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 PAPERS AND ADDRESSES 
 
 BT 
 
 WILLIAM GILBERT DAVTES, S.B., LL.D.
 
 I 
 
 PAPERS AND 
 ADDRESSES 
 
 BY 
 
 WILLIAM GILBERT DAVIES, S.B., LL.D. 
 
 II 
 
 ale 
 
 ttt 
 
 NEW YORK 
 
 ROBERT GRIER COOKE 
 
 INCORPORATED 
 MDCCCCVII
 
 COPTRIGHT, 1906, BY 
 ROBERT GRIER COOKE, INC. 
 
 ROBERT GRIER COOKE, INC., NEW YORK
 
 Co 
 THE DEVOTED WIFE 
 
 TO WHOSE LOVING ENCOURAGEMENT SO MANY OF 
 THE FOLLOWING PAGES ARE DUE 
 
 THIS VOLUME is AFFECTIONATELY DEDICATED 
 BY THE AUTHOR 
 
 r
 
 FOREWORD 
 
 I DO not think it is necessary to assign any reason for 
 publishing this book, except for what seems to me to be 
 a very natural desire to collect into one volume my scattered 
 publications, so that they may all be available for the use 
 of my family and friends. It will be seen that they have 
 been written at different times and cover a wide range of 
 subjects; so I trust every one into whose possession this book 
 may come will find something to interest him or her. They 
 were composed in brief intervals snatched from a busy pro- 
 fessional life, and represent what should have been leisure 
 moments, as my real work is preserved in the records of 
 the Insurance Company with which I was connected for 
 many years. 
 
 AR-T-BBYN, TUXEDO PARK, N. Y.
 
 CONTENTS 
 
 PAGE 
 
 THE STONE MASON OF CROMARTY 3 
 
 CLASS-DAT POEM 11 
 
 ALCHEMY AND THE ALCHEMISTS 25 
 
 TwELPTH-NlGHT OBSERVANCES 33 
 
 MYSTERIES AND MASQUES 43 
 
 THE SETTLEMENT OP NEW AMSTERDAM 57 
 
 HISTORICAL SKETCH OF CHRIST CHURCH 79 
 
 TlCONDEROGA AND CROWN POINT 95 
 
 NEW YORK IN 1801 Ill 
 
 MYSTERIOUS DISAPPEARANCES AND PRESUMPTIONS OF DEATH 
 
 IN INSURANCE CASES 121 
 
 THE LAW OF MORTMAIN 177 
 
 THE LAW OF LIFE INSURANCE 203 
 
 SPEECH AT BOSTON, MASS 289 
 
 SPEECH AT SAVANNAH, GA. 301 
 
 ADDRESS TO BOSTON LIFE UNDERWRITERS 311 
 
 SPEECH AT WILMINGTON, DEL 319 
 
 LIFE INSURANCE IN ITS RELATION TO LEGAL MEDICINE . . 325 
 
 SPEECH AT ST. NICHOLAS CLUB DINNER 345 
 
 SPEECH AT DINNER OF ALUMNI OF TRINITY COLLEGE . 351
 
 THE STONE MASON OF CROMARTY 
 
 DELIVERED AT THE JUNIOR EXHIBITION OF 
 
 THE CLASS '60, TRINITY COLLEGE, 
 
 HARTFORD, MAY lOra, 1859
 
 "THE STONE MASON OF CROMARTY" 
 
 IN a little fishing-town on Cromarty Frith stands the 
 birthplace of Hugh Miller. Born and educated in sight 
 of the sea, it was to him only an object of terror and abhor- 
 rence. Father, grandfather, and two uncles lay buried 
 beneath its green waves. His earliest recollection was the 
 vision of an outstretched hand and arm, which appeared to 
 him the night his father's vessel, with all on board, sank 
 into that great sepulchre. 
 
 A few years later we behold him at the common school 
 of Cromarty, acquiring the first principles of education. 
 While there he seized with delight every opportunity to play 
 the truant, and loved to wander along the shores of his native 
 frith, or climb the lofty mountains which overshadow it. 
 Fearless in disposition, vigorous in mind, healthy in body, 
 he could not endure the confinement necessary to study, nor 
 the authority exercised over him by his relations. It is 
 related by his biographer that he became a stone mason 
 because his uncle had declared in that trade he could never 
 succeed. 
 
 The scene now changes, and we behold the future scholar 
 engaged in the humble occupation I have mentioned, labor- 
 ing, sometimes in the north of Scotland, sometimes in the
 
 THE STONE MASON OF CROMARTY 
 
 south, sometimes reveling in the monstrous wages of one 
 dollar per diem, sometimes finding no work at all. At In- 
 verness he advertised himself to "cut tombstones neatly and 
 correctly." But wherever his love of wandering led him, in 
 whatever occupation he was engaged, we perceive his mind 
 busily occupied in adding to his store of knowledge. When, 
 worn out by the fatigues of the day, he reached his humble 
 home at night, he possessed sufficient energy to apply himself 
 to severe study till nature was exhausted. Thus for fifteen 
 years did he pursue his laborious course, a book in one hand, 
 a chisel in the other. 
 
 During this period, his literary life may be said to have 
 commenced. He published a volume of verses, but was so 
 much discouraged by the treatment it received that he did not 
 dare to issue a second work. He was so incautious as to 
 mention upon the title-page that they were the productions 
 of a journeyman mason. This statement furnished the key- 
 note which every critic struck. One and all advised him to 
 stick to his trowel, and leave the pen to those who were better 
 qualified to guide it. 
 
 The scene again changes, and we behold him the accountant 
 of a bank established in his native town. After continuing 
 this business for five years, the great schism in the Kirk of 
 Scotland broke out, and Hugh Miller was chosen editor 
 of the Edinburgh Witness, the organ of the Free Church 
 Party. His situation as editor of a widely circulated and 
 influential journal gave him fresh courage, and shortly after 
 assuming that post he published his first prose work, 
 the "Old Red Sandstone," which achieved a remarkable 
 
 4
 
 THE STONE MASON OF CROMARTY 
 
 success, and was soon followed by his "Footprints of the 
 Creator." 
 
 We now see the mason in the new characters of an author 
 and a scholar. The seeds of information which he had been 
 collecting during so many years now bore their fruit, and 
 Hugh Miller took his stand among the writers of the world. 
 Nor was it in science alone that he wielded an able pen and 
 exhibited a well-cultivated and powerful mind. His contribu- 
 tions to polite literature are as remarkable and praiseworthy 
 as his labors for geology are valuable and useful. Of this 
 class it will be sufficient to mention a single instance. In 
 1847 he published "First Impressions of England and its 
 People," in which, to quote from his reviewer, "he displays 
 unrivaled quickness and breadth of observation, and bold 
 and subtle powers of generalization." Throughout this 
 work, as all his others, shines forth his love for his Maker. 
 "He has not adopted one of the free and sceptical notions 
 about religion which are so widely circulated among poets, 
 philosophers, and critics. He would stand up with the 
 humblest of his countrymen, in avowing and defending 'the 
 faith once delivered to the Saints.'" But we need enter no 
 further upon this analysis of his writings. We have already 
 said sufficient to show the extent of his literary labors, and 
 the versatility of his genius. Whether his subject were 
 science or travels, story or biography, he proved himself to 
 be a true scholar, an able writer, last, but not least, a 
 Christian man. 
 
 In his "Footprints of the Creator," Hugh Miller applied 
 his energies to the most glorious labor which human genius 
 
 5
 
 THE STONE MASON OF CROMARTY 
 
 can undertake, the defense of religion against scepticism and 
 infidelity. The contest concerning the Biblical account of 
 the Creation, often carried on with vehemence by the oppo- 
 nents and promoters of Christianity, was then revived. A 
 book entitled "Vestiges of the Creation," had declared that 
 the story of Moses was erroneous, in fact, absurd. The 
 lovers of religion everywhere were roused by the assertion, 
 and among their foremost champions was Hugh Miller. Of 
 the exquisite style of this work it is unnecessary to speak, 
 while its arguments are deemed irresistible. 
 
 Hard labor and incessant study ruined his vigorous con- 
 stitution, and enfeebled his mind. Though naturally cour- 
 ageous, he suddenly conceived a great dread of robbers, and 
 imagined that frequent attempts were made to break into his 
 museum. Every night, a broadsword was hung at the head 
 of his bed, while loaded pistols were laid near his hand. 
 Shortly after this first symptom, a new form of cerebral dis- 
 ease attacked him, which, while it lasted, gave him almost 
 unendurable agony. But the last scene of his life was now 
 rapidly approaching. One night, appearing unusually cheer- 
 ful and well, he spent the evening with his wife and children, 
 and amused them by reading extracts from his works. Not a 
 thought was there of the sudden death so soon to break up 
 that little circle. No grim phantom of agony and despair 
 arose before them. All was bright and happy, and he, the 
 centre of the group, appeared once more to enjoy the full 
 possession of his health and faculties. But Death, though 
 concealed, was present. Hugh Miller retired, seemingly in 
 far better spirits than he had been for a long time, and the 
 
 6
 
 THE STONE MASON OF CROMARTY 
 
 next morning, his body was found lying upon the floor of his 
 room. Near him was a discharged pistol, upon the table was 
 a sheet of paper bearing a few fond farewell words to his 
 wife; and by the act of his own hand the spirit of the scholar- 
 mason had passed away to Him who gave it, to encounter 
 judgment; let us hope, forgiveness. 
 
 Hugh Miller fell a martyr to his zeal for study. We have 
 already seen how, under all circumstances, he applied him- 
 self to books: whether, chisel in hand, he wrought in the quar- 
 ries of Scotland, or with the pen cast up long rows of figures 
 in the banking office of Cromarty, every spare moment was 
 devoted to the acquisition of knowledge. Engaged in this 
 pursuit, he knew no weariness, felt no fatigue. Persevering, 
 determined to surmount every obstacle, he presents to our 
 view an amount of labor which is rarely equaled. Towards 
 the close of his life he was occupied in writing articles for the 
 Witness, delivering lectures on Geology, and preparing a 
 work for the press at the same time. The body of a Hercules, 
 and the brain of a Webster, could not long sustain such exer- 
 tions. But he felt that he had a mission to perform, he felt 
 that his talents were not given him to be wasted, and, as long 
 as his strength endured, he devoted himself to usefulness; 
 until at last his mind forsook him, and in one rash moment 
 the silver cord was loosened, the golden bowl was broken. 
 
 The patient watcher of the stars, seated in his lonely cham- 
 ber, sees a bright meteor flash across the sky. With lightning 
 velocity it speeds upon its way, cleaving the dark shades of 
 night, and illuminating heaven and earth with its sparkling 
 beams. But, ere reaching the zenith, it vanishes, and 
 
 7
 
 THE STONE MASON OF CROMARTY 
 
 naught but its memory remains. Like the course of this 
 flaming visitant was the career of Hugh Miller. Born and 
 bred in obscurity, receiving only the elements of education, 
 he suddenly appeared before the world in the threefold 
 character of the self-taught scholar, the defender of religion, 
 and the martyr to his love of science. "His race is run, his 
 errand done," but when the names of warriors and conquerors 
 shall have passed away, the Stone mason of Cromarty will be 
 remembered as one who used his talents for their noblest ends, 
 for the advancement of true science, for the glory of his God.
 
 CLASS-DAY POEM, '60. 
 
 TRINITY COLLEGE, JUNE 7ra.
 
 CLASS-DAY POEM, '60 
 
 ALONE in my lofty chamber* 
 I sat in a Summer dream, 
 And saw through my open window 
 
 The lights of the city gleam. 
 One by one extinguished 
 
 They passed from my sight away, 
 And before me, in solemn silence, 
 
 The slumbering city lay. 
 From the bowl of my trusty meerschaum 
 
 The curling smoke-wreaths rise 
 And float on the evening breeze above 
 
 To the dark blue silent skies. 
 The silvery moon sails on 
 
 O'er the pathway of the Ghosts; 
 While the fleecy clouds, like spirit shrouds, 
 
 Envelop the mighty hosts 
 Which tread the Milky Way, 
 
 Where, as Indian legends tell, 
 The shades of those who were best on earth 
 
 In the Land of Hereafter dwell. 
 
 * At this time Trinity College occupied the hill where the State 
 Capitol now stands. 
 
 11
 
 CLASS-DAY POEM, '60 
 
 And the steeple clock is tolling, 
 
 With its hands all folded tight, 
 To breathe a prayer for all that's fair 
 
 At twelve o'clock at night. 
 All nature is still and quiet; 
 
 No sound is heard but the breeze 
 As it sings among the countless leaves 
 
 Of our sturdy "Campus" trees. 
 The floods of the golden moonlight 
 
 Above and about me roll, 
 And fill with poetic ardor 
 
 My earthward-groveling soul. 
 
 I dream of ancient legends, 
 
 Of many an olden tale, 
 Of ladies fair, with smiling eyes, 
 
 Of knights in iron mail; 
 Of Crecy and of Agincourt 
 
 Where fell the gallants of France; 
 Of Coeur de Lion and Saladin, 
 
 And heroes of old romance; 
 Of Bois Guilbert, and of Ivanhoe, 
 
 Unstained by reproach of fear; 
 Of Gonsalvo, Spain's great Captain; 
 
 Of Bayard, le preux chevalier. 
 And I dream of the lovely dames for whom 
 
 They strove to be good and brave: 
 As the Roman matron smiled at death 
 
 Her husband's honor to save, 
 12
 
 CLASS-DAY POEM, '60 
 
 So, with proud look and smiling eye 
 
 They battled with their grief, 
 And bade their knights go forth to war 
 
 For the glory of their chief. 
 Such was fair Rowena, who fled away 
 
 From her father's home to sail 
 O'er the ocean wide with her Viking bold, 
 
 Fearing nor storm nor gale. 
 Such Guinevere, whose beautiful face 
 
 Led Lancelot to sin; 
 Such Rebecca, whose large, dark, lustrous eyes 
 
 Revealed the soul within; 
 Such many a maid who, like sweet Elaine, 
 
 Wept over her lover's shield; 
 Whose favors waved o'er helmets bright 
 
 On many a well-fought field. 
 Thus dreaming, I remember 
 
 An ancient tale I'll tell 
 Now, when we meet together 
 
 For our long and sad farewell. 
 As we sit in the pleasant coolness 
 
 Of this gray-grown chapel wall, 
 And across our grassy "Campus" 
 
 The evening shadows fall; 
 As the leaves in the gentle zephyrs 
 
 Rustle to and fro, 
 I'll sing you a legend, Classmates, 
 
 Of what happened long ago. 
 
 13
 
 CLASS-DAY POEM, '60 
 
 The day was slowly waning: the sun had sunk to rest, 
 And the sunset clouds were rising from out the glowing West: 
 With many a changing color and form they mount on high, 
 And unfurl their gorgeous banners across the western sky. 
 The twilight gently lingering weeps 'neath her azure veil; 
 And with drooping heads the flowers sigh as the day grows 
 
 pale. 
 
 Then, as deeper grows the darkness, and lower sinks the sun, 
 The glittering army of the stars comes forward one by one; 
 The jewels in Heaven's coronet, they sparkle clear and bright 
 And diffuse their pleasant radiance thro' the calm cool summer 
 
 night. 
 
 The Great Bear stalks majestic toward the Northern Pole, 
 While Perseus presses forward, impatient, to his goal, 
 Andromeda stands helpless, wrapped in her long dark hair, 
 While anxious Cassiopiea watches from her royal chair, 
 Aquarius pours forth torrents from his inverted vase, 
 And o'er them transformed Leda glides with matchless 
 
 swanly grace. 
 The Pleiads, mourning their lost sister, cluster in their broken 
 
 group, 
 
 And Orion, in his glittering belt arrayed, surveys the troup. 
 The soft moon rises slowly, and before her mellow light, 
 Awed by her glorious beauty, the stars become less bright. 
 Her golden beams fall gently, and dance o'er hill and dale, 
 And disperse the gloomy shadows far down the woody vale, 
 Where the lonely Usk creeps sluggishly upon its winding way, 
 While on its placid bosom sparkles every silvery ray. 
 Formed by their elfish motions, the glittering path is seen, 
 
 14
 
 CLASS-DAY POEM, '60 
 
 Which seems to lead to Heaven, as in Jacob's holy dream. 
 But, alas! like every pleasure which in this world lures us on, 
 The moment we approach it, that moment it is gone. 
 As the scene becomes still brighter, it shows a royal train 
 Moving along the river with bursts of minstrel strain; 
 The moon-beams, falling o'er it, flash back from lance and 
 
 helm, 
 
 From suits of linked armor, and from regal diadem. 
 With shouts of joyous laughter, they gaily pass along, 
 With many a playful jest, and many a merry song. 
 But their leader, wan and downcast, rides foremost and alone, 
 His armor bent and broken, his crested helmet gone; 
 The flush of shame is on his cheek; grief lurks within his eye, 
 Laughter and jest he heeds not, nor deigns he to reply! 
 For that day was held a tournament on the lovely banks of 
 
 Usk, 
 
 From the dawning of gray sunlight to the setting in of dusk, 
 And before the day was ended the sun shone on the field 
 Strewn with broken spears and lances, and dented helm and 
 
 shield; 
 
 For the Knights of the Round Table met every one that came, 
 And fought the fight for life or death, for honor and for fame. 
 Right gallantly and bravely those knights had held their own, 
 And before the spear of Lancelot the doughtiest chief went 
 
 down. 
 
 Yet next to him, the noblest was one unknown to all; 
 Ne'er before had any seen him near Caerleon's palace hall. 
 Black and gloomy, firmly fastened, was the iron mail he wore. 
 While no herald's mark of honor glittered on the shield he bore. 
 
 15
 
 CLASS-DAY POEM, '60 
 
 Tho' thus devoid of glory, no carpet knight was he, 
 
 But versed in every weapon used in days of chivalrie. 
 
 With lance in rest, he fearless plunged into the thickest fray, 
 
 And to his arm his party owed victory that day; 
 
 Before his charge, full many a knight was hurled upon the 
 
 ground, 
 Who was numbered with the chosen band that filled the 
 
 Table Round; 
 
 Full many a knight grown old in war, and covered with renown 
 From glorious deeds in battle, before that lance went down. 
 Where'er he rode upon the field the wondering crowd fell 
 
 back, 
 And wounded knights, with broken spears, lay stretched upon 
 
 his track. 
 
 The people standing 'round the lists gazed on him with sur- 
 prise, 
 
 As one by one he conquered the lords before their eyes; 
 As rang on shield and helmet his fierce and mighty blows, 
 As tribute to his prowess, shout after shout arose. 
 The ladies, who, in those days, loved gallant men to see, 
 Who with "suaviter in modo," joined "fortiter in re," 
 Waved their silken scarfs and kerchiefs in honor of the knight, 
 And gazed on him with smiling eyes, from the lofty galleries' 
 
 height. 
 
 The faultless King, Sir Arthur, his actions marked with pride, 
 Wondering that such strength and skill in such a stripling 
 
 could abide. 
 
 To test him, he himself resolved to combat in the field 
 In armor undistinguished, with no badge upon his shield. 
 
 16
 
 CLASS-DAY POEM, '60 
 
 Descending from his lofty throne, whereon he sat in state, 
 Donning hastily his helmet, he hied him to the gate 
 Where sat the heralds to whom every knight that came that day 
 Must declare his name and lineage e'er entering in the fray. 
 Once admitted, he rode forward, regardless of his danger, 
 Seeking only, in the melee, to meet the gallant stranger; 
 Soon he saw him coming towards him, leading on his con- 
 quering band, 
 While steed and horseman sank to earth before his mighty 
 
 brand. 
 When these champions saw each other, each laid his lance in 
 
 rest 
 
 And covered with his iron shield his stout and dauntless breast, 
 Each shook his rein, and touched with spur his fiery foaming 
 
 steed, 
 And urged him on with voice and heel to reach his utmost 
 
 speed. 
 
 The lance of each was splintered into fragments by the shock, 
 But the stranger in his saddle sat unmoved as any rock. 
 Not so the King! who from his horse was hurled by the blow, 
 And in the dusty plain his royal head was pillowed low. 
 Then rose again the plebeian shouts to greet the victorious 
 
 hand, 
 For they knew not that the vanquished was the mightiest in 
 
 the land. 
 
 In pain arose King Arthur from the ground whereon he lay, 
 And in mingled shame and anguish he slowly crept away. 
 Then casting off his armor, he again assumed his crown, 
 And, mounting to the galleries, upon his throne sat down; 
 
 17
 
 CLASS-DAY POEM, '60 
 
 He spake to brave Sir Lancelot of the Lake, who by him stood, 
 Who, of all the Knights in Christendom, was accounted great 
 
 and good; 
 
 Who his equal in the lists of battle never yet had found, 
 The strongest lance and bravest sword of all the Table Round. 
 Him bade the King to arm with speed, and go forth in his 
 
 might 
 
 To vindicate his honor 'gainst the young and dauntless knight. 
 Right gladly armed Sir Lancelot and sprang upon his horse, 
 And with visor closed, and spear in rest, rode slowly down the 
 
 course. 
 
 The stranger came to meet him, though sore afraid was he, 
 Knowing full well that by his arm he'd surely vanquished be; 
 His own lance was broken, but by the laws of the fray 
 He must receive his adversary's point as best he may. 
 Before that frightful weapon of lancewood strong and good, 
 No Christian and no heathen ever yet unharmed had stood; 
 Right thro' the shield and breastplate the pointed iron rushed, 
 And from out the wound, in torrents, the bright-red life-blood 
 
 gushed. 
 
 But the stranger smote Sir Lancelot so stoutly with his blade, 
 That broken was his helmet, and a ghastly wound was made: 
 So stunning was the blow the good knight in his saddle reeled, 
 While his opponent, sorely injured, departed from the field: 
 He hastened to his squire, who soon drew forth the steel, 
 And in a hermitage awaited until his wound should heal. 
 Meanwhile the fight had ended, and the heralds made pro- 
 claim 
 
 That Sir Tristam of Leonesse was the brave stranger's name. 
 
 18
 
 CLASS-DAY POEM, '60 
 
 To him the King awarded, as was most justly due, 
 The victory in the combat, as a warrior bold and true. 
 But when the Marshals sought him, to deliver him the prize, 
 He, unseen and unregarded, had vanished from their eyes. 
 Grieved then was good King Arthur, and grieved was all his 
 
 court, 
 
 For they feared the noble chieftain had perished in the sport. 
 Then called the King two of his knights and gave them strict 
 
 command 
 
 To go forth from his presence, and search throughout the land, 
 Till they should find Sir Tristam, that he might numbered be 
 With the Knights of the Round Table in their goodly com- 
 
 panie. 
 
 Then, as the day was ended and night's shadows 'gan to fall, 
 The King returned in silence to Caerleon's palace hall. 
 
 By hap, a short time after, Sir Lancelot sallied forth, 
 
 Resolved to seek for glory and adventure in the North. 
 
 Clad in his linked armor, his good lance in his hand, 
 
 While, by his side, within its sheath, rested his famous brand, 
 
 He departed, unattended, all evils to repress, 
 
 The unprotected to defend, their injuries to redress. 
 
 As he reached a pleasant meadow, beside a flowing stream, 
 
 Thro' the gently-waving greenwood he beheld bright armor 
 
 gleam; 
 
 And from out the leafy forest into the lovely glade 
 A knight rode forth to meet him, for battle all arrayed. 
 Like two vast thunder clouds the warriors 'gainst each other 
 
 dash, 
 
 19
 
 CLASS-DAY POEM, '60 
 
 As in a Summer evening the forked lightnings flash. 
 
 So fierce was the encounter, broken was each saddle girth, 
 
 And each from off his charger fell headlong to the earth. 
 
 A moment, and from out their scabbards leap the good swords 
 
 bright, 
 
 And with quick attack and parry flash in the clear sunlight. 
 Thus, long they fought together, until the gurgling blood 
 Dyed ground and sword and armor with its bright and crim- 
 son flood. 
 
 Sir Lancelot, astonished, "By my good faith!" cried he, 
 "Thou fight'st as well as any knight I ever yet did see. 
 Thy name and lineage I would ask." Then out the stranger 
 
 spake: 
 "Mine is Tristam of Leonesse! Thine?" " Lancelot of the 
 
 Lake!" 
 Then down threw those stalwart warriors their bent and 
 
 bloody brands, 
 
 And swore eternal friendship upon their good right hands. 
 And each took off his armor, and washed away his gore, 
 And side by side set forward for Arthur's court once more. 
 As with merry jest and laughter they through the forest went, 
 They encountered Sir Gaheris and Sir Gawain by Arthur sent 
 In search of brave Sir Tristam to travel thro' the realm 
 And never to return until they brought him back with them. 
 Right glad were they with Lancelot the long-sought knight to 
 
 see, 
 
 And they all rode on together in a goodly companie. 
 When they reached the palace courtyard, straightway came 
 
 the monarch out, 
 
 20
 
 CLASS-DAY POEM, '60 
 
 With his train of gallant nobles encircling him about. 
 "Welcome! Welcome!" cried he, as he took Sir Tristam by 
 
 the hand; 
 "Welcome, for as brave and true a knight as lives within this 
 
 land!" 
 "Welcome!" said all the nobles, and they passed within the 
 
 hall. 
 "Welcome! Welcome! good Sir Tristam," said the Queen 
 
 and ladies all. 
 
 I have told this story, Classmates, 
 In my awkward, halting rhyme, 
 To show the deeds which knights performed 
 In battle, in old time. 
 And as, when the fight was over, 
 And the victor gained the prize, 
 He deemed he saw his best reward 
 In a lady's smiling eyes; 
 So we, who have termed ourselves 
 Knights of the Table Round, 
 In the praise of those whom most we love 
 Our highest joy have found! 
 As they made every effort 
 To win themselves a name, 
 So we have struggled manfully 
 For honor and for fame! 
 We have fought the fight together 
 In our quiet College life, 
 And we now go forth, tho' singly, 
 21
 
 CLASS-DAY POEM, '60 
 
 To a greater, nobler strife. 
 We have fought the battle bravely, 
 We have done our duty here, 
 And of our success hereafter 
 We should have no sickly fear! 
 Only keep one holy object 
 Ever bright before our eyes; 
 And determine "To act well our part; 
 There all the honor lies!" 
 So that when we reach life's sunset 
 And review the path we've trod, 
 We may feel that we have labored 
 "For our Country and our God!" 
 And when our day is ended, - 
 Our spirit gained its goal, 
 We may each feel "I have kept the Faith, 
 Christ receives my soul!"
 
 ALCHEMY AND THE ALCHEMISTS 
 
 COMMENCEMENT ORATION, JUNE 28rH, 1860
 
 ALCHEMY AND THE ALCHEMISTS 
 
 TO investigate the gradual development of the human 
 mind, to trace an idea, expanded slowly by successive 
 generations until it becomes a fact, to follow back a principle 
 of science, step by step, until we reach its germ in some appar- 
 ently unimportant and trivial thought, is always a curious, 
 as well as interesting, process. The great work of man is 
 improvement, and thus it happens that nothing springs per- 
 fected into being, but, commencing with the little seed, 
 slowly and by almost imperceptible gradations becomes the 
 strong and full-grown tree. Every great discovery or inven- 
 tion, whether in science, philosophy, or art, has passed 
 through this process, and it is by noting their developments 
 that we read the history of the human mind. 
 
 In this study, we often I might say, always see him 
 who is far in advance of his age scoffed at as an enthusiast or 
 an idiot. Not only a Galileo is persecuted for daring to 
 maintain that the planets move, not only a Columbus over- 
 whelmed with scorn for believing that an undiscovered world 
 exists. Yet for such men the laurel crown is surely woven, 
 though the brows upon which it should repose have returned 
 to dust before their merit is acknowledged. They sink to 
 rest, but the memory of their deeds remains, and future ages 
 
 25
 
 ALCHEMY AND THE ALCHEMISTS 
 
 appreciate their labors and deplore their fate. Thus has it 
 been with the alchemists. Derided and ridiculed for nearly 
 three hundred years, laughed at as the wildest of all enthu- 
 siasts, the most romantic of all dreamers, now offered their 
 niche in the temple, among those who devoted themselves to 
 science. Modern chemistry acknowledges that their labors 
 laid the foundation of her noble structure, and from their 
 discoveries she has elucidated many of her most important 
 truths. She asserts even that the Philosopher's Stone, whose 
 magic touch was to transform every metal into gold, is not 
 merely the fancy of a diseased imagination, but a problem 
 whose solution she will soon obtain. Under these circum- 
 stances, it may not be useless or unentertaining to consider 
 briefly their history and their aims. 
 
 Alchemy was first cultivated by the Arabs and, like most 
 of the natural sciences, by them imparted to Europe. This 
 science, with its astounding discoveries its wonderful in- 
 formation concerning the composition of the works of nature 
 its still more attractive promises of boundless wealth and 
 endless life, offered most tempting allurements. Can we 
 wonder that in those dark ages of superstition and folly such a 
 system as this should have met success ? Can we wonder 
 that, when those who were accounted men of learning were 
 induced by its grains of truth to accept also its mass of chaff, 
 the vulgar and illiterate should be dazzled by its pretensions ? 
 With such enticements and such advocates, we need not deem 
 it strange that, a few centuries later, we find it universally 
 received. Monks, like Roger Bacon, practised it in the dark 
 recesses of their cells. Kings, like Henry VI of England, 
 
 26
 
 ALCHEMY AND THE ALCHEMISTS 
 
 endeavored by means of it to recruit their empty coffers. 
 Nobles and commoners expended their fortunes, and wasted 
 their lives, in the vain effort to penetrate its mysteries. In 
 those days the student of nature did not, as now, invite the 
 world to view his labors and participate in the fruits of his 
 discoveries. The alchemist shunned the public gaze and 
 courted the deepest retirement and seclusion. We read the 
 lives of those who, immured in their lonely cells, surrounded 
 by alembics and retorts, and seeing no human face, ate, 
 watched, and slept through weary days and anxious nights for 
 ten long years, maintaining an undying fire beneath the huge 
 still whose product was expected to reward all their labors; 
 and then saw the object of so many hopes and fears ruined 
 by some unforeseen catastrophe. Yet, undeterred and un- 
 discouraged, the patient philosopher would recommence his 
 hopeless task. Before such perseverance and such energy 
 we stand astonished, and regret it was not devoted to some 
 more practical end. 
 
 The votaries of alchemy insisted that its principles were 
 first asserted by Solomon and Pythagoras, and that beneath 
 the solid structure of the Great Pyramid Hermes deposited 
 the secret of the Philosopher's Stone, written with letters of 
 emerald upon plates of gold. Even men of learning and 
 students of the classics bent their influence to support these 
 fancies. Suidas himself gravely states that the Golden Fleece 
 for which the Argonauts encountered so many perils was a 
 parchment scroll, on which was inscribed the method for 
 transmuting metals. 
 
 As the ages grew still darker, and the human mind yielded 
 27
 
 ALCHEMY AND THE ALCHEMISTS 
 
 itself a willing prey to every superstition and folly, alchemy 
 degenerated into mere magic and mysticism. A pantheistic 
 tone becomes apparent among the students of the time, and 
 every chemical reaction is ascribed to supernatural agency. 
 This was but natural at a period when even the Church had 
 lost sight of the One Triune God, and called for the interven- 
 tion of saints and minor deities in all the affairs of life. This 
 disposition culminates with Paracelsus at the beginning of the 
 sixteenth century. To him, an imprisoned sprite was en- 
 closed in every base, while a fierce and flaming demon lurked 
 in every acid. Every operation of nature, every chemical 
 union, was ascribed to a contest between these invisible 
 spirits, as we may trace in many of the names still used by 
 chemists. 
 
 The Reformation came, with its glorious light, sweeping 
 away the thick cobwebs of superstition and error, and illu- 
 minating the dark recesses of the human mind. Men awoke 
 from the lethargy in which they had so long slumbered, and 
 throwing off the yoke of intellectual servitude learned to 
 think and act for themselves. Science, no less than religion, 
 felt the influence of the change, and rose at once to its true 
 position. No longer groping in obscure and narrow paths, 
 no longer resting on false hypotheses and imperfect reasoning, 
 alchemy established the unalterable dictum, that nothing 
 should be assumed which could not be clearly proved. With 
 her followers in this age begins the epoch of inductive reason- 
 ing, and she emerges from her chrysalis in the form of modern 
 chemistry. The reign of superstition is ended, the dominion 
 of true science takes its place. 
 
 28
 
 ALCHEMY AND THE ALCHEMISTS 
 
 The ends of the alchemists were lofty, their aspirations 
 noble. They hoped that their efforts would ameliorate the 
 condition of the human race, and render the world happier 
 and better. They were actuated by no selfish desire to obtain 
 wealth for themselves alone, but intended to furnish it freely 
 to all mankind. Nor should we consider their expectations 
 absurd or ridiculous. The great Sir Humphrey Davy was 
 led by his researches to declare as his opinion that chemistry 
 would soon make gold the commonest of metals. The later 
 experiments of Schonbein and Faraday tend to increase this 
 probability, and confirm their hopes. When we see the same 
 substance existing as the common and unsightly charcoal and 
 the rare and sparkling diamond, the brittle phosphorus, in- 
 flamed by the slightest friction, changed into a dark elastic 
 substance which no heat can kindle, sulphur losing all its 
 ordinary properties and becoming a dark and viscid fluid, 
 oxygen so altered as to be capable of identification only by 
 the most subtle test, we may readily believe that gold and 
 silver may be only other forms of some baser metal. Con- 
 sider also that many of these elements have the same 
 atomic weight, and our argument from analogy is complete. 
 
 Such, in brief, is the history of the alchemists, and the end 
 for which they labored. And although I recognize and 
 deplore their errors, I would ascribe them to the spirit of the 
 age, especially to the influence of a corrupted church, rather 
 than to the science, or its followers. We can view in the 
 clear light of scientific knowledge what they saw "as through 
 a glass, darkly," we can investigate what they, with limited 
 apparatus and still more limited means, could only conjecture. 
 
 29
 
 ALCHEMY AND THE ALCHEMISTS 
 
 I would claim for them a proper appreciation as men who 
 devoted themselves to science for the benefit of mankind. 
 More than all, I would honor them as the real founders of 
 modern chemistry : a science to which much of the civiliza- 
 tion of the world is due for the discoveries she has made, and 
 the improvements she has promoted in agriculture and the 
 arts: a science which has furnished incalculable aid to medi- 
 cine by the information she has given concerning our bodies, 
 and the best manner of preserving and perfecting them. And 
 especially, a science which, more than any other, shows the 
 omniscience of the Designing Mind which could from a few 
 simple elements form the endless variety of natural objects 
 which encircles us, and in which we see reflected, as in a 
 mirror, His goodness and His power. 
 
 30
 
 TWELFTH-NIGHT OBSERVANCES 
 
 A PAPER READ BEFORE THE ST. NICHOLAS CLUB 
 JANUARY GTH, 1887
 
 TWELFTH-NIGHT OBSERVANCES 
 
 Gentlemen of the St. Nicholas Club: 
 
 THE occasion suggests, or rather prescribes, the subject. 
 Having been invited to read a paper to you on "Twelfth- 
 Night," it is imperative to take for a text the associations of 
 the festival. It would seem proper that I should refer rather 
 to its social than to its ecclesiastical features; yet it is so essen- 
 tially a church festival in its character, that it is impossible to 
 avoid mention of the legend which gives significance to the 
 day. Coming at the end of the Christmas holidays, the last 
 of the thirteen days devoted, from the earliest period of the 
 Christian Era, to the celebration of the manifestation of God 
 in the flesh, the picture of the Holy Babe smiling from his 
 mother's knee upon the Wise Men of the East kneeling 
 before him is the one which first comes to our minds as the 
 great event which the Western Church has always remem- 
 bered on this anniversary. In the Eastern Church other 
 incidents were held to have occurred at the same time; such 
 as the baptism of our Lord in the River Jordan, the miracle 
 of the multiplication of the five loaves and the two fishes, and 
 the first miracle, the changing of water into wine at the mar- 
 riage in Cana in Galilee. It was in vague allusion to the 
 latter that it was for centuries in some of the Eastern churches 
 
 33
 
 TWELFTH-NIGHT OBSERVANCES 
 
 the custom to fetch water from the springs at midnight on 
 this festival, in the belief that it would then keep fresh and 
 pure through the whole of the coming year. But the Western 
 churches without exception have celebrated, on the so-called 
 "Little Christmas," only the visit of the Magi or Wise Men 
 to the infant Saviour. 
 
 The legend alluded to has appeared in many forms, but 
 I take by preference the one given by Mrs. Clement in her 
 "Handbook of Legendary and Mythological Art." Accord- 
 ding to her story, these Magi were not men who knew the 
 arts of magic, but wise princes of some Eastern country. 
 The prophecy of Balaam had been held in remembrance by 
 their people, "I shall see him, but not now; I shall behold 
 him, but not nigh; there shall come a star out of Jacob, and 
 a sceptre shall rise out of Israel." And when they saw a 
 star differing from those which, as learned astronomers, they 
 had studied, they recognized it as the star of the prophecy, 
 and at once followed where it led. It has been said that the 
 star when first seen had the form of a child bearing a sceptre 
 or cross. The Wise Men said farewell to their homes and 
 friends, and took numerous attendants for their long journey. 
 After many perils and difficulties, the climbing of mountains, 
 the crossing of deep streams, they came to Jerusalem. On 
 inquiring for the king they sought, they were directed to 
 Bethlehem, and asked by Herod to bring him news on their 
 return of where the child could be found, that he too might 
 worship him. At length the star stood still over the lowly 
 place where Jesus was. No matter how different may have 
 been their previous imaginings from the reality they found, 
 
 34
 
 TWELFTH-NIGHT OBSERVANCES 
 
 their faith was equal to the demand upon it, and they bowed 
 down; thus giving themselves first, and then presented the 
 gold, which signified that Jesus was King; the frankincense 
 that he was God; and the myrrh, that he was suffering man, 
 and must yield to death. In return for their gifts Christ 
 gave them charity and spiritual riches in place of gold; per- 
 fect faith for their incense; and for the myrrh, truth and 
 meekness of spirit. The Virgin gave them, as a precious 
 memorial, one of the linen bands in which she had wrapped 
 the divine child. 
 
