted in our current 
 
 At the request of the then Secretar; 
 and his successors, the writer undei 
 AA^ork, and to make the A'olumes mor 
 he Avas requested to iannotate them, v 
 done for most of the time without ai 
 Shepard's Annotations were not iss 
 1913, after most of these reprints had 
 notated. Besides this, in the first foui 
 as issued, there was no Index of Repor 
 and there was no re Averse index to the 
 Cases till 84 N. C. There was no tabl. 
 Cases until 92 'N. C, and no rcA'erse 
 Cited Cases till 143 N. C. The Anno 
 therefore to correct these defects by }: 
 full indices and reverse indices of 
 Cases and Cited Cases and has supei 
 revised proof of all 163 A'olumes. 
 labors, the payment at first Avas $25 pe 
 including annotations, condensing th< 
 er's statements of fact when unnecess: 
 lix, and all work of every kind. But 
 volumes being larger and the annotati 
 numerous, $50 per A'olume Avas alloAv 
 laAA^yer Avill see that this work Avas ui 
 in the interest of the profession and 1 
 and not for the compensation. 
 
 OAving to the fact that as to these 
 
e State lost by fire 47,000 of the Keports 
 red in Uzzell's Bindery, with the result 
 ny additional volumes were required to 
 nted, and others that had already been 
 ?d and reprinted, were reprinted a sec- 
 iie, the annotations, however, being 
 
 down to date. 
 
 lurrent Reports are sold at $1.50, from 
 le commission of 12yo per cent for sell- 
 leducted, i. e., about 19 cents, making 
 
 return to the State $1.31 per volume, 
 wing largely to the increase in the cost 
 setting, presswork, paper and binding, 
 
 to the State of the 174 N. C. is $1.94 
 7, without charging into the cost of ])ro- 
 
 any part of the compensation of the 
 r and his clerk. The next Legislature 
 Libtless raise the price of the current 
 , if not. of the Reprints also. 
 . the more recent volumes the statement 
 ases has been made by the Judges them- 
 n each case, and hence in reprinting 
 )lumes there has been no abbreviation 
 statement of the case. In the earlier 
 I there has been a saving often of 50 
 t by condensation of the prolix record 
 vas often used instead of a statement 
 
 the omission of the briefs. Even in 
 le original reports, notwithstanding the 
 latters printed therein, it has sometimes 
 and useful by the Court to refer to the 
 
 record, 
 igland there was no official reporter till 
 Prior to that time all the reporters were 
 3rs without any supervision. As a re- 
 .ny of the English Reports were very 
 ate, as has been shown from investiga- 
 ade in the Year Books and the Court 
 1 by Professor Vinogradoff and others. 
 )ldworth's "Year Books"; Pollock & 
 d's History of English Law. These re- 
 were sometimes incompetent and more 
 ireless, which is to be regretted, as the 
 s of the English judges were usually, if 
 ays, delivered orally from the bench and 
 )rters were not always careful to correct 
 ves by examination of pleadings and 
 And as the common law is made up of 
 3cisions of the judges, under the guise. 
 Lie, of "declaring the law," it has been 
 hanged from what was announced by 
 ich. See Veeder's "English Reports." 
 , down till Blackstone's time, the plead- 
 d records were kept in dog Latin (and 
 
 iifflv CPiisnrpd tbp plimio-p tn Eno-lisli'^ 
 
 man French. 
 
 ]^o where outside of the English-spi 
 countries are the opinions of the Courts alli 
 to be quoted as precedents. In France an 
 other countries, the Court makes a su<- 
 statement of the facts, numbered under 1 
 ings, and then merely cites the section o: 
 Code applicable, without comment. In Eni 
 speaking countries, in which alone the Re 
 of decisions are allowed to be cited, the nu 
 of the volumes of the Reports in 1890 
 8,000. These have now increased to 3i 
 volumes. This system is breaking down i 
 its own Aveight. No private library and 
 public libraries can possibly keep up witl 
 rapidly rising flood of Reports. It is onl 
 the aid of compilations like "Cyc." an 
 second edition, the "Corpus Juris."; A. i 
 and R. C. L., and the like, that we can hav( 
 access to the vast quantity of reported decif 
 
 In those countries Avhere citations of fc 
 decisions are not allowed, the argument is 
 the Courts of the present day are more lik( 
 be right than those in the ])ast, and that t( 
 former decisions is simply a race of diligeii 
 counting conflicting opinions, a precedent 
 readily found to sustain any proposition, 
 have been accustomed to the present systen 
 are still able to wade thru by use of the 
 pilations cited ; but this relief, in view o 
 steadily increasing output of Reports, is 
 temporary and the profession and the C 
 must inevitably be submerged beneath the 
 What the remedy will be is a matter engi 
 the attention and arousing discussion a: 
 the ablest men of the Bench and Bar. 
 
 On an average, the opinions of this Cour 
 require 3 volumes a year. If the briefs 
 redundant statements were still inserted 
 the earlier Reports, it would require 10 vol 
 per year, taxing the shelf room and purs 
 lawyers. It was therefore eminently prop 
 reprinting to cut out the briefs and reduc 
 superfluous records. This required the ex( 
 of judgment and much labor, but it was 
 lutely necessary in order that the rec 
 might furnish funds for other Reprints t 
 quired by the statute. Many of the Rej 
 are consequently from a third to a half tin 
 of the former volumes. The American 
 Association, voicing the general sentiment 
 passed resolutions requesting all Courts 1 
 duce the size of current Reports by the Ji 
 shortening their opinions, a request whicl 
 been presented to this Court thru a d 
 gviished member of the Association and o 
 
BANK V REDWINE 
 
 FROM UNION 
 VOL. 171 N, C. REPORTS 
 
 Can a Prior Registered Mortgage, 
 Acknowledged Before a Duly 
 Appointed and Acting Deputy 
 Clerk, Be Set Aside Merely Be- 
 cause THE Deputy Happens to 
 BE A Woman? 
 
 DISSENTING OPINION 
 
 BY 
 
 CHIEF JUSTICE WALTER CLARK 
 
 
 RALEIGH 
 
 Edwards a Broughton Printing Company 
 
 1916 
 
BANK V. REDWINE 
 
 FROM UNION 
 
 VOL. 171 N. C. REPORTS 
 
 CAN A PRIOR REGISTERED MORTGAGE, ACKNOWLEDGED 
 BEFORE A DULY APPOINTED AND ACTING DEPUTY CLERK, 
 BE SET ASIDE MERELY BECAUSE THE DEPUTY HAPPENS 
 TO BE A WOMAN? 
 
 Clakk, C. J., dissenting: Tlie plaintiff bank, holder of a junior reg- 
 istered mortgage, seeks to restrain John C. Sikes, trustee for R. B. Red- 
 wine, from proceeding to sell ten shares of stock of the lumber company 
 conveyed in a prior registered deed of trust to him by the same grantor, 
 E. C. Williams. It is admitted that said deed to Redwine was registered 
 first upon a probate thereof which was taken and certified by the deputy 
 clerk of the Superior Court, Mrs. Katheriiie Huntley, who at the time 
 of taking the probate was Miss A. K. McDowell. 
 