 Being warned in a dream, they returned not to Herod, but 
 went by another way. There is a legend that their home- 
 ward journey was made in ships, and in a commentary on 
 the Psalms, of the fifth century, it is said that when Herod 
 found that they had escaped from him in "ships of Tarsus," 
 he burned all the vessels in the port. But, however they 
 returned, the legend states that the star guided them to the 
 East as it had led them from it, and they reached their homes 
 in safety. They never again assumed their former state, 
 but in imitation of their new sovereign they gave their wealth 
 to the poor, and went about to preach the new Gospel of 
 Peace. There is a tradition that after forty years, when St 
 Thomas went to the Indies, he met there these wise men, and 
 baptized them; and afterward, as they continued to preach, 
 they went among barbarians and were put to death. Long 
 after, their remains were found, and the Empress Helena 
 had them removed to Constantinople. During the first 
 crusade they were removed to Milan, and lastly the Emperor 
 Barbarossa placed them in the cathedral at Cologne, where 
 
 35
 
 TWELFTH-NIGHT OBSERVANCES 
 
 they remain in a costly shrine, and have performed many 
 wonderful miracles. The names of these three "Kings of 
 Cologne," as they are often called, are Jaspar or Caspar, 
 Melchior, and Balthasar. In the pictures they are of three 
 ages: the first, Jaspar, very old, with gray beard; Melchior, 
 of middle age; and Balthasar, always young, and sometimes 
 a Moor or black man, to signify that he was of Ethiopia, and 
 that Christ came to all races of men. 
 
 Chambers, in the " Book of Days," enlarges somewhat upon 
 the significance of the three gifts. According to this author- 
 ity, Melchior presented the gold to the infant Saviour in 
 testimony of his royalty as the promised King of the Jews; 
 Jaspar, the frankincense in token of his divinity; and Bal- 
 thasar, the myrrh in allusion to the sorrows which, in the 
 humiliating condition of a man, our Redeemer vouchsafed to 
 take upon Him. 
 
 As far back as the days of King Alfred, the chroniclers 
 inform us, a statute was enacted in relation to holidays by 
 virtue of which the twelve days after the Nativity were made 
 festivals. We should expect, therefore, to find in English 
 history that "Twelfth-Night," as the last of these festivals, 
 should have many special observances connected with it; 
 and such in fact proves to be the case. 
 
 The dancers around Squire Raby's hearth in Charles 
 Reade's novel, called "Put Yourself in His Place," executing 
 a sword-dance in honor of King George, were doubtless per- 
 petuating a custom even older than Christianity; but it is 
 worth while to observe that all the special festivities of the 
 time have, in some degree, an association with royalty and 
 
 36
 
 TWELFTH-NIGHT OBSERVANCES 
 
 authoritative station. Thus, the King of the Bean was a 
 dignity recognized in the two universities of England, as well 
 as in the Inns of Court, and annually conferred upon the 
 lucky individual who found the bean in the divided cake, on 
 "Twelfth-Night," and the custom has existed for many cen- 
 turies. "At court, in the eighth year of Edward III, this 
 majestic title was conferred upon one of the king's minstrels, 
 as we find by an entry in a computus so dated, which states 
 that sixty shillings were given by the king upon the day of the 
 Epiphany, to Rogan, the trumpeter, and his associates the 
 court minstrels, in the name of the King of the Bean." 
 
 Cognate to this, and celebrated usually at the same time, 
 was the Festival of Fools, when a mock bishop or Pope was 
 elected, who, attended by a proper ecclesiastical court, attired 
 in ridiculous dresses, imitated the most sacred services of the 
 Church, with every conceivable accompaniment of profanity 
 and indecency. In the north of England Fool-plow goes 
 about, a pageant that consists of a number of sword- 
 dancers dragging a plow about, with music, and one, or 
 sometimes two of them, attired in very antic dress: as the 
 Bessy in the grotesque habit of an old woman, and the Fool 
 almost covered with skins, a hairy cap on his head, and the 
 tail of some animal hanging down his back. The office of 
 one of these characters is to go about rattling a box among 
 the spectators of the dance, to collect their little donations; 
 and it is remarkable that in some places where this pageant 
 is retained they plow up the soil before any house where they 
 receive no reward. The pageant and the dance seem to be a 
 composition of gleanings of several obsolete customs follower' 
 
 37
 
 TWELFTH-NIGHT OBSERVANCES 
 
 anciently. The Fool and the Bessy are plainly fragments 
 of the Festival of Fools. 
 
 Mr. Strutt, from whose " Sports and Pastimes of the People 
 of England" I have taken the foregoing story, adds that the 
 Fool-plow was perhaps the Yule-plow; it is also called the 
 white-plow, because the gallant young men who compose 
 the pageant appear to be dressed in their shirts, without coats 
 or waistcoats, upon which great numbers of ribbons folded 
 into roses are loosely stitched. 
 
 The Wassails, which originally were a New Year's custom, 
 prevailed in Cornwall within a century as a "Twelfth-Night" 
 observance. The wassail bowl, a bowl of spiced ale, was 
 carried about by young women from door to door in their 
 several parishes; they sang a few couplets of homely verses 
 composed for the occasion, and presented the liquor to the 
 inhabitants of the house where they called, expecting a small 
 gratuity in return. This custom is supposed to be derived 
 from a time of remote antiquity, and to have originated in the 
 words of Rowena, the daughter of Hengist, who, presenting 
 a bowl of wine to Vortigern, the king of the Britons, said, 
 "Woes Hael," or Health to you, my lord the King! 
 
 The limited time at my disposal prevents me from referring 
 to the ceremonies of the Yule-tide, although some of them 
 extended throughout the entire period of the holidays. 
 
 For this assembly, so largely descended from the sturdy 
 burghers who tranquilly smoked their pipes on the stoops of 
 New Amsterdam in the long ago, I was desirous of describing 
 some peculiarly Dutch custom, but I have been unable to 
 find any, with perhaps a single exception. I hesitate to cite 
 
 38
 
 TWELFTH-NIGHT OBSERVANCES 
 
 here so irreverent a work as the "History of New-York," by 
 the late Diedrich Knickerbocker, but that somewhat untrust- 
 worthy author occasionally allowed himself to be led away 
 by the truth, and the inherent probabilities that he did so in 
 the passage I am about to quote are very strong. In speaking 
 of the usual assemblage at the Governor's House, on the first 
 day of the year, he says: "On this occasion the good Peter 
 was devoutly observant of the pious Dutch rite of kissing the 
 women -kind for a Happy New-Year; and it is traditional that 
 Antony the trumpeter, who acted as Gentleman Usher, took 
 toll of all who were young and handsome as they passed 
 through the ante-chamber. This venerable custom, thus 
 happily introduced, was followed with such zeal by high and 
 low that on New-Year's Day, during the reign of Peter 
 Stuyvesant, New Amsterdam was the most thoroughly be- 
 kissed community in all Christendom." 
 
 Accepting the theory of heredity and reasoning from the 
 descendants back to the ancestors, may we not fairly and 
 reasonably infer that this pleasing custom was not allowed 
 to fall into desuetude with the day, but was continued through 
 the remainder of the holidays, until it culminated on this 
 anniversary ? It appears to me to be worthy of consideration 
 whether the members of this Club should not, in pious rev- 
 erence for the memory of their ancestors, endeavor to restore 
 so agreeable an observance, and again make this a prominent 
 feature in their celebration of this day. 
 
 I have outlined very briefly the customs of the past. Cui 
 bono do you ask ? Of what advantage is it to spend time 
 in the consideration of these beliefs and manners of departed 
 
 39
 
 TWELFTH-NIGHT OBSERVANCES 
 
 generations ? Taking only the purely material view, I hold 
 that in this busy, active life, especially in the turmoil of this 
 great city, with its unceasing pressure and drain upon brain 
 and muscle, anything is an advantage and a benefit which 
 will, if only for a few moments, free us from the cares and 
 worries of every day, and turn our minds into new pastures 
 of thought or fancy. It is related of one of the ancient philos- 
 ophers that he would play leap-frog with his disciples until in 
 danger of discovery by some one who had not sufficient 
 capacity for labor to appreciate the necessity for relaxation; 
 and a wiser than Grecian sage has told us that there is a time 
 to laugh, as there is a time to work. 
 
 Let us, for this everning at least, believe that the kindly 
 beams of the "Twelfth-Night" Star fall on us as brightly as 
 they fell on the Three Kings of old, and pray that they may 
 lead us, as they led them, though it may be through toils 
 and struggles, to happiness and peace at last! 
 
 40
 
 MYSTERIES AND MASQUES 
 
 A PAPER READ BEFORE THE ST. NICHOLAS CLUB ON 
 TWELFTH-NIGHT, 1892
 
 MYSTERIES AND MASQUES 
 
 Gentlemen of the St. Nicholas Club: 
 
 YOUR House Committee has honored me by an invitation 
 to read a paper before you this evening, but did not have 
 the kindness to suggest a subject, and left me to my own re- 
 sources. On a former occasion I related some of the ancient 
 customs and observances incidental to the Twelfth-Night 
 celebrations of old, and in the endeavor to find some cognate 
 topic I have decided to ask your attention to a brief account of 
 the stage representations which, beginning with the rude and 
 uncouth miracles and moralities of a remote antiquity, devel- 
 oped into the magnificent masques of the sixteenth and seven- 
 teenth centuries, employing all that was best and finest in the 
 literature and art of the period. 
 
 The primitive Christians were not supporters of the drama. 
 The new religion was to them something very real and earnest, 
 of an absorbing nature, and their devotion to it and to its 
 propagation left them but little leisure for the amusements 
 and relaxations of life. Believing in all sincerity that they 
 were called upon to save a perishing world, which could be 
 brought to future happiness only through the glad tidings 
 which they preached, and believing equally that the end of 
 all things was near at hand, the work to be done was too 
 
 43
 
 MYSTERIES AND MASQUES 
 
 great, and the time to work in too short, to permit of any 
 waste of opportunity or any indulgence in leisure. Perhaps, 
 too, the fact that so many of them were compelled to be 
 prominent actors in the festivities of the period, in roles of 
 a most depressing and unpleasant character, had the not 
 unnatural effect of weakening their taste for spectacular 
 performances. 
 
 So to the extent of their influence the drama languished, 
 and when they came into power, and in the fourth century 
 not only refused the sacraments of the Church to all actors 
 and mountebanks, but excommunicated all who went to the 
 theatre on Sundays and other holidays instead of attending 
 divine service, theatrical representations fell for the time into 
 utter disrepute and then into abeyance. With a natural result 
 the average man is not so constituted that he can live always 
 on the high plane of preparation for a future state, in which 
 the spirit only is to survive and the body with its passions and 
 desires be utterly non-existent. He must have some con- 
 cession made to his longing for entertainment in this world; 
 and in an ignorant age, when the vast majority of mankind 
 had but little to vary the dull monotony of their lives, when 
 there was for the great mass no literature, no art, no music, 
 no culture, the necessity for amusement became imperative, 
 and in the absence of theatres and gladiatorial shows, min- 
 strels, jongleurs, mountebanks, traveling performers of all 
 kinds began to appear in response to the demand. Quick 
 to appreciate the position, the clergy accommodated them- 
 selves to circumstances, and even in the fifth century increased 
 the attraction of public worship on special occasions by living 
 
 44
 
 MYSTERIES AND MASQUES 
 
 pictures and songs illustrating the narrative of the Gospel. 
 This gradually developed until in the tenth century, on the 
 great ecclesiastical festivals, it was customary to perform the 
 offices of the Shepherds, the Innocents, the Holy Sepulchre, 
 etc., and in France, in the eleventh century, short Latin texts 
 were written for these liturgical mysteries, including passages 
 from the popular legend of St. Nicholas as well as from the 
 Scriptural story. 
 
 Three Latin miracles written early in the twelfth century 
 by Hilarius, a disciple of Abelard, are extant; the subjects 
 are, the raising of Lazarus, the life of St. Nicholas, and the 
 history of Daniel. 
 
 I should have been very glad to have described the miracle 
 of the life of St. Nicholas, but I have been unable to find a 
 copy of it. I think it fair to assume that it depicted the good 
 Saint in his two great acts of throwing purses through the 
 window of the impoverished nobleman, to enable him to 
 dower his portionless daughters, and of resurrecting the 
 pickled children from the pork-barrel of the wicked landlord. 
 He was pre-eminently the Saint of serfdom, of maidens and 
 scholars, travelers and children, mariners and all who were 
 downtrodden and oppressed. Mrs. Jameson, in her "Sacred 
 and Legendary Art," says that, "While Knighthood had its 
 St. George, Serfhood had its St. Nicholas. He was emphat- 
 ically the Saint of the people; the bourgeois Saint, invoked 
 by the peaceable citizen, by the laborer who toiled for his 
 daily bread, by the merchant who traded from shore to shore, 
 by the mariner struggling with the stormy ocean. He was 
 the protector of the weak against the strong, of the poor against 
 
 45
 
 MYSTERIES AND MASQUES 
 
 the rich, of the captive, the prisoner, the slave; he was the 
 guardian of young marriageable maidens, of schoolboys, 
 and especially of the orphan poor. In Russia, Greece, and 
 throughout all Catholic Europe, children are still taught 
 to reverence St. Nicholas, and to consider themselves as 
 placed under his peculiar care; 'if they are good, docile, and 
 attentive to their studies, St. Nicholas, on the eve of his 
 festival, will graciously fill their cap or their stocking with 
 dainties, while he has as certainly a rod in pickle for the idle 
 and unruly.'" 
 
 While he was regarded as one to be especially invoked in 
 time of peril by thieves, he appears to have been esteemed 
 by them as their especial patron, and the expression "clerks 
 of St. Nicholas" was applied to them by common consent. 
 In the early times, when every noble was a cruel oppressor, 
 and every serf felt himself justified in foro conscientice in re- 
 dressing what he felt to be injustice by every means in his 
 power, the thief was a champion of the rights of his class, 
 and no doubt thought himself entitled to the protection of the 
 one who had ever been the champion of the weak against the 
 strong. It may well be also that the thief recalled the action 
 of St. Nicholas at his episcopal seat of Myra when he took 
 grain from the Government ships on their way to Alexandria, 
 to feed his starving people, and felt entitled to his sympathy 
 in robbing the rich, if after doing so he divided his spoil with 
 the poor. It is hard to have to acknowledge that the good 
 Bishop was in fact only the ante-type of the later Robin 
 Hood, but the legends attached to his name compel me to the 
 conclusion that such was really the case. 
 
 46
 
 MYSTERIES AND MASQUES 
 
 In those early days, the stage on which these representa- 
 tions were given was so constructed that it could be moved 
 from place to place. As described by Strutt in his " Manners 
 and Customs of the English," it consisted of three several 
 platforms or stages, raised one above another. "On the 
 uppermost sat the Pater Ccelestis, surrounded with his angels : 
 on the second appeared the holy Saints and glorified men; 
 and the last and lowest was occupied by mere men who had 
 not yet passed from this transitory life to the regions of 
 eternity. On one side of this lowest platform was the resem- 
 blance of a dark pitchy cavern from whence issued appear- 
 ance of fire and flames; and, when it was necessary, the 
 audience were treated with hideous yellings and noises as 
 imitative of the howlings and cries of the wretched souls 
 tormented by the relentless demons. From this yawning 
 cave the devils themselves constantly ascended to delight and 
 instruct the spectators; to delight, because they were usually 
 the greatest jesters and buffoons that then appeared; and to 
 instruct, for that they treated the wretched mortals who were 
 delivered to them with the utmost cruelty, warning thereby 
 all men carefully to avoid falling into the clutches of such 
 hardened and remorseless spirits." A realistic picture of an 
 intensely realistic age, when little or nothing was left to the 
 imagination, and everything which it was intended the spec- 
 tators should comprehend was presented to them with the 
 utmost directness and simplicity. Disraeli in his "Curi- 
 osities of Literature" mentions a play acted in one of the 
 principal cities of England, under the direction of the trading 
 companies of the city, before a numerous assemblage of both 
 
 47
 
 MYSTERIES AND MASQUES 
 
 sexes, wherein Adam and Eve appeared on the stage entirely 
 naked, performing their whole part in the representation of 
 Eden, to the serpent's temptation, to the eating of the forbid- 
 den fruit, the perceiving of and conversing about their naked- 
 ness, and to the supplying of fig leaves to cover it. 
 
 The most flourishing period of these plays was when they 
 were presented by the trading companies of the different 
 cities, and of these the most important in England were the 
 performances in Chester and Coventry. Of the former, the 
 fullest accounts have been preserved. They were exhibited 
 as early as 1268, continuing with few interruptions until 
 1577, and consisted of twenty-four dramas which were repre- 
 sented from Whit-Monday until the following Wednesday. 
 Among the subjects are, "The Fall of Lucifer," performed 
 by the Tanners; "The Creation," by the Drapers; "The 
 Deluge," by the Dyers; "Abraham, Melchizedek and Lot," 
 by the Barbers and Wax-chandlers; "Moses, Balak and 
 Balaam," by the Hatters and Linen-drapers; "The Killing 
 of the Innocents," by the Goldsmiths; "The Descent into 
 Hell," by the Cooks; "The Ascension," by the Tailors; 
 "Antichrist," by the Dyers; and "The Day of Judgment," 
 by the Websters or Weavers. According to a description 
 written toward the close of the sixteenth century, "Every 
 company had his pageant, which pageants were a high scaffold 
 with two rooms, a higher and a lower, upon four wheels. In 
 the lower they appareled themselves, and in the higher they 
 played, being all open at the top that all beholders might hear 
 and see them. The places where they played were in every 
 street. They began first at the Abbey gates, and when the 
 
 48
 
 MYSTERIES AND MASQUES 
 
 first pageant was played it was wheeled to the high Cross 
 before the Mayor and so to every street, and so every street 
 had a pageant playing before them at one time until all the 
 pageants appointed for the day were played; and when one 
 pageant was near ended, word was brought from street to 
 street, that so they might come in place thereof exceedingly 
 orderly, and all the streets have their pageants afore them all 
 at one time playing together; to see which plays was great 
 resort, and also scaffolds and stages made in the streets in 
 those places where they determined to play their pageants." 
 
 These pageants received different names, according to the 
 subjects represented. Thus the "Mysteries," so called, deal 
 with Scriptural events only, and of this class is the "Passion 
 Play," performed decennially at Ober-Ammergau, the best- 
 known survival of these mediaeval customs. The " Miracles " 
 were strictly concerned with the legends of the Saints of the 
 Church, and the "Moralities" were where the characters 
 represented feigned or allegorical personages. Disraeli gives 
 an account of one very old one, entitled "The Condemnation 
 of Feasts, to the Praise of Diet and Sobriety for the benefit 
 of the Human Body"; a subject of much importance to all of 
 us even at the present time. Toward the close is a trial be- 
 tween Feasting and Supper. They are summoned before 
 Experience, the Lord Chief Justice. Feasting and Supper 
 are accused of having murdered four persons by force of 
 gorging them. Experience condemns Feasting to the gallows, 
 and his executioner is Diet. Feasting asks for a father con- 
 fessor, and makes a public confession of so many crimes, 
 such numerous convulsions, apoplexies, headaches, and 
 
 49
 
 MYSTERIES AND MASQUES 
 
 stomach qualms, etc., which he has occasioned, that his 
 executioner, Diet, in a rage stops his mouth, puts the cord 
 about his neck and strangles him. Supper is only condemned 
 to load his hands with a certain quantity of lead, to hinder 
 him from putting too many dishes on the table; he is also 
 bound over to remain at the distance of six hours' walking 
 from Dinner, upon pain of death. Supper felicitates himself 
 upon his escape, and swears to observe the mitigated sentence. 
 
 At the Council of Constance, in the year 1417, the English 
 fathers gave a mystery of "The Massacre of the Holy Inno- 
 cents." In this play a low buffoon was introduced, desiring 
 of his lord to be dubbed a knight, that he might be properly 
 qualified to go on the adventure of killing the mothers of the 
 children of Bethlehem, which was treated with the most 
 ridiculous levity. The good women of Bethlehem attacked 
 the knight errant with their spinning-wheels, broke his head 
 with their distaffs, abused him as a coward and disgrace to 
 chivalry, and sent him home to Herod as a recreant cham- 
 pion, with much ignominy. 
 
 From these representations, slowly progressing and im- 
 proving through the ages, came the Masques, which reached 
 their highest development during the first half of the seven- 
 teenth century. I think that the most of us form our idea 
 of what we know of the drama of that period from our asso- 
 ciations with Shakspeare and the Globe Theatre, and because 
 we have read that there the scene was indicated by putting 
 up a sign reading that "This is a castle," or "This is a blasted 
 heath," we infer that this was the highest point which dra- 
 matic art had then attained. But this conception, so gen- 
 
 50
 
 MYSTERIES AND MASQUES 
 
 erally entertained, utterly ignores what Disraeli terms the 
 most gorgeous, the most fascinating, and the most poetical 
 of dramatic amusements, which combined all that was ex- 
 quisite in the imitative arts of poetry, painting, music, song, 
 dancing, and machinery at a period when the public theatre 
 was in its rude infancy. Says Gifford, in his "Memoirs of 
 Ben Jonson": "The Masque, as it attained its highest degree 
 of excellence, admitted of dialogue, singing, and dancing; 
 these were not independent of one another, but combined, 
 by the introduction of some ingenious fable, into an har- 
 monious whole. When the plan was formed, the aid of the 
 sister-arts was called in; for the essence of the Masque was 
 pomp and glory. Movable scenery of the most costly and 
 splendid kind was lavished on the Masque; the most cele- 
 brated Masters were employed on the songs and dances; and 
 all that the kingdom afforded of vocal and instrumental ex- 
 cellence was employed to embellish the exhibition." Thus 
 magnificently constructed, the Masque was not committed 
 to ordinary performers. It was composed, as Lord Bacon 
 says, for princes, and by princes it was played. Of these 
 Masques, the skill with which their ornaments were designed, 
 and the inexpressible grace with which they were executed, 
 appear to have left a vivid impression on the mind of Jonson. 
 His genius awakes at once, and all his faculties attune to 
 sprightliness and pleasure. He makes his appearance like 
 his own Delight, accompanied with Grace, Love, Harmony, 
 Revel, Sport, and Laughter. 
 
 " But in what was the taste of the times wretched ? In 
 poetry, painting, architecture, they have not since been 
 
 51
 
 MYSTERIES AND MASQUES 
 
 equaled; and it ill becomes us to arraign the taste of a period 
 which possessed a cluster of writers of which the meanest 
 would now be esteemed a prodigy." Indeed, I find it very 
 easy to believe that a spectacular representation produced 
 without any reference to the cost, for which Ben Jonson 
 wrote the words, Henry Lawes composed the music, and 
 Inigo Jones designed the machinery, would compare very 
 favorably with the Black Crooks and Puppen-Fees of to-day. 
 It seems to be beyond doubt that the movable scenery formed 
 as perfect an illusion as any that our own age, with all its 
 perfection in decoration, has attained, and it is equally be- 
 yond doubt that this result was exceedingly expensive. "The 
 Masque of Blackness," by Jonson and Jones, performed at 
 Whitehall on Twelfth-Night, 1603, cost what would now be 
 nearly ten thousand pounds sterling, and the Earl of Strafford 
 in his "Letters" remarks, "There are two Masques in hand, 
 the first of the Inns of Court, which is to be presented on 
 Candlemas Day; the other, the King presents the Queen 
 with on Shrove Tuesday at night; high expenses, they talk 
 of twenty thousand pounds sterling that it will cost the men 
 of the law"; a very much larger sum three and a half cen- 
 turies ago than it is to-day, but which even now would seem 
 to poor lawyers a great deal of money to expend upon an 
 evening's entertainment. 
 
 To show the elaborate character of the scenery in these 
 performances, permit me to describe the "Lord's Masque," 
 presented on the occasion of the marriage of the daughter of 
 James I to the Elector Palatine in 1613. The scene was 
 divided into two parts, from the roof to the floor; the lower 
 
 52
 
 MYSTERIES AND MASQUES 
 
 part being first discovered, there appeared a wood in per- 
 spective, the innermost part being of "releeve or whole 
 round," the rest painted. On the left a cave, and on the 
 right a thicket from which issued Orpheus. At the back 
 part of the scene, at the sudden fall of a curtain, the upper 
 part broke on the spectators, a heaven of clouds of all hues; 
 the stars suddenly vanished, the clouds dispersed; an element 
 of artificial fire played about the house of Prometheus; a 
 bright and transparent cloud, reaching from the heavens to 
 the earth, whence the eight Masques descended with the 
 music of a full song; and at the end of their descent the cloud 
 broke in twain, and one part of it, as with a wind, was blown 
 athwart the scene. While this cloud was vanishing, the 
 wood, being the under part of the scene, was insensibly 
 changing; a perspective view opened, with porticos on each 
 side and female statues of silver, accompanied with orna- 
 ments of architecture, filling the end of the house of Pro- 
 metheus, and seeming all of goldsmiths' work. The women 
 of Prometheus descended from their niches, till the anger 
 of Jupiter turned them again into statues. It is evident, too, 
 that the size of the proscenium or stage accorded with the 
 magnificence of the scene; for choruses are described and 
 "changeable conveyances of the song," in manner of an 
 echo performed by more than forty different voices and in- 
 struments in various parts of the scene. The architectural 
 decorations were the pride of Inigo Jones; such could not be 
 trivial. 
 
 Masques were frequently the private theatricals of the 
 families of the nobility, performed by the ladies and gentle- 
 
 53
 
 MYSTERIES AND MASQUES 
 
 men at their seats, and were splendidly gotten up on certain 
 occasions, such as the celebration of nuptials, or in compli- 
 ment to some great visitor. The Masque of "Comus" was 
 composed by Milton, to celebrate the creation of Charles I 
 as Prince of Wales, in 1616, after the death of his elder 
 brother, Prince Henry. But the very perfection and mag- 
 nificence of those performances ultimately caused their ruin, 
 through the enormous expense involved. The youthful days 
 of Louis XTV raised them to a height of costly luxuriance, 
 to sink them ever after in oblivion; they ended in gaudy 
 dresses and expensive machinery, but poetry was not asso- 
 ciated with them. To conclude with the quotation from 
 Jonson with which Disraeli, from whose writings I have 
 mainly taken this description, ends his sketch: 
 
 "The glory of all these solemnities had perished like a 
 blaze, and gone out in the beholders' eyes: so short lived are 
 the bodies of all things in comparison of their souls." 
 
 r 
 
 54
 
 THE SETTLEMENT OF NEW 
 AMSTERDAM 
 
 A PAPER READ BEFORE THE ST. NICHOLAS CLUB ON 
 JANUARY 6TH, 1893
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 Mr. President and Gentlemen of the St. Nicholas Club: 
 
 INVITED by your Committee to read before you a paper 
 on some subject connected with the city of New York, it 
 seemed to me only natural and proper to go back to those 
 early days when our patron Saint was also the tutelary 
 genius of this metropolis, and to describe the circumstances 
 which placed him in that position, as well as those which 
 withdrew from us his protecting care. 
 
 At the beginning of the seventeenth century, Holland was 
 the mistress of the seas. Her successful revolt against the 
 oppression and tyranny of Spain, and her long maritime 
 warfare with that power, had made her sons skilful and 
 hardy seamen, so that on the achievement of her indepen- 
 dence she controlled the commerce of the world. Her 
 navies swept the seas as clean then as they did some fifty 
 years later, when stout Van Tromp sailed through the English 
 Channel with a broom nailed to his mast-head, a token at 
 once of triumph and derision. The East India Company 
 conquered islands and kingdoms in Asia. With a fleet of 
 two hundred ships they carried on trade with China and 
 Japan, they brought to Europe the productions of the Spice 
 Islands and the gold, the pearls and the jewels of the East. 
 
 57
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 "Amsterdam," says Bancroft, "was the centre of the com- 
 merce of Europe. The sea not only bathed its walls but 
 entered among its streets, and the fleets of its merchantmen, 
 as seen from the ramparts, lay so crowded together that 
 vision was interrupted by the thick forests of masts and 
 yards. War for liberty became unexpectedly a guaranty of 
 opulence. Holland gained the commerce of Spain by its 
 maritime force: it secured the wealth of the Indies by traffic. 
 Lisbon and Antwerp were despoiled: Amsterdam, the depot 
 of the merchandize of Europe and of the East, was esteemed 
 beyond dispute the first commercial city of the world." 
 
 It was an age of discovery, of enterprise, and of coloniza- 
 tion, and the success of the East India Company stimulated 
 the good burghers of Amsterdam to turn their endeavors 
 towards the Western Hemisphere, and so it came to pass 
 that Hendrik Hudson, who had already sailed on two voyages 
 of discovery under the English flag, was engaged by them 
 to hazard himself again. On the 4th of April, 1609, he left 
 that port in the Haljmoon, a little boat of only eighty tons 
 burden, and after vainly seeking the northwest passage by 
 Nova Zembla, where fields of ice barred his way, he passed 
 beyond Greenland and Newfoundland, by Cape Cod, which 
 he named New Holland, as far south as the Bay of Virginia; 
 and turning again to the north he entered and examined 
 Delaware Bay, and on the 3d of September anchored within 
 Sandy Hook. Delaying there a week, he passed through 
 the Narrows, and at the mouth of the river which now bears 
 his name anchored in a harbor which he pronounced to be 
 very good for all winds. 
 
 58
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 After so long a voyage, it was but natural that the venture- 
 some explorers should wish to set their feet on the fair land 
 which they saw before them, and Hudson accordingly had a 
 boat manned and rowed to the shore. Of what happened 
 on his arrival, the best account is the Indian tradition which 
 has been preserved in Heckwelder's History. 
 
 After describing the approach of the big house floating on 
 the sea, and the assemblage of the natives to see what it 
 might portend, it goes on to say that the house, or large canoe, 
 stopped, a smaller canoe came ashore having, among others, 
 a red man in it. This was probably Hudson clothed in the 
 uniform he had worn in the English service. "The chiefs 
 and wise men form a circle, into which the red man and two 
 attendants approach. He salutes them with friendly coun- 
 tenance, and they return the salute after their manner. They 
 are amazed at their color and dress, particularly at him who, 
 glittering in red, wore something (perhaps lace and buttons) 
 they could not comprehend. He must be the great Manitto, 
 they thought, but why should he have a white skin. A large 
 elegant gourd is brought by one of the Manitto 's servants, 
 from which a substance is poured into a small cup or glass, 
 and handed to the Manitto. He drinks, has the glass refilled, 
 and handed to the chief near him. He takes it, smells it, and 
 passes it to the next, who does the same. The glass in 
 this manner is passed around the circle, and is about to be 
 returned to the red-clothed man, when one of them, a great 
 warrior, harangues them on the impropriety of returning the 
 cup unemptied. It was handed to them, he said, by the 
 Manitto, to drink out of it as he had. To follow his example 
 
 59
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 would please him, to reject it might provoke his wrath. And 
 if no one else would he would drink it himself, let what would 
 follow, for it were better for one even to die, than a whole 
 nation to be destroyed. He then took the glass, smelled it, 
 again addressed them, bidding adieu, and drank the con- 
 tents. All eyes were now fixed on him. He soon began to 
 stagger. The women cried, supposing him in fits. He rolled 
 on the ground. They bemoan his fate. They thought him 
 dying. He fell asleep. They at first thought he had ex- 
 pired, but soon perceived he still breathed. He awoke, 
 jumped up, and declared he never felt more happy. He 
 asked for more, and the whole assembly, imitating him, 
 became intoxicated." This ingenious account of the first 
 visit of an European to these shores certainly gives at least 
 plausibility to a definition propounded by the late J. W. 
 Moulton in his "New York in 1673." Manhattan, he says, 
 was named by the Indians Man-a-hatta, to denote, according 
 to the Lenni-Lenapi, or Delawares, not only the landing- 
 place of the discoverer, but the effect of the "mad-waters," 
 which he gave to the natives on his first interview: the literal 
 interpretation of the name being "the place where we all 
 got drunk," a name which might well be applied to the fair 
 city of to-day, by some of the incautious victims of her hos- 
 pitality. In the next year (1610), during which Hudson set 
 out upon the voyage which was to have for him so tragic an 
 ending, the Dutch sent vessels to open a trade with the 
 natives for peltries, which soon became very profitable. In 
 1611 the Little Fox and the Little Crane came upon specu- 
 lative voyages, their owners bartering the trinkets and trifles 
 
 60
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 coveted by the Indians for beaver and other skins. A few 
 huts were erected as early as 1613 for sheltering the fur trade 
 and the whale fishery, which latter was then of importance, 
 on the spot where it was supposed Hudson had landed, form- 
 ing the nucleus of the little village afterwards known as New 
 Amsterdam. But even this tiny settlement was not suffered 
 to rest undisturbed. The English governor of Virginia, 
 Argall, returning from his piratical expedition against the 
 little French Colony of Port Royal, compelled the Dutch 
 Governor, Hendrik Christiansen, who was powerless to 
 resist, to submit himself and his people to the English gover- 
 nor, and through him to the King of England. But next 
 year, Eelkins, a new governor, came out from Amsterdam 
 with re-enforcements, resumed possession of the Province and 
 defied the English. He built a fort at the southwestern 
 extremity of the Island, where the barge office and Battery 
 now are, and it is to be presumed that St. Nicholas improved 
 in spirits and took courage. 
 
 This expedition resulted from the enterprise of an associa- 
 tion of Amsterdam and Hoorn merchants by whom Block 
 and other explorers had been employed, who gave the name 
 of New Netherland to the infant colony, and under the title 
 of the United New Netherland Company obtained from 
 the States General the exclusive right for three years "to 
 visit and penetrate the said lands lying in America between 
 new France and Virginia, whereof the coasts extend from 
 the fortieth to the forty-fifth degree of latitude," that is, from 
 Delaware to Passamaquoddy Bay. 
 
 But the years passed by and no colony worthy of the name 
 61
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 had been established. New Netherland was only a collec- 
 tion of trading-posts, and when the charter of the company 
 expired, the general dissatisfaction with the results of their 
 labor prevented its renewal. Trading operations continued, 
 but no steps were taken towards effecting permanent settle- 
 ments, until an old project of a West India Company was 
 revived, and a corporation under that name was created in 
 1621, with power not only over New Netherland, but the 
 whole American coast, which at once applied itself ener- 
 getically to work. 
 
 The first party of actual colonists sent out by the Company 
 sailed from Amsterdam early in March, 1623, in a little 
 vessel of 260 tons burden called the New Netherland, and 
 commanded by Captain Cornelis Jacobs of Hoorn. It con- 
 sisted of thirty families of Protestant Walloons from the 
 Spanish Netherlands, refugees from persecution on account 
 of their religious belief. The course then pursued across the 
 Atlantic was to the Canary Islands, thence towards the Amer- 
 ican coast, until the trade winds were gained, and the favor- 
 able breezes so aided our first immigrants that early in May 
 they found themselves in the River Mauritius, as the Hudson 
 was then called. They at once commenced to erect huts for 
 their immediate accommodation on the southerly point of 
 the Island, and the cattle which they had brought with them 
 were turned out upon Governor's Island, it being impossible 
 with the scanty resources at their command to confine them 
 within safe limits near themselves, and highly hazardous to 
 allow them to stroll out into the Indian neighborhood. With 
 this party came Joris Jansen de Rapelje and the young woman 
 
 62
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 who soon after became his bride, from which union resulted, 
 on June 9, 1625, the first born Christian daughter in the 
 colony of New Netherland. 
 
 These first settlers soon after removed to the western shore 
 of Long Island, and their place of residence, taking its name 
 from them, preserves to this day the memory of their arrival 
 in its title of Wallabout Bay. But the West India Company, 
 while largely absorbed in chartering privateers to prey upon 
 Spanish commerce, did not wholly neglect the immense 
 territory which had been intrusted to its fostering care. A 
 treaty of alliance having been made between England and the 
 United Netherlands, it perceived that it might proceed with 
 colonization without danger of further interference from the 
 former power. It at once entered upon the consideration of 
 a new form of government as well as the discussion of plans 
 for inducing settlers to emigrate. The first governor, Peter 
 Minuit, was appointed, who sailed from Amsterdam in 
 December in the ship Sea-View, and arrived in Manhattan 
 on the 4th of May, 1626. 
 
 His first proceeding was to treat with the natives for the 
 purchase of the soil on which the new city was to be erected, 
 and his negotiations resulted in the conveyance to him, and 
 his successors as representatives of the Company, of the entire 
 Island of Manhattan for various trinkets and similar articles 
 appealing strongly to the savage taste, estimated to be worth 
 about twenty-four dollars of our present currency. This 
 price has often been quoted as a ridiculously small considera- 
 tion, but it is to be remembered that it was paid for the land 
 alone in its native state; not only no buildings of importance, 
 
 63
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 but no pavements, no sidewalks, no sewers, nay even no 
 roads, no improvements of any character were then in exist- 
 ence. Considering the hundreds of thousands of dollars 
 which have since been expended in public improvements, to 
 say nothing of the millions which individuals have converted 
 into brick and mortar, and considering further that the 
 twenty-four dollars then paid would to-day, compounded at 
 six per cent interest, amount to over one hundred and fifteen 
 millions of dollars, I am not sure but that the honest old 
 Dutchman was beguiled by the savages into paying what was 
 really a fancy price in the first recorded real estate transaction 
 on this Island. 
 
 The stream of emigration, once set flowing, continued to 
 swell in volume and new settlers came over every year. The 
 first dwelling huts were built mostly after the Indian fashion, 
 with saplings and bark, with some improvements suggested 
 by the experience of civilization, such as wooden chimneys 
 and glazed windows. Some of the colonists having greater 
 regard for comfort than for outward show, constructed cel- 
 lars, which, being sided with bark, and covered with thatched 
 reeds, were sufficiently warm, though deficient in light. 
 
 In the course of a few years the establishment of sawmills 
 supplied timber for more substantial abodes and a class of 
 buildings of one story in height, with two rooms on a floor 
 and a garret overhead, became the common style of archi- 
 tecture. These cottages were framed and clapboarded and 
 the roofs thatched, but as yet the chimneys were made of 
 wood, from the want of brick and mortar to construct less 
 dangerous flues. The houses were commonly surrounded 
 
 64
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 by strong palisades, as a protection against the savages. The 
 interior of these humble edifices presented, as may be sup- 
 posed, simply the necessary articles of furniture for every-day 
 purposes. The great chest, with its precious stores of house- 
 hold goods, was the most imposing article; chairs were sup- 
 plied by stools, rough hewn from the forest. Tables were 
 of domestic manufacture; rough shelves formed the only 
 cupboard. The bedstead was the sleeping bench, but upon 
 it the great feather-bed lay in state, and gave in comfort all 
 that was wanting in display. 
 
 The second Dutch Governor, Wouter Van Twiller, arrived, 
 in April of 1633, in the Salt Mountain, a vessel of two hun- 
 dred and eighty tons burden, manned by fifty-two men and 
 carrying twenty guns. With him came the first detachment 
 of troops sent to this country, consisting of one hundred and 
 four men. With him also, or about the same time, came the 
 first Dutch clergyman, the well-known Dominie Bogardus. 
 
 As a governor, Van Twiller was not a success. His vacil- 
 lation of character, which gained him the soubriquet of the 
 Doubter, and that fatality which seems to impel weak men 
 to be obstinate at the wrong tune and place, involved him 
 in constant difficulties. Harassed by the English on the 
 east, and the Swedes on the south, both of whom were con- 
 stantly encroaching on the territories which he was bound to 
 protect, and tormented by frequent struggles with the Indians, 
 he found his task one of unceasing annoyance. Besides all 
 these external troubles, the government of the colony itself 
 required qualities of statesmanship and diplomacy of a high 
 order. The States General had adopted a charter of privi- 
 
 65
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 leges for patrons who desired to plant colonies, which was 
 analogous to the political institutions of the Dutch of that 
 day. While as much land as he could cultivate was prom- 
 ised to every one who would emigrate on his own account, it 
 was not expected that the peasants who enjoyed no political 
 franchises, and had consequently no idea of independent 
 action, would of themselves undertake the long and expen- 
 sive journey. The effort was therefore made to induce men 
 of a higher class to take the initiative, and he who within four 
 years would plant a colony of fifty souls became Lord of the 
 Manor, or Patroon, possessing absolutely the lands he might 
 colonize, which might extend sixteen miles in length, or, if 
 they lay upon a river, eight miles on each bank, extending 
 back indefinitely into the interior. As a consequence the 
 directors and agents of the Company themselves appro- 
 priated the most valuable portions of the territory, and ac- 
 quired title to all the important points where the natives came 
 to traffic. The Company desired to reserve to itself this 
 trade, and constant collisions between the feudal possessors 
 and the central government resulted. So it must have been 
 as much of a relief to Van Twiller as to every one else con- 
 cerned when on the 28th of March, 1638, the good ship 
 Herring came into port bringing a new governor in the 
 person of William Kieft. This, for the unfortunate colo- 
 nists, was exchanging King Log for King Stork. Not long 
 after his arrival a Hollander was murdered by the son of 
 a chief, who felt himself defrauded and robbed, one of a 
 long series of similar crimes caused by inhumanity on the 
 one side, and revenge on the other, and Kieft inexorably 
 
 66
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 demanded the surrender of the murderer. A deputation of 
 the river chieftains hastened to deplore the circumstance, and, 
 as they could not deliver up the murderer, to offer to pay an 
 appropriate fine to the relatives of the victim. "You your- 
 selves, "they added, "are the cause of this evil: you ought not 
 to craze the young Indians with brandy. Your own people, 
 when drunk, fight with knives, and do foolish things; and 
 you cannot prevent mischief, till you cease to sell strong 
 drink to the Indian." 
 
 The argument was true but unconvincing. Taking ad- 
 vantage of an attack by the Mohawks upon the Algonquins, 
 and the appeal of the latter weaker race for assistance, the 
 soldiers of the fort, joined by freebooters from Dutch pri- 
 vateers, and led by a guide who knew where to find the re- 
 cesses across the Hudson in which the cowering fugitives had 
 concealed themselves, attacked them in the stillness of a dark 
 winter's night, and killed nearly a hundred of the helpless 
 savages without regard to sex or age. The exultation which 
 the governor displayed to his returning troops was short- 
 lived. The news of the massacre spread rapidly and excited 
 a bitter feeling of revenge, whose effects were soon exhibited 
 in villages laid waste, farms destroyed, murder on every side, 
 and a complete demoralization of the settlers, of whom all 
 who could fled terrified back to Holland. The war continued 
 for two years, until both parties were wearied and exhausted, 
 and peace was concluded in a solemn conclave at the Battery 
 of the Sachems of New Jersey, of the River Indians, of the 
 Mohicans, and of those from Long Island, with the chiefs of 
 the Five Nations as witnesses and arbitrators, on the one 
 
 67
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 side, and the governor and council of New Netherland, with 
 the whole commonalty of the Dutch, on the other. But the 
 joy with which peace was hailed only intensified the general 
 feeling of hatred for the governor, to whose barbarous policy 
 so much distress was due, and the demand for his recall was 
 universal. About two years after the peace he sailed for 
 Europe, but the vessel which bore him was wrecked upon the 
 coast of Wales, and his infamy rewarded with an ocean grave. 
 
 To whom succeeded the brave and honest Stuyvesant, 
 promoted from the position of Vice-Director of Curacoa, a 
 scholar of some learning and a soldier of experience. Seen 
 through the mists that shroud that early time, he looms up a 
 romantic, almost a grand character. He assumed his posi- 
 tion on the llth May, 1647, and as he conciliated the natives 
 and succeeded in removing restriction upon commerce, an 
 era of prosperity began to dawn. New settlers began to 
 pour in, and the growing commerce added to the wealth and 
 prosperity of the city. A spirit of local improvement was 
 awakened among the citizens. By this time many of them, 
 through industry and frugality, two of the most notable 
 Dutch virtues, had become possessed of considerable wealth, 
 their children had grown up knowing no other scenes and 
 naturally wishing to make the most of their position, and the 
 differences of accumulations, and consequent social position, 
 were beginning to produce their natural result. 
 
 It was about the year 1656 that this era attained its cul- 
 mination. Several of the merchants had at that time erected 
 stone dwelling-houses and the general style of living had 
 considerably advanced throughout all classes. The interior 
 
 68
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 decorations of the habitations were much improved: great 
 high-post bedsteads, with their dimity curtains, adorned the 
 parlors of the great; cupboards of nut-wood, imported from 
 the old country, were to be seen in some of the principal 
 establishments. Even silver plate was displayed in one or 
 two instances, as evidence of increased prosperity. In 1657 
 Peter Cornelis Vanderveen constructed a fine house on the 
 present Pearl Street, and in 1658 Governor Stuyvesant erected 
 a large house in the vicinity of the present Whitehall Street, 
 the name of which is derived from the White Hall of the Dutch 
 governor. 
 
 As was but natural in a young and busy community, Sunday 
 was the only day of rest, and the religious sentiment of the 
 age compelled its strict observance. On that day the do- 
 mestic duties of the week were suspended, and the people 
 arrayed themselves in their best attire to attend the services 
 appropriate to the occasion. They were almost exclusively 
 Calvinists, and were rigid in the performance of their religious 
 duties. The bell-ringer and sexton was one of the marked 
 personages. Having summoned the congregation by the 
 sound of the church bell, the ceremonious duty followed of 
 forming a procession of himself and his assistants to carry in 
 the cushions of the Burgomasters and Schepens from the 
 City Hall to furnish the church pew appropriated to those 
 magistrates. The Schout at the same hour went his rounds 
 to observe that quiet was kept in the streets during the time 
 of service, and to stop the games of the negro ai^d Indian 
 slaves to whom Sunday was allowed for recreation, except 
 during church time. As the church edifice was within the 
 
 69
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 walls of the fort, the present Bowling Green, then an open 
 field, displayed a numerous concourse of country wagons, 
 arrayed in order, while the horses were let loose to graze on 
 the shady hillside which led down to the water near the present 
 Battery. 
 
 Limitations of time compel me to pass without comment the 
 Governor's wars with the Swedes, the Indians, and the Eng- 
 lish, and come at once to the date when King Charles the 
 Second, disregarding the rights and settlements of the Dutch, 
 granted all New Netherland to his brother James, Duke of 
 York and Albany, better known in history as King James the 
 Second. The patent passed the Great Seal on the 12th of 
 March, 1664, and Colonel Richard Nichols, who had been 
 appointed governor, proceeded with four frigates and three 
 hundred men directly to Manhattan for the conquest of the 
 Dutch. After having demanded recruits from Massachu- 
 setts, and taken on board Governor John Winthrop of Con- 
 necticut, the fleet approached the Narrows, and on August 
 28th anchored in Gravesend Bay. 
 
 It is time to see what capabilities of defense the city pos- 
 sessed. 
 
 I have already spoken of the fort erected in 1614 at the 
 southern extremity of the Island, then called Fort Manhattan, 
 which was, however, but a palisaded work. In 1626, on the 
 arrival of Governor Minuit, it was greatly enlarged under 
 the direction of an engineer officer, Kyrm Frederick, and its 
 name changed to Fort Amsterdam. It was for a long period 
 an earthwork, though planned on scientific principles, and 
 of the shape and size which it always afterwards maintained. 
 
 70
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 As emergencies arose which called for strengthening it, addi- 
 tional stone work was raised in place of the earthen walls, 
 and in course of time it presented stone faces on every side, 
 and was a formidable fortress. 
 
 On the north the city was defended by a line of palisades 
 built across it nearly coincident with the present Wall Street, 
 which had been erected in 1653 in anticipation of an invasion 
 from New England. This consisted of posts twelve feet 
 high, set six feet apart, sided up with boards and having an 
 earthen embankment on the inner side sufficiently high to 
 enable the defenders to stand on it and fire over the top. It 
 was entered through two gates, one near Broadway and the 
 other at the East River, both of which were defended by 
 block houses. But these defenses, however valuable against 
 savages and their fellow colonists, were of no avail against 
 the force of the English. The governor himself was desirous 
 of offering resistance, but the burgomasters were satisfied 
 that it would be useless, and insisted upon surrender. At 
 eight o'clock on the morning of September 8, 1664, Stuy- 
 vesant at the head of his troops marched out of the fort with 
 all the honors of war, pursuant to the terms of the surrender, 
 which also guaranteed to the conquered their religion, their 
 law of inheritance, and their trade with Holland. 
 
 The governor with his troops marched down Beaver Street 
 to the North River, where they embarked for Holland, and 
 the unfortunate leader was called upon to answer for the 
 capitulation to his superiors. Considering the force of the 
 English, the apathy of the Dutch, and the inferior character 
 of the fortifications, together with Peter Stuyvesant's well- 
 
 71
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 earned reputation for bravery and skill in warfare, it is only 
 fair to assume that he was fully justified in his conduct. But 
 their High Mightinesses were highly and mightily enraged 
 at the loss of their Province, and naturally inclined to put all 
 the blame upon the unlucky responsible agent. They even 
 professed to believe that motives of personal interest con- 
 trolled the governor's action, and that he was mainly actuated 
 by a desire to save his own White Hall from the destruction 
 that would result from a bombardment. 
 
 Stuyvesant after making his report returned to the city in 
 about two years, and spent the remainder of his life peacefully 
 at his Bowerie, on a part of which St. Mark's Church now 
 stands, where he died in 1682. 
 
 In 1667, by the treaty of Breda, New Netherland was 
 ceded to the English, in return for which Holland received 
 Surinam or Dutch Guiana. In the same year Nichols re- 
 tired from his position and was succeeded by Francis Love- 
 lace, whose theory of government was that " the method for 
 keeping the people in order is severity, and laying such taxes 
 as may give them liberty for no thought but how to discharge 
 them." It is not to be wondered at that the people groaned 
 under their new rulers, and that when in 1673, upon the re- 
 newal of war between England and Holland, a small squadron 
 under command of Banckes, after having committed ravages 
 in Virginia for the annoyance of English commerce, entered 
 the harbor of New York for the purpose of regaining the lost 
 possessions, it was received with enthusiasm. On the 30th 
 of July the Dutch ships moored under the fort. The Eng- 
 lish governor was absent in Connecticut and his representa- 
 
 72
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 live had no means of defense. The Dutchman would admit 
 of no excuses for delay in surrendering the fort which he 
 claimed as rightfully belonging to his government. Men 
 were landed on the North River shore above the city, marched 
 across the fields into Broadway, and they fixed their standards 
 and planted their cannon on the north end of Bowling Green, 
 facing the fort gate. The fort at once surrendered and its 
 garrison marched out. New York became New Orange 
 and the fort exchanged the name of Fort James, which had 
 been given it by its English possessors, for that of Fort Wil- 
 liam Hendrick. On the 12th of August the magistrates 
 and principal burgher officers were assembled and finally 
 absolved from their oaths of alliance taken to the British 
 government. Anthony Colve who had accompanied the fleet 
 was installed as governor, and the good burghers once more 
 smoked their pipes in peace under the folds of the yellow flag. 
 But their comfort did not long continue. The treaty of 
 Westminster between Great Britain and the States General 
 was signed the following year, and by the Sixth Article New 
 Netherland was restored to the English. The Duke of York 
 confirmed his authority by a new patent, and appointed 
 Major Andros to be his governor. The latter at once set 
 sail with a strong force for his Province, but before his advent 
 the sad news had already reached the little city. On the 
 15th of October Governor Colve appeared before the Bur- 
 gomasters and Schepens assembled at his invitation in the 
 City Hall, and advised them that he had received by the 
 Government Ship Muyll Tromp letters and absolute orders 
 from the Lords, Mayors, and their High Mightinesses for the 
 
 73
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 restoration of the Province of New Netherland to his Majesty 
 of Great Britain, pursuant to the Treaty of Peace concluded 
 in February, and further orders for himself to return imme- 
 diately with the garrison. 
 
 One week later (October 22, 1674) the new governor 
 cast anchor and penned his first demand for the surrender 
 of the Province. 
 
 A lengthy correspondence ensued between him and Gov- 
 ernor Colve, dated by the former, "From aboard his Majesty's 
 Ship The Diamond at Anker near Staten Island," conducted 
 with great courtesy on both sides in reference to the details 
 of the transfer and the privileges to be accorded to the Dutch 
 residents. On the 9th November, 1674 (new style), Gov- 
 ernor Colve released his compatriots from their allegiance to 
 the States General, and on the 10th the English forces took 
 possession of the fort and town, and the good St. Nicholas 
 was definitely superseded by St. George. 
 
 The growth of the city had been slow in 1615 it con- 
 tained four houses and thirty inhabitants, and when captured 
 by Nichols in 1664, he writes to the Duke of York that "such 
 is the mean condition of this town that not one soldier to this 
 day has lain in sheets or upon any other bed than straw." 
 By a census taken in 1678, after the final surrender to the 
 English, there were then but 343 houses and 3430 inhabitants. 
 
 In 1682 Thomas Dongan was made governor in place of 
 Andros, and described the inhabitants of New York in a 
 report to the Board of Trade made in 1687 in language 
 which would not be altogether inappropriate to-day. He 
 says that the city has "first a chaplain belonging to the Fort, 
 
 74
 
 THE SETTLEMENT OF NEW AMSTERDAM 
 
 of the Church of England: second, a Dutch Calvinist: thirdly, 
 a French Calvinist; fourthly, a Dutch Lutheran. Here bee 
 not many of the Church of England; few Roman Catholicks; 
 abundance of Quaker preachers, men and women especially; 
 singing Quakers, ranting Quakers; Sabbatarians; anti- 
 Sabbatarians; some Anabaptists; some Independents; some 
 Jews ; in short, of all sorts of opinions there are some, and the 
 most part of none at all." 
 
 At this time no fewer than eighteen languages were com- 
 monly spoken in its streets, and it foreshadowed the great 
 metropolis it has since become. 
 
 It does not fall within the scope of this paper, or of the time 
 allotted me, to give the details of its wonderful growth. But 
 the principles of civil and religious liberty for which the citi- 
 zens of that day constantly strove, until they finally compelled 
 their acceptance by a selfish trading corporation and a tyran- 
 nical governor, are still cherished. Their triumph was 
 assured when in 1660 the Directors wrote to Governor Stuyve- 
 sant: "Let every peaceful citizen enjoy freedom of conscience, 
 this maxim has made our city the asylum for fugitives from 
 every land: tread in its steps and you shall be blessed." 
 
 St. Nicholas is not longer recognized as the Patron Saint 
 of the city founded under his care. Yet we may wisely and 
 safely think we can still trace the gracious influence of that 
 genial friend of childhood, and that the kindly feelings and 
 sturdy virtues which he nourished will long flourish among 
 the citizens of New York as they flourished among the 
 burghers of New Amsterdam. 
 
 75
 
 HISTORICAL SKETCH OF CHRIST 
 CHURCH, NEW YORK CITY 
 
 REPRINTED FROM THE MAGAZINE OF AMERICAN 
 HISTORY ON THE OCCASION OF THE CELEBRATION 
 OF THE CENTENNIAL OF THE CHURCH ON 
 APRIL 3D, 1893 
 
 r
 
 HISTORICAL SKETCH OF CHRIST CHURCH, NEW 
 YORK CITY 
 
 HRIST Church dates its organization back to the year 
 V_>1 1793, and has ever since that date been identified with 
 the history of this city, doing its work with zeal and fidelity 
 through varying fortune, alternately encouraged and dis- 
 couraged, and to-day looking forward hopefully to a bright 
 and useful future. Such a sketch of its career as can be 
 comprised within the limits of a brief notice will doubtless 
 prove interesting to those who care for the antiquities and 
 early chronicles of New York. 
 
 In the year just mentioned, the Rev. Joseph Pilmore was 
 rector of the united churches of Trinity, St. Thomas, and 
 All Saints in the city of Philadelphia. In company with a 
 Mr. Boardman he was sent to this country by Mr. Wesley 
 in the year 1769, in response to an appeal from the Methodist 
 church, then and now situated in John Street, between 
 Nassau and William streets, and at that time called Wesley 
 Chapel, and was one of the earliest itinerant Methodist 
 Wesleyan preachers in America. He and his companion 
 are described as most laborious and devoted men, mighty 
 travelers through the wilds of America in the days of Ogle- 
 thorpe. Dr. Pilmore was born about the year 1734, in the 
 
 79
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 village of Tedmouth, Yorkshire, England, his parents being 
 persons of respectability, members of the Church of Eng- 
 land. At the age of sixteen he became acquainted with the 
 Rev. John Wesley, who was then preaching in various parts 
 of the United Kingdom, and through his instrumentality 
 became hopefully pious. He was educated at the school of 
 Kingswood, where he acquired a fair amount of English 
 literature as well as some knowledge of the Latin, Greek, 
 and Hebrew languages, and, what was of far more impor- 
 tance, a taste for books and mental improvement which 
 endured through a long life. After finishing his studies he 
 was appointed by Mr. Wesley to travel as one of his itiner- 
 ant lay preachers, and given a certificate by him as a "lay 
 helper" in the work. After his arrival in this country he 
 determined to adopt the principles of the Protestant Epis- 
 copal Church in America, and was ordained a Deacon by 
 Bishop Seabury of Connecticut on the 27th of November, 
 1785, receiving Priest's orders at the hands of the same 
 prelate on the 29th of that month after due canonical exam- 
 ination. 
 
 In June of the next year he was present at a general con- 
 vention held at St. Paul's Church in this city, as a repre- 
 sentative of his Philadelphia parish, at the height of the 
 controversy between the churches of New England, which 
 already enjoyed the Episcopate through the Scottish line 
 of succession in the person of Dr. Samuel Seabury, and the 
 more southern churches, which under the leadership of 
 Doctors WTiite and Provoost were endeavoring to obtain 
 succession in the English line. This dissension seriously 
 
 80
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 threatened for a time to prevent any general union of the 
 Church in America, the members outside of New England 
 declining to consent to any acts implying the validity of 
 Dr. Seabury's ordinations. Efforts were made, but unsuc- 
 cessfully, to expel Dr. Pilmore from the convention as not 
 properly ordained, and a resolution was passed recommend- 
 ing the respective state conventions not to admit any per- 
 son as a minister who should receive ordination from any 
 Bishop residing in America during the application then 
 pending to the English Bishops for Episcopal Consecration. 
 The feelings excited by this controversy were bitter, and 
 it is probable that Dr. Pilmore, who was a man of intense 
 personality, made enemies as well as friends during its pro- 
 gress. It is evident that he had made many friends, for 
 in 1793 a petition was presented by William Post and one 
 hundred and seventy-two other members of Trinity Parish 
 to the Vestry praying that the Rev. Joseph Pilmore might 
 be called as an assistant minister, and a Sunday evening 
 lecture established. This application having been declined, 
 the petitioners determined to organize a parish of their own, 
 and on the 3d of April, 1793, filed in the county clerk's office 
 their certificate of incorporation under the name of Christ 
 Church. 
 
 The infant parish at once called Dr. Pilmore as its rector, 
 and proceeded to erect a house of worship on the north 
 side of Ann Street between William and Nassau streets, on 
 land conveyed to it by Mr. George Warner, one of its earliest 
 and most generous benefactors. Dr. Pilmore assumed 
 charge of the parish during the following year, and continued 
 
 81
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 as its rector until October, 1804, when he was compelled by 
 the failing health of his wife, under the advice of her physi- 
 cians, to leave New York and remove to Philadelphia, where 
 he became connected with St. Paul's Church, and where he 
 resided until his death on July 24, 1825. He was a man of 
 imposing presence, of great flow of language, and "impas- 
 sioned oratory," usually commencing his sermons by reading 
 from manuscript, but soon becoming carried away by his 
 subject and bursting into eloquent extemporaneous flights 
 of fancy. The church was usually crowded during his 
 services, even standing room being scarcely obtainable. 
 
 The separation from Trinity, and the election of a rector 
 who had been rejected by that parish, produced an opposi- 
 tion from that body to the new parish, and Christ Church 
 was refused admission to the state convention. Delegates 
 were duly appointed every year, and application for admis- 
 sion made, which was as regularly rejected, until 1802, when, 
 nine years after the organization, it was formally admitted 
 into fellowship with the other churches, upon executing to 
 Trinity Parish a full deed of relinquishment of any claim 
 which it might have to any portion of the property of that 
 corporation. It was natural for Trinity to insist upon this 
 condition, since its property had been given to the "Rector 
 and Inhabitants of the City of New York in Communion 
 with the Church of England as by law established," and 
 there was plausible ground for other such inhabitants than 
 those belonging to Trinity Parish to claim an interest in it. 
 Indeed, some few years after this date (in 1812) quite a 
 lively controversy sprang up over the asserted right of every 
 
 82
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 Churchman in the city to vote at the election of vestrymen 
 in that parish, and it was necessary to apply to the legislature 
 for a special act to settle the dispute. By this time the 
 harmony which has ever since existed had been completely 
 established between the two parishes, and Christ Church 
 earnestly seconded the efforts of her elder sister to effect 
 the desired object. 
 
 On the 29th of July, 1804, the Rev. Thomas Lyell was 
 duly elected rector in place of Dr. Pilmore, and on the 10th 
 of March following formally inducted into the position, 
 which he held for forty-four years until his death. In 1821 
 it was decided to abandon the old building in Ann Street 
 and move farther up-town, a step rendered desirable by the 
 growth of the city, and the close proximity of so many other 
 churches of the same faith. In the immediate vicinity 
 were Trinity Church and St. Paul's Chapel in their present 
 sites, Grace Church at the corner of Broadway and Rector 
 Street, the French Church Du St. Esprit in Pine Street 
 opposite to where the Sub-Treasury now stands, and St. 
 George's Church at the corner of Beekman and Cliff Streets. 
 An opportunity occurred to obtain at a reasonable price five 
 lots of land in Anthony (now Worth) Street, just west of 
 Broadway and opposite the ground then occupied by the 
 New York Hospital. The property, called the Anthony 
 Street Theatre, had been fitted up as a circus by the pro- 
 prietors of the old Park Street Theatre during the summer 
 of 1817 for ballets and similar performances during the 
 regular recess of the theatre, and when the latter was de- 
 stroyed by fire on the 25th of May, 1820, the Anthony Street 
 
 83
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 establishment was furnished and used in its stead until 
 the building on the old site was completed in August, 1821. 
 The church purchased the property in January, 1822, and 
 at once proceeded to erect a handsome gray and brown- 
 stone edifice in the pointed Gothic style, which was formally 
 consecrated on the 29th of March, 1823. A few discontented 
 persons who opposed the removal from Ann Street organized 
 a parish under the leadership of Rev. John Sellon, which 
 was called Christ Church in Ann Street, and commenced 
 a suit in chancery to have themselves declared the simon 
 pure Christ Church and entitled to the endowment which 
 had been given it by Trinity Church. But the diocesan 
 convention declined to recognize them as a parish under 
 that title, the Court of Chancery dismissed their bill, and 
 they lingered along until the close of the year 1825, when 
 Mr. Sellon resigned and the parish fell to pieces. The 
 property was purchased by a Roman Catholic congregation, 
 which occupied the building until its destruction by fire 
 in 1834, when the land was sold for business purposes. 
 
 The church continued to prosper under the leadership of 
 Dr. Lyell, who was, like his predecessor, a convert from 
 Methodism, and an earnest, eloquent preacher, and pursued 
 a course of even and uneventful prosperity until the church 
 edifice was destroyed by fire on July 30, 1847. 
 
 The parish hired temporary quarters in the Minerva 
 Rooms, No. 406 Broadway, which it occupied for nearly a 
 year while the work of rebuilding the church was pushed 
 rapidly forward. But the rector did not live to see its com- 
 pletion. After a pastorate of the remarkable length of 
 
 84
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 forty-four years, he died on the 5th of March, 1848. We 
 are told by a member of his family that he was confined to 
 his room only a single week, and died of influenza. This 
 disease, which was not painful, was endured with entire 
 patience and resignation. "He passed quietly out of the 
 world as an infant drops asleep, having on his countenance 
 in death an infant's innocent smile." The funeral services 
 took place at St. Paul's Chapel on March 7, 1848, being Ash 
 Wednesday, and the sermon was preached by the rector of 
 Trinity Parish, the Rev. Dr. Berrian. 
 
 There must have been much that was lovable and attract- 
 ive about a man who could continue as the rector of one 
 parish for so long a period, sustain it through every vicissitude, 
 and retain not only the affection of every member of his own 
 parish, but the respect and esteem of every one with whom 
 he was brought in contact. A tablet was erected to his 
 memory in the church, which now stands in the vestry room 
 of the edifice at present occupied by the parish. 
 
 The church was completed and consecrated on the 29th 
 of June following, but the vacant pulpit was not perma- 
 nently filled until the next October, when the Rev. Charles 
 H. Halsey, at the time an agent of the Protestant Episcopal 
 Board of Missions and previously rector of St. Paul's Church, 
 Sing Sing, New York, was called to and accepted the charge 
 of the parish. The rapid removal of the residence portion 
 of the city farther up-town soon rendered the location of 
 the church undesirable, and in April, 1852, a committee was 
 appointed to consider the subject of removal. Their labors 
 resulted in the sale of the Anthony Street property and the 
 
 85
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 purchase of four lots of ground on the north side of Eighteenth 
 Street, west of Fifth Avenue, on which was erected the church 
 and rectory now occupied by St. Ann's Church for Deaf- 
 Mutes. The new church was formally consecrated and 
 occupied on June 30, 1854, and for some months previously 
 the congregation worshiped in the chapel of the University, 
 on Washington Square. On the 2d of May following the 
 parish met a severe blow in the sudden death of their rector. 
 He had on that day visited a new building adjoining the 
 Everett House in Union Square, and while standing at a 
 window in the fourth story lost his balance and fell to the 
 street, never speaking after the fall and surviving the acci- 
 dent but half an hour. He was a man of great popularity, 
 and his unexpected death awakened wide-spread sympathy 
 for his bereaved family and congregation. He was suc- 
 ceeded by the Rev. F. S. Wiley, then rector of the Church 
 of the Nativity in Philadelphia, who continued in charge 
 of the parish until October, 1862, when increasing ill-health 
 compelled him to resign his cure and remove to Italy, where 
 he died at Florence, January 20, 1864. During his rector- 
 ship in July, 1858, the property in Eighteenth Street was 
 exchanged for the church on Fifth Avenue, from which the 
 parish removed to its present site. 
 
 In November, 1862, the Rev. Ferdinand C. Ewer, at that 
 tune assistant to the Rev. Dr. Gallaudet in St. Ann's Church, 
 was invited to succeed Mr. Wiley, and accepted the call. 
 The parish continued to prosper under his care until 1868, 
 when he became imbued with the doctrines of the so-called 
 ritualists, and preached his celebrated sermons on "Prot- 
 
 86
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 estantism a Failure." The result was disastrous. Origi- 
 nally founded by those discontented with the church doctrine 
 of Trinity Parish, Christ Church had always been distinctly, 
 in party shibboleth, a low church, and many of the congre- 
 gation were unable to follow their rector in his new departure. 
 On the other hand, his great ability and striking personal 
 qualities had endeared many to him who were unwilling 
 to lose his guidance. So matters continued for a while, 
 many of the dissatisfied leaving the parish and forming 
 other connections, until November, 1871, when Dr. Ewer 
 resigned and organized the new church of St. Ignatius, 
 taking with him many of the members of Christ Church, 
 who were personally attached to him, and leaving a wreck 
 behind him. This condition of affairs was severely felt by 
 his successor, the Rev. Hugh Miller Thompson, D.D., 
 formerly of St. James's Church, Chicago, but he applied 
 himself with great energy and ability to the work of rebuilding 
 the parish, and had met with great success in his labors, 
 when, in November, 1875, he received and accepted a call 
 to the parish of Trinity Church, New Orleans. The sep- 
 aration was deeply deplored by his congregation and himself, 
 but both parties felt that the new field offered wider oppor- 
 tunities for usefulness, and that it was his duty to assume 
 the new burden. 
 
 For nearly a year after his departure the parish remained 
 without a permanent rector until, on the llth of December, 
 1876, the Rev. William A. McVickar, D.D., was called to 
 the vacant post. His ministry was attended with the hap- 
 piest results, and the parish was rapidly increasing in strength 
 
 87
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 and prosperity when its bright prospects were momentarily 
 darkened by his sudden and unexpected death, which occurred 
 on the 24th of September, 1877, after a brief illness. The 
 sympathy awakened by this blow was heartfelt and universal, 
 and the bishop of the diocese took occasion, at the diocesan 
 convention, which met in the same month, to refer in most 
 touching and appreciative terms to the great loss sustained 
 by the church and the parish. Space is too short to allow 
 the writer to do more than allude to the affectionate manner 
 in which the bishop spoke of him as he really was 
 "the scholar, the gentleman, the earnest, thoughtful, reverent, 
 loving minister of God." He was succeeded by the Rev. 
 J. S. Shipman, D.D., called November 9, 1877, the present 
 rector. 
 
 Dr. Shipman entered Yale College in the class of '55, 
 but, on account of seriously impaired health, was obliged to 
 pursue the greater part of his course under private tuition. 
 His instructor during those years in ancient languages and 
 in philosophy, as afterward in theology, was one who is 
 known as among the ripest scholars in the Church the 
 Reverend Professor Joseph M. Clarke, D.D., now holding 
 the chair of Hebrew and Exegesis in the Divinity School 
 at Nashotah. He was admitted to the diaconate by Bishop 
 Delancey in St. Peter's Church, Auburn, in the autumn of 
 1857, and to the priesthood, by the same bishop, in Trinity 
 Church, Utica, in the autumn of the following year. 
 
 His first cure was that of the united parishes of St. John's, 
 Whitesboro', and St. Peter's, Oriskany, in what is now the 
 diocese of Central New York. From this charge he accepted 
 
 88
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 a call in 1859 to the rectorship of Christ Church, Mobile 
 the oldest and largest parish in Alabama. In 1862, soon 
 after the outbreak of the war, he resigned this parish to 
 accept that of Christ Church, Lexington, Kentucky 
 from which, after a pastorate extending over sixteen years, 
 and after declining the offer of a bishopric, he came to this 
 city. It conveys a high tribute to his tact and good judg- 
 ment to say that during the troubled time of the civil war, 
 in that borderland of conflict, where old friendships and 
 even family ties were often severed by the passions of the 
 hour, he succeeded in maintaining peace and kindly feeling 
 among the different members of his congregation, and en- 
 tirely avoided the bitter controversies which wrecked so 
 many of the parishes around him. Having built the parish 
 up until it became one of the most active and influential, 
 as well as one of the most prosperous, in the entire diocese, 
 he could well afford to leave it for a wider field of usefulness, 
 although greatly to the regret of those who had known him 
 so long and learned to love him so well a regret which 
 his present parishioners can thoroughly understand and 
 appreciate. A courteous gentleman of refined manners, 
 earnest and sincere in his work, kindly and sympathetic 
 with all who come in contact with him, learned and eloquent 
 in the pulpit, fearless in his denunciation of the wrong and 
 in his advocacy of the right, he makes a deep and abiding 
 impression on all who are brought within the sphere of his 
 influence. Unlike many of the clergy of the day, he makes 
 no attempt to belittle or deny the scientific discoveries of 
 the age, but frankly admits every fact that is susceptible 
 
 89
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 of proof. He acknowledges no controversy between re- 
 ligion and science, but claims that they are perfectly recon- 
 cilable and strives to show their absolute and entire harmony. 
 The facts of science must correspond with the truths of 
 revelation, and his sermons upon this subject have been 
 some of the most thoughtful and valuable ever delivered 
 in a metropolitan pulpit. It is beyond question that the 
 scientific infidelity of the day must be met if it is to be met 
 and conquered not by evasion or half -denials, but by 
 boldly confessing the facts upon which it rests and by har- 
 monizing those facts with the statements of Scripture. To 
 do this successfully, the champion of Christianity must be 
 a scientist as well as a theologian and in both of these branches 
 of learning Dr. Shipman has been a wide and careful student. 
 Under such leadership, the historic parish of Christ Church 
 is rapidly regaining her ancient power and usefulness. 
 
 In the fall of 1885 the vestry adopted a resolution to the 
 effect that in their opinion it was desirable to remove the 
 church to some point farther up-town, and appointed a 
 committee of three of their number to examine into the 
 subject and report at a special meeting. Such meeting 
 was held on the 6th of June, 1886, when the committee 
 reported that a piece of property on the northwest corner of 
 Broadway and 71st Street was in their opinion exceedingly 
 advantageous for the purpose, and could be purchased for 
 about eighty thousand (80,000) dollars, but that no offer had 
 been made for the property at Fifth Avenue and Thirty-fifth 
 Street, which the committee considered it desirable to accept. 
 Under these circumstances the corporation was unable to 
 
 90
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 make the purchase, but three of the members of the vestry 
 generously offered to buy it themselves and hold it, with 
 the understanding that if the church should be in a position 
 to take it within a reasonable time, they would sell it at cost. 
 But the reasonable time elapsed before the sale of the old 
 edifice could be accomplished, two of the purchasers had 
 parted with their interest to the third, and he was under 
 no obligation, moral or equitable, to carry out the original 
 understanding when the Fifth Avenue property was sold 
 in May, 1888. But this gentleman was most anxious to 
 promote the welfare of the parish, and when it was repre- 
 sented to him that no location for the new church so desirable 
 and so advantageous as the site it now occupies could be 
 found, he very generously at once proposed to transfer the 
 lots to the corporation for their actual cost to him, although 
 the property had then very largely appreciated in value. 
 This noble gift, for such it really was, enabled the vestry 
 to carry out their views and to proceed at once to make 
 preparations for the erection of the new building. In the 
 following October the architect was appointed, plans and 
 specifications approved, and the work of excavating for the 
 foundation begun. In March, 1889, the contract for the 
 building was made, and the work proceeded to its comple- 
 tion in 1890, on the 18th day of May, in which year the first 
 service was held in the new church. 
 
 But the rapid growth of the neighborhood soon proved 
 that the accommodations provided were inadequate for the 
 demand, and the seating capacity of the building must be 
 enlarged. In the spring of 1892 the vestry decided to erect 
 
 91
 
 HISTORICAL SKETCH OF CHRIST CHURCH 
 
 an apse at the east end, flanked by towers, which would at 
 once add to the architectural beauty of the church, and 
 increase the number of pews. At the same time, it was 
 determined to build a rectory on land owned by the cor- 
 poration in the rear of the church. Both of these very 
 desirable additions have been completed, and with them 
 the old parish has now a home suited to its needs, and finds 
 itself at the completion of the first century of its existence 
 in a position to carry into effect the most enthusiastic dreams 
 of its early promoters.
 
 TICONDEROGA AND CROWN 
 POINT 
 
 A PAPER READ AT A BUSINESS COURT OF THE SOCIETY 
 
 OF COLONIAL WARS IN THE STATE OF NEW 
 
 YORK HELD ON NOVEMBER I&TH, 1900
 
 TICONDEROGA AND CROWN POINT 
 
 Your Excellency and Gentlemen of the Society: 
 
 TO properly appreciate the strategic value of Ticon- 
 deroga and Crown Point, and the underlying cause of 
 the numerous battles which have been fought for their pos- 
 session, it is necessary to consider the physical geography of 
 that section of the country. In the days before railroads or 
 even long communicating roads were thought of, when the 
 path from one of the scattered settlements to another was 
 usually only an Indian trail through the woods, the rivers and 
 other water ways were necessarily the most usual and con- 
 venient routes for travel and commerce, and for that reason, an 
 Irishman is said to have remarked, Providence placed all the 
 large rivers near the great cities of the world. The advan- 
 tages of the route of which Ticonderoga forms a link were 
 early recognized. Thomas Pownall, the English Governor of 
 New Jersey in 1735, tells us in his "Reminiscences" that the 
 Indian name of Lake Champlain signifies "the lake that is 
 the gate of the country." Cadwallader Golden, then Surveyor 
 General of the Province, in a report addressed to the Honor- 
 able George Clarke, the Lieutenant Governor, under date of 
 February 14, 1737-8, says "the Province of New York has 
 for the conveniency of commerce advantages by its situation 
 
 95
 
 TICONDEROGA AND CROWN POINT 
 
 (sic) beyond any other colony in North America. For 
 Hudson's River, running through the whole extent of this 
 Province, affords the inhabitants an easy transportation of all 
 their commodities to and from the city of New York. From 
 the Eastern Branch there is only land carriage of sixteen 
 miles to Wood Creek, or to Lake St. Sacrament, both of which 
 fall into Lake Champlain, from whence goods are transported 
 by water to Quebec." The name of Lake St. Sacrament, or 
 Horicon as it was called by the Indians, was changed by Sir 
 William Johnson, who writes to the Board of Trade in London 
 under date of September 3, 1755, in the beginning of the 
 French and English Wars, "I am building a fort at this Lake, 
 where no house was ever before built, nor a rod of land 
 cleared, which the French call Lake St. Sacrament, but I have 
 given it the name of Lake George, not only in honor to his 
 Majesty but to ascertain his undoubted Dominion here. 
 When the Battoes (certain small boats so called) are brought 
 from the last fort I caused to be built at the Great Carrying 
 Place about 17 miles from hence, I propose to go down this 
 Lake with a part of the army, and take post at the end of it 
 about 50 miles from hence at a pass called Tionderouge 
 (sic), about 15 miles from Crown Point, and there wait 
 the coming of the rest of the army and then attack Crown 
 Point." The Richelieu River connecting Lake Champlain 
 with the St. Lawrence is about 80 miles long. Lake Cham- 
 plain, varying in width from 40 rods to 14 miles, is 126 miles 
 in length, Lake George from three-quarters of a mile to 4 
 miles in width, 36 miles in length, and the Hudson River 
 from Glens Falls to its mouth about 190 miles. A magnifi- 
 
 96
 
 TICONDEROGA AND CROWN POINT 
 
 cent and unrivaled water-way of more than 400 miles, broken 
 only by the cany from Glens Falls to Lake George, was thus 
 provided from north to south, and the importance of cutting 
 this road in time of war, and preventing the passage of hos- 
 tile forces, was apparent even to the savage mind. The 
 narrow channel connecting the two lakes at Ticonderoga at 
 once suggested itself as a spot to be fortified, and it was so 
 utilized by the Indians, but the requirements of more civilized 
 warfare and weapons of greater carrying power than bows 
 and slings demanded the occupation of an outpost in the 
 vicinity, where a fortress well protected from an enemy's fire 
 could be erected, and such a place was found at Crown Point, 
 on a bluff at the end of a long peninsula projecting into the 
 lake, easily defensible at its narrow land end, and where 
 permanent works would form a valuable adjunct to the 
 position at the junction of the lakes. The French erected 
 a fort called Frederick at this point as early as 1731, and in 
 every war in this part of the country since that time the fate 
 of these two positions has been involved. It would test your 
 patience too severely to recite all the conflicts which have 
 there taken place, so I shall leave for our brethren of the Sons 
 of the Revolution the consideration of the events which 
 concern them, and confine myself to the history of the three 
 occurrences commemorated by the tablet erected by this 
 society on the battlefield near the old French lines on the 
 14th of June last. 
 