 The point is made in the plaintiff's brief that the registration of the 
 Redwine deed' is void "because the deputy clerk was a woman, and, 
 therefore, not qualified to administer an oath." The opinion of the 
 Court holds with that contention, and if such holding is correct, the 
 other points discussed in the opinion are unnecessary and merely ohitei' 
 dicta. The point is one of far-reaching importance to the public, lies 
 at the root of this matter, and it is not necessary to do more in this dis- 
 sent than to give the reasons why the writer does not concur in that 
 conclusion. 
 
 This Court has repeatedly held that registration upon an invalid 
 probate is void. Todd v. Outlaw, 79 JST. C, 235; Long v. Crews, 113 
 1^. C, 256; Lance v. Tainter, 137 N". C, 249 ; and there are other cases 
 to the same purport. In Long v. Crews, 113 JST. C, 258, the Court held 
 that "the attempted acknowledgment of the deed in trust before an of- 
 ficer disqualified to act is a nullity," and could not be cured by registra- 
 tion. 
 
 The question, therefore, is simply whether a woman is disqualified to 
 act as deputy clerk of the Superior Court. The probate, like any other 
 judgment, is no judgment if the official had no authority to make it. 
 
 The decision, aside from its effect on the parties to this action, is one 
 of great importance to the public. Not only the deputy clerk taking 
 this probate in Union County was a woman, but three other ladies 
 have filled the same position in that county in recent years, and if this 
 
Bank v. Redwine. 
 
 probate is invalid because taken before a woman, it may seriously affect 
 a large number of titles in that county as well as tbe validity of legal 
 proceedings wbicb have been verified before tbem. Besides, in Sampson 
 also and other counties in this State it is well known that women have 
 discharged the duties of deputy clerk. In Henderson County and some 
 others women have very acceptably discharged the duties of deputy 
 register of deeds. It did not occur to the clerks and registers in those 
 counties that there was any innate, inherent inferiority in women which 
 made it improper for them to discharge those duties, which they doubt- 
 less did faithfully and acceptably, and the intelligent lawyers in those 
 counties were evidently not able to point out any provision in the State 
 Constitution, or in the statutes, which disqualified women from hold- 
 ing those positions. 
 
 Deputy clerks are appointed by the clerks and are paid by the clerks 
 themselves, except in the counties where the officers are on a "salary 
 basis." Revisal, 989, provides that probates and acknowledgments of 
 all instruments may be made "before the deputy clerks of the Superior 
 Courts." ]^either that statute nor any other requires that such deputies 
 shall be males. The assertion that in North Carolina women cannot 
 hold such position, or, indeed, any other, is challenged by this case. The 
 rights of the parties depend upon this question. 
 
 Approaching the subject freed from preconceived opinions, Ave shall 
 find nothing that disqualifies women from holding this position either 
 in our Constitution or in our statutes or in our system of government, 
 nor in England, from which we derive our laws. 
 
 The only provision in the Constitution which refers to a "voter" in 
 any connection with "office" is in the Constitution of 1868, and that, 
 as we said in S. v. Bateman, 162 N. C, 581, is not a provision disqual- 
 ifying from office every one who is not a voter. But the provision is 
 "just the opposite," and prohibits a voter from being disqualified for 
 office. We pointed out the reason for this, which did not exist under the 
 previous Constitution of this State, in that in 1868 a large number of 
 colored voters were enfranchised and the convention that framed the 
 Constitution, fearing that in the future there might be an effort to 
 disqualify them to hold office, provided that every voter should be 
 eligible to office, with the disqualifications mentioned further on in the 
 Constitution. It would be singular if negro men are competent, while 
 white women are their political inferiors. 
 
 The constitutional provision, therefore, it will be seen, does not dis- 
 qualify women from holding any office, even constitutional ones. It 
 merely prohibits the disqualification of voters from holding office unless 
 disqualified by the Constitution itself. Art. VI, see. 8, and Art. XIV, 
 sec. 7. 
 
Bank v. Redwine. 
 
 The convention that formed the Constitution seems to have had the 
 most implicit faith that the people were competent to select their own 
 officers, and, therefore, Art. VI imposes no disqualification upon anj one 
 to hold office except those named in the above sections. "The Amend- 
 ment of 1900, while imposing some restriction upon suffrage, left in- 
 tact the provision that all who continued to be 'voters' remained 
 eligible to office." 8. v. Bateman, supra. 
 
 This decision, rendered as recently as the spring of 1913, calls atten- 
 tion clearly to the fact that our Constitution does not prohibit any one 
 from holding office because not a voter, but, on the contrary, merely 
 prohibits the Legislature from disqualifying any voter from holding 
 office. 
 
 The preconceived opinion that women are disqualified to hold any 
 office is based upon the error that the qualification for suffrage and the 
 qualification for office are the same. This is not true, and never has 
 been so under any of .the Constitutions of this State. Our present Con- 
 stitution clearly prescribes a qualification for suffrage, but except as to 
 the age, which is required as to certain State officers therein named, 
 there is no qualification required for office, but that is left to the sound 
 judgment of the voters. It is not even required that judges shall be 
 lawyers. The Legislature is merely prohibited, as is seen, to disqualify 
 any voter from holding office. 
 
 Under the Constitution of this State adopted at Halifax in 1776, 
 many were disqualified from voting who were eligible to office, and 
 many were disqualified from office who were eligible to vote. For in- 
 stance, up to the Convention of 1835 no one was eligible as a voter to 
 choose the Governor, the judges, or the State officers, unless he was a 
 member of the Legislature; and up to 1856 no one could be a voter in 
 the election of a State Senator unless he owned 50 acres of land. On 
 the other hand, citizens were eligible to the State offices, to the judge- 
 ships, and for United States Senator, even though they were not 
 qualified electors for those positions because not members of the Legis- 
 lature. Qualifications for office were required which were not required 
 for the electors for such office : for instance, a member of the Senate 
 was required to own not less than 300 acres of land in fee, while an 
 elector for that position was required to own only 50 acres. A member 
 of the House was required to own not less than 100 acres of land, 
 while an elector for that position was required only to be 21 years of 
 age and to have paid his taxes. The Governor was required, as he is 
 Mill, to be 30 years of age, but the requirement then and now as to the 
 voters is 21 years. 
 