 The battle of July 30, 1609, between Champlain, the 
 Hurons and the Algonquins on one side, and the Iroquois on 
 the other, is described by Champlain himself in his Voyages 
 
 97
 
 TICONDEROGA AND CROWN POINT 
 
 de la Nouvelle France, published in Paris in 1632, extracts 
 from which are contained in the Documentary History of 
 New York. On the 2d of July in that year he started up 
 the rapids of the Chambly, now the Richelieu, accompanied 
 by a total force of sixty men in twenty-four canoes; how 
 many of these were savages and how many of his own people 
 he does not state, but there were evidently several of the latter. 
 On the 4th he entered the lake which bears his name, where 
 he was impressed by the beautiful islands near its southern 
 end, formerly inhabited by the Iroquois, but abandoned on 
 account of the state of war then existing between the differ- 
 ent tribes, and the abundance of trees and vines. They 
 moved slowly up the lake without the occurrence of any 
 special incident until the 29th, when about ten o'clock at 
 night, near if not at Ticonderoga, they encountered a war 
 party of Iroquois. Both companies began to shout, the 
 strangers withdrawing to the shore, and the explorers backing 
 into the lake and tieing their canoes together to avoid the 
 risk of separation. With quite the courtesy of mediaeval 
 knights, messages were exchanged, an agreement made to 
 defer the combat until the next morning, as it was then too 
 late and too dark to fight satisfactorily, and the opposing 
 forces spent the rest of the night in exchanging insults and 
 taunts with each other, "such as, the little courage they had; 
 how powerless their resistance against their arms, and that 
 when day would break they would experience this to their 
 ruin." The confusion of pronouns is the Sieur de Cham- 
 plain's, not mine, "Ours likewise did not fail in repartee; 
 telling them that they should witness the effects of arms they 
 
 98
 
 TICONDEROGA AND CROWN POINT 
 
 had never seen before; and a multitude of other speeches 
 such as is usual at the siege of a town." This last statement 
 suggests some curious reflections as to what a siege must 
 have been in the good old days. 
 
 After daybreak the invaders landed, and the Iroquois, some 
 two hundred strong, left their barricade led by three chiefs, 
 and marched with slow and dignified steps to meet them, 
 doubtless expecting from the disparity of numbers to win an 
 easy victory. Up to this point the entire proceedings seemed 
 to have been conducted with the utmost propriety and de- 
 corum and quite in accordance with the rules of chivalry. 
 But here we must hesitate to praise. The allies of Cham- 
 plain pointed out to him the three chiefs bearing lofty plumes 
 and urged him to kill them if possible, advice with which he 
 willingly complied, for, as he states, he was very glad to 
 encourage his friends and manifest to them his good-will. 
 The two forces paused about fifty paces from each other, 
 Champlain being some twenty paces in advance of his party, 
 armed with an arquebus into which he had put four balls. 
 With this somewhat unfair advantage in his favor, he waited 
 until the enemy prepared to shoot their arrows, and then 
 fired at the chiefs, killing two and wounding one of their 
 companions fatally. Flights of arrows from both sides fol- 
 lowed, but the Iroquois were already greatly alarmed at the 
 sudden and incomprehensible death of the two chiefs, for 
 they doubtless saw and heard firearms for the first time, and 
 as while Champlain was reloading, one of his companions 
 fired a shot, the battle was ended. The astonished Iroquois 
 fled in dismay, abandoning their field and fort and throwing 
 
 99
 
 TICONDEROGA AND CROWN POINT 
 
 away the weapons which only impeded their flight, which 
 were afterwards collected by the conquerors. Several others 
 were killed, and ten or twelve prisoners taken, but no wounded, 
 as these were carried off by their friends. Of Champlain's 
 party fifteen or sixteen were wounded by arrows, but all 
 recovered. The victory was complete, and was followed 
 by the proceedings usual on such occasions among warriors 
 whether savage or civilized, the plundering of the deserted 
 camp, and the celebration of the event by feasting, dancing, 
 and singing. "The place where this battle was fought," 
 says Champlain, "is in 43 degrees some minutes latitude, 
 and I named it Lake Champlain." 
 
 A very different spectacle was presented in the same month, 
 nearly one hundred and fifty years later, when British Regu- 
 lars and Colonial Provincials assembled at the head of Lake 
 George in "all the pomp and panoply of war," for an attack 
 upon the French position at Ticonderoga. The war between 
 the French and the English had so far resulted decidedly in 
 favor of the former, who were extending their lines and en- 
 croaching upon the British territory in every direction. The 
 inhabitants of the colonies were deeply incensed at what 
 they considered the indifference and carelessness of the home 
 authorities in failing to give them proper protection, and the 
 Government had at last been aroused to the necessity of 
 taking some active measures. 
 
 A plan of campaign was formed of which the capture of 
 the French position at Ticonderoga and a descent upon 
 Montreal were the leading features, and General James 
 Abercrombie, who had succeeded the Earl of Loudon as 
 
 100
 
 TICONDEROGA AND CROWN POINT 
 
 Commander-in-chief of the British forces in North America, 
 upon the return of Pitt to power, determined to lead the 
 expedition in person. Not, apparently, having full faith in 
 his capacity, Pitt, in the hope of providing against failure, 
 selected for second in command Lord Howe, who was given 
 the rank of Brigadier General, and became the active con- 
 trolling spirit of the undertaking. He has been described 
 as " Lord George Augustus Howe the leading Englishman 
 in America at that time the grandson of King George I 
 the special favorite of William Pitt, Prime Minister of Eng- 
 land the idol of the army and beloved in England and 
 America." 
 
 Abercombie was a far different character. Vain of his 
 authority, and anxious to show his contempt for the Provin- 
 cials, his first act was to promote discord among the troops 
 by announcing that all the regular officers would outrank 
 those in the Provincial service of the same grade. The 
 natural result was that animosities arose, many of the men 
 deserted, and some officers were on the point of resigning 
 their commissions and retiring from the service. Aber- 
 crombie was compelled to yield the point and agreed that the 
 regulars should remain and do duty in the forts, while 
 the Provincials under their own officers advanced against the 
 enemy. The bitter jealousies and enmities then created had 
 strong influence a few years later in the strife which began 
 at Lexington and ended at Yorktown. 
 
 Before describing the expedition against Ticonderoga, let 
 us see the character of the place to be attacked. Du Quesne 
 advised the construction of works at that point in the summer 
 
 101
 
 TICONDEROGA AND CROWN POINT 
 
 of 1755, and the duty was entrusted to Lotbiniere, an en- 
 gineer of the Province. The original fort was square, with 
 four bastions built of earth and timber, and was the founda- 
 tion of Fort Carillon. It is not known at what time the 
 stone works whose ruins still remain were erected, but in the 
 year 1758 the French were energetically engaged in enlarging 
 and strengthening the fort, as at that time Crown Point, on 
 account of its less favorable position, and the dilapidation of 
 Fort Frederick, seemed to them of secondary importance. 
 The position held by Montcalm, who was in command of the 
 French forces, "was a narrow and elevated peninsula, washed 
 on three sides by deep waters with its base on the western and 
 only accessible side. On the north of this base the access 
 was obstructed by a wet meadow, and on the southern ex- 
 tremity it was rendered impracticable to the advance of an 
 army by a steep slope extending from the hill to the outlet. 
 The summit between these two points was rounded and 
 sinuous with ledges and elevations at intervals. Here and 
 about hah* a mile in advance of the fort Montcalm traced the 
 line of his projected entrenchment. It followed the sinu- 
 osities of the land, the sections of the work reciprocally 
 flanking each other." At the time of the battle these en- 
 trenchments were from eight to ten feet in height, con- 
 structed of logs, and in front of them for a distance of one 
 hundred yards trees were felled and laid with their branches 
 outward. 
 
 On the morning of the 5th of July, 1758, the head of Lake 
 George presented a magnificent spectacle. Around the ruins 
 of Fort William Henry were assembled seven thousand 
 
 102
 
 British troops of the line, and about ten thousand Provincials, 
 including the best and bravest of both, with the attendant 
 hundreds of non-combatants, forming the finest army up to 
 that time assembled on the Western Continent. For their 
 transportation to Ticonderoga a flotilla was organized, con- 
 sisting of nine hundred bateaux and one hundred and thirty- 
 five whale boats, together with a number of rafts to carry the 
 heavy stores, ammunition, and artillery. On a beautiful 
 clear day this imposing pageant swept down the lovely lake 
 with the sound of cheerful voices, the rolling of the drums, 
 the exhilarating blare of the trumpets, and the weird screech 
 of the bagpipes of Lord John Murray's Highlanders. The 
 landing was effected at noon of the following day in a cove 
 on the west side of the lake. Here the troops formed in four 
 columns and began the advance, without, however, their 
 artillery and heavy baggage, which had to be left behind until 
 the bridges which had been burned by the advance guard 
 of the enemy in their retreat could be rebuilt. Abercrombie's 
 intention was to hurry forward and carry Ticonderoga by 
 storm before the arrival of re-enforcements which were sup- 
 posed to be hastening to Montcalm's relief. But the dense 
 woods and tangled underbrush rendered progress slow and 
 uncertain, and in the general confusion the advance guard 
 encountered a body of the enemy under De Trepezee, who 
 had lost their way. In the skirmish which followed Howe 
 fell at the head of his men, and the utter route of the French 
 party was but small compensation for the loss of the brilliant 
 leader. A solitary barge, in striking contrast with the bril- 
 liant display of the preceding day, is said to have borne his 
 
 103
 
 TICONDEROGA AND CROWN POINT 
 
 corpse back to Fort William Henry, whence it was taken to 
 Albany for interment in St. Peter's Church, while it is also 
 stated with equal persistency that his body was buried on 
 the field of battle, where his remains are said to have been 
 discovered a few years ago. "The death of Howe paralyzed 
 the army. With him expired its spirit, its confidence and 
 hope; all afterwards was prompted by imbecility, indecision, 
 and folly." Abercrombie withdrew his army the next morn- 
 ing to the landing-place, but while he was hesitating, Colonel 
 Bradstreet with Rogers and some four hundred rangers, 
 pushed forward, rebuilt the bridges and took possession of 
 some sawmills which the French had erected at the lower 
 rapids about two miles from Ticonderoga. Thus encour- 
 aged, Abercrombie moved his army to the sawmills and sent 
 forward his engineer, Clerk, and John Stark, who was with 
 the Provincial troops, to examine the enemy's works. The 
 party returned at dusk, and Clerk reported that the works 
 would offer only feeble resistance to a charge of the British 
 bayonet, but the more experienced Stark was of a very differ- 
 ent opinion. His advice was rejected by the General as that 
 of an ignorant Provincial, unacquainted with British prowess, 
 and orders were issued, early on the morning of the 8th, 
 to advance without artillery and carry the enemy's works at 
 the point of the bayonet. 
 
 It is asserted that it was Montcalm's intention to evacuate 
 Ticonderoga without awaiting an attack, as he thought it 
 untenable, and that he did not decide upon a vigorous de- 
 fense until the morning of the battle. His entire force of 
 fighting men was two thousand nine hundred and ninety-two, 
 
 104
 
 TICONDEROGA AND CROWN POINT 
 
 and of these four hundred and fifty were irregular troops, 
 who occupied the abattis in front of the works. De Levis 
 was placed on the right with three regiments, De Boula- 
 marque held the left with an equal force, while Montcalm 
 occupied the centre with three battalions. The declivity 
 towards the outlet was guarded by two companies. Behind 
 each battalion was stationed in reserve a company of grena- 
 diers. Work on the entrenchments was resumed at daybreak, 
 but at the preconcerted signal (an alarm gun), the troops left 
 their labors and assumed their respective stations under arms. 
 Montcalm threw off his coat, and, forbidding his men to fire 
 a musket until he should give the word, calmly awaited the 
 approach of the enemy. 
 
 It was not a battle, but a massacre. Entangled in the 
 trees, confronted by lines of works too high to climb, sub- 
 jected to a withering and murderous fire from swivels and 
 muskets, the troops held their ground with determined valor. 
 " But," says Mr. Smith, in his history of Essex County, " they 
 heard no command to retreat, they had received their 
 orders to advance, and although they could not surmount 
 the works they could die in front of them. . . . The assault 
 was hopeless from the beginning, and while its bloody scenes 
 were being enacted under the watchful eye of the brilliant 
 French general, Abercrombie looked after the welfare of his 
 noble person amid the security of the sawmills two miles 
 from the battlefield." After enduring the enemy's fire with- 
 out flinching for five hours, the troops retreated in the utmost 
 disorder, having lost in killed and wounded nineteen hundred 
 and sixty-seven men. 
 
 105
 
 TICONDEROGA AND CROWN POINT 
 
 The British had still some twelve thousand men with plenty 
 of artillery, but their general was thoroughly alarmed, and 
 retreated during the night to the landing, leaving orders for 
 the army to follow him there. On their arrival the next 
 morning, this army of lions, led by a stag, was seized with a 
 sudden panic and would have rushed into the bateaux and 
 sunk many of them, had not Colonel Bradstreet by his cool- 
 ness and presence of mind prevented such a disaster. Aber- 
 crombie, it is said, did not breathe freely until Lake George 
 was between himself and the enemy, and his artillery and 
 ammunition fairly on the way to Albany. That pursuit did 
 not follow was due to the feebleness of the enemy, and the 
 impracticability of traversing the forest without Indian guides, 
 which Montcalm did not have. De Levis went over the 
 track of Abercrombie's army on the morning of the 10th, and 
 found only the vestiges of a routed host. 
 
 "Abercrombie returned to England," says Bancroft, 
 "evaded censure; was gladdened by promotion, and lived 
 to vote as a member of parliament for the taxation of a 
 country which his imbecility might have lost, and which 
 was always the object of his malignant aspersions." 
 
 The decisive blow was struck the next year by a very 
 different man. General Amherst, who had captured Louis- 
 bourg on July 16, 1758, learning of the fatal issue of Aber- 
 combie's campaign, with an unwonted ardor, without waiting 
 for orders, embarked four or five regiments and sailed with 
 them to Boston. On his arrival he at once commenced a 
 march through the forest to Lake George, which he reached 
 in person in October. In November he assumed command, 
 
 106
 
 TICONDEROGA AND CROWN POINT 
 
 Abercrombie having been recalled, and he appointed Com- 
 mander-in-Chief. 
 
 Of him, Watson in his history of Essex County says, 
 "Amherst, without any claim to brilliancy or genius, was 
 calculated to command success by the excellence of his judg- 
 ment, his prudent circumspection, and persevering firmness. 
 His character and policy had secured to him the respect and 
 confidence of the colonies. His measures were not stimu- 
 lated by the arrogance of Braddock, nor trammeled by the 
 feebleness and indecision of Abercrombie, nor dishonored by 
 the pusillanimity of Webb." 
 
 As the season was too far advanced for active operations 
 when Amherst received his promotion, it was not until in 
 May of 1759 that he began his preparations at Albany, 
 obtaining boats, gathering stores, and drilling the new re- 
 cruits. He reached Lake George with an army of about 
 eleven thousand men in June, and late in July it moved 
 down the lake in four columns, in a fleet of whale boats, 
 bateaux and artillery rafts, and left the boats nearly opposite 
 the former landing-place. The army advanced rapidly on 
 the road to the falls, meeting and scattering after a short 
 skirmish a force of French and Indians, and the main body 
 took a position at the sawmills. From prisoners captured 
 it was learned that Montcalm was at Quebec, where that 
 gallant officer met a soldier's death on the 13th of September 
 following, and that Boulamarque commanded at Ticonderoga 
 with thirty-four hundred men. The French withdrew into 
 the fort, and made a show of resistance for several days while 
 they completed their preparation for evacuating the position. 
 
 107
 
 TICONDEROGA AND CROWN POINT 
 
 During the night of the 25th of July an explosion took place 
 and the light of the burning works showed the retreat of the 
 French. Colonel Haviland pursued them down the lake with 
 a few troops and took sixteen prisoners together with some 
 boats laden with powder. Amherst slowly prepared to 
 attack Crown Point, and sent Rogers with his rangers to 
 reconnoitre. But on the 1st of August they learned that the 
 French had abandoned that fort, and on the 16th that Boula- 
 marque with his troops was encamped at the Isle au Noix at 
 the northern extremity of Lake Champlain, commanding the 
 entrance to the Richelieu. The final conquest of Ticonderoga 
 and Crown Point was achieved with only the loss of Amherst's 
 Adjutant General Townsend, a brilliant officer, and about 
 eighty men. 
 
 The long struggle was ended. The fall of Quebec the next 
 month left the French in possession only of Montreal and 
 Detroit and a few scattered posts along the frontier, and these 
 last traces of dominion vanished the next year, with Amherst 
 in Montreal and Rogers in Detroit. From the bay where 
 Hendrik Hudson moored the little Half Moon, throughout 
 the length of the lordly river to which he gave his name, 
 across the carry to the lovely lake which testifies to Sir William 
 Johnson's loyalty to his royal master, passing the gateway of 
 Ticonderoga into the great inland sea which Champlain 
 discovered and explored, through the winding channel of the 
 Richelieu to the St. Lawrence, and down its broad pathway 
 to the sea, the lilies of France were forever submerged beneath 
 the waters, and the crosses of Great Britain everywhere 
 floated in triumph. 
 
 108
 
 NEW YORK IN 1801 
 
 A PAPER PREPARED AT THE REQUEST OF THE 
 COLONIAL ORDER OF THE ACORN, DESCRIP- 
 TIVE OF THE ACCOMPANYING ENGRAV- 
 ING, AND PRIVATELY PRINTED BY 
 THE ORDER IN MAY, 1904
 
 NEW YORK IN 1801 
 
 THE picture presented to us shows little with which we 
 are familiar on either side of the river. The fishermen 
 on the Long Island shore would now find small opportunity 
 to pursue their vocation in front of the warehouses, amid the 
 puffing tugs and steamers and beneath the lofty bridge which 
 occupy the then vacant space, while their vision would be 
 surprised by the equally impressive towering buildings and 
 massive wharves which have replaced the old structures of 
 New York. Even the few church spires which then formed 
 such prominent features of the landscape, and which still remain 
 in the lower part of the city, are so dwarfed by their surround- 
 ings as to be barely discernible. But at this time these were 
 so conspicuous as to be the first objects to attract our atten- 
 tion. First and most obvious to the sight is Trinity Church 
 at the head of Wall Street, its steeple dominating all the others, 
 being on the building erected in 1788 to replace the one 
 destroyed by fire during the Revolution, to be in its turn 
 taken down to make room for the present stately edifice con- 
 secrated in May, 1846. The spire next on the right I imagine 
 to belong to the Presbyterian Church in Wall Street, near 
 Broadway, which was built in 1719 and enlarged in 1748. 
 Rebuilt on a greater scale in 1810, it was destroyed by fire in 
 
 111
 
 NEW YORK IN 1801 
 
 1834, restored the following year, and occupied until 1844, 
 when it was taken down, the congregation having acquired a 
 new site on Fifth Avenue, between Eleventh and Twelfth 
 streets, which it still occupies. Immediately to the north of 
 the Wall Street Presbyterian Church stood the Scotch Cov- 
 enanters Church, on the south side of Cedar Street, and its 
 steeple is probably the northerly one of the three clustered 
 together, but the latter may be that of the Middle Dutch 
 Church on Nassau and Cedar streets, on the ground now 
 occupied by the building of The Mutual Life Insurance 
 Company of New York. Next, to the right, appears the 
 spire of the North Dutch Church, completed and opened 
 for public worship on May 25, 1769, a fine stone building 
 measuring 100 feet by 70, on the corner of William and 
 Fulton streets. Almost up to this time the services in the 
 Dutch Reformed Churches had been held in the mother 
 tongue, but the increasing use of the English language had 
 become so marked, especially among the younger people, 
 that it became necessary to make a change, and in 1764 
 English was used in the Middle Church, to the great wrath 
 of the elderly conservatives. Dutch, however, continued 
 the language in the South or Garden Street Church 
 until 1803. 
 
 Passing on to the right, the next tall spire is that of St. 
 Paul's Church, erected in 1766, where, during the days of the 
 English occupation of the city, Major Andre, Lord Howe, and 
 Sir Guy Carleton attended the services, and with them the 
 English Midshipman, who afterwards became William IV. 
 Immediately after his inauguration as first president of the 
 
 112
 
 NEW YORK IN 1801 
 
 United States, Washington, together with all the civil and 
 military dignitaries who had graced the occasion, repaired 
 thither for public worship, and during his residence in the 
 city he retained a pew there and constantly attended the ser- 
 vices. It has frequently since been the scene of stately cere- 
 monies, not the least imposing of which were the funeral 
 services held under the auspices of the Sons of the Revolution 
 in honor of the late President McKinley on the 18th of Sep- 
 tember last. 
 
 The eye rests next upon the Brick Church then standing at 
 the corner of Beekman and Nassau streets, upon ground 
 which is now partly occupied by the building of the New 
 York Times, and which was built in 1768 in the fields and 
 quite out of town. During the Revolution it was used as a 
 hospital, but restored to ecclesiastical purposes thereafter and 
 continued as a place of worship until 1854, when the congre- 
 gation removed to their present building at the corner of 
 Fifth Avenue and Thirty-Seventh Street. It remained for 
 years a branch of the Presbyterian Church in Wall Street, 
 and the formal separation and its erection to the dignity of 
 an independent church did not occur until 1809. 
 
 Last on our list towers the spire of St. George's Church, 
 on the Chapel Hill at the corner of Beekman and Cliff streets, 
 built in 1748 as a chapel of Trinity Church, and made an in- 
 dependent organization in 1809. In 1846 Mr. Peter G. 
 Stuyvesant gave the church some lots of ground on Ruther- 
 ford Place and Sixteenth Street, sufficient for a new church 
 and rectory, and the parish erected buildings on that site 
 which it still occupies. 
 
 113
 
 NEW YORK IN 1801 
 
 This brief review of the church steeples shown in our 
 picture makes it clear that our fathers did not lack oppor- 
 tunities for religious instruction and worship, and justifies 
 the remark of Mr. Felix Oldboy when he terms the New York 
 of that day "the paradise of churches." 
 
 Having considered the ecclesiastical buildings with suffi- 
 cient fulness we may properly turn our attention to the more 
 worldly features of the landscape, but I cannot attempt with 
 any confidence to identify the other buildings shown. I am 
 inclined to think that the high roof, to the right of Trinity 
 and the two other steeples, covers the new City, afterwards 
 Federal, Hall, which stood on the north side of Wall Street, 
 opposite Broad Street, extending across what is now Nassau 
 Street, but I do not venture to speak with certainty. Fraunce's 
 Tavern, the City Hotel, the Tontine Building, the Golden 
 Hill Inn, and many other landmarks of the old city, are 
 doubtless there but cannot be recognized. South Street had 
 not then been reclaimed from the river, and Water Street was 
 the city's front on the East side along it was extended the 
 shipping of the port, as the North River, with its width and 
 direct continuation of the bay, was thought to afford only an 
 unsafe and hazardous anchorage. Along the wharves from 
 the Battery to Peck Slip the ships lay at the wharves, or at 
 anchor in the river, and above were the shipyards, then 
 scenes of busy industry. Here and there were receiving 
 docks, as at Coenties Slip, Wall Street, and Maiden Lane, 
 which were afterwards filled up to make the broad spaces 
 which are now found at the foot of those streets. The Fly 
 Market, so called, a corruption of V'lei or Valley, from a 
 
 114
 
 NEW YORK IN 1801 
 
 stream which ran through Maiden Lane, the favorite location 
 for the laundry work of our mothers, consisted of three 
 market houses on that street, extending from Pearl Street to 
 the river, and from the slip connected with it a ferry ran to 
 Brooklyn. 
 
 Before passing to the consideration of the general condition 
 of the city at that time, our engraver deserves a moment's 
 attention. "Engraving," says Gen. James Grant Wilson, 
 in his Memorial History of the city of New York (Vol. IV, 
 p. 357), "did not antedate sculpture in its artistic and tech- 
 nical development, although a number of engravers, most of 
 them foreigners, began to practise their calling in this city 
 in the last decade of the Eighteenth Century," and among 
 the names he mentions as prominent in the art at that time 
 is that of William Rollinson, by whom the engraving before 
 us was made. The artist who prepared the drawing, John 
 Wood, has not handed down his fame to posterity in any 
 other work than this, so far as I can ascertain. The plate 
 is most accurately and artistically engraved and will bear the 
 closest examination under the most powerful glasses. 
 
 The city of our homes and our love arose from the destruc- 
 tion of the Revolutionary period like a phenix from its ashes. 
 With her population scattered, her commerce destroyed, most 
 of her buildings burned, ruin and desolation on every hand, 
 she went to work with undaunted courage, unrivaled energy, 
 and far-seeing sagacity, immediately upon the withdrawal 
 of the British troops in 1783, to rebuild the Metropolis of the 
 West. The fact that she became the seat of the new govern- 
 ment was unquestionably a strong factor in her favor, and in 
 
 115
 
 NEW YORK IN 1801 
 
 1801 she had already acquired a population of between fifty 
 and sixty thousand. An estimate of the funds required for 
 the support of the city's institutions for the year 1800, which 
 has been preserved by General Wilson, gives us a good 
 idea of the responsibilities the city authorities of those days 
 had to bear, and forms a marvelous contrast to the budget of 
 the present city. For the almshouse the sum of thirty thou- 
 sand dollars was needed, an amount which seems dispro- 
 portionately large, and which may have been in some degree 
 attributable to the losses incurred in the Revolution by those 
 who were too old or too helpless to restore their fortunes. 
 For the Bridewell or Workhouse five thousand dollars was 
 required, and for the support of the prisoners three thousand 
 dollars was appropriated. In view of the cost of our present 
 police system, the maintenance of the watch for twenty-five 
 thousand dollars seems idyllic, as does an appropriation of 
 five thousand dollars for streets. To this list must be added 
 other items which seem properly to belong to the same sub- 
 ject, such as lamps to cost fifteen thousand dollars for being 
 kept in order and lighted on nights when there was no " light 
 moon," and wells and pumps, for fire and domestic purposes, 
 for which twenty-five thousand dollars were needed. The 
 Manhattan Company, which had been chartered the year 
 before, had already gone into the banking business under its 
 charter, but had done very little in the line of its ostensible 
 purpose of supplying the city with fresh water. For roads 
 about the city seventy-five hundred dollars were appropriated. 
 But even in those days, which so many people who know 
 little about them consider purer and better than these so far 
 
 116
 
 NEW YORK IN 1801 
 
 as politics and politicians are concerned, our predecessors 
 showed their appreciation of the advantages to be derived 
 from the useful application of money by making appropriations 
 for "Contingencies" of twenty-nine thousand four hundred 
 and fifty dollars, and for "City Contingencies" of seventy- 
 five hundred dollars, moneys doubtless intended to be applied 
 where they would do the most good, as the contingencies 
 might arise. 
 
 The city then occupied only the lower end of the Island. 
 The Battery was the favorite promenade. Many of the 
 prominent merchants lived along State Street and in Pearl 
 Street over their stores. The banks and financial institu- 
 tions were in Wall Street, where also resided many of our 
 ancestors, and their wives went shopping in William Street. 
 
 The only theatre was the one on Park Row, between Ann 
 and Beekman Streets, called the Park Theatre, which was 
 opened in 1798, and there appear to have been no other 
 public amusements. There was much social life, but con- 
 sidering the proportion of the number of churches to the 
 population, these must have afforded the principal oppor- 
 tunities for social gatherings. I have enumerated those 
 conspicuous by their steeples, but there were many others, 
 such as the Garden Street (or Exchange Place) Church, Grace 
 Church on the corner of Rector Street and Broadway, where 
 the Empire Building now towers, the French Church in Pine 
 Street, Christ Church in Ann Street, and St. Peter's in Bar- 
 clay Street built in 1786, the home of the oldest Roman 
 Catholic congregation in the city. 
 
 I can find no words to conclude this brief sketch better or 
 117
 
 NEW YORK IN 1801 
 
 more appropriate than those used by the President of the 
 United States in his "New York," pp. 166-167. Says Mr. 
 Roosevelt, speaking of this period, very characteristically, 
 "the divisions between the upper, lower, and middle classes 
 were sharply marked. The old families formed a rather 
 exclusive circle, and among the large land owners still claimed 
 the lead, though the rich merchants, who were of similar 
 ancestry, much outnumbered them, and stood practically on 
 the same plane. But the days of this social and political 
 aristocracy were numbered. They lost their political power 
 first. . . . The fall of this class, as a class, was not to be 
 regretted, for its individual members did not share the gen- 
 eral fate, unless they themselves deserved to fall. The 
 descendant of any old family who was worth his salt still had 
 as fair a chance as any one else to make his way in the world 
 of politics, of business, or of literature; and according to our 
 code and standard, the man who asks more is a craven." 
 
 118
 
 MYSTERIOUS DISAPPEARANCES AND 
 PRESUMPTIONS OF DEATH 
 IN INSURANCE CASES 
 
 PAPERS READ BEFORE THE MEDICO-LEGAL 
 SOCIETY OF NEW YORK
 
 MYSTERIOUS DISAPPEARANCES, AND PRESUMP- 
 TIONS OF DEATH IN INSURANCE CASES 
 
 PART I 
 
 IN looking over the titles of the papers which have been 
 read from time to time before this society, I observe that it 
 has exercised a most catholic toleration towards their authors, 
 and allowed them to treat of any subject which appeared to 
 be even remotely connected with the object of its existence. 
 An especially favorite topic seems to have been suicide, and 
 the always interposed plea of insanity in life insurance cases; 
 and with that fact in view, I do not feel that I am asking too 
 much indulgence when I invite your attention to another 
 class of frauds perpetrated upon companies engaged in that 
 business ; and even if my discourse is not sufficiently profound 
 to entitle it to rank with the many able and thoughtful papers 
 which have been read before this body, it is well to remember 
 that the bow of Apollo was not always stretched, and that it 
 is good sometimes to unbend, and waive instruction in favor 
 of entertainment. 
 
 Before entering upon my subject, permit me for a moment 
 to advert to the unreasonable nature of the charge now so 
 frequently made against life insurance companies, that they 
 seize every pretext to resist the payment of a claim; and 
 
 121
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 complaint is especially made, that after receiving premiums 
 for years they will, when death occurs, object that some false 
 statement has been made in the application which avoids the 
 policy. To the careless and unthinking such conduct does 
 appear to be reprehensible, and it would seem at first sight 
 that companies should make their initiatory examination so 
 rigid and thorough, that after the applicant has once been 
 accepted, a policy issued to him, and his premiums regularly 
 paid and received for a series of years, they should be con- 
 cluded by their action, and estopped from raising any ques- 
 tion as to the physical or moral condition of the insured at the 
 time of the examination. So attractive is this idea to those 
 who have merely glanced at the superficial aspect of the 
 question, that the legislature of a Western State, a few years 
 since, solemnly enacted that after a policy had been issued 
 on a life, and the premiums regularly paid for three years, no 
 defense should be interposed by the company in an action 
 on the policy on the ground of misrepresentations made in 
 the application. Unfortunately for the object which these 
 modern Solons had in vew, their respect for the principles of 
 the Common Law compelled them to add, except in cases of 
 fraud, and as that defense would be made by a company only 
 in such cases, the statute avoids itself. The constitutional 
 prohibition of the enactment by any State of an act impairing 
 the obligation of contracts would probably render such a 
 statute worthless; but the one thus cited is curious as showing 
 the endeavor of the legislators to remedy what they considered 
 a wrong, and yet what they were obliged to confess that they 
 considered a right. For the insurer of a life stands in a very 
 
 122
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 different position from him who insures a house; the latter 
 may examine his risk carefully and thoroughly he may 
 measure its distance from adjoining buildings, the nature of 
 the walls between it and them, the internal supports, the ar- 
 rangement of the heating apparatus, the character of the roof, 
 the probability of total or partial loss in case of fire, the 
 efficiency of the department on which he must depend for the 
 extinction of a conflagration, the nature of the business car- 
 ried on in it and adjacent buildings, and every conceivable 
 element which enters into the calculation of his risk. They 
 are all existent patent to his investigation, and it is his own 
 fault if he does not enter into his contract with a clear and 
 perfect understanding of the risk which he assumes. With 
 the insurer of life the case is very different. Certain elements 
 of the calculation are of course within his reach. He can 
 estimate properly the influence of the climate in which the 
 proposed life dwells, the hazard of his occupation, the especial 
 diseases to which his locality is exposed, and the average 
 length of human life. From all these facts he can deduce a 
 table of life which will enable him to rate exactly the cost of 
 insuring the theoretical man. But when he comes to carry 
 his theories into practise, he has in reality no means of ascer- 
 taining whether the life proposed reaches the average stand- 
 ard, but from the statements made to him by that proponent. 
 The medical gentlemen who honor me with their attention 
 know very well that there may be inherited or even acquired 
 tendencies toward certain diseases, which no physical exam- 
 ination will detect, and against which the insurer can be 
 warned only by a true and accurate family history. The 
 
 123
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 tremendous influence over the question of life or death which 
 is wielded by such tendencies, by habit, by temperament, is 
 an important factor in every calculation upon a single life, 
 and cannot be properly estimated unless every circumstance 
 or fact which the insurer desires to know is stated to him fully 
 and accurately. I have in my mind at this moment a case in 
 which the applicant for insurance presented a clear, unques- 
 tionable record. One sister had died of yellow fever it 
 was true, but he omitted to add that, had the fever spared 
 her, she would have died of consumption within six months. 
 Another sister died of suppressed menses it was also true, 
 but he omitted to state, that vicarious menstruation ensued 
 from the lungs, and caused her speedy death. So with 
 several other members of his family, who, with well developed 
 phthisis, had actually died from other causes. The applicant 
 himself was apparently sound, and physical exploration 
 failed to discover any symptoms of disease, yet his death 
 within a year from consumption showed that he must have 
 had strong tendencies towards that disease, and investigation 
 developed the facts I have detailed. As is usual in such 
 cases no ground of suspicion was presented until the death 
 occurred. Then the very fact of such a death showed that 
 misrepresentations must have been made, and not until 
 suspicion was thus aroused was such an investigation deemed 
 desirable. It is practically impossible to verify at the outset 
 every statement made by an applicant for life insurance, and 
 as he knows, and from the nature of the case must know, the 
 truth or falsity of what he alleges, it is only just that those 
 claiming under him should be bound by his representations. 
 
 124
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 If his death occur from a cause or under circumstances in- 
 consistent with his statements, the insurer is, for the first 
 time, informed that those statements were false, and is justi- 
 fied, both in law and in good morals, in resisting a demand 
 based upon a contract into which he was led by the misrepre- 
 sentations of the contracting party upon whom he relied. 
 
 Yet, when we consider the magnitude of the business of 
 life insurance in this country, it is suprising to see how few 
 cases are contested compared with the immense number which 
 are paid without a question, although many of the latter are 
 doubtless tainted with fraud. 
 
 From the last report (April, 1875) of the Insurance Super- 
 intendent of this State, I find that fifty American companies 
 reported to him in detail their business for the previous year. 
 During that period these companies returned to their policy- 
 holders in payments for death-claims, and lapsed or surren- 
 dered policies, over forty-eight millions of dollars, while the 
 entire amount reported as in litigation was but little over one 
 million. That is to say, the total amount of claims disputed 
 for every cause, and many of which had been pending' for 
 years, was only a trifle more than two per cent of the sum 
 paid to their customers in a single year. The bare statement 
 shows the absurdity of the pretense that these companies 
 prefer to dispute claims upon them, and it may fairly be 
 added that no solvent company ever resists a demand willingly. 
 No matter how just the resistance may be, or how bare-faced 
 the fraud which may be attempted, the fact of the resistance 
 is all that strikes the popular attention, and it is made a 
 handle for attack and abuse. Were it not that the officers 
 
 125
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 of these companies are usually honorable and high-minded 
 men, who properly appreciate the sacredness of their trust 
 and their duty to their honest policy-holders, we should hear 
 nothing of contested claims, and a grand field would be open 
 to modern rascality. 
 
 It must be noted that this statement of litigated claims 
 includes every variety of demand, from that based upon a 
 doubtful point of law to that resting upon the most out- 
 rageous fraud. 
 
 If this digression has answered no other purpose, I trust 
 it may have shown that while life insurance companies are 
 extremely averse to litigation, they are peculiarly exposed to 
 frauds, and prepared the way for the consideration of the 
 particular class of rascalities to which I invite your attention. 
 
 The number of people who live by their wits depends upon 
 the state of civilization of the country in which they exist 
 and increases pari passu with the latter. When man, as in 
 his primeval state, is utterly dependent upon his own exer- 
 tions, and must kill and cook his own dinner or go without it, 
 rogues have no field for their operations; but with the increase 
 of mutual dependency, and the accretion of individual or 
 corporate wealth, comes the opportunity for its fraudulent 
 attainment. With the opportunities which life insurance 
 companies offer for a heavy insurance and a simulated death, 
 it is singular that this field has not been more freely worked, 
 to use the professional slang; yet the few instances I have to 
 detail are all that have been discovered, although no one 
 knows how many frauds have escaped detection. 
 