 On the other hand, though those otherwise qualified were disqualified 
 to vote unless 21 years of age, there was no disqualification by reason 
 
Bank v. Redwine. 
 
 of age as to holding office (except as to the Governor), and there were 
 instances of men serving in the Legislature under 21, though they could 
 not vote themselves for such memhers. The changes in 1835 and since 
 have consisted in removing property qualifications for voting and for 
 holding office and by adding the new requirements that a Senator must 
 be 25 years of age, that a member of the House must be "a. qualified 
 voter" — the only instance of this — but (except for the Governor and 
 Lieutenant Governor) there is no age requirement as to any other offi- 
 cers, and, singularly enough, there is no requirement that these last two 
 or any other officers than member of the House, shall be a voter. The 
 provision as to the Governor is that he must be a "citizen of the 
 United States and a resident of this State." As far as possible, our 
 present Constitution has left the qualifications for office to the voters or 
 the appointing power, as the case may be, the restriction being, as 
 already stated, that the Legislature shall not disbar a:iy one who is a 
 voter from being eligible to any office (with the above qualifications as 
 to the age of certain officials) except as provided in section 8 of Art. 
 YI, and sec. 7, Art. XIV of the Constitution. 
 
 "We look in vain in the Constitution, as it is written by the Convention 
 and ratified by the people, to find any disqualification placed on women 
 to hold any office in the State. In that respect we pursued the same 
 policy as the Constitution of the United States, under which women 
 are eligible for any position from President to United States Com- 
 ' missioner. Under the Federal Government women have held thousands 
 of positions, a large number of them being postmasters, and they have 
 filled many other positions, among them, Collector of Internal Revenue. 
 In the same absence of restriction in our State Constitution as in the 
 Federal Constitution, there is no reason why the women of North Car- 
 olina who are competent to hold any position in the Federal Govern- 
 ment should be disqualified from holding any position under the State 
 to which they can secure an appointment or an election. 
 
 Certainly there can be no reason why a woman cannot be a deputy 
 clerk, when she can be a postmaster, since there is neither statute nor 
 constitutional provision giving them greater recognition under the Fed- 
 eral Government than under the State. 
 
 Surely, as to the position of deputy clerk, a woman should not be 
 held ineligible, since we have held that a minor, who cannot be a voter, 
 is eligible to be a deputy sheriff. R. R. v. Fisher, 109 'N. C, 1 ; Yeargin 
 V. Siler, 83 N. C, 348. In the latter case it is held that a minor can 
 be a general deputy sheriff as well as a special deputy sheriff, and that 
 "this is the current of authority in this country." 
 
 If we could import into our Constitution words and phrases which 
 are not there, because of the supposed custom that Avomen were dis- 
 
Bank v. Redwine. 
 
 qualified in England, we will find that this suggestion is equally un- 
 founded. From the time of William the Norman, the founder of the 
 dynasty "vvhieh still reigns in England, there have been forty executive 
 heads of the Government, and of these seven have been women. Among 
 these, the two ablest executives, certainly the two most illustrious and 
 successful, the first of whom reigned for forty-five years and the latter 
 for sixty-four, were Elizabeth and Victoria. In that country women 
 have held many other high positions, and among them, as all lawyers 
 know, the highest legal position in England, that of Lord Chancellor, 
 was held by a woman, Eleanor of Provence, nearly a century before 
 any man was trusted in that high office other than an ecclesiastic. 
 Women have held many other positions in England of every kind 
 (among them that of sheriff, who there is a judicial officer and sits on the 
 bench with the judges), though they were not voters until thirty years 
 ago, when they were granted municipal suffrage. (This shows that there, 
 as well as here, qualifications for suffrage and qualifications for office 
 are not the same, the choice as to officers not being restricted by any arti- 
 ficial barriers as to seX, but left to the sound judgment of the electors or 
 the appointing power. I 
 
 We know that in other countries the greatest executives have been, in 
 Eussia, Catherine the Great; in Austria, Maria Theresa; in Spain, 
 Isabella, and among the sovereigns now on the throne, in the present 
 great world catastrophe, none has steered the ship of state more safely 
 than Queen Wilhelmina of Holland. Evidently there is no inherent 
 inferiority which has disqualified women for even the highest ofiices. 
 
 The Salic law" which barred women from being the sovereign, the 
 highest office, did not exist in any country in Europe (outside of Tur- 
 key) except in Erance. That law was based on the idea that the chief 
 executive should be a fighter. The modern republican conception is that 
 the qualification for office is not physical strength, but mental capacity 
 and character. There is, therefore, no ground to write the Salic law 
 into our Constitution. 
 
 Nor is there anything in Scripture, as it has been asserted, against 
 it, for we know that Deborah was ruler over all Israel, with supreme 
 power, both executive and judicial. 
 
 But it is urged that the duties of the deputy clerk, though not a very 
 high position, are "judicial." It is perhaps natural that judges should 
 think that "duties judicial" require a peculiar qualification of mind. 
 They would not like to say, perhaps, "a mind superior to that possessed 
 by women," but "a mind of a different cast from that of women," for 
 though they have been able sovereigns, they might not make good 
 judges, and might be "too emotional" to properly probate this deed in 
 trust! But Sacred History says that Deborah, when she was "Judge 
 over all Israel, judged wisely," and that during her judicial adminis- 
 
Bank v. Redwine. 
 
 tration of forty-five years "Israel had peace" — after the brilliant vic- 
 tory which proved her genius for war as well as in peace. We know, 
 too, that Portia won great fame as a judge in a great case, and in Eng- 
 lish law, as already stated, from the !Norman conquest in 1066 down to 
 1341, when. Sir Robert Bourchier was the first layman appointed, the 
 only Lord Chancellor who was not an ecclesiastic was Eleanor of Pro- 
 vence, who was appointed Lord Chancellor in 1253, and Lord Campbell 
 in his "Lives of the Lord Chancellors" says that she sat in the Aula 
 Regis in person and administered the duties of her high position with 
 vigor. 
 
 There is nothing in our statute that prohibits a woman from being a 
 deputy clerk. The provision in the statute, cited by the Court, that the 
 clerk shall make the record of the removal of the deputy "from /its- 
 office," is no implied disqualification of women, for Revisal, 2831 (1), 
 provides that in all statutes "Every word importing the masculine gen- 
 der only shall extend to and be applied to females as well as to males, 
 unless the context clearly shows to the contrary." This is the well 
 settled previous judicial holding, that when any statute uses the word 
 ^'his" it means "his or her" unless something in the context prohibits. 
 
 ISTor will it be any answer that some former judges have expressed 
 an opinion that women are disqualified for office by our Constitution. 
 In those cases the point was not made, certainly not as to this office. 
 But if it had been, those judges were as likely to err as are the judges 
 of today. When the question is as to the provisions of a Constitution, 
 the inquiry is not what the judges on some other occasion have said that 
 the Constitution provides, but what does it in fact provide. The dis- 
 qualification of women for office is not there. We can read as well as 
 they, and the test is not what they said, but what is the text of the Con- 
 stitution. 
 
 "We must not make the ivord of none effect by our traditions." 
 
 Women pay taxes and own approximately one-half of the property of 
 the State, for they inherit equally with their brothers when there is no 
 will, and are rarely discriminated against when there is. They do more 
 than one-half the work of keeping up our civilization. As a class, they 
 are the equals of mqn in intelligence and their superiors in morality. 
 Why should they be barred from all public employment of every kind, 
 or of any kind? The Court should not place the bar sinister of dis- 
 qualification upon the whole sex, and disqualify them from holding 
 office, unless there is an express provision of the Constitution. 
 