 Mr. John Francis, in his entertaining work entitled " The 
 126
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 Annals, Anecdotes, and Legends of Life Insurance," with 
 all his laborious research has been able to find but two 
 such instances of attempted fraud. The first occurred 
 at Berlin, Germany, in 1848, where a surgeon had been 
 bribed to certify to the death of a person heavily insured, 
 and a coffin filled with stones and rotten straw was solemnly 
 interred with all the religious ceremony and friendly attention 
 appropriate to the occasion. Unhappily for its instigator, 
 the plot was soon discovered and all the parties interested 
 properly punished. The same trick was attempted a few 
 years since, in a Western State, with the same result. 
 
 The second case related by Mr. Francis shows rascally 
 genius, and was so well planned that no suspicion was excited 
 and success was achieved. A party of four men in London 
 hired a boat one evening about dusk, just below Blackfriar's 
 bridge, and proceeded for a pleasure excursion up the Thames. 
 While rowing quietly along and not far from shore, the boat 
 was suddenly and apparently without cause overturned, and 
 its four occupants were struggling amid the darkness in the 
 water. Their cries for help were speedily answered by the 
 numerous boats in the vicinity, and three of the party were 
 soon in safety, but the fourth could nowhere be found. Care- 
 ful search was made without result, and the survivors were 
 loud in their lamentations over the unhappy fate of their dear 
 friend. They were compelled reluctantly to leave the spot 
 where he had been lost, but not before offering a large reward 
 for the recovery of his body. Late that night the same party 
 in a small boat with muffled oars proceeded stealthily down 
 the river, and placed a dead body procured from some hos- 
 
 127
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 pital or cemetery at a point on the river bank, where the tide 
 would be likely to throw a corpse drowned at the spot where 
 their accident had occurred. The next morning they reap- 
 peared upon the scene, heard with astonishment and delight 
 that the body of their deceased comrade had been found, 
 recognized the corpse at once, and paid with alacrity the re- 
 ward which they had promised. The Coroner's inquest was 
 held in due form, the accident described, the three survivors 
 identified the body as that of their deceased friend, and a 
 verdict of accidental death was duly rendered. The proceed- 
 ings with other proper proofs were presented to the company 
 which had a large insurance on the life of the suppositi- 
 tious deceased, and as everything appeared to be perfectly 
 regular, the money was duly paid to the claimant. Not until 
 the parties concerned had the audacity to attempt the same 
 operation a second time was the fraud discovered. The 
 admirers of Mr. Chas. Reade may remember that he has 
 worked this incident into the lives of one of his characters in 
 a recent novel. 
 
 An ingenious gentleman in Massachusetts, who had em- 
 barrassed his affairs by a long continued series of forgeries, 
 and had become somewhat apprehensive of the result to 
 himself, recently endeavored to solve his difficulties by a 
 mysterious disappearance from a Fall River boat. He was 
 known to have left New York on it, but was not seen the next 
 morning, and on examination his outer clothing was found 
 in his stateroom, but no trace of himself . His life was heavily 
 insured, he was known to be financially embarrassed, and 
 the first supposition naturally was that he had committed 
 
 128
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 suicide. Unfortunately for the success of his well-laid plans 
 the victims of his crimes were sufficiently skeptical of his 
 death to secure a large detective force to trace him, and their 
 efforts resulted in his arrest at San Francisco as he was about 
 to embark for Australia. His plan of operation had been 
 very simple he merely left the suit of clothes he had worn 
 in his stateroom, taking another from his valise, shaved his 
 beard and whiskers, and stepped forth so altered that no 
 casual observer the next morning recognized him as the man 
 they had seen the night before. 
 
 More careful construction of a plot and greater attention 
 to details was shown by two men named Shepherd, who con- 
 cocted a fraud upon three insurance companies some two 
 years since. About the middle of July, 1873, one George 
 Shepherd called at the house of a farmer in Maryland, living 
 near the Potomac River nearly opposite Alexandria, and 
 asked and obtained permission to spend the night. One of 
 the family was a boy of about sixteen years of age, apparently 
 a simple, well-meaning creature, not overburdened with 
 brains, who seemed to Shepherd a fitting tool for the scheme 
 he had in mind. In the course of the evening's conversation 
 he suggested to the farmer, who spoke of his desire for addi- 
 tional help in harvesting, that he had a brother living with 
 him in Alexandria who would be glad to accept a short en- 
 gagement. The proposal was accepted and James Shepherd 
 entered into the farmer's employ, his brother visiting him 
 almost daily, and thus continuing his own acquaintance 
 with the family. After a week of these preliminaries, James, 
 who had by this time become quite well acquainted with the 
 
 129
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 boy already mentioned, proposed to him one evening to go 
 out on the river for a fishing excursion with his brother George, 
 and the two together went to the water, where they found 
 George in a boat. This latter had some peculiarities of 
 construction which are entitled to especial mention. It was 
 an ordinary working-boat, about twelve feet in length, having 
 two seats in the center, but none in the bow or stern. On 
 the latter was fastened a platform which projected out over 
 the water some ten or twelve inches, and almost as much on 
 each side, and a rope ran along the outside of the boat from 
 the bow to the stern, and dragged some additional length in 
 the water. The weather was warm, but George wore a 
 rubber coat over his other clothing. In this boat thus pre- 
 pared, the party started about dusk, James and the boy each 
 pulling an oar and George sitting in the stern. They stopped 
 twice and anchored to fish, and having consumed the time 
 until it was quite dark, the night being cloudy, the Shepherds 
 proposed to pull up the anchor to go ashore. They were 
 then on the flats between the channel and the shore, the moon 
 was obscured by thick clouds, and the only light visible pro- 
 ceeded from a lighthouse on the Virginia shore opposite to 
 them. On the return trip the position of the parties was 
 somewhat altered : George sat in the bow of the boat, the boy 
 in the centre, pulling both oars, so that his back was towards 
 him and his attention fully occupied, and James on the other 
 seat. Suddenly, as the boat was proceeding quietly without 
 any jar or shock, a splash was heard, James cried out that his 
 brother had fallen overboard, and the boy, turning his head 
 saw him for one brief instant near the boat on the surface of 
 
 130
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 the water, beneath which he immediately sank. The two 
 rowed about for some time, and poked with their oars on the 
 bottom of the river, but of course did not find what one of them, 
 at least, knew very well was not there. After fifteen minutes 
 spent in this useless employment, they proceeded to the shore, 
 when the boy was at once sent to a distance to inform a neigh- 
 bor of the accident, thus giving George an opportunity of 
 coming out from under the stern of the boat, where he had 
 supported himself by the rope, and betaking himself to a place 
 of security. The neighbors were told the story, and urged 
 to search for the body, but the rogues were inferior to their 
 English prototypes in neglecting to procure a corpse to per- 
 sonate the absent one, and no body was ever found. James 
 remained in the farmer's employ for a few days longer, until 
 he had recovered from his grief sufficiently to enable him to 
 take the boy before a notary public in Alexandria, and have 
 him swear to an affidavit detailing the circumstances of the 
 death of George as he understood them, and then he too 
 disappeared from view for a while. 
 
 About this time the police of Alexandria became very much 
 exercised about the mysterious movements of some men who 
 appeared to be living in a swamp near the town, and as it 
 was feared that they were plotting burglaries at least, it was 
 decided to effect their capture. A sudden and unsuspected 
 movement resulted in the discovery of the Shepherds' boat, 
 containing two men, one of whom escaped at the first alarm, 
 but the other, who proved to be James Shepherd, was taken 
 prisoner. He was found to be heavily armed, and to have 
 on his person three policies of insurance which had been 
 
 131
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 issued by as many companies upon the life of his brother 
 George, and the affidavits of the latter's death made by the 
 boy and himself. In his first fright and alarm he confessed 
 the whole fraud, but subsequently decided to contradict his 
 statements, and to plead not guilty to the indictment which 
 was found against him for perjury in swearing to his brother's 
 death; the event proved his wisdom, for the jury before whom 
 he was tried were unable to make up what they were pleased 
 to call their minds, although several witnesses deposed to 
 having seen George Shepherd since the time of his alleged 
 death, and their disagreement was a virtual discharge for the 
 prisoner. He was so emboldened by this success that he had 
 an administrator of his brother's estate appointed in Rich- 
 mond, and commenced a suit on the policies in his name. 
 It is needless to add that it is not one which gives the com- 
 panies interested much anxiety, familiar as they are with the 
 extraordinary vagaries of petit juries. 
 
 A very striking instance of the tendency of the average 
 jury to find a verdict against a life insurance company in all 
 cases, without the slightest attention to the law or the facts 
 involved, is afforded by the Goss-Udderzook conspiracy, 
 which reached its final determination year before last, in the 
 execution of one of those parties for the murder of the other. 
 The whole case is so startlingly dramatic and so thrilling in 
 its incidents, that I trust I may be pardoned for dwelling upon 
 it at some length. 
 
 In the winter of 1871-2, Winfield Scott Goss was a young 
 mechanic in the city of Baltimore, a man of about thirty-six 
 years of age, of considerable inventive ingenuity, devoting 
 
 132
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 much of his time to new mechanical devices, somewhat 
 addicted to intemperance, of superb physique, and, 
 unfortunately for himself and his fellow-conspirators, of 
 conspicuous and striking presence. A good-natured, good 
 humored fellow, not possessing a high order of intellect, 
 rather idle and shiftless, and completely under the control of 
 his brother-in-law, Wm. E. Udderzook, who is the villain 
 of the story. Goss had for two or three years carried a policy 
 of $5,000 on his life, when the plan was formed to perpetrate 
 a deliberate fraud upon the insurance companies. As the 
 existing policy was hardly a sufficient prize, the first step was 
 to increase the amount, and in December, 1871, Goss applied 
 to other companies for two more policies of $10,000 each. 
 Being physically an excellent risk, he was at once accepted, 
 and having raised the funds to pay the first quarterly premium 
 on each, he was in possession of policies aggregating $25,000. 
 His next step was to announce to his friends that he proposed 
 entering upon a series of experiments in the hope of making 
 an artificial india-rubber, and with this ostensible object he 
 hired a small shanty some distance from Baltimore, on the 
 York Road, in a thinly settled neighborhood, where he es- 
 tablished his laboratory. On the second of February, 1872, 
 Goss and Udderzook went together in the afternoon to this 
 building as usual, and remained there some time. About 
 eight o'clock in the evening, Udderzook appeared at the door 
 of a farmhouse situated at a distance of half a mile, and 
 begged for a lamp, stating that the one which they had been 
 using burned very badly, and afforded scarcely any light. 
 This request having been complied with, he started to return, 
 
 133
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 carrying the lamp and accompanied by a son of the family, 
 whom he had invited to go with him. They had proceeded 
 but a short distance when their attention was attracted by a 
 gleam of light, and on the suggestion of Udderzook that the 
 laboratory must be on fire, they started on a run. Arriving 
 at the building, they found it all in flames, a crowd of people 
 assembled, and some engines from the city on hand and at 
 work. It was soon evident that the building must be entirely 
 destroyed, and then for the first time Udderzook made in- 
 quiries for his brother-in-law, and expressed the fear that he 
 had perished in the conflagration. The thought that a 
 fellow-creature might be endangered increased the exertions 
 of the firemen, and in short time the flames were beaten down 
 sufficiently to allow the form of a man to be indistinctly seen 
 amid the ruins. After several unsuccessful efforts, a hook 
 was inserted in it, and it was dragged out smoking and burn- 
 ing. The flesh of the head was entirely consumed, as was 
 the major part of the limbs; in fact, little but the skull, trunk, 
 and a portion of one of the thighs was left. At the coroner's 
 inquest the next day, however, the remains were identified 
 by Mrs. Goss, a brother, Alexander C. Goss, and by Udder- 
 zook, who also detailed the circumstances of his leaving 
 his brother-in-law, and supposed that the lamp which they 
 had used had suddenly exploded, setting fire to the build- 
 ing, and burning or otherwise crippling Goss, so that he 
 was unable to escape. The explanation was probable and 
 satisfactory, the verdict was duly rendered, and the weep- 
 ing widow and mourning friends followed to the grave, 
 with all becoming religious ceremonial, what the coroner's 
 
 134
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 jury had certified to be the mortal remains of Winfield Scott 
 Goss. 
 
 The proofs of death were duly presented, everything ap- 
 peared to be entirely regular, and the conspirators believed 
 themselves to be certain of success. But there is always 
 danger of over-doing a job of this character, and that was the 
 error committed in the present instance. The two com- 
 panies, who had but just issued their policies for $10,000 
 each, were naturally annoyed at so large a loss occurring so 
 speedily, and set to work to scrutinize all the facts in the case 
 with the greatest care. The first discovery of importance 
 was that Goss was utterly unable to carry so large an amount 
 of insurance. His income was limited, and insufficient to 
 cover his expenses; he was in debt to quite an extent, and had 
 even been obliged to borrow money to pay the first premiums 
 on his new policies. It was therefore clear that he could not 
 have intended to carry them long, and had obtained them 
 only for some immediate object. This was sufficient to 
 excite suspicion, and the unusual nature of the death added 
 to it. The character of Udderzook was not altogether be- 
 yond question, and his conduct at the farmhouse when he 
 went to obtain the light excited the comment of the people 
 there. It appears that he sat and conversed with them for 
 some time before stating his object in coming, and, after he 
 had mentioned it and obtained the light, he still lingered so 
 long that they felt obliged to remind him of the comrade 
 whom he had left in the dark, and to advise his speedy return. 
 This apparently inexplicable delay seemed intended to allow 
 the fire ample time to get well under way before he reappeared. 
 
 135
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 Again, his apparent forgetf ulness of his brother-in-law on his 
 arrival at the scene of the disaster, and his neglect to make 
 any inquiry for him until it was too late to make any effort to 
 extricate him from his supposed position, tended to show 
 that he did not wish to have the body drawn from the fire 
 until it had been so far destroyed as to render any attempt at 
 identification hopeless. In the endeavor to strengthen his 
 case, he committed a blunder which injured it very seriously. 
 A few days after the catastrophe he produced the watch of 
 Goss which he said he had discovered among the ruins, al- 
 though these had already been searched by hundreds of 
 curiosity seekers, and nothing of importance found. This 
 watch he swore that Goss had carried on the night of the 
 fire, but while the heat had almost entirely consumed the 
 body, the watch, which was said to have been on it, was not 
 melted nor even tarnished or injured in any way. Careful 
 investigation also showed that on the afternoon of the fire a 
 man supposed and believed to be A. C. Goss, a brother of 
 the insured, had hired a horse and a wagon from a livery 
 stable in the city, and had not returned with it until late in the 
 evening. The theory adopted by all the companies, in view 
 of the facts, was that a body had been procured from some 
 poor-house or cemetery, and conveyed to the shanty in the 
 afternoon; that Goss and Udderzook had together saturated 
 the corpse and building with coal-oil to ensure their destruc- 
 tion; that after the latter had gone for the light, the former 
 had set fire to the house, and then jumping into the buggy 
 held in readiness by his brother, driven to a small station 
 near by, at which the evening train from Baltimore stopped 
 
 136
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 and proceeded in that to Philadelphia, while his brother 
 returned with the buggy to the city, and Udderzook wept 
 over the charred remains drawn from the fire. The com- 
 panies therefore declined to pay the policies, and the widow 
 promptly commenced suit against them. 
 
 So far the defense had only conjecture and suspicion to 
 rely upon, and as it was certain that no favors could be ex- 
 pected from a jury, it was most important that positive evi- 
 dence should be discovered. Photographs of Goss were 
 freely distributed throughout this country and Canada, and 
 every effort made to reach his hiding-place, but without 
 success. He seemed to have disappeared from the face of 
 the earth as completely as if he had really perished in the 
 flames. 
 
 In the spring of 1873, as the time of trial drew near and 
 it became evident that Goss could not be found, it occurred 
 to the law officer of one of the companies that, in the absence 
 of any distinctive marks on the buried remains, it might be 
 worth while to examine the teeth. It had been noted that 
 the insured had a remarkably perfect set, and several of the 
 persons examined, in describing his personal appearance, 
 had especially referred to their whiteness and regularity as 
 being extremely noticeable. Personal interviews with over 
 fifty dentists in Baltimore, Washington, and Philadelphia 
 failed to show that any work had been done for him by any 
 of them, and his wife and relatives were all certain that he 
 had never been to a dentist and never had any trouble with 
 his teeth requiring attention. It remained to ascertain 
 whether the corpse had been equally fortunate in an exemp- 
 
 137
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 tion from the ill which afflicts so much of humanity, and 
 proper authority was obtained for its exhumation in the 
 presence of competent witnesses. A moment's examination 
 sufficed to show that the dental system of the deceased was 
 an utter wreck, the condition of his mouth being such that 
 his articulation must have been affected, and that no one 
 could have conversed with him in his lifetime without ob- 
 serving the defect. Here, then, was proof positive that the 
 remains found in the burned building were not those of Goss, 
 and with this fact, added to the conjectures already indicated 
 in their possession, the companies went confidently to trial 
 in Baltimore. 
 
 All the circumstances of the case were brought out fully 
 on that occasion, much more powerfully and plainly than I 
 have stated them, and impressed upon the jury with all the 
 eloquence and skill which learned counsel could bring to 
 bear; the Judge and all the hearers, except those it was im- 
 portant to convince, were thoroughly satisfied that a great 
 fraud had been committed; but the jury promptly brought 
 in a verdict for the plaintiff on general principles. Of course, 
 a motion was at once made to set it aside, as being against 
 the weight of evidence; and, pending the decision of that 
 question, we may allow the curtain to fall on the first act of 
 our drama. 
 
 It rises again to show us, some six weeks after the trial, a 
 distant spot in Chester County, Pennsylvania. A farmer 
 residing near a little clump of trees, known as Baer's Woods, 
 was struck by noticing a large number of vultures hovering 
 over them. Seeing from their manner that something unusual 
 
 138
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 attracted them, he had the curiosity to visit the spot where 
 they were congregating, and discovered to his horror that 
 they were feasting upon a portion of a human body, the 
 abdomen of which, thinly covered by a layer of earth and a 
 few leaves, was protruding from the ground. The local 
 coroner was at once summoned, with other neighbors, and a 
 careful examination of the vicinity made. The fragment 
 already uncovered by the vultures proved to be the trunk of 
 a large, full-chested, well-developed man; at a little distance, 
 where a recent disturbance of the earth indicated that other 
 discoveries might be made, were found buried the limbs; 
 and a third hole contained the head and a bloody shirt. The 
 remains were carefully carried to the neighboring village of 
 Jennerville, and conjecture at once set to work to identify 
 the victim and his murderer. 
 
 The latter was speedily indicated. Some days before, 
 Wm. E. Udderzook, who had spent his boyhood there, and 
 whose mother still resided in the neighborhood, had arrived 
 there with a friend whom he represented as the traveling 
 agent of a Western firm, and then suffering from delirium 
 tremens. The invalid kept himself carefully concealed from 
 observation, while Udderzook made various visits in the 
 neighborhood, and, among others, to another brother-in-law, 
 one Samuel Rhodes, a farmer residing near Baer's Woods, 
 to whom he broached a scheme of securing a large sum of 
 money by making away with a man whom he represented as 
 being already dead to the world, and about whom no inquiries 
 would ever be made. Rhodes having declined this easy 
 method of acquiring wealth, Udderzook decided to execute 
 
 139
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 his purpose alone. The next day between 1 and 2 o'clock 
 in the afternoon, being July 1, 1873, he hired a horse and 
 buggy from a neighboring livery-stable, and with his com- 
 panion drove away in the direction of Baer's Woods. Shortly 
 before midnight he returned alone, and stated that his com- 
 panion had taken the cars at a station near; and the next 
 morning, after a visit to his mother, he himself returned to 
 Baltimore. As he was well known in the neighborhood, his 
 account of the stranger and his disappearance was entirely 
 satisfactory; but when the mutilated remains were discovered 
 and recognized as those of his unknown companion, suspicion 
 was at once excited, and he was arrested on the charge of 
 murder. An examination of the buggy, the morning after 
 its return to the stable, had shown the dash-board broken, 
 and that the bottom of it had been washed out; but a more 
 careful scrutiny of it was made, in the light of later events, 
 and on looking at the under side it was found that a crack 
 had allowed a few drops of blood to soak through, which still 
 remained most damning evidences of guilt. A seal ring 
 was found in the bottom of it by a hostler, the morning after 
 the fatal ride; and this ring proved to be a most valuable clue. 
 The moment the arrest of Udderzook and the description 
 of his unknown victim were published, the insurance com- 
 panies surmised that the mystery of Goss's disappearance 
 might be near its solution at last, and several agents who had 
 known him personally hastened to the scene. A glance at 
 the remains, altered as they were, was sufficient, and ac- 
 quaintances and photographs brought from Baltimore 
 established beyond question the identity of the murdered 
 
 140
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 companion of Udderzook with the experimenter on the York 
 Road. The members of the family were too deeply committed 
 to the other side to dare to acknowledge the truth, but no 
 impartial witness hesitated for a moment. 
 
 To trace back the movements of the dead man, from his 
 murder in the wood to his flight from the fire, proved to be 
 a much easier task then had been the endeavor to trace them 
 forward from his sudden disappearance. On that eventful 
 night, he actually went, as was conjectured, to Philadelphia, 
 where he registered himself as A. C. Wilson, a name which 
 he retained throughout his wanderings. The next summer 
 he spent at a farmer's in Pennsylvania, but his increasing 
 love for liquor, fostered by his life of enforced idleness, made 
 him an undesirable inmate in a quiet country home, and he 
 was obliged to leave. He then went to the city of Newark, 
 in New Jersey, where he remained in a secluded boarding- 
 house, while the detectives were vainly searching the country 
 for him, until after the trial in Baltimore. There were three 
 incidents which contributed mainly to his identification, and 
 which together were conclusive. Being, as already stated, a 
 large man of striking presence, he had a peculiar manner of 
 throwing his chest forward, which was very noticeable, and 
 which he was unable to change, even when disguise of his 
 identity became so necessary. Secondly, appears a screw- 
 driver made with a ratchet, so that it could be used without 
 removing the hand, a wooden model of which Goss had 
 invented and made, and which same model Wilson possessed 
 and was equally fond of exhibiting and explaining. Thirdly, 
 was the seal ring already mentioned, which had belonged to 
 
 141
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 Goss, was constantly worn by Wilson, and was found in the 
 bottom of the buggy the morning after the murder of 
 the stranger by Udderzook. After the identification of the 
 murdered man with Goss, the motives for the murder were 
 easily conjectured. The importance of avoiding detection 
 and recognition was so great that he did not dare to engage 
 in any employment which would necessarily bring him in 
 contact with other people, and his own taste for an idle life 
 probably made him perfectly willing to be supported by 
 others. But this necessity for supporting him must have 
 been a very heavy drain upon the conspirators in Baltimore, 
 who were none of them persons of means, and the risk which 
 they ran, of losing all their venture, was greatly increased by 
 Goss's growing habit of intemperance, for a dangerous secret 
 which depends upon the discretion of a drunken man is a 
 powder magazine which may explode at any moment. How 
 indiscreet he was, is shown by a conversation which he held 
 with a fellow-boarder in Newark, a few days before his de- 
 parture, in which he proposed, as a promising speculation, 
 that he (Goss) should insure his life for $10,000, the other 
 paying the premium; that they should procure a small frame 
 house, put a corpse in it, burn up the house and corpse to- 
 gether, prove the loss, and divide the money which the com- 
 pany would pay, "and even if the company should refuse to 
 pay, added he, "a jury would be sure to make them, for I 
 have tried it." How many beside this poor victim of the 
 avarice of himself and others have been led into crime by 
 the fatal tendency of juries to mulct corporations in favor of 
 individual plaintiffs, without regard to law or justice, will 
 
 142
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 probably never be known, but this one example shows how 
 great a temptation that tendency affords. 
 
 It is probable that Goss expected some immediate result 
 when the verdict was rendered in favor of the claim against 
 the companies, and was much disappointed when he dis- 
 covered that the law would interpose still further delays, 
 before he could clutch the coveted money. He had become 
 very tired of his quiet, secluded life, shut off from his wife, 
 his family, and all his friends and associations, and it is not 
 unreasonable to suppose that he may have threatened to 
 abandon the whole thing and return openly to Baltimore. 
 For after all he had committed no crime. He had absented 
 himself for his own purposes, and if his relatives had taken 
 advantage of his absence to pretend that he was dead, and to 
 contrive a swindle upon the insurance companies, that was 
 their affair, not his, and he could easily make it appear that 
 he had returned to confound their villainy as soon as he had 
 learned of it. Their testimony in the trial had concluded 
 them, and he was now in a position to command and threaten, 
 when before he could only beg. They appreciated the 
 change of circumstances quite as well as he, and deter- 
 mined to send him abroad, where he would be less likely to 
 be recognized, and where his indiscreet utterances would not 
 be so dangerous. With this object in view, they raised about 
 fifteen hundred dollars, with which amount Udderzook went 
 to Newark toward the end of June. His influence over his 
 weaker brother-in-law was unbounded; so marked, indeed, 
 that even the careless observers in the little inn at Jennerville 
 observed and commented on it, and he deliberately deter- 
 
 143
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 mined to use that influence to lead him to his destruction. 
 He looked over all the case calmly; he saw, as he told Rhodes, 
 that the man was already dead to the world, and would be 
 missed by none but those whose own safety would not allow 
 them to call attention to his disappearance, and with his 
 actual death all danger of discovery would be forever re- 
 moved, and the money which they had raised with so much 
 difficulty saved. Instead, therefore, of shipping Goss to 
 Europe, he took him with him to Jennerville, and it is in- 
 dicative of the calculating shrewdness of the man, that he 
 went to his own old home, where, as he knew, his arrival 
 with a stranger, and the subsequent disappearance of the 
 latter, would excite no comment which would not be fully 
 satisfied by any explanation he might choose to give. Using, 
 therefore, for the basest purpose, the child-like confidence 
 which Goss reposed in him, he took him to the home of his 
 childhood, and having surveyed the ground and perfected 
 his plans invited him out for his final drive. 
 
 From all the circumstances it is probable that Udderzook 
 threw his arm carelessly around Goss as they were riding 
 slowly through Baer's Woods, and then suddenly tightening 
 the grasp, so as to hold his victim's arms, plunged a knife into 
 his throat. Goss thrust out his feet in the death agony with 
 such force as to break the dash-board, but another blow 
 followed instantly, and he had no time to resist before he lay 
 helpless in his murderer's arms. The latter must then have 
 dragged the body a short distance into the woods, washed 
 out the buggy, driven it back to its owner, and then returned 
 to his horrible task of dismembering and interring the 
 
 144
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 evidence of his crime. A bright light was seen in the woods 
 that night, doubtless caused by the fire which TJdderzook 
 built to burn the clothing of the murdered man, as some 
 fragments of charred cloth and burned buttons were after- 
 wards found there. On his visit to Rhodes the day before, 
 when he had endeavored to persuade the latter to assist him 
 in the project which he had in mind, he was observed to 
 notice a spade standing neglected against a barn, which 
 spade was missing the morning after the murder; he doubt- 
 less obtained it that night, intending to use it to bury the 
 body, but failed to observe that the handle was broken half 
 through, so that it must have flown in two at the first stroke 
 he made with it. This defeated his purpose of digging a 
 deep hole for the burial, but it was too late to make other 
 arrangements then. The night was already far gone, the 
 early summer sun would soon be up, and he must complete 
 his terrible task before daybreak in the best fashion he might. 
 He was compelled by the want of proper tools to hack the 
 body into fragments and bury them separately in such shallow 
 receptacles as he could scrape with the blade of the spade. 
 The sun must have been up before he had finished his work, 
 and he must have felt himself that it was unsatisfactorily 
 done. But it could not be done again, and he therefore 
 retreated to his mother's house, where he had some of his 
 clothing washed, and thence to Baltimore to await the result. 
 The whole affair was ably planned, and would have been, 
 from his point of view, a complete success, had it not been 
 for his mistake in stealing a broken spade instead of a whole 
 one. We doubt nowadays whether we should rightly call 
 
 145
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 such a mistake an accident or a providential interposition, 
 but in all human probability, had Udderzook been able to 
 bury his victim so deep that the vultures could not reach him, 
 the murder would never have been known, and the companies 
 compelled to pay a fraudulent claim. But the shallow grave 
 attracted the carrion birds, and their presence over it brought 
 Udderzook to the scaffold, and saved the insurance companies 
 from an infamous fraud. 
 
 I have mentioned only a few frauds which have been 
 detected. How many have escaped detection is known only 
 to Omniscience. But when we observe what comparatively 
 trivial accidents have led to discovery, it is only reasonable 
 to infer that there may have been many others in which no 
 such accident has occurred. We can only be certain that the 
 thing which has been will be again, and that only the most 
 watchful care and unceasing vigilance will enable the officers 
 of insurance companies to protect the interests of the honest 
 and deserving policy-holders from the rascality of designing 
 knaves. 
 
 PART II 
 
 SOME years ago, or, to be accurate, in March, 1876, 1 had 
 the honor to read a paper on this topic before the Medico- 
 Legal Society. At that time I considered the subject of 
 frauds upon life insurance companies by means of pretended 
 deaths and detailed several cases of that character. I pro- 
 pose now, with your permission, to relate some instances of 
 mysterious disappearances, and to examine the rules of law 
 governing such occurrences. 
 
 146
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 The number of disappearances which can strictly be called 
 mysterious is small. In most of the adjudicated cases, as 
 will be observed, the missing person was last seen or known 
 of in circumstances which would afford a plausible explana- 
 tion of his fate, but it sometimes happens that a man vanishes 
 from the face of the earth, or at least from all his known 
 associations and surroundings, without affording solid ground 
 for any conjecture, or placing any limitation upon the imagin- 
 ation. Two cases have recently occurred in this city which 
 give especial interest to this subject at this time. In one, 
 the missing gentleman left the house of a relative in the upper 
 part of the city, about half -past ten o'clock at night, to go to 
 his own home, a few blocks distant. His failure to arrive 
 there excited inquiry and alarm, and within an hour of the 
 time when last seen, the police were put upon the search. 
 In the other, a gentleman left his office with the expressed 
 intention of taking the afternoon train to Boston on a short 
 business trip, and was met by a friend on his way to the 
 Elevated Road. Both of these gentlemen were married men 
 of mature years, happy in their domestic relations, strongly 
 attached to their wives and children, prosperous in their 
 worldly circumstances, free from any special cause for worry 
 and anxiety, and never suspected of any taint of insanity. 
 Each had but little money in his possession at the time of his 
 disappearance, and each left untouched ample funds entirely 
 under his own control. In both cases friends and family 
 are unable to state or conceive any cause for voluntary 
 absence, and every device to trace them which ardent affec- 
 tion aided by ample means and professional advice can 
 
 147
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 suggest has been employed, and employed in vain. The police 
 departments of various cities aided by private detectives, and 
 the utmost possible publicity, have been engaged in the search, 
 every trace or clue which could be discovered has been fol- 
 lowed up, utterly without result. Their disappearance is 
 to-day as complete and apparently impenetrable a mystery 
 as when they first vanished from the sight of their friends. 
 
 Permit me to relate two anecdotes illustrating different 
 phases of such disappearances. 
 
 Dr. King, of London, in his book of "Anecdotes of His 
 Own Time," published in 1819, tells the following story, 
 which I cite in his own language : 
 
 "About the year 1706, I knew one Mr. Howe, a sensible 
 well natured man, possessed of an estate of 700 or 800 per 
 annum. He married a young lady of good family in the west 
 of England, her maiden name was Mallet; she was agreeable 
 in her person and manners and proved a very good wife. 
 Seven or eight years after they had been married, he rose one 
 morning early, and told his wife he was obliged to go to the 
 Tower to transact some particular business ; the same day, at 
 noon, his wife received a note from him, in which he informed 
 her he was under a necessity of going to Holland, and should 
 probably be about three weeks or a month. He was absent 
 from her seventeen years, during which time she neither 
 heard from him nor of him. The evening before he returned, 
 whilst she was at supper and with some of her friends and 
 relations, particularly one Dr. Rose, a physician who had 
 married her sister, a billet without any name subscribed was 
 delivered to her in which the writer requested the favor of 
 
 148
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 her to give him a meeting the next evening in the Birdcage 
 Walk, in St. James Park; when she had read her billet she 
 tossed it to Dr. Rose, and, laughing, 'You see, brother,' said 
 she, 'old as I am, I have got a gallant'; Rose, who perused 
 the note with more attention, declared it to be Mr. Howe's 
 handwriting; this surprised all the company, and so much 
 affected Mrs. Howe that she fainted away; however, she soon 
 recovered, when it was agreed that Dr. Rose and his wife, 
 with the other gentlemen and ladies who were there at supper, 
 should attend Mrs. Howe the next evening to the Birdcage 
 Walk. They had not been there more than five or six min- 
 utes when Mr. Howe came to them, and after saluting his 
 friends, and embracing his wife, walked home with her, and 
 they lived together in great harmony from that time to the 
 day of his death. 
 
 " But the most curious part of my tale remains to be related. 
 When Howe left his wife they lived in a house in Jermyn 
 Street, near St. James' Church; he went no farther than to a 
 little street in Westminster, where he took a room for which 
 he paid five or six shillings a week, and changing his name 
 and disguising himself by wearing a black wig (for he was a 
 fair man) he remained in this habitation during the whole 
 time of his absence. He had had two children by his wife 
 when he departed from her, but they both died young, in a 
 few years after. However, during their lives, the second or 
 third year after their father disappeared, Mrs. Howe was 
 obliged to apply for an act of Parliament to procure a proper 
 settlement of her husband's estate and a provision for herself 
 out of it during his absence, as it was uncertain whether he 
 
 149
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 was alive or dead; this act he suffered to be solicited and 
 passed, and enjoyed the pleasure of reading the progress of 
 it, in the votes, in a little coffee house near his lodging, which 
 he frequented. Upon his quitting his house and family in 
 the manner I have mentioned, Mrs. Howe at first imagined, 
 as she could not conceive any other cause for such an abrupt 
 elopement, that he had contracted a large debt unknown to 
 her, and by that means involved himself in difficulties which 
 he could not easily surmount; and for some days she lived in 
 continual apprehensions of demands from creditors, of 
 seizures, executions, etc. But nothing of this kind happened. 
 "Mrs. Howe, after the death of her children, thought 
 proper to lessen her family of servants and the expenses of 
 her house-keeping; and therefore removed from her house in 
 Jermyn Street to a little house in Brewer Street, near Golden 
 Square. Just over against her lived one Salt, a corn-chandler. 
 About ten years after Howe's abdication, he contrived to 
 make an acquaintance with Salt, and was at length in such a 
 degree of intimacy that he usually dined with Salt once or 
 twice a week. From the room in which they ate it was not 
 difficult to look into Mrs. Howe's dining-room, where she 
 generally sat and received company; and Salt, who believed 
 Howe to be a bachelor, frequently recommended his own wife 
 to him as a suitable match. During the last seven years of 
 this gentleman's absence, he went every Sunday to St. James 
 Church, and used to sit in Mr. Salt's seat, where he had a 
 view of his wife, but could not easily be seen by her. After 
 he returned home he never would confess, even to his most 
 intimate friends, what was the real cause of such singular 
 
 150
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 conduct; apparently there was none, but whatever it was, 
 he was certainly ashamed to own it. Dr. Rose has often 
 said to me that he believed his brother Howe would never 
 have returned to his wife if the money which he took with 
 him, which was supposed to have been 1,000 or 2,000, had 
 not been all spent; and he must have been a good economist 
 and frugal in his manner of living, otherwise his money would 
 scarce have held out; for I imagine he had his whole fortune 
 by him, I mean what he carried away with him, in money 
 or bank bills, and daily took out of his bag, like the Spaniard 
 in 'Gil Bias,' what was sufficient for his expenses." 
 
 Dr. King received this remarkable story from Dr. Rose 
 and Mr. Salt, whom he often met at King's Coffee House, 
 near Golden Square. 
 
 Singular and eccentric as this conduct was, a not dissimilar 
 case was lately brought to light in the neighboring State of 
 New Jersey, where in a partition suit it was shown that one 
 of the heirs at law had left his family there, and was supposed 
 to be dead, having been neither seen nor heard from for twenty- 
 two years, until one of his sons discovered him in California. 
 
 (Hoyt vs. Tuers, 35 N. J., Equity R., p. 360.) 
 
 The other incident to which I alluded occurred in this city 
 some years ago, and was related to me by a friend who hap- 
 pened to be called as a juror in the Court of General Sessions 
 in this city, on a trial for manslaughter. The facts developed 
 by the evidence showed that the prisoner was standing at the 
 door of his shop, in one of the streets leading to a ferry, when 
 he saw an intoxicated man coming towards him pursued by 
 
 151
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 a crowd of shouting and laughing children. As he came op- 
 posite the shop, in a sudden access of drunken fury he caught 
 up a large stone and was about to hurl it among his pursuers, 
 when the prisoner ran out and interfered to protect them. 
 A quarrel ensued, blows were exchanged, and the drunken 
 man, in falling, struck his head heavily on the pavement and 
 fractured his skull, with the result of immediate unconscious- 
 ness soon followed by death. The prisoner was acquitted, 
 but the noticeable fact in the trial was, that the deceased 
 never recovered consciousness so as to give his name, and 
 there were no marks on his clothing or papers on his person 
 by which he could be identified. Although well dressed, 
 well appearing, and to all seeming a person of some impor- 
 tance, the police were never able to obtain any clue to his 
 identity, and he was buried as unknown; somewhere in the 
 world a family has mourned the loss of a son, perhaps a hus- 
 band and father, and another name has been added to the 
 long list of those who have mysteriously disappeared. 
 
 The cases related are in my opinion of sufficient interest 
 to justify an examination of the law relating to presumptions 
 of death. Best on "Presumptions of Law and Fact " states 
 the rule to be that "the death of any person once shown to 
 have been alive is a question of fact to be determined by a 
 jury; and when the body is not forthcoming, as the legal 
 presumption is in favor of the continuance of life, the onus 
 of proving the death lies on the party who asserts it." When 
 a person goes abroad and has not been heard of for a long 
 time, the presumption of the continuance of life ceases at the 
 expiration of seven years from the period at which he was last 
 
 152
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 heard of. The same rule holds generally with respect to a 
 person who has gone away from his usual place of resort, and 
 of whom no account can be given, but the presumption does 
 not extend to the time of his death, i.e., whether he died at 
 the beginning or at the end of any particular period of the 
 seven years. In the case of Watson vs. England, which came 
 before the Court of Chancery some years since, it was at- 
 tempted to enforce as a presumption, that a female who had 
 left her father's house in 1810, and had not been heard of 
 for thirty-four years, was dead. No decision was come to, 
 the Vice-Chancellor observing, from the great uncertainty of 
 the evidence, that if he presumed her death the woman might 
 walk into court and disprove all. In one case, according to 
 Best, the Court of Queen's Bench said that they could not 
 assume judicially that a person alive in the year 1034 was 
 not alive in 1827 (Taylor's Medical Jurisprudence, Vol. I, 
 p. 165). So Mr. Phillips, in his work on evidence, states 
 that "the presumption of continuance of human life ends, in 
 general, at the expiration of seven years from the time when 
 the person was last known to be living; but the death of a 
 party may be presumed in a shorter time, under the peculiar 
 circumstances of the case." (Phillips on Evidence, Vol. Ill, 
 p. 598.) Mr. Greenleaf states the rule and the reason for it 
 as follows: "Other presumptions are founded on the ex- 
 perienced continuance or permanency of longer or shorter 
 duration in human affairs. When, therefore, the existence 
 of a person, a personal relation, or a state of things is once 
 established by proof, the law presumes that the person, 
 relation, or state of things continues to exist as before, until 
 
 153
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 the contrary is shown or until a different presumption is 
 raised, from the nature of the subject in question. Thus, 
 where the issue is upon the life or death of a person once shown 
 to have been living, the burden of proof lies upon the party 
 who asserts the death. But after the lapse of seven years, 
 without intelligence concerning the person, the presumption 
 of life ceases and the burden of proof is devolved on the other 
 party." (Greeleaf on Ev., Part 1, Chap. IV, Sect. 41.) In 
 like manner Mr. Starkie: "So, where the existence of a par- 
 ticular individual has once been shown it will, within certain 
 limits, be presumed that he still lives. The presumption as 
 to a man's life, after a number of years, must depend upon 
 many circumstances: his habits of We, his age, and constitu- 
 tion. The probable duration of life of a person, as calculated 
 upon an average, may, of course, be easily ascertained in 
 every particular case; but for the sake of practical convenience 
 the law lays down a rule in some instances, which appears to 
 have been very generally adopted, that after a person has 
 gone abroad, and has not been heard of for seven years, it is 
 to be presumed that he is dead." (Starkie on Evidence, p. 
 76.) So Mr. Wharton: "By the Canon law, no length of 
 absence gives a presumption of law of death; the presump- 
 tion is one of fact, depending on the concrete case. By the 
 English Common Law, at the close of a continuous absence 
 abroad of seven years, during which time nothing is heard of 
 the absent person by those who would naturally have heard 
 of him, if alive, death is presumed, as a presumption of law 
 rebuttable by proof or counter presumptions. This view is 
 accepted in most jurisdictions in the United States. But if 
 
 154
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 there is no proof of unexplained absence, the mere lapse of 
 time, even supposing it would make the party eighty years 
 old, if living, is not by itself enough to prove death. It is 
 otherwise when the party would have reached the limits 
 beyond which life, according to ordinary observation, is 
 improbable, though even when one hundred years is reached 
 the conclusion is not absolute. With other circumstances 
 (e.g., non-claimer of rights or exposure to peculiar sickness or 
 other calamity, or advanced years), death at a far earlier 
 period may be inferred. . . . 
 
 "It has been incidentally observed that, aside from the 
 general presumption of death arising from unexplained 
 absence for seven years, certain facts have been noticed by 
 the Courts as affording grounds on which inferences of death, 
 more or less strong, may rest. Among these facts may be 
 noticed: presence on board a ship known to have been lost 
 at sea, the inference of death increasing with the length of 
 time elapsing since the shipwreck, exposure to peculiar perils 
 to which death will be imputed if the party has not been 
 subsequently heard from; ignorance as to such person, after 
 due inquiry, of all persons likely to know of him, if he were 
 alive, cessation in writing of letters, and of communications 
 with relatives, in which case the presumption rises and falls 
 with the domestic attachments of the party. Thus death 
 may be inferred by a jury from the mere fact that a party 
 who is domestic, attentive to his duties, and with a home to 
 which he is attached, suddenly, finally, and without explana- 
 tion, disappears. It is scarcely necessary to say that evidence 
 tending to rebut such presumption (e.g., proof that the alleged 
 
 155
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 deceased had been heard from by letter or was personally 
 warned in a litigated suit) is always relevant for what it is 
 worth. 
 
 "It must be also kept in mind that, in any view, death is a 
 matter of inference, not of demonstration, depending upon 
 an identification of remains as to which there is always a 
 possibility of mistake." (Wharton on Evidence, Sects. 1274 
 and 1277.) 
 
 Having collated these authorities from the text-books, it is in 
 order to see how far they are sustained by the reported cases. 
 
 This subject is elaborately treated by the late Surrogate 
 Bradford, in Eagle's case reported in 3 Abbott's Practice 
 Reports, page 218. The question was presented on the 
 probate of a will, one of the legatees named in which, William 
 Eagle, had been absent between five and six years, and it 
 became necessary to determine whether he died before or 
 after his father, the testator. The facts presented showed 
 that he had been a sailor from the age of sixteen years. He 
 first made a whaling voyage to the Pacific and, although 
 absent from home for four years, does not seem to have been 
 heard from during that period. His subsequent voyages 
 were principally to the coast of South America, and the last 
 intelligence received from him was by a letter written at 
 Baltimore something more than five years previous to his 
 father's death, addressed to his brother-in-law. In this 
 communication he stated that he had just arrived at that 
 place from Montevideo as mate of a vessel, and said, " Since 
 I have arrived I have been offered charge of an hermaphro- 
 dite brig to go to the coast of Africa, and I am balancing in 
 
 156
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 my own mind between a captaincy and an old vessel and the 
 coast fever. I shall determine in a few days." 
 
 He was never heard of or from again. 
 
 By the Roman Law, captivity was equivalent to civil death, 
 and if the husband were taken prisoner the wife might 
 marry again; but no time was prescribed during which she 
 should await his return, until the terms of four and ten years 
 were successively required by Constantine and Justinian 
 (Novel 22, Ch. 14). By Novel 117 (Ch. 11) it was ulti- 
 mately provided that there should be proof of the death 
 before the wife could marry again. Absence, however long, 
 without certain news did not authorize a second marriage, 
 and with this determination the Common Law agreed. In 
 respect to property one hundred years was stated as the limit 
 of the presumption of life in the case of absent persons quia 
 is finis vitae longoevi hominis est. (Dig. Lib. 7, Tit. 1, Sect. 56. 
 Cod. Lib. 1, Tit. 2, Sect. 23.) In conformity with this rule, 
 in the greater number of countries on the continent which 
 adopted their jurisprudence from the civil law, the doctrine 
 prevailed that an absent person should be presumed to be 
 living for a hundred years from the time of his birth, that 
 being the longest limit of ordinary life. Sunihame mentions 
 several conflicting views, some of the civilians claiming 
 seventy, and others a hundred years, as the proper time. 
 (Sunih., Pt. 6, Sect. 13, pi. 2.) A term so long and unreason- 
 able eventually became shortened by custom and statute, and 
 the several periods of three, five, seven, nine, and ten years 
 were adopted in various countries. (Merlin, Absent, Act 
 115, Code Civil.) 
 
 157
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 The Common Law is in accordance with the Civil Law in 
 the adoption of the principle that the continuation of life is 
 presumed until the contrary be shown. The statutes relative 
 to bigamy and leases of life (1 Jac. 1, Ch. 11, Sect. 2; 19 Car. 
 2, Ch. 6) made an inroad upon this doctrine and established 
 a rule, which was ultimately adopted by way of analogy in 
 cases beyond the province of the statutes. Accordingly, when 
 a party has been absent seven years since any intelligence of 
 him, he is, in contemplation of law, presumed to be dead. 
 This length of time may be abridged, and the presumption 
 be applied earlier, by proof of special circumstances tending 
 to show the death within a certain period for example, 
 that at the last accounts the person was dangerously ill, or in 
 a weak state of health was exposed to great perils of 
 disease or accident; that he embarked on board of a vessel 
 which has not since been heard from, though the length of the 
 usual voyage has long elapsed. In such cases it is to be 
 determined as a question of fact depending on evidence when 
 death probably occurred, and if the circumstances known 
 are sufficient to authorize such a conclusion, the decease may 
 be placed at a time short of the seven years, as the proof may 
 indicate. But when there are no facts material to the solu- 
 tion of the question, except simply absence without being 
 heard of, then at the end of seven years the law presumes 
 death. 
 
 The learned judge then discusses the question of when the 
 death occurred, whether at the beginning or end of the seven 
 years, or at what other time, and examines the English cases 
 on this point. In Rex. vs. The Inhabitants of Harbourne 
 
 158
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 (2 Ad. and E., 540) and Nepau vs. Knight (5 B. and Ad., 93, 
 2 Mee. and W., 894), the Courts of King's Bench and of 
 Exchequer adopted the doctrine that when the seven years 
 have passed, the law simply presumes death, and there is no 
 presumption as to the time of death. Lord Denman, in 
 delivering the opinion of the Court, held this language: "It 
 is true, the law presumes that a person shown to be alive at a 
 given time remains alive until the contrary be shown; but 
 when the seven years have passed the presumption of law 
 relates to the fact of death, and the time of death, wherever 
 it is material, must be a subject of distinct proof. Whoever 
 finds it important to establish death, at any particular period, 
 must do so by evidence of some sort," 
 
 After examining the American cases, Judge Bradford 
 proceeds: "There can be no doubt that under certain cir- 
 cumstances this is to be treated as a question of fact, and the 
 language of Lord Denman is in that view strictly pertinent 
 when he says, 'Nothing can be more absurd than the notion 
 that there is to be any rigid presumption of law on such ques- 
 tions of fact without reference to accompanying circumstances 
 such, for instance, as the age or health of the party. There 
 can be no such strict presumption of law.' What, however, 
 is a Court or Jury to do, when there are no accompanying 
 circumstances when there is no ground in fact for inferring 
 death at any particular time? The question is not whether 
 those presumptions are rigid and strict, but whether there are 
 any such presumptions, and if so, what is their effect when 
 there is an entire dearth of evidence tending to guide the 
 conclusion as to life or death. Confessedly, before the analogy 
 
 159
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 drawn from the statutes of bigamy and life tenancies pre- 
 vailed, it was a rule of evidence to presume life, unless the 
 contrary was shown. That rule still continues, except so far 
 as it has been modified by the presumption drawn from the 
 statutes, of death, after seven years' absence without intelli- 
 gence. The practical effect of these two rules, if both are to 
 be taken as subsisting, is that whenever the law is invoked as 
 to rights depending upon the life or death of the absent 
 party he is to be deemed as living until the seven years have 
 expired, and after that is to be deemed as dead. Not that 
 the law finds as matter of fact that he died on the last day of 
 the seven years, but that rights depending on his life or 
 death are to be administered as if he had died on that day. 
 It is impossible to say when he died, or even to assert as a 
 matter of fact that he is dead; but in the absence of all evi- 
 dence the law will account him as dead at a certain time and 
 not before. This is an artificial rule, and of course cannot 
 be expected to square with the actual fact. It is the logical 
 result of the presumptions, founded upon reasons of con- 
 venience, and the necessity of fixing upon some limit within 
 which the relations of the living to the absent are to be de- 
 termined, more than upon any strong probabilities. This is 
 the meaning of our statute in respect to life estates, which 
 declares that if the life-tenant shall absent himself for seven 
 years, and his death shall come in question, 'such person 
 shall be accounted naturally dead,' in any action concerning 
 the lands in which he had the estate for life, unless sufficient 
 proof be made that he is still living. (1 Rev. Stats. 749, 
 Sect. 6; See Bigamy, 2 Rev. Stats. 687; Sect. 9.) 'He shall be 
 
 160
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 accounted dead.' The statute so treats, just as the Common 
 Law treated and accounted, him living until his death was 
 proved. In neither case can it be said that his life or death 
 has been actually proved; but in both cases it may be said 
 that he shall be accounted living until by reason of his absence 
 the law accounts him dead; and for the purposes of justice, 
 the rights and relations of parties affected by his life or de- 
 cease shall, in the absence of information, be determined by 
 this technical presumption. 
 
 "This certainly seems to me the most consistent and sym- 
 metrical rule; and when it is regarded as a dry legal doctrine 
 adopted for purposes of convenience, and from the necessity 
 of having some h'mited period for the determination of the 
 rights of absent persons, and not as a determination upon the 
 death or the real time of the death, there would appear to be 
 no grave objection against it. I am inclined to hold, therefore, 
 that in the case of absent persons it is within the province of 
 the Court or Jury to infer from circumstances, if any appear 
 in proof, the probable time of death, but that if no sufficient 
 facts are shown from which to draw a reasonable inference 
 that death occurred before the lapse of seven years, the person 
 will be accounted, in all legal proceedings, as having lived 
 during that period." 
 
 The present statutory provision in this State is as follows: 
 "A person upon whose life an estate in real property de- 
 pends, who remains without the United States, or absents 
 himself in the State or elsewhere, for seven years together, is 
 presumed to be dead, in an action or special proceeding 
 concerning the property in which his death comes in question, 
 
 161
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 unless it is affirmatively proved that he was alive within that 
 time." (Code of Remedial Justice, Sect. 841.) This some- 
 what vague language is defined by Chancellor Walworth in 
 the case of McCartee vs. Camel, 1 Barbour Ch. R. 456, where 
 he said, "When the person whose death is to be presumed 
 is in fact within the United States and not technically beyond 
 sea, ' absenting himself in this State or elsewhere ' must mean 
 absenting himself from his last place of residence, in this State 
 or in the United States, which was known to his family or his 
 relatives who would be likely to know whether he was living; 
 and from whom a party in the search of the truth would be 
 likely to make inquiries. The mere fact, therefore, that the 
 party has absented himself from the place of his birth, or 
 from his original domicile, for more than seven years, does 
 not raise a presumption that he is dead." 
 
 Mr. Charles Marshall, in his work on Insurance, lays down 
 the rule that "When it is uncertain whether the death hap- 
 pened within the time limited, this is a question of fact which 
 must be left to the decision of a Jury," and cites as authority 
 the case of Patterson vs. Black, at Nisi Prius, Hilary Vacation, 
 1780, where an insurance was made on the life of L. Macleane, 
 from the 30th of January, 1772, to the 30th of January, 1778. 
 In an action on the policy it appeared that about the 28th of 
 November, 1777, he sailed from the Cape of Good Hope in 
 the Swallow sloop of war; which ship, not being afterwards 
 heard of, was supposed to have been lost in a storm off the 
 Western Islands. The question was, whether Macleane 
 died before the 30th of January, 1778. To establish the 
 affirmative of that question, the plaintiff called witnesses to 
 
 162
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 prove the ship's departure from the Cape with Macleane; 
 and several captains swore that they sailed the same day; that 
 the Swallow must have been as forward in her course as 
 they were, on the 13th or 14th of January, the period of a 
 most violent storm, in which she probably was lost, and that 
 the Swallow was much smaller than their vessels, which 
 with difficulty weathered the storm. Lord Mansfield left it 
 to the jury to say whether, under all the circumstances, they 
 thought the evidence sufficient to convince them that Mac- 
 leane died before the time limited in the policy; adding that 
 if they thought it so doubtful as not to be able to form an 
 opinion, the defendant ought to have their verdict. They 
 found for the plaintiff. (Marshall on Insurance, p. 781.) 
 
 It is impossible to say in this case that the verdict of the 
 Jury was not justified, as the facts presented were such as to 
 create a reasonable probability that the vessel in which the 
 insured had embarked was lost with all on board, and the 
 life insurance companies are frequently called upon to make 
 payments in similar cases. The only requirements that can 
 justly be made are conclusive evidence that the insured set 
 sail on the missing vessel, and a strong presumption that she 
 was lost at sea. A somewhat similar case arose not long 
 since in regard to a gentleman who left Boston for New York 
 by the Fall River boat. He was proved to have been on board 
 of the boat during the evening, to have taken supper on her, 
 and all traces of him were lost from that moment. He was 
 a man over 50 years of age, quite near-sighted, subject to 
 attacks of vertigo, and was supposed to have fallen overboard ; 
 but although large rewards were offered for the recovery of 
 
 163
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 the body, hand-bills freely distributed along both shores of 
 the Long Island Sound, an extensive detective force employed 
 and stimulated by the prospect of great pecuniary gain, no 
 result was obtained. Here it is easily conceivable that the 
 missing man might have been engulfed in the waters of the 
 Sound, and his body buried in its depths, or swept out to 
 sea. 
 
 A similar case to this is that of Boyd vs. New England 
 Mutual Life Insurance Co., decided by the Supreme Court 
 of Louisiana in May, 1882, in which the facts were, that Clot- 
 worthy Boyd, the subject of the insurance, left Brashear City 
 in July, 1875, on a voyage by sea to Galveston. In company 
 with one Dowling he occupied a stateroom opening on the 
 guards, abaft the wheel-house, near which was a space where 
 the edge of the vessel was protected by nothing but a swing- 
 ing chain. Boyd, during the day, was very seasick, and he 
 and Dowling sat on the guards opposite the space, and Boyd 
 frequently went to the edge and vomited over the chain. 
 Late at night, Boyd continuing to suffer, they went to their 
 stateroom, and Dowling undressed and went to bed; but 
 Boyd soon after, complaining of sickness and the close air, 
 asked Dowling to get up and take him out. Dowling excus- 
 ing himself, he went out alone, and has never since been seen 
 or heard of. Dowling, on awaking in the morning, found 
 his berth vacant. Not specially alarmed at first, he inquired 
 of the steward, who told him he had not seen him; then, after 
 waiting a while, made a search for him with the steward, 
 without finding him. The steamer arrived in Galveston 
 about 10 A.M., and Dowling watched the passengers go ashore 
 
 164
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 to see if Boyd would come out. He then went to the 
 residence of Boyd's brother in Galveston, and informed him 
 of the circumstances. Boyd has never since been heard of. 
 His valise, which was his only baggage, remained on the 
 vessel, and his hat was also found on board, though the 
 evidence as to where it was found is not satisfactory. Nearly 
 seven years had elapsed since the date of the disappearance, 
 and the Court was not advised that any tidings had yet been 
 heard of him. 
 
 Fenner, J., in delivering the opinion of the Court, said: 
 " If the proof of death stood upon a bare presumption follow- 
 ing exclusively from the mere disappearance of Boyd, we 
 agree with the counsel for defendant, that the duration of his 
 absence without being heard of would not be sufficient to 
 support a presumption equivalent to proof of death, under 
 the Articles of our Code, touching absentees. (C. C. Arts, 
 57, 75.) But death, like all other facts, may be established 
 by circumstantial evidence when, from the nature of the case, 
 direct evidence is not accessible. Absence, without being 
 heard of, though not of sufficient duration to create a legal 
 presumption of death, may yet be one of other attendant and 
 supporting circumstances, which, taken together, would 
 satisfy the mind and conscience of the Judge or jury that 
 the party was dead. This is all that is required. Thus, 
 disappearance under circumstances of shipwreck, or earth- 
 quake, or battle, or explosion, or like perils, might well 
 produce such conviction. And this Court has held that in 
 such matters it is essentially within the province of the 
 Judge to draw the line of distinction by the exercise of a 
 
 165
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 sound discretion, founded on the facts of each particular 
 case." 
 
 Succession of Vogal, 16 An., 139; 
 
 Succession of Jones, 12 Ib., 397; 
 
 The Reporter, Vol. xv., p. 147. 
 
 But there are cases, not infrequent, where no such solution 
 is possible, and the cause of the absence is totally unexplained. 
 One such is that of Hancock, Admr., vs. The American Life 
 Insurance Co., in the Supreme Court of Missouri, reported 
 in 5th Bigelow Life and Accident Reports, 248. The facts 
 shown were that the supposed decedent, Henry C. Morris, 
 was a single man; that for many years previous to his alleged 
 death he had been in the habit of spending his time in the 
 South, engaged in mining speculation; that he left the South 
 and was for some time visiting his friends and relations in 
 Quincy, Illinois, and from there went East, and during the 
 winter of 1860 and 1861 he boarded with a Dr. Scott, in New 
 York City. At Albany he became interested in a patent 
 stove, which he designed introducing in the South, and had 
 a pattern made and shipped there for him. The Rebellion 
 at that time was about to commence, and he was open and 
 outspoken in his sympathy with the Southern people, and 
 declared his purpose to go South and take up arms in their 
 defense. His health seems to have not been very good, though 
 the witnesses think that he was able to attend to business. 
 About the 1st of March, 1861, he left his room at Dr. Scott's, 
 with the intention of going to Brooklyn, and did not return. 
 His clothes and valise were left in his room, but they were of 
 little value. His friends and relatives testified that they never 
 
 166 

 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 saw or heard of him any more. Dr. Scott testifies that he 
 received a letter from him in the September following, but 
 there was testimony going to show that he was mistaken, and 
 it is evident that the jury must have thought so. It appears 
 also that Morris was indebted to Dr. Scott, and also to a lady, 
 for borrowed money; that previously he was in the habit of 
 writing to his friends and relatives, but after his disappear- 
 ance, about the 1st of March, they never received any letters 
 from him. 
 
 Upon these facts the question was submitted to the jury 
 whether Morris died before June 6, 1861, at which date the 
 policy lapsed of non-payment for premium, and they found 
 that he did. In reviewing the case in the Appellate Court, 
 Chief Justice Wagner says: "It may well be conceded that 
 where a person who is studious in his habits, attentive to his 
 business, has a fixed and permanent residence, and is sur- 
 rounded by those influences which are calculated to endear 
 him to his home, suddenly and unaccountably disappears, a 
 presumption may arise which would warrant a jury in finding 
 that he is dead. But will the circumstances of this case 
 warrant the admission of any such doctrine ? Morris had 
 no family, he had no fixed or permanent place of abode. 
 For years he had been residing in the South, being in different 
 States, and engaged in different places. He told his relatives 
 that he was going back to the South. He made arrangements 
 to introduce a patent there. He was warm in his sympathies 
 for the Southern cause, and expressed his determination to 
 take up arms in its defense. No intention was ever shown 
 of staying in New York or with his friends in the North. 
 
 167
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 According to his declared design he was going South, as thou- 
 sands of others did in those times. 
 
 "The case therefore simply presents a sudden and unex- 
 plained absence on the part of Morris, without being accom- 
 panied with any surrounding perils, and with his often 
 repeated declaration that he intended to go to another part 
 of the country where his interests and sympathies were cen- 
 tred. The law will now presume that he is dead, but there 
 is no presumption that he died previous to the expiration of 
 seven years from his disappearance, and there was no evi- 
 dence of death prior to the 8th of June, 1861, to entitle the 
 case to be submitted to the jury." 
 
 The judgment was therefore reversed. The case conceded 
 in Hancock vs. American Life Insurance Co. (supra), when a 
 person, "studious in his habits, attentive to his business, hav- 
 ing a fixed and permanent residence, and surrounded by 
 those influences which are calculated to endear him to his 
 home, suddenly and unaccountably disappears," arose in 
 Iowa, and was referred to in the opinion quoted. In this 
 case (Tisdale vs. Connecticut Mutual Life Ins. Co., 26 Iowa 
 R., 170), the insured was a young man of exemplary habits, 
 excellent character, of fair business prospects, respectably 
 connected, and of the most happy domestic relations. He 
 had the fullest confidence of his friends, and the entire affec- 
 tion of his wife, and was living in apparent happiness, with 
 no cause of discontent with his condition, which would have 
 influenced him to break the domestic and social ties with 
 which he was so pleasantly bound to life. Visiting Chicago, 
 Sept. 25, 1866, upon business, he was last seen by an 
 
 168
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 acquaintance on the corner of Lake and Clark streets, in that 
 city, about 3 P.M., of that day; no trace of him was afterwards 
 discovered, though his friends made every effort to find him 
 and ascertain the cause of his mysterious disappearance. A 
 large reward was offered through the newspapers for any 
 information that would lead to his discovery, either dead or 
 in life. The detective police were employed to search for 
 him without results. No tidings were ever received of him, 
 and not the faintest trace of the cause or manner of his dis- 
 appearance was ever discovered. 
 
 He gave no intimation to any one of an intention to absent 
 himself, and the latest declaration of his intentions was to the 
 effect that he expected to leave Chicago on the day of his 
 disappearance to join his wife, at Dubuque. He owed no 
 debts amounting to any considerable sum, and had made 
 payments of small ones about the day of his disappearance. 
 His valise, containing clothing and other articles commonly 
 carried by travelers, was found at his hotel, and his bill was 
 unpaid. In the Circuit Court, the jury was instructed that 
 to raise a presumption of death within a time less than seven 
 years it must be shown that the person alleged to be dead 
 was subject to some special peril, which might reasonably 
 be supposed to have produced his death. 
 
 In the Supreme Court this instruction was declared to be 
 wrong, and it was held that evidence of character, habits, 
 domestic relations, and the like, making the abandonment of 
 home and family improbable, and showing a want of all those 
 motives which can be supposed to influence men to such acts, 
 may be sufficient to raise the presumption of death, or from 
 
 169
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 which the death of one absent and unheard from may be 
 inferred, without regard to the duration of such absence. 
 
 This decision carries the doctrine of presumption to an 
 extreme and, to my mind, a very dangerous length. It in 
 effect reverses the old doctrine of a presumption of life, and 
 presumes that a man who leaves his home and friends is dead, 
 unless some good reason can be discovered for his departure. 
 It ignores the limitations stated by Judge Bradford, in Eagle's 
 case (supra) of "special circumstances tending to show the 
 death within a certain period for example, that at the last 
 accounts, the person was dangerously ill, or in a weak state of 
 health, was exposed to great perils of disease or accident, or 
 that he had embarked on board of a vessel which has not 
 since been heard from, though the length of the usual voyage 
 has long elapsed." It assumes simply that because a motive 
 cannot be discovered, none existed, and that mere absence, 
 without satisfactory explanation, raises a presumption of 
 death. In a case arising on another policy upon the same 
 life (Tisdale vs. Midual Benefit Life Ins. Co.) in the Circuit 
 Court of the United States in Iowa, reported in 4th Bigelow's 
 Life and Accident Ins. Reports, page 58, Mr. Justice Lowell, 
 in charging the jury, said, "Supposing you should adopt the 
 defendant's theory of the case, looking at it from this stand- 
 point, to wit, that Tisdale was not dead at the time letters 
 of administration were issued, but that he had absconded; 
 in the absence of any motive on his part to abscond, it will 
 not be presumed that he did abscond; but if from the evidence 
 the jury find the fact to be that he did abscond, then the 
 want of motive would have nothing to do with the case. If 
 
 170
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 the jury find that he did abscond, then it would follow that 
 some motive existed. The absence of motive to abscond is 
 a material fact, to be considered in a doubtful case. If the 
 principal fact be proved, that is, if this party was seen at 
 Baxter Springs sometime subsequently to the appointment 
 of an administrator, and this fact is shown as proof of his 
 having absconded, then the fact of a want of motive to ab- 
 scond is unimportant, because we cannot always look into the 
 human heart and discover its motives. Crimes are frequently 
 committed of a very grave nature, and yet we can discover 
 no motive. In general, motives must be inferred from facts, 
 rather than facts inferred from motives. If it is established 
 by proof that an act has been done, we know there has been 
 some motive for it, though we cannot see what that motive 
 was." 
 
 This reasoning appears to me to be sound, and to dispose 
 of the difficulty which induced the Supreme Court to assume 
 that the insured must be dead because they could find no 
 motive for his leaving his home, family, and friends. The 
 Judge well intimated that no human being can read the mind 
 or appreciate all the motives which govern the actions of 
 another; and the fact that we cannot discover the reasons 
 which led a man to commit a certain act, does not at all 
 prove that he did not have reasons satisfactory to his own 
 mind, and justifying, to him, his course of action. I am 
 incapable of appreciating that the presumption that a man 
 could be done to death or commit suicide in a crowded city 
 without leaving a trace behind him is any less violent than 
 that he should have had reasons for hiding himself from all 
 
 171
 
 MYSTERIOUS DISAPPEARANCES AND 
 
 who knew him, with which his family and friends were not 
 acquainted. For there are only a few conceivable explana- 
 tions of so-called mysterious disappearance. If alive, the 
 missing person must have deliberately absconded, been 
 abducted, or confined in some hospital or asylum as the 
 result of sudden bodily or mental disease or accident; if dead, 
 he must either have been murdered, killed by accident, or 
 committed suicide, under circumstances which either left no 
 trace of him whatever, or precluded the possibility of identi- 
 fication. That one of the latter group of contingencies is 
 possible, cannot be denied; but that, in the absence of any 
 proof whatever, one of them should be presumed rather than 
 one of the former group seems to be unwarranted by what 
 we know of natural laws. On the contrary, considering the 
 presumption of life, I think we are bound to assume some 
 contingency consistent with that presumption, rather than 
 the contrary. 
 
 There is no wild improbability in assuming that a person 
 situated as was the insured in the case last cited may abscond 
 from home and conceal himself elsewhere, for reasons un- 
 known to others but satisfactory to himself. And this is the 
 only case I have found in which it was held that mere absence 
 in itself, and unaccompanied by any proof of circumstances 
 importing a danger to life, was sufficient to justify a jury in 
 finding the fact of death. The opinion is therefore supported 
 neither by reason nor authority, and may be regarded as of 
 slight value as a precedent. 
 
 Some years ago life policies were issued containing a pro- 
 vision that no presumption of death should arise from 
 
 172
 
 PRESUMPTIONS OF DEATH IN INS. CASES 
 
 disappearance until the policy should have been continued in 
 force by the payment of premiums throughout the expecta- 
 tion of life of the person upon whose death the contract 
 matured according to the company's table of mortality, 
 reckoned from the date of the policy. This is probably the 
 fairest rule for all concerned, as it gives the company what it 
 had the right to expect when it issued the policy, and requires 
 the beneficiary to pay what he should have expected to pay. 
 In the absence of any such provision the question of death is 
 one of fact, and the rule of presumption appears to be, that 
 if the insured was exposed to any circumstances of special 
 peril, such circumstances conjointly with his absence will 
 justify the jury in finding the fact of death, but without such 
 circumstances, mere unexplained absence will not sustain 
 such a finding before the expiration of seven years. After 
 that period the burden of proof shifts, and it devolves upon 
 the defendant company to prove that the insured is still in 
 being. 
 
 173
 
 THE LAW OF MORTMAIN 
 
 A PAPER READ BEFORE THE SOCIETY OF THE *. B. K. 
 ALUMNI IN NEW YORK ON MAY 15, 1884 
 
 Reprinted from " The Statement" of The Mutual Life Insurance 
 Company of New York 
 
 r
 
 THE wisdom of mankind concedes it to be an axiom re- 
 sulting from its experience, that refined architecture is at 
 once a product and a proof of a high civilization. The ruins 
 of Baalbec are accepted as conclusive evidence that a cul- 
 tured and intellectual race once inhabited its walls, and the 
 story of historic times shows the improvement and develop- 
 ment of architecture pari passu with the civilization of the 
 nations. From the rude huts of a few herdsmen clustered 
 together on the banks of the Tiber to the magnificent Rome 
 of the Emperors is an enormous stride, but the change took 
 place slowly by perceptible gradations, and marked the 
 gradual education and refinement of the people. As wealth 
 accumulated, there arose a class who were not forced to un- 
 remitting labor, by the incessant needs of their existence, 
 leisure was afforded for the study first of comfort and then of 
 luxury, until the stately palace and the magnificent bath, with 
 all their resources for mental and physical enjoyment, re- 
 placed the humble roof which yielded shelter for the night. 
 In like manner the early settlers in this country had neither 
 time nor money to devote to the refinements of life. The 
 daily battle for existence with the opposing forces of savage 
 nature and more savage man was so severe and exhausting 
 
 177
 
 THE LAW OF MORTMAIN 
 
 as to require the application of all their energies to the mere 
 struggle for life. Sed tempora mutantur et nos mutamur cum 
 ittis. The battle has been won, and the present generation 
 is enjoying its fruits. With that success has come large 
 accumulated wealth, and with it taste, refinement, and a 
 desire to cultivate the esthetic side of our natures. The 
 science of architecture has been widely appealed to in order 
 to gratify this desire, and the expensive and often elegant 
 buildings which have arisen in every direction over the coun- 
 try within the last twenty-five years are the result. That 
 these are almost universally the work either of the General 
 or State Governments, or of corporations, is a necessary 
 result of the laws of the country which make it impossible 
 for an individual to "found a family," in the English sense of 
 that expression, and deprive him of a motive for extensive 
 investments in a single building. On the Continent of 
 Europe, the tendency of corporations, such as insurance 
 companies and banks, which from their nature have large 
 amounts of capital, to invest in real estate, is very marked, 
 and the traveler whose eye is attracted by the elegant appear- 
 ance of long rows of dwellings, or extensive stores, in some 
 of the large cities, is surprised to find on inquiry that many 
 of them are owned by corporations. The fact that this 
 policy has been long pursued and meets the approval of the 
 governments and people of France and Germany seems to 
 prove that such investments work no public injury there, 
 and leads us to ask why they should be forbidden here. 
 
 Among the peculiar prejudices which we have inherited 
 from England, in common with the other countries colonized 
 
 178
 
 THE LAW OF MORTMAIN 
 
 from that fertile mother, is the one which deems the possession 
 of large quantities of land by corporations injurious to the 
 public welfare. I presume it to be beyond question that the 
 repeated enactment of statutes of mortmain, from the time 
 of Magna Charta, down through the reigns of successive 
 monarchs to the existing statute of George II, has begotten 
 and fostered a blind, unthinking impulse which shows itself 
 in the limitations usually inserted by American legislatures 
 in the charters of corporations, forbidding them to hold real 
 estate beyond such as may be necessary for the purposes of 
 their business, although the original reasons for such restric- 
 tion have long since disappeared. 
 
 For the benefit of such of my hearers as are not versed in 
 the technical phrases of the law, I cite from Burrill's Law 
 Dictionary the definition of the term mortmain: "A dead 
 hand; a condition of property in which it is held without the 
 power of change or alienation. A term originally applied 
 to the possession of land by ecclesiastical bodies, the members 
 of which (being professed) were reckoned dead persons in 
 law. Afterwards applied to purchases and acquisitions by 
 any corporate body. Thence the statutes prohibiting con- 
 veyances of land by deed or will to a corporation were termed 
 statutes of mortmain, or mortmain acts." 
 
 This country is young and growing, and in all probability 
 for years to come, as for years past, investments in real estate 
 will prove the most safe and profitable. The family which 
 has been able to retain the large farm, or the ancestral estate, 
 and meet the annually recurring taxes and other necessary 
 burdens upon its land, has a sure fortune of which no acci- 
 
 179
 
 THE LAW OF MORTMAIN 
 
 dent can deprive it. The statistics of this county show from 
 year to year a steady rapid appreciation of its real property, 
 which, of course, enures to the benefit of the owners. As 
 many corporations, whatever their main object, must, as an 
 incident of their work, invest their accumulated funds for a 
 longer or shorter period, and as it is for the interest of their 
 stockholders that such investments should be made in securi- 
 ties that are not only safe, but appreciating in value, it seemfc 
 unjust that they should be so limited in their choice of in- 
 vestments as to be prohibited from placing their funds in the 
 best and safest of all securities, unless there be some strong 
 controlling reason of public policy for the prohibition. In 
 the present day, when every class of business is conducted 
 by corporations, there is scarcely an individual who is not 
 directly or indirectly interested in the prosperity of some 
 banking, insurance, manufacturing, mining, or other asso- 
 ciation, and it. is therefore well worth our while to inquire 
 whether any such reason does in fact exist. 
 
 Let me pause for a moment to explain, if not to qualify, 
 the statement made in regard to the steadily increasing value 
 of real estate in this country. 
 
 It is true that this increase has been mainly in, and in the 
 neighborhood of, cities, for while the aggregate valuation of 
 real estate has largely augmented, average farming land in 
 New England and the Middle States is cheaper than twenty 
 years ago. For this there are two causes, both of which may 
 be considered to be of a somewhat local and temporary 
 character, one being the development of agriculture in the 
 West, and the other, of manufactures in the East. The more 
 
 180
 
 THE LAW OF MORTMAIN 
 
 fertile lands of the newer States drew away many of the more 
 enterprising and especially the youthful farmers from the 
 bleak hills of New England and the exhausted lands of 
 Virginia to the rolling prairies of the interior, but the increas- 
 ing difficulty of procuring transportation for their crops from 
 these distant fields to a market, and the over-abundant supply 
 of labor for factories, is already beginning to revive agricul- 
 ture in the East, and will doubtless continue to have that 
 effect. The increase of manufacturing centres in the West 
 also affords a more abundant home market, which will de- 
 mand and receive consideration and supply, as that section 
 consumes more of its own products and has less surplus to 
 spare. As the area of grain production rolls farther and 
 farther westward, the cost of transportation must increase, 
 until the growth of grain in this part of the country again 
 becomes remunerative, and the farming land again reaches 
 its former, if not a still higher, value. 
 
 I propose, then, to examine briefly into the origin of the 
 statutes of mortmain, and the causes which gave them birth. 
 We pride ourselves as a people (and very justly) upon our 
 willingness to throw off the shackles of old habits and in- 
 herited prejudices, and be guided by the pure light of reason. 
 The mere fact that an abuse or a wrong has existed for cen- 
 turies is, with us, no argument for its continuance, if it can 
 be demonstrated that an abuse or a wrong really exists. 
 That the limitation of the Common Law right of corporations 
 to hold real estate to any extent they think proper is a wrong 
 seems to me to be susceptible of proof. 
 
 Sir William Blackstone, in his Commentaries on the Laws 
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 of England, gives the following reasons for the existence of 
 corporations: "As all personal rights die with the person, and, 
 as the necessary forms of investing a series of individuals 
 one after another with the same identical rights, would be 
 very inconvenient, if not impracticable, it has been found 
 necessary, when it is for the advantage of the public to have 
 any particular rights kept on foot and continue, to constitute 
 artificial persons who may maintain a perpetual succession, 
 and enjoy a kind of legal immortality." 
 
 These artificial persons thus resembling, or rather being 
 substitutes for, individuals, have certain powers, rights, and 
 capacities inherent in their very nature. It is sufficient for 
 my purpose to state on the same high authority that among 
 these rights, as a necessary consequence of their existence, is 
 the power to purchase lands and hold them for the benefit of 
 themselves and their successors. 
 