 The last census showed that out of 950,000 persons in this State em- 
 ployed outside of their homes, in gainful occupations, 275,000, or 
 nearly 30 per cent, were females. They are engaged in making an hon- 
 est living; aiad while women are rarely aspirants for office, even in the 
 many States and countries where they now enjoy full suffrage, it is but 
 
Bank v. Redwine. 
 
 right, in consideration of tlieir contribution of labor and taxes to the 
 public weal, that they should not be debarred from obtaining the com- 
 I)ensation attached to an office like this, whose small compensation is 
 paid by the clerk himself, Avhen the appointing power (the clerk) has 
 deemed them competent, and, indeed, has selected four women in suc- 
 cession for the duties which they had discharged evidently to his satis- 
 faction. 
 
 Even if any judge has heretofore expressed an opinion (without the 
 thorough light which has now been thrown upon the subject by the 
 general public discussion of the matter) that "women are ineligible to 
 office," such previous opinion is no estoppel. When in the House of 
 Lords an ex-Lord Chancellor observed to Lord Brougham that twenty 
 years previous he had agreed with him in the legal views then ex- 
 pressed, Brougham replied : "In twenty years I have become wiser. 
 The noble Lord has had the same opportunity." In a debate in Con- 
 gress, on a memorable occasion, an opponent made a similar remark to 
 Robei't Toombs of Georgia. He replied : "That is one of my discarded 
 errors. The gentleman may defend it, if he can." 
 
 LTpon looking at the subject in the cold, clear light of the words of 
 the Constitution and of our statutes, it will be found that women are not 
 disqualified to hold office either by the Constitution of this State or of 
 the Union, nor by any statute, nor by the precedents in England, nor 
 by the experience of other countries, nor by anything that can be cited 
 from the Scriptures. 
 
 Office, from the Latin "ojficium,," means duty or service. Officers are 
 public servants. Why should the Constitution prohibit the people from 
 getting the best service and the public servants they may desire ? There 
 is nothing in human experience, or in history, to sustain the idea of the 
 inherent incapacity and inferiority of women. What have the mothers, 
 wives, sisters, and daughters of the voters of North Carolina done that 
 the Constitutional Convention should have branded them with the 
 opprobrium of being incompetent to render public service? In the 
 language of Scripture, "Have they not done us good, and not evil, all 
 the days of our lives?" They pay taxes and are subject to the laws. 
 Why should they be held barred from the honors or the emoluments of 
 any employment which the voters or the appointing power may select 
 them to discharge? Why should the defendant Redwine lose the prior- 
 ity given him by the registration of his mortgage because the public 
 official furnished him by public authority to take the probate (which was 
 done in due form) was a woman? 
 
 If the prior lien of the defendant Redwine is destroyed for this 
 reason, and he is postponed to the payment of the junior registered lien 
 of the plaintiff bank, he should at least have the right to reduce the 
 debt of the bank, which is thus preferred to his by no fault of his, by 
 
10 
 Bank v. Redwixe. 
 
 striking out the usury therein charged. As the bank has appealed to 
 the courts to get this advantage over the defendant Redwine, who held 
 the first registered mortgage, the bank debt should not go ahead of his 
 debt except to the extent that the bank debt is lawful, that is, after 
 purging it of the usurj. 
 
 The bank ought not to recover its debt with usurious interest, nor 
 should Redwine's prior registered mortgage, acknowledged before a duly 
 appointed and recognized deputy clerk, be invalidated because she hap- 
 pened to be a woman. She exercised only the power of all deputy clerks, 
 as conferred by Revisal, 989. 
 
Absolutelj;^ Necessary For Material Development; 
 Some Suggestions From What Has Been Done 
 In Europe. 
 
 (Address of Chief Justice Walter 
 Clark at the uiass-mqpting held at the 
 Raleigh Auditorium Thursday night, 
 March 28, in the interest oi the Bank- 
 head Highway.) 
 
 There are probably few men \^ho do 
 not complain that the taxes which they i 
 pay to the State, county and city gov- \ 
 eraments are too high. It is a free i 
 •country and every man has a right to i 
 his opinion. Certainly every man who 
 pays taxes has a right to have those 
 taxes economically and judiciously ex- 
 pended, and to criticise if he thinks 
 that they are not. , 
 
 But there are at least throe burdens 
 which we bear or have borne, each of ■ 
 which is many times iu amount the 
 taxea which we pay to our govern- 
 ment, including the Federal war tax. 
 To rid ourselves of these has been the 
 task of years, and we are not j'ct free. 
 And until wo are fi-ee of them the 
 State and city can not develop. 
 
 The first of these is what may be 
 called the saloon tax. I will not worry 
 you with statistics which are familiar 
 to you all, but the cost of the grain 
 itself which was distilled into injurious 
 liquor was many times all our taxes, so 
 much so that the United States govern- 
 ment and other governments have had 
 to prohibit distillation in these days 
 that the people may not suffer for food. 
 Then there was the great profits paid 
 retailers and the result that more than 
 three-fourths of the crime, the trial 
 and punishment of which took up the 
 time of our courts, was caused by the 
 use of intoxicating liquor and that suc- 
 ceeding generations were burdened with 
 the idiotic, the insane and the crim- 
 inals, caused by this great evil. When 
 agitation first arose against it, the lead- 
 ers of the movement were ridiculed. In 
 1881 when State-wide jjrohibition was 
 submitted to our people it was de- 
 feated in North Carolina by over 100,000 
 majority. In 1908 when again submit- 
 ted it carried by 44.000, and today 90 
 per cent of the people and of the area 
 of the Union is under prohibition. A 
 Constitutional Amendment prohibiting 
 the manufacturing and sale of ardent 
 
 pie. Yet no community and no p'e'opTe' 
 can prosper unless they are wisely andl 
 
 tepirits has been Passed bv Congress ^^"'' *« ^"''t'^^^ ,^P^"V ^""^ "^^'^^f^f 
 
 and has already been ratified by eleveii 
 States. There can be little doubt that 
 a year hence it will have been ratified 
 by the thirty-six necessary States for 
 that purpose. 
 The second great burden that we have 
 
 widely educated, so as to obtain the 
 full development of the powers of alH 
 the people. Wc have now on hand in 
 Wake county a proposition to increase 
 the fund for education of the children^ 
 of the county. It is to be hoped that'^ 
 it will be successful. Taxes for that pur- 
 pose arc incredibly small in propor-i., 
 tion to the benefit received. One of tho 
 strongest arguments for equal suffrage, 
 besides its innate justice, is that wher- 
 ever it has been tried the vote of the 
 \ women has been overwhelmingly for 
 the efficient enforcement of the laws 
 against intoxicating liquor &nd iu favor 
 of the enormous mud tax which as 
 education of their children. 
 