 A corporation, therefore, at common law, had the same 
 right to purchase, hold, dispose of and trade in real estate, 
 as an individual, and the inquiry is naturally suggested, why 
 and how was this right restricted. To answer this, I will 
 again have recourse to the great storehouse of Blackstone's 
 Commentaries: "By the common law," says that writer, 
 "any man might dispose of his lands to any other private 
 man at his own discretion, especially when the feudal restraints 
 of alienation were worn away. Yet in consequence of these 
 it was always and is still necessary for corporations to have a 
 license in mortmain from the crown to enable them to pur- 
 chase lands; for as the king is the ultimate lord of every fee, 
 he ought not, unless by his own consent, to lose his privilege of 
 
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 THE LAW OF MORTMAIN 
 
 escheats and other feudal profits by the vesting of lands in 
 tenants that can never be attainted or die. . . . When these 
 donations (i.e., to religious houses) began to grow numerous, 
 it was observed that the feudal services, ordained for the 
 defense of the kingdom, were every day visibly withdrawn; 
 that the circulation of landed property from man to man 
 began to stagnate; and that the lords were curtailed of the 
 fruits of their seigniories, their escheats, wardships, reliefs, 
 and the like; and therefore, in order to prevent this, it was 
 ordained by the second of King Henry Ill's great charters, 
 and afterwards by that printed in our common statute books, 
 that all such attempts should be void, and the land forfeited 
 to the lord of the fee." 
 
 Another reason for these enactments is hinted at by the 
 same author, in describing the gradual encroachments of the 
 Papal power upon the independence of the Church of Eng- 
 land. He says, that "Not content with the ample provision 
 of tithes, which the law of the land had given to the parochial 
 clergy, they endeavored to grasp at the lands and inheritances 
 of the kingdom, and (had not the legislature withstood them) 
 would by this time have probably been masters of every foot 
 of ground in the kingdom. To this end they introduced the 
 monks of the Benedictine and other rules, men of sour and 
 austere religion, separated from the world and its concerns 
 by a vow of perpetual celibacy, yet fascinating the minds of 
 the people by pretenses to extraordinary sanctity, while all 
 their aim was to aggrandize the power and extend the in- 
 fluence of their grand superior, the Pope. And as, in those 
 times of civil tumult, great rapines and violence were daily 
 
 183
 
 THE LAW OF MORTMAIN 
 
 committed by overgrown lords and their adherents, they were 
 taught to believe that founding a monastery a little while 
 before their deaths would atone for a life of incontinence, 
 disorder, and bloodshed. Hence innumerable abbeys and 
 religious houses were built within a century after the Con- 
 quest, and endowed, not only with the tithes of parishes 
 which were ravished from the secular clergy, but also with 
 lands, manors, lordships, and extensive baronies. And the 
 doctrine inculcated was, that whatever was so given to or 
 purchased by the monks and friars was consecrated to God 
 himself; and that to alienate or take it away was no less than 
 the sin of sacrilege." 
 
 Hume substantially repeats the first of these reasons in his 
 History of England, when he says of Edward I: "He seems 
 to have been the first Christian prince that passed a statute 
 of mortmain; and prevented by law the clergy from making 
 new acquisitions of lands, which by the ecclesiastical canons 
 they were forever prohibited from alienating. The opposition 
 between his maxims with regard to the nobility and to the 
 ecclesiastics leads us to conjecture that it was only by chance 
 he passed the beneficial statute of mortmain, and that his 
 sole object was to maintain the number of knight's fees, and 
 to prevent the superiors from being defrauded of the profits 
 of wardships, marriage, livery, and other emoluments arising 
 from the feudal tenures. This is indeed the reason assigned 
 in the statute itself, and appears to have been his real object 
 in enacting it." 
 
 These expressions of opinion will strike us with more force 
 if we glance for a moment at the condition of Europe at the 
 
 184
 
 THE LAW OF MORTMAIN 
 
 period to which these writers refer. The Papal power was 
 then at the zenith of its supremacy, and was constantly ex- 
 tending its influence over all classes of society, and every 
 circumstance of human life. In all ages of the world, in 
 every country of which we have any historical record, where 
 an organized priesthood existed, the constant struggle of the 
 ecclesiastical power has been to claim and exercise a control 
 in civil affairs, and over rights, both of property and person. 
 The priesthood of the Middle Ages certainly formed no 
 exception to this rule, and we find their influence penetrating 
 everywhere. The ecclesiastical courts maintained exclusive 
 jurisdiction over their own subjects, and the bishops, by 
 granting the tonsure which conferred the privilege of the 
 clerical order, indiscriminately, increased immensely the 
 number of persons exempted from the civil jurisdiction. 
 By a further stretch of power, orphans and widows, the 
 stranger and the poor, the pilgrim and the leper, under the 
 appellation of persons in distress, came within the peculiar 
 cognizance and protection of the Church, as well as the whole 
 body of crusaders, and those who had merely taken a vow 
 to engage in a crusade. 
 
 These extensive claims and their enormous accretions of 
 real estate (for at that time the religious houses are supposed 
 to have owned at least one fifth of the territory of England) 
 naturally awakened the jealousy and fears of the laity, and 
 the murmurs of discontent heard among the latter were 
 swelled by the chorus of the priests who had themselves begun 
 to, dread the increasing power and exactions of the Court of 
 Rome. The Popes had assumed, through the machinery of 
 
 185
 
 THE LAW OF MORTMAIN 
 
 a Council, to impose a general tax upon all ecclesiastical 
 property, and the effect of such proceedings was very natu- 
 rally to produce a wide-spread disaffection among the clergy. 
 To quote the author last cited, "pillaged upon every slight 
 pretense, without law and without redress, the clergy came 
 to regard their once paternal monarch as an arbitrary op- 
 pressor. All the writers of the thirteenth and following 
 centuries complain in terms of unmeasured indignation, and 
 seem almost ready to reform the general abuses of the 
 Church. They distinguished, however, clearly enough be- 
 tween the abuses which oppressed them and those which 
 it was their interest to retain, nor had the least inten- 
 tion of waiving their own immunities and authority. But 
 the laity came to more universal conclusions. A spirit of 
 inveterate hatred grew up among them, not only towards 
 the Papal tyranny, but the whole system of ecclesiastical 
 independence." 
 
 When this was the prevailing tone of popular thought and 
 opinion, we might expect action looking towards a curtail- 
 ment of ecclesiastical power, and as land was the main source 
 of wealth, and substantially the only form of investment, as 
 well as the most conspicuous possession of the clergy, we 
 should equally expect that the first attack would be made upon 
 that point. The fact that land so held was exempted from 
 the ordinary burdens of the State was at once a reason and 
 an excuse for limiting its extent, and it naturally occurred 
 to reflecting men that if the Church peremptorily denied the 
 supremacy of the State over her temporal wealth, it was but 
 a just measure of retaliation, or rather of self-defense, that 
 
 186
 
 THE LAW OF MORTMAIN 
 
 the State should restrain her further acquisitions. (Hal- 
 lam's Middle Ages.) 
 
 That the researches of this thoughtful and philosophical 
 writer had thoroughly convinced him of the existence of this 
 popular jealousy and distrust appears again in his Consti- 
 tutional History of England when, in speaking of the visita- 
 tions of the monasteries by Cardinal Woolsey, he says: "The 
 enormous and, in a great measure, ill-gotten opulence of the 
 regular clergy had long since excited jealousy in every part 
 of Europe. Though the statutes of mortmain under Ed- 
 ward I and Edward III had put some obstacle to its increase, 
 yet as these were eluded by licenses of alienation a larger 
 proportion of landed wealth was constantly accumulating in 
 hands which lost nothing that they had grasped." 
 
 The testimony to prove that these statutes were inspired 
 by and directed against ecclesiastical corporations only is 
 further strengthened by a remark made by Mr. Buckle in his 
 History of Civilization. In discussing the proximate causes 
 of the French Revolution he observes: "It was in 1749 that 
 the French Government took the first decisive steps against 
 the Church. And what proves the hitherto backward state 
 of the country in such matters is that this consisted of an 
 edict against mortmain, a simple contrivance for weakening 
 the ecclesiastical power, which we in England had adopted 
 long before." 
 
 We have already seen that this restriction in France applies 
 to ecclesiastical corporations only, and that lay societies are 
 unlimited in their acquisition and tenure of real estate. 
 
 These citations from writers, who will certainly be con- 
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 THE LAW OF MORTMAIN 
 
 ceded to have understood their subject, give us substantially 
 three reasons for the restriction of the right of corporations 
 to hold lands: 
 
 1st. That by such tenure the land was relieved of its feudal 
 burdens and the lord's revenue diminished. 
 
 2d. A jealousy of such tenure by corporations which 
 acknowledged the supremacy of a foreign prince in political 
 as well as religious matters. 
 
 3d. A prejudice against such tenure by corporations which 
 made it a matter of religious duty never to alienate lands 
 once acquired. 
 
 The mere statement of these reasons is sufficient to show 
 how utterly foreign they are to the living issues, unless pos- 
 sibly some may see ground for apprehension in the last, and 
 fear that financial corporations would feel bound, equally 
 with the religious houses, to retain forever all real estate once 
 acquired. That danger is probably of as little real impor- 
 tance as the opposite apprehension that once prevailed in 
 France, namely, that the operation of the laws of inheritance 
 compelling the equal division of land among all the children 
 of a decedent would in time subdivide it into such small 
 portions as to produce a nation of paupers. The corpora- 
 tions could be trusted not to depreciate their own property 
 by any unfair and iniquitous conduct, and if by any undue 
 acquisition on their part the demand for land by individuals 
 should be increased, the temptation of large profit would 
 soon produce its natural and necessary effect. No corpora- 
 tion could possibly invest all, or even the greater part, of its 
 funds in real estate, because from the fluctuations of business, 
 
 188
 
 THE LAW OF MORTMAIN 
 
 with its alternate reverses and successes, it would be com- 
 pelled to hold a large proportion of its funds in securities 
 readily convertible to meet emergencies. The law of supply 
 and demand would exert its inevitable influence over them 
 as over individuals, and a large demand for land on their 
 part for investment would result in raising prices as com- 
 pared with other securities, to such an extent that investment 
 in the latter would be the more profitable course, and there- 
 fore the one to be adopted. 
 
 History shows us many instances of large real estate trans- 
 actions being carried on by corporations, not only without 
 injury, but with positive benefit to the body politic. The 
 success of the British East India Company, and of the Illinois 
 Central and Pacific Railroads in our own country, afford 
 striking examples of the successful management of immense 
 properties by corporations, and of the benefit which the entire 
 community may derive from the aggregation of capital 
 possessed by an association when used to develop and im- 
 prove real estate. From its nature and the extent of means 
 required to render it valuable and productive, this class of 
 property would seem to be especially the one to which joint 
 stock enterprise might be advantageously devoted. The lan- 
 guage of Professor Bowen in his elaborate and able work on 
 American Political Economy seems peculiarly adapted to 
 this point. He says: "Many kinds of production can be 
 successfully kept up only upon a large scale, for the larger 
 the enterprise the further the division of labor may be car- 
 ried. In order to keep such enterprises in motion, capital 
 must be aggregated in large masses. In England, the great 
 
 189
 
 THE LAW OF MORTMAIN 
 
 inequality of the distribution of wealth allows such enter- 
 prises to be managed by individuals; in most cases a large 
 manufacturing establishment is owned either by one person, 
 or by a firm which embraces but a few partners. In the 
 United States, from the comparative paucity of large private 
 fortunes, such an establishment is generally formed and 
 conducted by a joint-stock company, which is comparatively 
 a modern invention, but one that, from its democratic char- 
 acter, is peculiarly suited to this country and to the wants of 
 the age. Many small capitalists by clubbing their means 
 can successfully compete with men of vast fortune an 
 undertaking which would otherwise be a hopeless one, as the 
 great capitalist can live through reverses of trade, commer- 
 cial crises, and casualties which would ruin one who had 
 little or nothing in reserve. So consonant are these joint- 
 stock companies to the genius of our institutions and to the 
 circumstances of the country that they have multiplied with 
 astonishing rapidity. They have survived even the neccessity 
 which has called them forth; for as large private fortunes 
 have sprung up with the growth of national opulence, the 
 owners of them have preferred to distribute their capital by 
 taking stock in many of these associations rather than to 
 concentrate it upon one undertaking. The risk of a sweeping 
 calamity is thus materially diminished. I know of nothing 
 more irrational than the common prejudice against such 
 corporations. They are true savings banks in which the 
 common laborer not infrequently invests his modest savings 
 and shares the gains of his wealthy employer, instead of being 
 crushed by competition with him. It is not unusual for 
 
 190
 
 THE LAW OF MORTMAIN 
 
 operatives to hold stock in the very manufactories in which 
 they work for wages. At any rate, the savings banks, to 
 which they first confide the fruits of their economy, often 
 invest them in such stock. These corporations allow per- 
 sons of very moderate means to participate in enterprises 
 which in other countries are conducted exclusively by the 
 rich." That among the enterprises which may be so con- 
 ducted, and most successfully, are real estate operations, is 
 shown by the numerous co-operative building associations, 
 both in England and this country. These corporations hold 
 land, often in large tracts, on which they erect stores and 
 dwellings usually for sale to their own members, and have 
 enabled many persons of moderate means to acquire and 
 pay for a home by small instalments, which would otherwise 
 have been hopelessly beyond their reach. 
 
 The logic which will allow one corporation to hold and 
 deal in real estate as its primary business, and forbid another 
 to purchase it for the investment of its surplus funds, seems 
 defective, and can only be accounted for by that principle of 
 selection which, according to the old proverb, allows one 
 man to steal a horse with impunity, while it hangs another 
 for looking over the fence. 
 
 Land in this country gives its possessor no advantage or 
 power in a political point of view. In England, it is still a 
 source of both political power and social influence, but here 
 the owner of an immense landed property possesses no ad- 
 vantage whatever over the equally opulent owner of personal 
 securities. Indeed, the latter may wield much greater 
 influence from the superior availability of his resources which 
 
 191
 
 THE LAW OF MORTMAIN 
 
 enables him to take immediate advantage of every oppor- 
 tunity for profitable investment. It may easily be conceived 
 how in feudal times the great landlord with his absolute 
 control of all his tenantry exerted immense power, and how 
 the acquisition of land was the preliminary step to influence 
 and wealth. Even in later times, with a restricted suffrage 
 and uncertain tenures by lessees and tenants, the power of 
 the land-owner remained great. But in this country, where 
 the supply of land is practically limitless, where the systems 
 of registration and conveyancing offer no bar to the security 
 of tenant rights and the easy, inexpensive transfer of titles, 
 where the poorest occupant of a. tenement casts a ballot, as 
 well as his landlord, the influence of the owner of real estate 
 is no greater than that of any other capitalist; and whether 
 his landlord be an individual or a corporation, the tenant is 
 equally secure in his rights, and equally under the protection 
 of the courts and the laws. 
 
 The multiplied forms of wealth in these latter days have 
 had further effect in diminishing the prestige of land, because 
 it is no longer the main depository for accumulations. Gov- 
 ernment bonds, and the stocks of countless States, munici- 
 palities, and corporations, have taken its place, and land is 
 now merely one of numerous securities possessing no special 
 advantages for its owner, except such as are inherent to its 
 character as a form of investment. 
 
 Nor is it to be apprehended that corporations will suffer 
 land to remain idle and unimproved in their hands. I of 
 course refer only to civil or lay corporations, for ecclesiastical 
 ones have methods of their own, which I am not considering. 
 
 192
 
 THE LAW OF MORTMAIN 
 
 The very condition of the existence of a financial corporation 
 is a wise and judicious improvement of its resources, to 
 enable it to obtain the largest possible return from all its 
 investments. Whether those be made in personal securities 
 or in real estate, the ruling motive of the corporation, its own 
 self-interest, will impel it to make them in the most profitable 
 manner. If they be in the purchase of real estate, the law 
 of its being will require it to develop and improve that estate 
 as rapidly and as advantageously as possible, and it is safe 
 to assume that any corporation which fails to do so will soon 
 give place to its more energetic and enterprising rival. The 
 keen competition of our business life, which incites corpora- 
 tions, no less than individuals, to incessant activity, is a 
 sufficient guarantee against the sloth of dead hands in the 
 present age. 
 
 There are three considerations which seem to make invest- 
 ments in real estate peculiarly advantageous to corporations, 
 especially to such as have to invest large accumulations of 
 assets through long series of years, and for which the great 
 desiderata are stability, permanence, and security. 
 
 I. Stability. In a growing country, and one which is 
 full of life and energy, real estate must have a constant and 
 advancing value. The growth of wealth, the increase of 
 business, create a demand for dwellings in which that wealth 
 may be enjoyed, and for stores and warehouses in which that 
 business may be transacted. With that progress comes also 
 a proportionate increase in the number of mechanics, artisans, 
 merchants, and professional men, food consumers not food 
 producers, increasing the returns of the farmer, and adding 
 
 193
 
 THE LAW OF MORTMAIN 
 
 in the same ratio to the value of farming land. Real 
 estate, then, prudently selected and properly managed, is 
 sure to yield adequate returns for the investment, and to be 
 readily saleable when circumstances compel a realization of 
 assets. It cannot depreciate rapidly in value, nor, if the cor- 
 poration owning it be managed with sound judgment, need it 
 ever be thrown upon the market in times of depression and 
 general shrinkage. When an undying corporation holds 
 lands by an unlimited tenure, it may disregard the temporary 
 fluctuations which often affect real estate in cities when the 
 quarter which has been fashionable for residence ceases to 
 be so, and the advancing tide of business demand has not 
 yet reached its stagnant pools. The corporation can afford 
 to wait for the reaction which is sure to come, while the in- 
 dividual often cannot. The persons sometimes encountered 
 who have lost largely by real estate investments are those 
 who have become, to use the common expression, land poor, 
 by having heedlessly purchased so largely (and mainly of 
 unimproved property) that their income is insufficient to 
 meet the necessary charges, and they are forced to sell at an 
 unfavorable moment. A financial corporation of large cash 
 assets, available at all times, is not liable to such a contin- 
 gency, and can obtain in such investments the stability which 
 it requires. 
 
 II. Permanence. One of the main items of expense 
 incurred by a corporation in transacting a large business is 
 caused by the necessity of frequently changing investments. 
 Most of our large savings banks and insurance companies 
 place their assets mainly in bonds and mortgages, and these 
 
 194
 
 THE LAW OF MORTMAIN 
 
 are constantly shifting, requiring the employment of a large 
 clerical force, and much expenditure of care and time, to 
 superintend the incessant payment of old loans and placing 
 of new ones. The difficulty is not removed by the purchase 
 of Government or other bonds, for the periods of time for 
 which these usually run, from five to twenty years, is but a 
 brief space in the life of an immortal corporation, and with 
 every change of investment, new expense and greater or less 
 loss of interest is necessarily incurred. Much of this loss 
 would be avoided by investments in real estate, as the ex- 
 pense of its management should be but a small percentage 
 of its returns, while the property purchased could be held 
 permanently, and the corporation relieved from the neces- 
 sity of making any changes, except in unusual and excep- 
 tional cases. There are, of course, instances, especially in 
 our large cities, where the character of a neighborhood alters 
 to such an extent that property there may lose a portion of 
 its value as already noted, but such changes are rare, and 
 when they occur, so gradual and progressive in their opera- 
 tion that very ordinary caution would suffice to anticipate 
 and guard against them. 
 
 III. Safety. An additional consideration of great im- 
 portance is the almost absolute safety of investments of this 
 character. Figures may be manipulated and bonds may be 
 stolen, but stockholders who know that the assets of the 
 company in which they are interested are mainly invested 
 in real estate can be equally indifferent to burglars without 
 and defaulters within. Real property cannot be stolen or 
 embezzled, and the publicity attending any mortgage or 
 
 195
 
 THE LAW OF MORTMAIN 
 
 transfer of it would prove a sufficient bar to any attempt 
 towards its improper conversion. 
 
 This subject has never, to my knowledge, been examined 
 or discussed in this country, in view of our circumstances and 
 relations, but has been regulated by blind adherence to the 
 traditions of the old world. "We have not in this country 
 re-enacted the statutes of mortmain," says Chancellor Kent, 
 in his Commentaries, "or generally assumed them to be in 
 force, and the only legal check to the acquisition of lands by 
 corporations consists in those special restrictions contained 
 in the Acts by which they are incorporated, and which usually 
 confine the capacity to purchase real estate to specified and 
 necessary objects; and in the force to be given to the excep- 
 tion of corporations out of the Statute of Wills, which declares 
 that all persons other than bodies politic and corporate may 
 be devisees of real estate. 
 
 "The statutes of mortmain are in force in the State of 
 Pennsylvania. It has been there held and declared, by the 
 judges of the Supreme Court of that State, that the English 
 statutes of mortmain have been received and considered the 
 law of that State, so far as they are applicable to their politi- 
 cal conditions; and that they were so far applicable that all 
 conveyances by deed or will of lands, tenements, or heredita- 
 ments made to a body corporate, or for the use of a body 
 corporate, were void unless sanctioned by charter or act of 
 assembly. In the other States it is understood that the 
 statutes of mortmain have not been re-enacted or practised 
 upon; and the inference from the statutes creating corpora- 
 tions and authorizing them to hold real estate to a certain 
 
 196
 
 THE LAW OF MORTMAIN 
 
 limited extent is that our statute corporations cannot take 
 and hold real estate for purposes foreign to their institution. 
 As we have no general statutes of mortmain, perhaps a legally 
 constituted corporation in another State can purchase and 
 hold lands ad libitum in New York, provided their charter 
 gave them the competent power." 
 
 Since this was written a decision of the U. S. Supreme 
 Court (Paid vs. Virginia, 8 Wallace, 168), which holds that a 
 corporation is a creature of the State in which it was char- 
 tered, and has no rights in other States but such as may be 
 given it by statute therein, seems to contradict the statement 
 of the eminent jurist. 
 
 In a footnote to the paragraph quoted, the learned Chan- 
 cellor adds: "This is declared to be the law in Kentucky 
 (Lathrop vs. Commercial Bank of Sciota, 8 Dana, 114). The 
 decision in that case goes to establish the doctrine that a 
 corporation of another State or nation can contract or sue on 
 contracts made by its agent in Kentucky, provided they be 
 such as its charter authorizes, and consistent with the local 
 law and policy of the State; and a corporation of another 
 State can take and hold lands by purchase, mortgage, or de- 
 vise when consistent with its charter, and not denied by 
 positive law. This liberal and enlightened decision was fully 
 considered and ably sustained." 
 
 From the tone of this last remark, it would seem that this 
 distinguished lawyer himself saw no danger in allowing 
 corporations to hold real estate, and it certainly seems harsh 
 and unreasonable that in this State such a privilege should 
 be denied to those domestic associations which have done so 
 
 197
 
 THE LAW OF MORTMAIN 
 
 much to accumulate capital within this State, and added so 
 largely to its wealth and prosperity. 
 
 The experience of the city of New York, during the past 
 few years (and I have no doubt it could be paralleled else- 
 where) shows the unfortunate results of the present restric- 
 tive systems. While the large corporations had millions of 
 dollars lying idle in banks, for which they could find no safe 
 investment, the owners of real estate were confronted with a 
 dead market, and were in many cases driven to forced sales 
 under the hammer, with their attendant loss. Had these 
 corporations been allowed to purchase, they could have 
 done so with large profit to themselves, and at the same 
 time, by relieving small holders and putting their funds 
 into circulation, have done much to relieve the general stag- 
 nation. 
 
 It must be remembered that while the statutes we have 
 been considering have existed for more than six hundred 
 years, the joint stock corporations to which they are made to 
 apply were hardly in being before the last century, and have 
 only quite recently attained full growth. It is an anachronism 
 to fetter these children of modern enterprise and energy in 
 the swaddling clothes which suited the decrepit dwarfs of 
 the Middle Ages, and to hamper the action of co-operative 
 undertakings with the shackles designed to prevent the selfish 
 aggrandizement of a decayed church. Whether it may ever 
 become desirable to limit the accretion of corporate wealth, 
 or to set a bound to the extent of corporate transactions, or 
 not, there can certainly be no good reason for restricting the 
 mode of the investment of that wealth, or for drawing an 
 
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 THE LAW OF MORTMAIN 
 
 arbitrary distinction, as regards corporations, between real 
 and personal property. 
 
 I have treated the subject more from a social than a legal 
 point of view, because it is a social question which must win 
 public opinion before it can obtain legislative action. In the 
 belief that the opinions I here express are just and reasonable 
 I have put them forth, and so believing I commend them to 
 the candid consideration of thinking men. 
 
 r 
 
 199
 
 THE LAW OF LIFE INSURANCE 
 
 A COURSE OF LECTURES DELIVERED BEFORE THE LAW 
 
 SCHOOL OF THE UNIVERSITY OF THE CITY OF NEW 
 
 YORK IN 1891, THE LECTURER THEN BEING THE 
 
 GENERAL SOLICITOR OF THE MUTUAL LIFE 
 
 INSURANCE COMPANY OF NEW YORK
 
 THE LAW OF LIFE INSURANCE 
 
 FIRST LECTURE 
 
 THE subject of Life Insurance law has become one of 
 such importance that I shall make no apology and but 
 little explanation in requesting your attention to the brief out- 
 line of it which I propose to lay before you. The Life Insur- 
 ance companies of this country alone now possess accumulated 
 funds of more than three quarters of a billion of dollars; 
 their policies in force are more than a million in number, 
 providing an indemnity of more than three billions of dollars, 
 and their operations extend not only all over the United 
 States, but through the greater part of the civilized world. 
 An institution of such magnitude, involving the pecuniary 
 fortunes of so many thousands of individuals, is certainly 
 entitled to respect, and the increasing scale of its operations 
 makes the principles of law by which they are regulated a sub- 
 ject of ever-increasing importance. I shall not attempt, in the 
 time at my disposal, to enter into the details of the methods 
 of the formation of companies, the limitations upon their 
 business, the character of their investments, or the super- 
 vision exercised by the State authorities, as these are matters 
 which are regulated by statute and differ in the several States; 
 nor shall I attempt in my citations of authorities to go often 
 
 203
 
 THE LAW OF LIFE INSURANCE 
 
 beyond the courts of this State or the Federal tribunals, and 
 even then shall confine myself to the mention of one or two, 
 illustrating each point, as I propose rather to give a general 
 view of the entire subject than to minutely discuss any par- 
 ticular question. Other States, as you will find if you pursue 
 the subject, have from time to time passed laws some of 
 the most absurd and inequitable character regulating the 
 terms on which a contract of insurance may be made by a 
 foreign company within their limits. But whatever these 
 statutes may be, the companies concerned have no alterna- 
 tive but to submit to their requirements, or withdraw from 
 the State enacting them. The Supreme Court of the United 
 States some years ago decided, in the case of Paid vs. the 
 State of Virginia (8 Wallace, 168), that corporations are not 
 citizens within the meaning of that clause of the Constitution 
 which declares that citizens of each State shall be entitled 
 to all the privileges and immunities of citizens of the several 
 States, nor do they come within the clause which declares 
 that Congress shall have power to regulate commerce with 
 foreign nations and among the several States; that they are 
 creatures of local law and have not even an absolute right 
 of recognition in other States, but depend for that and the 
 enforcement of their contracts upon the assent of those States, 
 which may be given accordingly on such terms as they please. 
 This doctrine has since been adhered to by that court and 
 produced, in the fulness of time, a somewhat paradoxical 
 result. The State of Wisconsin provided by statute that no 
 Fire Insurance company should transact business in that 
 State unless it should first appoint an attorney in the State 
 
 204
 
 THE LAW OF LIFE INSURANCE 
 
 on whom processes of law could be served, with an agreement 
 that such company would not remove the suit for trial into 
 the United States Circuit Court or Federal Courts. On an 
 appeal to the Supreme Court Mr. Justice Hunt delivered an 
 opinion holding that the statute was repugnant to the Con- 
 stitution of the United States and the laws in pursuance there- 
 of, and was illegal and void, and further, that the agreement 
 of the insurance company filed in pursuance of the act de- 
 rived no support from a statute itself unconstitutional, and 
 was as void as it would be had no such statute been passed. 
 The Judge says: "Every citizen is entitled to resort to all the 
 courts of the country and to invoke the protection which all 
 the laws or all those courts may afford him. A man may 
 not barter away his life or his freedom or his substantial 
 rights. In a criminal case he cannot, as was held in Can- 
 cemi's case (18 N. Y., 128), be tried in any other manner 
 than by a jury of twelve men, although he consent in open 
 court to be tried by a jury of eleven men. In a civil case he 
 may submit his particular suit by his own consent to an arbi- 
 tration or to the decision of a single judge; so he may omit 
 to exercise his right to remove his suit to a Federal tribunal 
 as often as he sees fit, in each recurring case; in these aspects 
 any citizen may no doubt waive the rights to which he may 
 be entitled. He cannot, however, bind himself in advance 
 by an agreement, which may be specifically enforced, thus 
 to forfeit his rights at all times and on all occasions when- 
 ever the case may be presented." (Insurance Co. vs. Morse, 
 20 Wallace, 445.) Relying upon this decision the Continental 
 Insurance Company filed a bill in the Circuit Court of the 
 
 205
 
 THE LAW OF LIFE INSURANCE 
 
 United States for the Western District of Wisconsin setting 
 up the act in question, that the company had removed a case 
 to a Federal Court in disregard of its agreement, and that the 
 Secretary of State thereupon threatened to revoke its license 
 to do business in that State. The company applied for an 
 in junction restraining the Secretary from taking such action. 
 A decree was entered in the Circuit Court making the injunc- 
 tion perpetual, and an appeal taken to the Supreme Court. 
 (See Doyle vs. Continental Insurance Company, 94 U. S., 
 535.) In this case also Mr. Justice Hunt delivered the 
 opinion, which was in effect that if the State has the power 
 to do an act its intention or the reason by which it is influ- 
 enced in doing it cannot be inquired into. "Thus the plead- 
 ing before us alleges that the permission of the Continental 
 Insurance Company to transact its business in Wisconsin 
 is about to be revoked for the reason that it removed the 
 case of Drake from the State to the Federal Courts. H 
 the act of an individual is within the terms of the law, then 
 whatever may be the reason which governs him, or whatever 
 may be the result, it cannot be impeached. The acts of a 
 State are subject to still less inquiry either as to the act itself 
 or as to the reason for it. The State of Wisconsin, except 
 so far as its connection with the Constitution and laws of the 
 United States alters its position, is a sovereign State, possess- 
 ing all the powers of the most absolute government in the 
 world. The argument that the revocation in question is 
 made for an unconstitutional reason cannot be sustained. 
 The suggestion confounds an act with an emotion or a mental 
 proceeding, which is not the subject of inquiry in determining 
 
 206
 
 THE LAW OF LIFE INSURANCE 
 
 the validity of a statute. An unconstitutional reason or 
 intention is an impracticable suggestion, and it cannot be 
 applied to the affairs of life. 
 
 " If the act done by the State is legal and is not in violation 
 of the Constitution or laws of the United States, it is quite 
 out of the power of any court to inquire what was the inten- 
 tion of those who enacted the law." So, to sum up the matter, 
 the case stands, as stated by the learned Justice: "The 
 effect of our decision in this respect is that the State may 
 compel the insurance company to abstain from the Federal 
 Courts or to cease to do business in the State, which gives 
 the company the option. It is justifiable because the com- 
 plainant has no constitutional right to do business in that 
 State; that State has authority at any time to declare that 
 it shall not transact business there. This is the whole point 
 of the case, and without reference to the injustice and 
 prejudice or the wrong that is alleged to exist must deter- 
 mine the question. No right of the complainant under the 
 laws of Constitution of the United States by its exclusion 
 from the State is infringed, and this is what the State now 
 accomplishes." In other words, the companies have no 
 rights whatever outside of the State which creates them, and 
 if they wish to do business in other States must accept what- 
 ever terms and limitations upon that business, or the method 
 of transacting it, which the State harboring them may see 
 fit to impose. Of course, in saying they have no rights 
 whatever, I refer to the right to earn' on the business for 
 which they were organized, and must not be understood as 
 stating that they could, for example, be deprived of property 
 
 207
 
 THE LAW OF LIFE INSUEANCE 
 
 which they had acquired in such States, with their consent, 
 by a subsequent change of State policy. But by these two 
 decisions it appears that while a statute may be absolutely 
 void, as repugnant to the Constitution and laws of the United 
 States, the State may proceed to enforce it as if it were valid. 
 
 Stated in its simplest form, a contract of Life Insurance 
 is one in which one party, called the insurer, in consideration 
 of the yearly payment of a certain sum called the premium 
 by the other party, known as the insured, during his life, 
 agrees to pay a definite sum to his representatives or nomi- 
 nees upon the occurrence of his death. It will be observed, 
 as stated by Mr. Justice Strong, in the case of Insurance 
 Company vs. Statham (93 U. S., 24), that this is a peculiar 
 contract. "Its obligations are unilateral. It contains no 
 undertaking of the assured to pay premiums, but merely 
 gives him an option to pay or not, and thus to continue the 
 obligation of the insurers or terminate it at his pleasure. . . . 
 
 "In my opinion, the true meaning of the contract is that 
 the applicant for insurance by paying the first premium 
 obtains an insurance for one year, together with a right to 
 have the insurance continued from year to year during his 
 life upon payment of the same annual premium, if paid in 
 advance." Thus the insured is under no obligation to con- 
 tinue his payments, and can allow his policy to lapse at any 
 time, while the insurer must fulfil his obligation if the pre- 
 miums be regularly paid. As those allowing their policies 
 to lapse would naturally be the robust and healthy, who feel 
 no need for insurance, while those of impaired health would 
 make every effort to keep their policies in force, there would 
 
 208
 
 THE LAW OF LIFE INSURANCE 
 
 result a constant discrimination to the loss of the insurer did 
 he not provide for a total or partial forfeiture of the pre- 
 miums already paid on a failure to continue them, and thus 
 furnish the insured a strong pecuniary motive for maintain- 
 ing a policy once obtained. The premiums must be calcu- 
 lated upon a basis which will cover the expenses of the 
 business as well as the losses by death. For this is the one 
 thing certain to every man, and every policy which is kept in 
 force must sooner or later be paid. To estimate properly 
 the amount necessary to cover the risk recourse must be had 
 to the great law of average. While nothing in the future is 
 more uncertain than the date of the death of any particular 
 individual, few things are more certain than the average 
 number of deaths among ten thousand individuals at any 
 given age, and with increased numbers this average becomes 
 almost a mathematical certainty. It is for this reason that 
 insurance is no longer written to any large extent by indi- 
 viduals, as was formerly the case, but by great corporations 
 which, insuring many thousands of lives, can rely with con- 
 fidence upon the operation of this law. 
 
 It was formerly the practise in England for persons to 
 take out policies upon the lives of others in whose existence 
 they had no other interest, and with whom, as in the cases of 
 great generals and rulers, they had no acquaintance, as a 
 mere gambling operation. This was ended by a statute 
 passed in the fourteenth year of George the Third, prohibiting 
 insurance upon lives except in cases where the persons insur- 
 ing shall have an interest in the life or death of the persons 
 insured, and this has been followed by the statute of betting 
 
 209
 
 THE LAW OF LIFE INSURANCE 
 
 and gaming in this State, prohibiting all wagers and bets 
 whose success is made to depend upon any unknown or 
 contingent event, provided that the statute shall not be ex- 
 tended so as to prohibit or in any way effect any insurances 
 made in good faith for the security or indemnity of the party 
 insured and which are not otherwise prohibited by law (Re- 
 vised Statutes, 8th Ed., p. 2218). After the passage of the 
 English act, it was held by Lord Ellenborough, in the case 
 of Godsatt vs. Boldero (9 East, 72), that a policy of insurance 
 was a contract of indemnity, but this decision was overruled 
 on an appeal to the Exchequer Chamber in the case of Dolby 
 vs. India and London Life Ins. Co. (28 English Law & 
 Equity, 312), where it was held that a life policy was not in 
 its nature a contract of indemnity, but was what it purports 
 to be on its face, a contract to pay a certain sum in the event 
 of death, and this doctrine has been adopted in this State, 
 in the case of Rawles vs. Ins. Co. (27 N. Y., 282). But to 
 make the policy valid and not obnoxious to the statute just 
 referred to, it is necessary that the beneficiary should have 
 an insurable interest in the life, and the questions arising 
 from this necessity are numerous and perplexing. Every 
 man is presumed to possess an insurable interest in his own 
 life to any amount, since by insuring it he can protect his 
 estate from that loss of future gains or savings which might 
 be the result of his premature death; hence, as they cannot be 
 limited, neither can be the amount for which he may insure; 
 so a wife has an insurable interest in her husband's life (Baker 
 vs. Insurance Company, 43 N. Y., 282); a sister has an 
 insurable interest in the life of her brother (Insurance Com- 
 
 210
 
 THE LAW OF LIFE INSURANCE 
 
 pany vs. France, 94 N. Y., 561), or, to quote the opinion of 
 Mr. Justice Field in the case of Warnock vs. Davis (104 
 U. S., 775): "It (an insurable interest) may be stated gener- 
 ally, however, to be such an interest arising from the rela- 
 tions of the party obtaining the insurance, either as creditor 
 of or surety for the assured, or from the ties of blood or mar- 
 riage to him, as will justify a reasonable expectation of ad- 
 advantage or benefit from the continuance of his life." 
 