 Then there is the third incubus which 
 weighs upon the progress and devel- 
 opment of our people and that is the 
 mud tax. And that is the question we 
 are here to consider. Every city is de- 
 pendent for its growth and for its sup- 
 port upon the country around it. Un- 
 less the farmers are prosperous there 
 will be lack of food and of enterprise 
 in your cities and grass will grow in 
 your streets. The farmers can not be 
 prosperous unless they can get their 
 products to market without the payment 
 of the enormous mud tax whihe has 
 weighed them down. 
 
 Formerly every city of any size was 
 built upon a river because the river 
 was a road whose surface needed no 
 repairing. When the system of rail- 
 roads began, the growth of each city de- 
 pended upon the rates of transportation. 
 At present with 5,000,000 of motors of 
 one kind or another in the Union and 
 more than 75,000 of them in North 
 Carolina, it is of the utmost impor- 
 tance to a growing city like Ealeigh 
 that its highways shall be of the very 
 best and shall not on\ir attract the 
 thousands of automobiles that are pass- 
 ing through our borders but that the 
 highways leading into Ealeigh shall be 
 in the highest condition. 
 
 Two thousand years ago Eomo laid 
 out and built that magnificent grystcm 
 of highways radiating from the golden 
 milestone in the Eoman Forum to every 
 point of her vast empire — to Pontus, to 
 
 the eagles tiew and the legions marched 
 These roads were the outstretched arms 
 which so many long centuries held to- 
 gether that great empire which em- 
 braced the entire civilization of the 
 world. So well constructed were these 
 highways that many parts of them are 
 
In the first place, while we have voted to larger and better achooUiouses, that 
 already largo suras for the construction wo urge forward thil great movement 
 of highways wo have strangely neglect- ( wMch will free us of the mud tax which 
 ed to adopt a methodical system of road| has so long been an incubus upon all 
 maintenance, with the result that in -'progress and development, 
 many sections the roads are wearing 
 out and will soon be gone, while the 
 bonds issued for their construction will j 
 remain with us to be ijaid. In France, 
 Germany and Italy and other European 
 countries the roads are kept in a high 
 state of efficiency by the system there 
 adopted which assigns to a given num- 
 ber of miles a road guardian -who goes 
 over every mile of his charge every day 
 from end to end, making such repairs. 
 Under the principle that a stitch in time 
 makeg. nine, the roads are thus kept in 
 good condition and at a minimum cost. 
 
 In these countries they have adopted 
 the system by which certain main thor- 
 oughfares are laid out, constructed and 
 maintained by the general government. 
 These are known as national roads, 
 like the road which it is now proposed 
 that we shall bring to Ealeigh. 
 
 Then there is a secondary system of 
 roads known as departmental roads, 
 which might here be called State roads, 
 which are built and maintained by the 
 State government, being mostly for in- 
 terstate use. And then there are the j 
 communal roads built and maintaiaed i 
 at tho cost of the counties and town- 
 ships. Those who have traveled in 
 Europe will recall that especially in 
 Franco and Italy all these roads are 
 bordered by a row of trees on either j| 
 side, a most picturesque feature of the 
 landscape, but they serve the practical 
 Ijurpose that in summer they shade the 
 roads and keep them cool and moist 
 enough to lighten the dust, while in the 
 rainy season their roots take up much 
 of the moisture and keeps the roadbed 
 firm and solid. Besides that they serve 
 the further purpose that these trees are 
 usually fruit trees whose fruit when 
 gathered goes far to sustain the cost 
 of keeping up the roadbed, and when 
 not fruit trees the alternate trees are 
 cut out and sold for fire wood for the 
 same purpose, new trees being set. It 
 is doubtful if we could make a better 
 choice for that purpose than by putting 
 a line of pecan trees on each side of 
 our public roads. 
 
 We must remember that every pas- 
 senger and every pound of freight that 
 passes over our railroads necessarily 
 passes over some road or street tc^ reach 
 the railroad, and besides t«u times 
 as much more of passengers and freight 
 use the public roads which never get 
 to railroad transportation. 
 
 The first improvement of course was 
 in the streets of our cities. There are 
 men now present who can remember 
 seeing geese and ducks disporting them- 
 selves in the mud and ponds of water 
 between the Yarborough House and the 
 
•THE RIGHT OF WOMEN TO MAKE A LIVING- 
 
 DISSENTING OPINION 
 
 OF 
 
 CHIEF JUSTICE WALTER CLARK 
 
 BICKETT V. KNIGHT 
 
 IN WHICH THE CHIEF JUSTICE SUSTAINS THE RIGHT OF THE GENERAL 
 
 ASSEMBLY TO AUTHORIZE WOMEN TO ACT AS NOTARIES 
 
 PUBLIC. BROWN. J.. ALSO DISSENTING. 
 
 Clark, C. J., dissenting : There is but one question presented by this 
 appeal. 
 
 The General Assembly of North Carolina at its late session enacted 
 chapter 12, Laws 1915, as follows: ^'The Governor is hereby authorized 
 to appoint women as well as men to be notaries public, and this position 
 shall be deemed a place of trust and profit, and not an office." 
 
 Upon this authority from the lawmaking department of the Govern- 
 ment, to whom by the Constitution that duty is intrusted, the Governor 
 of the State issued his commission to Mrs. !N"oland Knight, the defendant, 
 as a notary public. Thereafter this quo warranto proceeding was 
 brought, averring that a notary public was not a place of trust or profit, 
 as the Legislature had enacted, but was in truth an office, and therefore 
 that the commission issued to her by the executive department of the 
 State under the authority of the Legislature was a nullity because she 
 was a woman. 
 
 The action was brought before Judge Wehh of the Superior Court, who 
 sustained the action of the General Assembly and of the Governor, and 
 declined to hold their acts void. On argument in this Court, the Attor- 
 ney-General, while he combated some of the propositions of the defend- 
 ant's counsel, admitted that the act was valid, saying then, and also in a 
 written opinion : "In the face of the legislative declaration, there ought 
 not to be any serious trouble about the matter." 
 
 The sole question, therefore, is, after this action of the lawmaking 
 department and the Governor, and the admission of the relator, the 
 Attorney-General, himself, in open court, "Ought the defendant be de- 
 prived of her appointment ?" There can, of course, be other questions, 
 more or less collateral, discussed, but that is the sole question presented 
 on this record. If she can be thus deprived, it can be done only upon the 
 ground that the above acts of the Legislature and of the Governor are in 
 
violation of the Constitution. It cannot be contended that the Legisla- 
 ture acted ignorantly or unadvisedly. In that body there were many 
 able men, among whom were lawyers of acknowledged prominence and 
 recognized ability. They were under an oath to support the Constitution, 
 as much so as the members of this bench. No one will impute to that 
 body a desire to evade or fraudulently circumvent the Constitution which 
 they were sworn to support. No one has suggested that. The matter was 
 fully discussed in both houses, was thoroughly understood, and the bill 
 passed the General Assembly by a large majority in both houses. 
 
 If this Court deems it is its duty to so decree, it ought to point out the 
 paragraph in the Constitution which gives it the power, in its opinion, 
 to hold this action of the Legislature and the Governor in violation of 
 the Constitution; for the Governor as well as the members of the Gen- 
 eral Assembly are under the sanction of an oath to maintain the Consti- 
 tution. The act ''authorized" but did not require him to appoint women 
 notaries public. 
 
 The General Assembly of 1913 passed an act in almost identical terms 
 authorizing the appointment of women as trustees upon the public school 
 boards, and with the same provision, that such "position shall be deemed 
 a place of trust and profit, and not an office." That act has been recog- 
 nized without question and acted upon. One hundred and fifty women 
 have been appointed to such positions and have discharged the duties 
 thereof with credit to themselves and to the benefit of the public. 
 
 There is no provision of the Constitution which defines an "office," 
 and none which creates the position of notary public. The Legislature, 
 therefore, could not act in violation of the Constitution in drawing the 
 line, as it did, between positions of trust or profit and offices. Cer- 
 tainly not, unless the duties of a notary public are of themselves so 
 inherently an office and unless it has been so generally recognized as such 
 that to term it not an office would be a fraud in legislation. 
 
 Every department of the State Government has always recognized that 
 a notary public is not an office, for in this Legislature, as in preceding 
 ones, several members were at the same time notaries. The Constitution 
 forbids persons holding two offices at the same time. Art. XIV, sec. 7. 
 Yet no Legislature has ever held that a member could not be a notary. 
 The Governors (most of whom have been lawyers) have appointed mem- 
 bers of the Legislature to be notaries while continuing to sit as members, 
 and no court has ever held the act of any notary invalid because he con- 
 tinued to act as such while a member of a Legislature. The effect of the 
 majority decision in this case may invalidate many instruments acknowl- 
 edged before notaries, heretofore recognized as valid. 
 
 The words "office" and "public office" are very frequently used loosely 
 without any intention to draw the line as to whether a position is an 
 "office," a "place of trust or profit," or a "public employment," and it is 
 due to that fact that many opinions have spoken of the position of notary 
 public as an office. "Office" means simply a "duty," from the Latin word 
 
officium; and as this position is called ''notary public," it has been fre- 
 quently, in casual writing of opinions, referred to as a public office. 
 
 But there has been no opinion of the Supreme Court of this State nor, 
 it is believed, of any other State which has ever held the position to be a 
 "public office" when the line was being drawn between "public offices" 
 and "places of trust or profit" or "public employment." It is stated posi- 
 tively, after much research, that no court at any time, in any State or 
 country whatever, has held the position to be a public office when there 
 was an act of the Legislature decreeing it not to be a public office. In 
 the Opinion of the Judges, 165 Mass., 599, the Court held that in that 
 State the position of notary public was named and created by the Con- 
 stitution, and therefore the Legislature could not make it a "place of 
 trust or profit" or a public employment merely, stating, however, that if 
 the position was created (as it is in this State) by the Legislature, that 
 body would be competent to make it such position as they saAv fit. 
 
 In this State there have been two or three decisions which loosely refer 
 to the position of notary public as an "office," but that was at the time 
 when the statute referred to it as an office. It took its rank as an office 
 from such statute, and if the General Assembly had the power to pass 
 the act recognizing it as an office, the General Assembly of 1915 had the 
 power to make it a "place of trust or profit." Nothing is better settled 
 than that the act of one Legislature can be repealed or amended by a suc- 
 ceeding one. I^Teither act has any validity except as the organized expres- 
 sion of the public will of the time, Avhich is subject to change or modifica- 
 tion by any subsequent legislature. 
 
 In our own State this Court has followed (Mini v. Ellington, 134 ]^. C, 
 131) the decisions, universal elsewhere, that the Legislature has entire 
 power over offices created, not by the Constitution, but by the Legislature 
 itself (Scoivn v. Scarnecki, 164 111., and numerous cases there cited), and 
 has said in words exactly applicable to the facts of this case (Brown v. 
 Turner, 70 IST. C, 100) : "When the Legislature created and called it an 
 office it was an office, not because the peculiar duties of the place consti- 
 tuted it such, but because the creative will of the lawmaking power im- 
 pressed that stamp upon it; therefore, when that stamp was effaced by 
 the repealing act it shrank to the level of an undefined duty. The author- 
 ity that invested these duties with the name and dignity of a public office 
 afterwards divested them of that name and dignity." 
 
 We have, however, had two instances in this State in which the ques- 
 tion was sharply presented whether the position of notary public was an 
 office or not, and in both it was held not to be, and in those cases only was 
 the question squarely presented. 
 
 In 1867 it became an important matter to draw the line between what 
 positions in this State w^ere offices and what were not. The Attorney- 
 General of the United States, on 12 June, 1867, published his "considered 
 opinion" (as our Court styled it), in which he defined what positions 
 were offices and what public employments were not offices. The thir- 
 
teenth paragraph iu liis opinion, after reciting what were ''offices," says, 
 as to those "not offices" : "13. Persons Avho exercise mere agencies or em- 
 ployments under State authority are not disqualified, such as commis- 
 sioners to lay out roads, commissioners of public works, visitors of State 
 institutions, directors of State banks or other State institutions, notaries 
 public, commissioners to take acknowledgment of deeds, and lawyers." 
 That opinion of the Attorney-General of the United States is quoted in 
 full by our Supreme Court and adopted, Worthy v. Barrett, 63 N. C, 
 at p. 203. 
 
 This Court subsequently and continuously down to this time has recog- 
 nized its correctness, for this Court without question has been licensing 
 women as lawyers, certainly a far more important position, and the stat- 
 ute requires that all lawyers must take an oath of office and an oath of 
 allegiance both to the State and Federal Governments. 
 
 The only other case in which the point has been exactly presented was 
 Lawrence v. Hodges, 92 N. C, 681. The Constitution, Art. XIV, sec. 7, 
 provides: "No person who shall hold any office or place of trust or 
 profit under the United States, or this State, or any other State, . . . 
 shall hold or exercise any other office or place of trust or profit under the 
 authority of this State." Revisal, 2349, provides: ''The clerks of the 
 Superior Court may act as notaries public in their several counties by 
 virtue of their office as clerks, and may certify their notarial acts under 
 the seals of their respective courts." It cannot be contested that clerks 
 of the courts are public officers created by the Constitution. If, there- 
 fore, the position of notary public was an "office" also, the same person 
 could not hold both positions. The act of Congress required certain 
 mortgages on vessels to be acknowledged before a notary public, and in 
 Laivrence v. Hodge^ the question was presented whether the clerks were 
 valid notaries public, and it was held in 92 N. C, at p. 681, that they 
 were. It thus conclusively appears that in both the cases in which the 
 point was presented the position of notary public was held not to be an 
 office. 
 
 McCullers v. Comrs., 158 N. C, 80, holding that the Governor and 
 others can discharge certain functions ex officio, in no wise conflicts with 
 Laivrence v. Hodges. If it did, all that would be necessary would be to 
 provide that any woman who held the position of school trustee, to which 
 she is eligible, can ex officio discharge the duties of a notary public. The 
 position of "lawyer" has been often styled an "office," but women were 
 admitted to the bar in this State because it was found that to hold that 
 position an office would disqualify a large part of the Legislature and 
 many other officeholders, State and Federal. While the statute incident- 
 ally refers to notaries public and lawyers as officers, there has been no 
 express decision that a notary public is an office, till now. 
 
 But it has been argued by some that the position of notary public was 
 an office at common law. If it had been, the common law is simply the 
 
English law, the largest part of which was the decisions of the English 
 judges based upon their customs or the construction of their statutes, 
 and of course subject to be changed at will by the Legislature of North 
 Carolina in all matters that concern our self-governing people. In fact, 
 however, a letter from Sir John Simon, at present Attorney-General of 
 England, written in January of this year, says : "jSTo act of Parliament 
 has ever disqualified women from holding the position of notary public 
 in this country, and it is very certain that none such could be passed." 
 Even if it had been otherwise, it would not have disqualified the General 
 Assembly of ITorth Carolina from defining it to be a mere place of trust 
 or profit, and authorizing women to hold it. 
 
 In U. S. V. Bixby, 10 Bizzell, 520, it was held by Gresham, J., that "at 
 common law a minor is eligible to the position of notary public." In 
 Virginia, which naturally more nearly follows the English law than any 
 other State in this Union, its Attorney-General says : "In this State any 
 man or woman over 18 years of age can be a notary public." 
 
 But aside from any statute Avhich (like our act of 1915) expressly 
 makes the position "a place of trust or profit," or our previous statute, 
 which, without expressly making it an office, merely required an oath of 
 office (as is also required of la^vyers, public administrators, and others 
 who have been held to be not officers), the position in itself inherently is 
 not an "office." The duties of a notary public are prescribed (Rev., 
 2350) and are purely those of certificate and analogous to those of a 
 commissioner to take affidavit, and have in them no element of an office. 
 
 The decisions have all held that to be a "public office" as distinguished 
 from a "place of trust or profit" or a "public employment" the officer 
 must possess and exercise some of the sovereign powers of the State, 
 either executive, legislative, or judicial. S. v. Smith, 145 N. C, 477, 
 citing Mechem on Pub. Officers, sec. 1. A notary public cannot legislate. 
 A notary cannot execute the law, and has no judicial functions. The 
 duties of the position are simply to take douTi and certify evidence. For 
 the purpose of certification, the notary has a seal, just as formerly any 
 grantor in a deed had, to authenticate his act by his seal. This did not 
 make every grantor a public officer. It is true that in certain rare cases 
 a notary public has the power of contempt. So by statute has every 
 referee in ISTorth Carolina (Rev., 492), but a referee certainly is not 
 therefore an officer. 
 
 The entire experience and recognition of the rest of the world is 
 against the position being ex vi termini a public office. In Massachu- 
 setts and in Ohio and one or two other States the position has been made 
 an office by the Constitution or a statute. After the passage of this act 
 of our General Assembly an official inquiry was instituted as to the 
 status of notary public in the other States. The replies from their judi- 
 cial departments show that out of the fifty-three jurisdictions in the 
 United States {i. e.. forty-eight States, the District of Columbia, and the 
 
territories of Alaska, Porto Rico, Hawaii, and the Philippines) women 
 are competent to be notaries public in all except ten, and in those ten 
 they were held incompetent either because, as in Massachusetts, the Con- 
 stitution had made the position an office or a statute had made it an 
 office, or, as in a few of them, ''it had not been the custom to admit 
 women to hold the place, and there was no statute as yet authorizing 
 them to fill the position." In no case was there found, or reported, a 
 decision holding women incompetent to fill the place when there was a 
 statute authorizing them to do so, or providing that the position was not 
 an office. Outside of these ten States (of our fifty-three jurisdictions) 
 there is no country which disqualifies a Avoman to hold the position of 
 notary public. There are semicivilized and barbarous countries in which 
 they are allowed to hold no position whatever, and in those countries 
 there is probably no such position. 
 
 There have been many cases in this Court, of course, holding acts of 
 the Legislature unconstitutional. But no one has ever found express 
 authority in the Constitution to do so, and it is claimed to exist by con- 
 struction and inference of the courts in their own favor. This Court has, 
 almost in every instance, therefore, wisely taken the pains to say that it 
 will not exercise this assertion of supreme power in setting aside the 
 action of the other departments of the Government unless such action 
 was clearly unconstitutional, and has repeatedly quoted on this point 
 Ogden v. Sanders (TJ. S. Supreme Court), 12 Wheaton, at p. 270, in 
 which it was held that the highest Court in the Union would not even 
 hold a State act unconstitutional as in violation of the Federal Constitu- 
 tion unless it were so "beyond all reasonable doubt." This is the consid- 
 erate language of that high Court : "It is but a decent respect due to the 
 wisdom, integrity, and patriotism of the legislative body, by which any 
 law is passed, to presume in favor of its validity until its violation of the 
 Constitution is proved heyond all reasonable doubt." 
 
 Ought not this Court to follow what we have so often quoted and 
 approved, and out of a "decent respect to the wisdom, the integrity, and 
 the patriotism of the legislative body" hold that the violation of the 
 Constitution by that body in this case "is not proved beyond all reason- 
 able doubt" ? 
 
 This position had its origin in the Roman civil laAv. Its duties were, 
 and still are, like those of a stenographer, with power only to certify the 
 evidence taken down or acknowledgments made of instruments. The 
 notary public has no legislative, executive, or judicial authority. He 
 cannot even probate a deed, but merely certifies its acknowledgment 
 {White V. Connelly, 105 jST. C, 65), though it is held that even a deputy 
 clerk, who can probate it, is not an officer. 
 
 The Attorney-General of the State, in this very case, appearing in 
 open Court, admitted the validity of this statute. The Attorney-General 
 of the United States has said in an official opinion that "commissioners 
 
of affidavits, notaries public, and lawyers" are not public officers, and 
 this Court in an unanimous opinion affirmed that ruling and have acted 
 upon it ever since as to the other two positions. Why overrule it now 
 as to notaries public alone? The Attorney-General of Great Britain 
 says that the law does not disqualify women from being notaries public. 
 Why should we disqualify them ? In all the other States and territories 
 of the Union, except ten, women are admitted to be notaries public. In 
 our own State the Revisal, 3349, permits the clerk of the court to be a 
 notary public, which he could not be if it was an office, and this Court 
 held, as above stated, that he was a valid notary public where the valid- 
 ity of a mortgage under a United States statute required the instrument 
 to be acknowledged before a notary public. In the ten States not per- 
 mitting women to be notaries public there is no statute permitting them 
 to be. 
 
 If any opinion I have ever written, when the statute as to notaries was 
 different, could be fairly construed as opposed to what is herein said by 
 me, under the present statute, it would not be an estoppel to hold cor- 
 rectly in this case. Besides, I have no pride of opinion that compels me 
 to prefer former opinions, if erroneous, to doing justice now. I have , 
 never deemed myself infallible, but hold that all judges should be glad of ' 
 opportunity to correct their mistakes. We should grow Aviser with the 
 years; otherwise, experience is of no value. The infallibility of judges / 
 is not an American doctrine, nor indeed is it held anywhere. 
 
 Under changing conditions, due largely to the introduction of ma- 
 chinery, women are forced to seek new and wider employment. The 
 Legislature, recognizing this, and learning that in some quarters there 
 was opposition to their receiving fees in the purely clerical work of a 
 notary public, owing to some passing references to the position as an 
 "office" in two or three decisions, passed an act making the position 
 merely "a place of trust or profit," and not an office, and specifically 
 authorizing the Governor to appoint women. This was purely a political 
 question, and the Legislature was acting with an intelligent understand- 
 ing of changed economic conditions and in a humane desire to do justice 
 to a deserving class, and with full recognition of their obligation to 
 observe the Constitution. The Governor was "authorized," not "re- 
 quired," to appoint women. He is one of the foremost lawyers of the 
 State, with the intelligence, firmness, and patriotism to know and main- 
 tain the limitations of the Constitution. He appointed the plaintiff to 
 this position. The judge of the lower court, sv/orn also to obey the Con- 
 stitution, and a learned lawyer, held that it was no violation of the 
 Constitution for the Legislature to so enact. Our Attorney-General, who 
 brought this action, stated on the argaiment, after fuller investigation, 
 and also in Avriting, his opinion that the action of the Legislature is con- 
 stitutional. 
 
Ought this Court, by three votes to two, hold that this action of the 
 executive department and of the Legislature and by the other judicial 
 officers who have passed upon this matter has been beyond question a 
 violation of the Constitution, and that, too, without specifying the pro- 
 vision of the Constitution that has been so dangerously and alarmingly 
 violated when the Legislature has permitted women working for a living 
 to earn a few needed fees by authorizing them when taking down and 
 certifying evidence' merely to authenticate their certificates by adding 
 the impression of a seal ? The statute provides that such impression of 
 a seal does not make the position an office. 
 
 It has been urged, however, that fees are paid for impressing the seal ! 
 "Ay! there's the rub." Women are not voters, and there are those who 
 think that fees should be reserved exclusively for voters, in recognition 
 of their services. But these fees are not paid by the State or county, but 
 by individuals, and notaries receive no salaries. 
 
 It was held in Brown v. Turner, 70 N. C, 100, that the position of 
 Public Printer, worth many thousands of dollars, which the previous 
 statute had made an "office," was reduced to the grade of a "place" be- 
 cause the Legislature said so. though the effect Avas that a Republican 
 Court thus admitted the validity of the act of a Democratic Legislature 
 in filling the "place" with a Democrat when the Republican Governor, 
 holding it to be an "office," had appointed one of his own party. 
 
 In S. V. Smith, 145 X. C, 476, this Court held that a public adminis- 
 trator who has a term of eight years, gives bond, and takes an oath of 
 office (Rev., 19) is a mere "place" and not an "office," Broivn,J., quoting 
 from Chief Justice Marshall, saying that "Although an office is a public 
 employment, it does not follow that every public employment is an office." 
 *S'. V. Smith was cited with approval by Allen, J., in Boynton v. Heartt, 
 158 N". C, 490. 
 
 The Constitution of this State does not prohibit the Legislature from 
 admitting women to any office. The prohibition is just the opposite, and 
 merely forbids any one who is a voter from being disqualified to hold 
 office. *S'. V. Bateman, 162 X. C, 591. 
 
 Even if every position created by the Legislature, however small, could 
 be held to be an office, notwithstanding legislative enactment to the con- 
 trary, the Constitution of this State has never made the requirements 
 for voting and for holding office the same. Prior to 1868 the Constitu- 
 tion imposed the o^^aiership of property as a prerequisite for certain 
 offices. The Constitution of 1868, discarding all that, imposed the sole 
 limitation upon the Legislature that no voter should be disqualified to 
 hold office, with the exceptions therein named; which exceptions do not 
 name women. 
 
 Singularly enough, the majority opinion in this case quotes from a 
 judge who was a woman (Portia), when she held that Shylock's demand 
 of a "pound of flesh" must be granted, because else the ruling would be 
 
"recorded as a precedent," etc. It will be recalled, however, that she / 
 almost immediately reversed that ruling, to which she had been over- / 
 persuaded, and rendered a just judgment on the merits. That case has I 
 been famous for ages as showing the competency of a woman for judicial 
 position, in that she administered justice and w^as superior to the super- 
 stition that erroneous precedents are more sacred than justice. A woman 
 herself. Judge Portia certainly did not intend that her decision should be I 
 quoted as authority that a woman could not be a notary. \ 
 
 The General Assembly has all the powers of legislation that the people 
 themselves have, unless restrained by some provision of the Constitution. 
 Cannot the Legislature of a sovereign State provide that the function of 
 authenticating a certificate or acknowledgment or protest by making the 
 impression of a seal on paper shall be a "place" and not an "office"? 
 And that women may receive the fees for such work, if appointed ? 
 
 The feudal and medieval theory as to women — "half angel and half 
 idiot"^ — meant in practice that those above the necessity of work might 
 be on public occasions spoken of as if "half angels," but that all classes 
 of them and all the time, were treated as at least "half idiots" and with- 
 out legal rights. If married, they were submerged in the existence, and 
 under the power, of their husbands, who had the right even to chastise 
 them at Avill. This last right persisted in l^orth Carolina down to 1874, 
 when Settle, -/., in S. v. Oliver, 70 IST. C, 61, said the courts had "ad- 
 vanced from that barbarism" — thus overruling the then recent cases of 
 S. V. Black, 60 N. C, 262 ; S. v. Rhodes, 61 ^. C, 453, and others. In 
 all progressive communities feudal ideas have passed, or are passing, and 
 women are held to be human beings, entitled to equal rights with men. 
 
 There is but one question in this case, "Can this defendant discharge 
 the duties of a notary when so authorized by an act of the Legislature 
 and commissioned by the Governor? Or is she barred because she is a 
 woman ?" 
 
 Under the Constitution of the United States no one is debarred from 
 holding any office, from President down, because of sex. What pro- 
 vision of the State Constitution will be shattered, and what detriment 
 will the public welfare receive, if by legislative and executive authority 
 a woman shall authenticate a certificate, made by herself, by impressing 
 the seal upon a piece of paper ? 
 
 If the plaintiff were a man he would not be debarred from holding this 
 appointment unless he were an idiot, a lunatic, or a convict. The Legis- 
 lature, voicing the sentiment of the people of the State, have enacted 
 that it is neither a crime nor a defect in this appointee to discharge the 
 clerical duties of a notary public because she is a woman. Shall the 
 Court hold that it is ? 
 
 Brown, J., also dissents.