 In this State it is well settled that a policy which is valid 
 in its inception continues to be so, even if the insurable 
 interest of the beneficiary or assignee should subsequently 
 cease. In the case of Olmstead vs. Keyes (85 N. Y., 593), 
 Judge Earl sums up the matter as follows, after considering 
 the various decisions on the subject: "The rule, as gathered 
 from these authorities, is that where one takes out a policy 
 upon his own life as an honest and bona fide transaction, and 
 the amount insured is made payable to a person having no 
 interest in the life, or where such a policy is assigned to one 
 having no interest in the life, the beneficiary in the one case 
 and the assignee in the other may hold and enforce the 
 policy if it was valid in its inception, and the policy was not 
 procured or the assignment made as a contrivance to circum- 
 vent the law against betting, gaming, and waging policies. 
 It follows, therefore, that one may, with the consent of the 
 insurer, deal with a valid life policy as he could with any 
 other chose in action, selling it, assigning it, disposing of it 
 or bequeathing it by will; and it has been well said that if 
 he could not do this life policies would be deprived of much 
 of their utility and value." This doctrine, however, has not 
 
 211
 
 THE LAW OF LIFE INSURANCE 
 
 met with the approval of the Supreme Court of the United 
 States. In the case of Cammack vs. Lewis (15 Wallace, 
 643), a policy of $3,000 was taken out and assigned by the 
 insured to secure a debt of $70, the creditor agreeing to pay 
 the premiums. The insured died several months after the 
 policy was issued, and the Court held, in view of the dispro- 
 portion of the real interest of the creditor to the amount to 
 be received by him, that he could in equity and good con- 
 science only hold the policy as security for what was owing 
 to him when it was assigned and such advances as he might 
 afterwards make on account of it, and that the assignment 
 of the policy to him was only valid to that extent. The 
 same doctrine was followed in the case of Warnock vs. Davis 
 (supra), where the decisions of the courts of this State were 
 especially referred to, and in which Mr. Justice Field, de- 
 livering the opinion of the Court, said: "It must be admitted 
 that they are sustained by many other adjudications. But 
 if there be any sound reason for holding a policy invalid 
 when taken out by a party who has no interest in the life of 
 the assured, it is difficult to see why that reason is not as 
 cogent and operative against a party taking the assignment 
 of a policy upon the life of a person in which he has no in- 
 terest. The same ground which invalidates one should 
 invalidate the other, so far at least as to restrict the right 
 of the assignee to the sums actually advanced by him. In 
 the conflict of decisions on this subject, we are free to follow 
 those which seem more fully in accord with the general 
 policy of the law against speculative contracts upon human 
 life," and the decision in Cammack vs. Lewis was accordingly 
 
 212
 
 THE LAW OF LIFE INSURANCE 
 
 followed. It is difficult to reconcile this language with the 
 opinion of the same court in the case of Insurance Company 
 vs. Schafer (94 U. S., 457), where a wife, holding a policy 
 upon the life of her husband, had obtained an absolute divorce 
 from him and continued the payment of the premiums on 
 the policy; the Court held that the cessation of the insurable 
 interest, the policy having been valid in its inception, did 
 not affect the right of the quondam wife to its proceeds, and 
 in delivering the opinion of the Court, Mr. Justice Bradley, 
 a distinguished actuary as well as a learned jurist, remarks: 
 "But supposing a fair and proper insurable interest of what- 
 ever kind to exist at the time of taking out the policy, and 
 that it be taken out in good faith, the object and purpose of 
 the rule which condemns wager policies is sufficiently attained, 
 and there is, then, no good reason why the contract should 
 not be carried out according to its terms," and he concludes 
 by saying, "In our judgment a life policy originally valid 
 does not cease to be so by the cessation of the assured party's 
 interest in the life insured." Under this decision, notwith- 
 standing the cases of Cammack vs. Lewis, and Warnock 
 vs. Davis, already cited, it would seem that a man having 
 a valid policy on his own life might assign it for a valuable 
 consideration satisfactory to himself, or to secure a debt 
 previously contracted in good faith, and that his assignee 
 would be entitled to collect and hold the amount of the claim 
 when the policy matured, although the consideration might 
 have been inadequate or the debt barred by the statute of 
 limitations. As a matter of practise, where the assignment 
 of the policy is absolute on its face and the assignee claims 
 
 213
 
 THE LAW OF LIFE INSURANCE 
 
 the entire amount payable, no question is raised by the com- 
 pany as to the insurable interest unless the representatives 
 of the insured question the validity or the extent of the as- 
 signment and make a claim for all or a portion of the fund. 
 
 A contract of insurance is usually made by two separate 
 papers, the application and the policy, which are construed 
 together as one instrument, the policy being issued upon the 
 faith of the statements made in the application. The latter 
 contains all the particulars about the individual applicant 
 which the insurer thinks it desirable to know, such as his 
 name, age, residence, occupation, family history, habits of 
 life, etc., together with a series of questions relating to his 
 physical condition to be answered by the medical examiner 
 who is selected by the company. This is forwarded to its 
 Home Office and if approved a policy is issued, which is 
 returned to the agent for delivery upon payment of the first 
 premium, which gives it full force and effect and completes 
 the contract. As the only safety of the insurer lies in his 
 having full and correct answers to the various questions 
 propounded, so that he can form an accurate judgment of 
 the character of the proposed risk, the applicant is required 
 to warrant the truth of his statements and make the validity 
 of his policy depend upon his accuracy. As you are aware, 
 a warranty must be absolutely true and no ignorance or good 
 faith can excuse or palliate an incorrect answer. As a matter 
 of fact any technical defense based upon a false answer 
 to an immaterial question is very rarely made unless some 
 good reason exist upon the merits for declining payment, 
 yet such a defense is good at law. In the case of Jeffreys 
 
 214
 
 THE LAW OF LIFE INSURANCE 
 
 vs. Insurance Company (22 Wallace, 47), the insured stated 
 in his application that he was unmarried, when he was actually 
 a married man, and also that no other application for in- 
 surance on his life had been made, when as a matter of fact 
 he had before that time applied to the company defendant 
 for another policy, which had been issued. It is only fair 
 to the company to state that the real reason for declining 
 payment was that the insured died of delirium tremens soon 
 after the policy was issued, but that fact does not appear 
 in the reported case. It was argued that the insured pre- 
 judiced his case by saying he was unmarried, since the mar- 
 ried are better risks than the single, and therefore the 
 company was not damnified by the untrue answer. Deliver- 
 ing the opinion of the Court, Mr. Justice Hunt says: "There 
 is no place for the argument either that the false statement 
 was not material to the risk or that it was a positive advan- 
 tage to the company to be deceived by it. It is the distinct 
 agreement of the parties that the company shall not be 
 deceived to its injury or to its benefit. The right of an 
 individual or a corporation to make an unwise bargain is as 
 complete as that to make a wise bargain. The right to 
 make contracts carries with it the right to determine what is 
 prudent and wise, what is unwise and imprudent, and upon 
 that point the judgment of the individual is subject to that 
 of no other tribunal. The case in hand affords a good illus- 
 tration of this principle. The company deems it wise and 
 prudent that the applicant shall inform it truly whether he 
 has made any other application to have his life insured. So 
 material does it deem this information that it stipulates that 
 
 215
 
 THE LAW OF LIFE INSURANCE 
 
 its liability shall depend upon the truth of the answer. The 
 same is true of its inquiry whether the party is married or 
 single. The Company fixes this estimate of its importance. 
 The applicant agrees that it is thus important by accepting 
 the test. It would be a violation of the legal rights of the 
 Company to take from it its acknowledged power, thus to 
 make its opinion the standard of what is material, and to leave 
 that point to the determination of a jury. The jury may 
 say, as the counsel here argue, that it is immaterial whether 
 the applicant answers truly, if he answers one way, to wit: 
 that he is single or that he has not made an application for 
 insurance. Whether a question is material depends upon 
 the question itself. The information received may be im- 
 material, but if under any circumstances it can produce a 
 reply which will influence the action of the company, the 
 question cannot be deemed immaterial. Insurance com- 
 panies sometimes insist that individuals largely insured upon 
 their lives who are embarrassed in their affairs resort to self- 
 destruction, being willing to end a wretched existence if 
 they can thereby bestow comfort upon their families. The 
 juror would be likely to repudiate such a theory on the 
 ground that nothing can compensate a man for the loss of 
 his life. The jury may be right and the company may be 
 wrong, but the company has expressly provided that their 
 judgment and not the judgment of the juror shall govern. 
 Their right thus to contract and the duty of the court to give 
 effect to such contracts cannot be denied." But it is seldom 
 that a direct falsehood can be shown. Sometimes the answer 
 is literally true and yet intended to convey a false impression, 
 
 216
 
 THE LAW OF LIFE INSURANCE 
 
 sometimes not responsive, sometimes not sufficiently definite. 
 Cases of breach of warranty in making answers frequently 
 arise in response to the questions asked in reference to the 
 use of spirituous liquors. Thus, in Van Valkenburgh vs. 
 Insurance Company (70 N. Y., 605) the question asked was 
 did the applicant " use any intoxicating liquors or substances ?" 
 It was held that this did not direct the mind to a single or 
 incidental use, but to a customary or habitual use, and the 
 Court further held that it was a question not so indisputably 
 and clearly settled by the testimony as a whole that the in- 
 sured had been addicted to such use that he could be plainly 
 charged with a fraudulent intent in answering no, and that 
 the question was, therefore, properly submitted to the jury. 
 To a similar effect is the case of Insurance Company vs. 
 Foley (105 U. S., 350). In this the questions asked were 
 "Is the party of temperate habits? Has he always been 
 so?" The answers given were, "Yes," and the Court, 
 through Mr. Justice Field, says: "The question was as to 
 the habits of the insured. His occasional use of intoxicating 
 liquors did not render him a man of intemperate habits nor 
 would an exceptional case of excess justify the application 
 of this character to him. . . . 
 
 " When we speak of the habits of a person we refer to his 
 customary conduct, to pursue which he has acquired a ten- 
 dency from frequent repetitions of the same acts. It would 
 be incorrect to say that a man has a habit of anything from 
 a single act. A habit of early rising, for example, could not 
 be affirmed of one because he was once seen on the streets 
 in the morning before the sun had risen; nor could intem- 
 
 217
 
 THE LAW OF LIFE INSURANCE 
 
 perate habits be imputed to him because his appearance and 
 actions on that occasion might indicate a night of excessive 
 indulgence. The Court did not, therefore, err in instructing 
 the jury that if the habits of the insured 'in the usual, ordi- 
 nary and everyday routine of his life were temperate,' the 
 representations made are not untrue within the meaning of 
 the policy, although he may have had an attack of delirium 
 tremens from an exceptional over-indulgence. It could not 
 have been contemplated from the language used in the policy 
 that it should become void for an occasional excess by the 
 insured, but only when such excess had by frequent repeti- 
 tions become a habit." 
 
 Similar questions of construction are likely to arise under 
 the interrogatories in reference to any previous serious injury 
 or illness, its nature, duration, etc. There is, perhaps, no 
 trait of character in which the personal idiosyncrasies of indi- 
 viduals are more marked than the effect which a personal 
 injury or an illness produces upon the mind. One man will 
 go to the very verge of the grave with an attack of pneumonia, 
 and on his recovery will refer to it, if he ever thinks of it at 
 all, as a slight cold. Another with a mild attack of summer 
 complaint, will take to his bed for days, and to the end of his 
 life relate with shuddering horror his narrow escape from 
 death by Asiatic cholera. So when these questions are 
 asked the answers will vary according to the character of the 
 applicant. Should an injury or illness be denied, and after- 
 wards proved to have occurred, the question as to whether it 
 was serious or not would be one for the jury. This was held 
 in Insurance Company vs. Wilkinson (13 Wallace, 222), 
 
 218
 
 THE LAW OF LIFE INSURANCE 
 
 where the insured had concealed a serious injury caused by a 
 fall from a tree, in which Mr. Justice Miller delivered the 
 opinion of the Court. He says: "It is insisted by counsel for 
 the defendant that if the injury was considered serious at the 
 time, it is one that must be mentioned in reply to the inter- 
 rogatory, and that whether any further inquiry is expedient 
 on the subject of its permanent influence on the health is for 
 the insurer to determine before making insurance. But 
 there are grave and obvious difficulties in this construction. 
 The accidents resulting in personal injuries which at the 
 moment are considered by the parties serious are so very 
 numerous that it would be almost impossible for a person 
 engaged in active life to recall them at the age of forty or fifty 
 years; and if the failure to mention all such injuries must 
 invalidate the policy very few would be sustained where 
 thorough inquiry is made into the history of the party whose 
 life is the subject of insurance. There is, besides, the ques- 
 tion of what is to be considered a serious injury at the time. 
 If the party gets over the injury completely, without leaving 
 any ill consequences, in a few days, it is clear that the serious 
 aspect of the case was not a true one. Is it necessary to state 
 the injury, and explain the mistake, to meet the requirements 
 of the policy? On the other hand, when the question arises, 
 as in this case, on a trial, the jury, and not the insurer, must 
 decide whether the injury was serious or not. In deciding 
 this are they to reject the evidence of the ultimate effect of 
 the injury on the party's health, longevity, strength, and other 
 similar considerations ? This would be to leave out of view 
 the essential purpose of the inquiry and the very matters 
 
 219
 
 THE LAW OF LIFE INSURANCE 
 
 which would throw most light on the nature of the injury 
 with reference to its influence on the insurable character of 
 the life proposed." 
 
 It seems to follow, in the opinion of the learned jurist, 
 that the question is properly answered if the applicant for 
 insurance ignores any trivial injury or slight illness to which 
 he may have been subjected, and which has had no lasting 
 or important effect upon his physical condition, and this is, 
 in my opinion, good law as well as good sense. It cannot be 
 expected or required that the man in middle life, at which 
 time most insurance is taken, should recall and recite every 
 sprain or bruise, every cold or colic which he has ever expe- 
 rienced, but only that he should, uberrimd fide, put down the 
 serious and important accidents and diseases which have left 
 permanent traces or effected permanent results on his physical 
 organs or his general health. 
 
 This position has been sustained by the Court of Appeals, 
 in the case of Cushman vs. Insurance Company (70 N. Y., 
 72). There the applicant was asked inter alia if he had 
 ever had disease of the liver, and answered no. It appeared 
 that he had for a few days been attended by a physician for 
 what the latter considered congestion of the liver. Mr. Jus- 
 tice Earl, in delivering the opinion of the Court, says: "Tak- 
 ing into consideration the symptoms of the sickness, the 
 degree of skill and the extent of the examination of the doctor, 
 the very slight nature of the sickness and the speedy and 
 complete recovery, and all the other circumstances, it was 
 for the jury to determine whether, prior to the insurance, 
 the insured had had congestion of the liver. But even if he 
 
 220
 
 THE LAW OF LIFE INSURANCE 
 
 had had such congestion, it does not follow that, within the 
 meaning of the policy, he had had a disease of the liver. In 
 construing contracts words must have the sense in which the 
 parties used them, and to understand them as the parties 
 understood them, the nature of the contract, the objects to be 
 attained, and all the circumstances must be considered. By 
 the questions inserted in the application the defendant was 
 seeking for information bearing upon the risk which it was to 
 take the probable duration of the life to be insured. It 
 was not seeking for information as to merely temporary' dis- 
 orders, or functional disturbances, having no bearing upon 
 the general health or continuance of life. Colds are generally 
 accompanied with more or less congestion of the lungs, and 
 in such a case there is no disease of the lungs which an appli- 
 cant for insurance would be bound to state. So most, if not 
 all, persons will have at times congestion of the liver, causing 
 slight functional derangements and temporary illness, and 
 yet in the contemplation of parties entering into contracts of 
 Life Insurance, and having regard to general health and the 
 continuance of life, it may be safely said that in such cases 
 there is no disease of the liver. 
 
 " In construing a policy of Life Insurance, it must be gen- 
 erally true that before any temporary ailment can be called 
 a disease it must be such as to indicate a vice in the consti- 
 tution, or to be so serious as to have some bearing upon the 
 general health and the continuance of the life, or such as 
 according to common understanding would be called a dis- 
 ease; and such has been the opinion of the best writers and 
 judges. Hence, whether the insured had congestion of the 
 
 221
 
 THE LAW OF LIFE INSURANCE 
 
 liver, and whether the congestion was of such a character as 
 to constitute a disease of the liver, within the meaning of 
 the policy, were both questions properly submitted to the 
 jury and their determination thereon is conclusive. The 
 assured also answered, 'no' to the question in the application 
 whether 'he had had any serious disease.' It can hardly be 
 claimed that there was any evidence showing this answer to 
 have been untrue. But whether it was true or not, for reasons 
 above stated, it was at least a question of fact upon all the 
 evidence for the jury." An answer given by the insured 
 not responsive in terms to the interrogatory, and not profess- 
 ing to give the information desired, is presented in the case 
 of Higgins vs. Insurance Company (74 N. Y., p. 6), which 
 shows that a defense based upon a breach of warranty cannot 
 be sustained unless a distinct and unequivocal assertion is 
 made which proves to be in fact untrue. In this case the 
 interrogatory was " Name and residence of the family physi- 
 cian of the party, or of one whom the party has usually 
 employed?" Answer: "Refer to Dr. A. T. Mills, Corning, 
 N. Y." Judge Allen, delivering the opinion of the Court, 
 says: "The language of the answer is equivocal; it neither 
 declares Dr. Mills to have been or to be the family physician 
 of the applicant, or that he was the physician whom he had 
 usually employed or consulted, or, if he occupied either 
 relation, which it was. 
 
 "It was only upon the ground that the statement con- 
 stitutes an express warranty and was untrue in fact, that the 
 defense can be sustained. The answer is not responsive 
 in terms to the interrogatory and does not profess to give 
 
 222
 
 THE LAW OF LIFE INSURANCE 
 
 the information asked. If the answer given was not satis- 
 factory to the defendant, a fuller and more explicit answer 
 should have been required. A breach of warranty as upon 
 the affirmance of an untruth cannot be alleged in respect 
 of any answer which does not profess to state any fact. The 
 words of the answer cannot be extended by implication in 
 aid of a defense founded upon a technical breach of war- 
 ranty beyond the fair import of its language and the intent 
 of the party as indicated by its terms. It is always in the 
 power of the insurer to have an explicit and clear affirmation 
 as to every fact material to the risk, and if answers to the 
 interrogatories are not full and do not give the information 
 called for they cannot be treated as affirmations of facts 
 not stated, although called for by the interrogatories." 
 
 The numerous restrictions formerly contained in the 
 policies issued by the great insurance companies of this 
 country have one by one been abandoned, and the policy 
 itself is now usually a simple promise to pay the amount of 
 money called for at maturity, provided the premiums be 
 promptly paid when due. The application contains the 
 restrictions imposed, and these are generally limited to pro- 
 hibiting certain hazardous employments, residence in the 
 tropics or death by the voluntary act of the insured within 
 two years from the date of the policy. I do not think it 
 necessary to take up your time by going over the decisions 
 upon the restrictive clauses as they formerly existed, partly 
 because the policies containing them are rapidly passing out 
 of existence, by death or maturity, and partly because most 
 of the large companies grant to their old policy-holders the 
 
 223
 
 THE LAW OF LIFE INSURANCE 
 
 advantages of the new form upon request. A question 
 which has been a subject of much discussion in the courts 
 is what degree of insanity will excuse a man who commits 
 suicide, or rather at what stage of mental impairment does 
 his act cease to be voluntary. One of the earliest decisions 
 upon this subject is the case of Breasted and others, Admin- 
 istrators, etc., vs. The Farmers' Loan and Trust Company, 
 reported in 8 N. Y., 299. Mr. Justice Willard, in delivering 
 the opinion of the Court, says : " It was not contended on the 
 part of the defendant that the policy would be avoided by 
 a mere accidental destruction of life by the party himself. 
 It was urged that it would be if the act was done intention- 
 ally, although under circumstances which would exempt 
 the party from all moral culpability. It was insisted that 
 the expression must be taken to mean a death by his own 
 act. It seems to me that this is a yielding of the whole ques- 
 tion. An insane man incapable of discerning between 
 right and wrong can form no intention. His acts are not 
 the result of thought or reason, and no more the subject 
 of punishment than those which are produced by accident. 
 The acts of a madman, which are the offspring of the disease, 
 subject him to no criminal responsibility. If the insured, 
 while engaged in his trade as a house joiner, had accidentally 
 fallen through an opening in the chamber of the house he 
 was constructing, and lost his life, the argument concedes 
 that the insurer would be liable. The reason is that the 
 mind did not concur with the act. How can this differ 
 in principle from a death in a fit of insanity, when the party 
 had no mind to concur in or oppose the act ? It must occur 
 
 224
 
 THE LAW OF LIFE INSURANCE 
 
 to every prudent man seeking to make provision for his 
 family by an insurance on his life that insanity is one of 
 the diseases which may terminate his being. It is said the 
 defendants did not insure the continuance of the intestate's 
 reason. Nor did they in terms insure him against small-pox 
 or scarlet fever, but had he died of either disease no doubt 
 the defendant would have been liable. They insure the 
 continuance of his life. What difference can it make to them 
 or to him whether that life is terminated by the ordinary 
 course of a disease in his bed or whether in a fit of delirium 
 he ends it himself. In each case the death is occasioned by 
 means within the meaning of the policy, if the exception 
 contemplates, as I think it does, the destruction of life by 
 the intestate while a rational agent responsible for his acts." 
 The learned Judge goes on to say: "At the time this case 
 was decided by the Supreme Court on the demurrer there 
 had been no case either in this country or in England in 
 which the same question had arisen. The case of Borra- 
 dale vs. Hunter (5 Man. & Gr., 639), decided by the English 
 Common Pleas in 1843, has since been reported. That 
 action was brought by the executor of the insured upon a 
 life policy containing a proviso that in case the assured should 
 die by his own hands or by the hands of justice or in conse- 
 quence of a duel the policy should be void. The insured 
 threw himself into the Thames and was drowned. Upon an 
 issue whether the assured died by his own hands, the jury 
 found that he voluntarily threw himself into the water, know- 
 ing at the time that he should thereby destroy his life and 
 intending thereby to do so; but at the time of committing 
 
 225
 
 THE LAW OF LIFE INSURANCE 
 
 the act he was not capable of judging between right and 
 wrong. In was held by a majority of the court, Chief Jus- 
 tice Tindal dissenting, that the policy was avoided, as the 
 proviso included all acts of voluntary self-destruction and 
 was not limited by the accompanying provisos to acts of 
 felonious sucide. The three Judges who formed the majority 
 laid the main stress upon the fact that the jury found the 
 act of self-destruction to be voluntary, that he knew when 
 he threw himself into the river he should thereby destroy 
 his life, and that he intended thereby to do so. The referees 
 in the present case have not found that the intestate acted 
 voluntarily or that he knew the consequences of his act. 
 They merely find that while insane, for the purpose of drown- 
 ing himself, he threw himself into the river, not being men- 
 tally capable of distinguishing between right and wrong. 
 If Borradale vs. Hunter were an authority which we ought 
 to follow, it differs so much from the case before us that we 
 are at liberty to decide it upon principle. 
 
 "Afterwards the case of Schwabe vs. Clift was tried at Nisi 
 Prius, before Cresswell, J. It was upon a policy upon the 
 life of the plaintiff's intestate, containing a proviso that if 
 the assured should commit suicide or die by dueling, or by 
 the hands of justice, the policy should be void. The assured 
 died from the effects of sulphuric acid taken by himself, but 
 evidence was given tending to show that at the time he took 
 the sulphuric acid he was in part of unsound mind. In his 
 charge to the jury the learned Judge said that to bring the 
 case within the exception it must be made to appear that the 
 deceased died by his own voluntary act; that at the time 
 
 226
 
 THE LAW OF LIFE INSURANCE 
 
 he committed that act he could distinguish between right 
 and wrong, so as to be able to understand and appreciate 
 the nature and quality of the act he was doing, and that, 
 therefore, he was at that time a responsible being (2 Car 
 & Kerwin, 134). This case was afterwards brought into 
 the Court of Exchequer Chamber on bill of exceptions, 
 found in 3 Man. & Gr. 437 by the title of Clift vs. Schwabe. 
 That Court, by a vote of four to two, ordered a new trial, 
 holding that the direction was erroneous: for that the terms 
 of the policy included all acts of voluntary self-destruction, 
 and, therefore, if A voluntarily killed himself, it was imma- 
 terial whether he was or was not at the time a responsible 
 moral agent. 
 
 "This case is open to the same remark as Borradale vs. 
 Hunter, supra. It turned upon the assumed fact that the 
 act of the suicide was voluntary, a fact not found by the 
 referee in this case." This reasoning prevailed with a ma- 
 jority of the Court and was adopted as their opinion by a vote 
 of five to three. But in the case of Van Zandt vs. Insurance 
 Company, reported in 55 N. Y., 139, where the policy con- 
 tained the condition that in case the assured should die 
 by his own hand it should be void, the Court, per Mr. Justice 
 Rapallo, returned to the rule established by the English 
 cases and questioned the soundness of the doctrine laid 
 down by Judge Willard. Judge Rapallo says: "A finding, 
 in the language of the request in the present case, that the 
 deceased had sufficient power of mind and reason to under- 
 stand the physical nature and consequences of the act, 
 and that he committed it voluntarily and wilfully and in 
 
 227
 
 THE LAW OF LIFE INSURANCE 
 
 pursuance of the purpose and intention thereby to cause 
 his own death, would have established that insanity did not 
 exist to such a degree as to prevent him from forming an 
 intention, or being conscious of the act he was doing. It 
 would have established that his mind did concur with the 
 act, and that this, being voluntary, was not the result of any 
 insane impulse or want of power of self-control. Whether 
 so much power of reasoning and self-control could be left in 
 a mind so impaired as to be incapable of appreciating the 
 moral obliquity of the crime of suicide is rather a scientific 
 than a legal question. Judge Willard, in the Breasted case, 
 expresses the opinion that a man so insane as to be incapable 
 of discerning between right and wrong can form no intention. 
 This, it must be observed in passing, is a much broader 
 proposition than that the failure to appreciate the wrong of 
 a particular act evinces a total deprivation of reason. The 
 loss of moral sense even to that extent in one who had pre- 
 viously possessed it would undoubtedly be a fact bearing 
 strongly upon the question whether he retained his other 
 faculties. But in the practical administration of justice, in 
 cases of this description, it seems to us a dangerous doctrine 
 to hold that the attention of the jury should be directed prin- 
 cipally to the degree of appreciation which the deceased had 
 of the moral nature of his act, and that this question, most 
 speculative and difficult of solution, should be made the test 
 by which it should be determined whether he had knowingly 
 and voluntarily violated the condition of his insurance. The 
 real question is, whether he did the act consciously and vol- 
 untarily, or whether, from disease, his mind had ceased to 
 
 228
 
 THE LAW OF LIFE INSURANCE 
 
 control his actions. Supposing a man to be in possession 
 of his will and of the ordinary mental faculties necessary 
 for self-preservation, but that his mind had become so mor- 
 bidly diseased on the subject of suicide that he cannot appre- 
 ciate its moral wrong, and in this condition of mind he takes 
 his own life voluntarily and intentionally perhaps with the 
 very object of securing to his family the benefits of an insur- 
 ance upon his life it is difficult to say that it is not a death 
 by his own act within the meaning of the policy. It has been 
 doubted whether public policy would permit an insurance 
 covering a case of intentional suicide by the insured while 
 sane, but however this may be, no rational doubt can be 
 entertained that a condition exempting the insurers from 
 liability in case of the death of the insured by his own hand, 
 whether sane or insane, would be valid if mutually agreed 
 upon between the insured and the insurer. When nothing 
 is said in the policy with respect to insanity, the words, 
 'die by his own hand,' in their literal sense comprehend 
 all cases of self-destruction. The exceptions which have 
 been engrafted upon these words by judicial decisions must 
 rest upon the ground that the excepted cases could not have 
 been within the meaning of the parties to the policy. The 
 intent on the part of the insurer in inserting the condition is 
 evident. The policy creates to the assured a pecuniary 
 interest in his own death. To a man laboring under a pressure 
 of poverty, and the urgent wants of a dependent family, or 
 of inability to discharge sacred pecuniary obligations, or 
 other similar causes, the policy offers a temptation to self- 
 destruction. To protect the insurers against the increase of 
 
 229
 
 THE LAW OF LIFE INSURANCE 
 
 risk arising out of this temptation is the object for which the 
 condition in question is inserted. The condition, therefore, 
 is to be so construed as to exclude only those cases in which 
 these motives could not have operated such as accident or 
 delirium. So far as considerations of public policy have any 
 place in determining such a question they are undoubtedly 
 in favor of confining the exceptions to the condition to cases 
 in which the self-destruction is clearly shown to have been 
 accidental or involuntary. I do not find that any of the cases 
 have gone so far as to adjudicate that the mere want of 
 capacity to appreciate the moral wrong involved in the act, 
 where it was voluntary and intentional or unaccompanied 
 by any want of appreciation of its physical nature and 
 consequences, or by any insane impulse or want of power of 
 will or self-control, is sufficient to take the case out of the 
 proviso." 
 
 Among the authorities relied upon on the argument of 
 this case was Terry vs. Insurance Company (15 Wallace, 
 580), in which the then existing authorities on this subject 
 are elaborately considered and discussed by Mr. Justice 
 Hunt. He holds the rule to be that "if the assured, being in 
 the possession of his ordinary reasoning faculties, from anger, 
 pride, jealousy, or a desire to escape from the ills of life, 
 intentionally takes his own life, the proviso attaches, and 
 there can be no recovery. If the death is caused by the 
 voluntary act of the assured, he knowing and intending that 
 his death shall be the result of his act, but when his reasoning 
 faculties are so far impaired that he is not able to understand 
 the moral character, the general nature, consequences, and 
 
 230
 
 THE LAW OF LIFE INSURANCE 
 
 effect of the act he is about to commit, or when he is impelled 
 thereto by an insane impulse which he ha^ not the power 
 to resist, such death is not within the contemplation of the 
 parties to the contract, and the insurer is liable." 
 
 Commenting upon this decision, Judge Rapallo says: 
 "The opinion contains some general language which goes 
 far beyond the charge in the Circuit Court and was not 
 necessary to sustain the judgment. I refer to that part of 
 the opinion which is relied upon in the points of the respon- 
 dent in this case, and in which the learned Judge says (citing 
 the language I have just quoted) : 
 
 "The precise effect of this passage is not very clear to us, 
 as it includes several conditions which can hardly co-exist. 
 It can be conceived that the act might have been voluntary, 
 and the self-destruction intentional, though the assured 
 failed to appreciate its moral character; but it is difficult to 
 conceive how the act could have been voluntary and inten- 
 tional when the faculties of the deceased were so far impaired 
 that he was not able to understand 'the general nature, con- 
 sequences and effect of the act he was about to commit,' or 
 when he was impelled thereto by an insane impulse which 
 he had not the power to resist. 
 
 "Even if the decision in the Terry case were an authority 
 binding upon us, we should not regard it as overruling the 
 case of Borradale vs. Hunter and kindred cases." 
 
 Acting upon the suggestion made by Judge Rapallo in the 
 Van Zandt case, the companies inserted in their policies after 
 the words, "if the insured shall die by his own hand," the 
 clause, "sane or insane," and this came up for consideration 
 
 231
 
 THE LAW OF LIFE INSURANCE 
 
 in the case of De Gogorza vs. Insurance Company (65 
 N. Y., 232), argued before the Commissioners of Appeals in 
 May, 1875. The opinion was delivered by Commissioner 
 Reynolds, who, after discussing the various cases on the 
 subject, goes on to say: "So far, therefore, as we can be 
 aided by judicial decisions, they appear favorable to views 
 which are commended to our judgment. We do not, how- 
 ever, place reliance upon them further than they appear to 
 be fortified by reason. We prefer to place our decision upon 
 the ground that the words of the proviso in the policy before 
 us, by plain rules of interpretation, exempt the defendant 
 from liability. That this language, in view of previous 
 decisions, was inserted for such a purpose cannot be doubted, 
 and that it was agreed to by both the insured and the insurer 
 is not questioned, and that it is a provision allowed by law 
 no one denies. We are to say from these words what the 
 parties must have intended, and we cannot properly say 
 that additional words having no meaning were inserted in 
 the contract: and if they mean anything it is just what the 
 words commonly import, and that is, if death ensues from 
 any physical movement of the hand or body of the assured 
 proceeding from a partial or total eclipse of the mind, the 
 insurer may go free. We are not altogether unmindful of 
 the force of the proposition that a man does not die by his 
 own hand who has not sufficient mind to will his own death, 
 and it is not, perhaps, entirely easy to see in what precise 
 words in our language the idea may be accurately and artis- 
 tically expressed that a totally insane man may take his own 
 life. But the question seems to involve more the refinement 
 
 232
 
 THE LAW OF LIFE INSURANCE 
 
 of language than the application of practical sense, and 
 we are of the opinion that in the common judgment of 
 mankind it will be considered that when a totally insane man 
 blows his brains out with a pistol, he will be said to have 
 died by his own hand within the meaning of a policy such 
 as we have now under consideration." This clause, having 
 thus been sustained, and never successfully questioned in 
 any other court, is a protection to the insurer against death 
 by suicide, but where the words "sane or insane" are omitted 
 it is practically impossible to establish to the satisfaction 
 of a jury that the self-destruction was deliberate and inten- 
 tional. The rule in the Terry case has now been substan- 
 tially adopted in this State in the case of Newton vs. Insurance 
 Company (76 N. Y., 429), and under that rule the question 
 of the insanity of the insured is always one which must 
 go to the jury. The insurer is liable if the insured, when 
 he took his life, was carried away by an insane impulse 
 which he could not resist, and the jury are apt to argue 
 that the fact that he did not resist the impulse proves at 
 once that it was an insane one and that it was irresistible. 
 Whether a warranty that the insured will not die by his own 
 voluntary act will require a broader construction of the 
 language used, and relieve the company from its obligation 
 if that warranty be broken, is a question still undecided, but 
 the weight of authority would seem to be that, whether 
 warranty or condition, the insured does not die by his own 
 voluntary act if the facts bring his case within the rule which 
 we have stated, as established by Mr. Justice Hunt in the 
 Terry case. 
 
 233
 
 THE LAW OF LIFE INSURANCE 
 
 SECOND LECTURE 
 
 When a loss incurs under a policy, the claimant is required 
 by its terms to furnish satisfactory proofs of death. These 
 consist of certificates from the attending physician, the 
 undertaker, and the beneficiary named in the policy or other 
 person entitled to the fund, setting forth the title of the claim- 
 ant, and the details of the illness, death and burial of the 
 deceased. It may happen that the certificate of the attend- 
 ing physician, or the evidence produced at the Coroner's 
 inquest, shows the claim to be invalid, as for example where 
 the physician testifies that he has been the medical attendant 
 of the deceased for a period long antedating the application, 
 when the application itself denies such attendance, or where 
 death occurred at a place or in a manner forbidden by the 
 policy. In this case the question at once arises, if the claim- 
 ant is concluded by the statement made in the proofs so 
 furnished by him. This is answered by the decision of 
 the Court of Appeals in the case of Goldschmidt vs. Insur- 
 ance Company, reported in 102 N. Y., 486, where the Cor- 
 oner's inquest found that the insured had committed suicide. 
 It was claimed on the trial that as the copy of the proceedings 
 of the inquest given in addition to the proofs required by 
 the policy made out a case of suicide, the plaintiffs should 
 be required to show that this finding was erroneous, and 
 that the burden of proof was upon them. Judge Danforth 
 says: "I can discover no principle upon which such a prop- 
 osition can stand. The policy made no provision for it. 
 The original proceedings would not be evidence upon the 
 
 234
 
 THE LAW OF LIFE INSURANCE 
 
 issue. Its verity is not admitted by the claimants; it is 
 denied. It could not have been required by the defendants; 
 it was not adopted by the plaintiffs, but, out of what must 
 now seem ill-advised courtesy, was furnished to the defend- 
 ants at their request. It contained matter which, if properly 
 substantiated, would have availed the defendants in main- 
 taining an affirmative defense, but in no view suggested to us 
 by the learned counsel for the respondents could it, as now 
 presented, change the burden from them to the plaintiffs. 
 If, by any process of reasoning, any part could be taken as 
 an admission of the plaintiffs, it must be taken as a whole, 
 and so taken is no concession of any fact, but a mere communi- 
 cation of hearsay evidence, the truth of which is at the same 
 time denied; enough to put defendants upon inquiry, but in 
 itself is no answer to the plaintiffs' claim even in the first 
 instance." Again, it may happen that no positive proofs of 
 death can be furnished. The insured may have gone to sea 
 in a vessel which never reached port; he may have taken 
 passage on a railroad train which met with an accident, in 
 which the cars and their contents were so entirely destroyed 
 that identification of the remains or even of personal effects 
 was impossible, or he may simply have disappeared from the 
 sight of men without leaving any trace of his whereabouts or 
 any grounds for a reasonable conjecture as to his movements 
 or his fate. All of these cases have occurred, and each par- 
 ticular one must be decided on its own merits upon the best 
 evidence obtainable. As regards disappearance, simply, 
 without explanation, and unaccompanied by any circum- 
 stances of especial peril to life, the rule is established that a 
 
 235
 
 THE LAW OF LIFE INSURANCE 
 
 presumption of death does not arise until that absence is 
 continued for a period of seven years. The subject is elab- 
 orately treated by Surrogate Bradford in Eagle's case (3 
 Abott's Practice, 218), in which, after a full examination 
 of the authorities, he sums up the matter as follows: "There 
 can be no doubt that, under certain circumstances, this 
 is to be treated as a question of fact, and the language of 
 Lord Denman is in that view strictly pertinent when he 
 says : ' Nothing can be more absurd than the notion that there 
 is to be any rigid presumption of law on such questions of 
 fact without reference to accompanying circumstances 
 such, for instance, as the age or health of the party. There 
 can be no such strict presumption of law.' What, however, 
 is a court or jury to do when there are no accompanying 
 circumstances when there is no ground in fact for infer- 
 ring death at any particular time? The question is not 
 whether those presumptions are rigid and strict, but whether 
 there are any such presumptions, and if so, what is their 
 effect when there is an entire dearth of evidence tending 
 to guide the conclusion as to life or death. Confessedly, 
 before the analogy drawn from the statutes of bigamy and 
 life tenancies prevailed, it was a rule of evidence to presume 
 life, unless the contrary was shown. That rule still con- 
 tinues, except so far as it has been modified by the presump- 
 tion, drawn from the statutes, of death, after seven years' 
 absence without intelligence. The practical effect of these 
 two rules, if both are to be taken as subsisting, is that when- 
 ever the law is invoked as to rights depending upon the life 
 or death of the absent party, he is to be deemed as living 
 
 236
 
 THE LAW OF LIFE INSURANCE 
 
 until the seven years have expired, and after that is to be 
 deemed as dead. Not that the law finds as a matter of fact 
 that he died on the last day of the seven years, but that rights 
 depending on his life or death are to be administered as if he 
 had died on that day. It is impossible to say when he died, 
 or even to assert as a matter of fact that he is dead; but in 
 the absence of all evidence the law will account him as dead 
 at a certain time and not before. This is an artificial rule, 
 and of course cannot be expected to square with the actual 
 fact. It is the logical result of the presumptions, founded 
 upon reasons of convenience, and the necessity of fixing upon 
 some limit within which the relations of the living to the 
 absent are to be determined, more than upon any strong 
 probabilities. This is the meaning of our statute in respect 
 to life estates, which declares that if the life-tenant shall 
 absent himself for seven years, and his death shall come in 
 question, 'such person shall be accounted naturally dead,' 
 in any action concerning the lands in which he had the estate 
 for life, unless sufficient proof be made that he is still living. 
 (1 Rev. Stats. 749, Sect. 6; see Bigamy, 2 Rev. Stats. 687, 
 Sect. 91.) He shall be accounted dead. The statute so 
 treats, just as the Common Law treated and accounted, him 
 living until his death was proved. In neither case can it be 
 said that his life or death has been actually proved, but in 
 both cases it may be said that he shall be accounted living 
 until by reason of his absence the law accounts him dead; and, 
 for the purposes of justice, the rights and relations of the 
 parties affected by his life or decease shall, in the absence of 
 information, be determined, by this technical presumption. 
 
 237
 
 THE LAW OF LIFE INSURANCE 
 
 "This certainly seems to me the most consistent and 
 symmetrical rule; and when it is regarded as a dry legal 
 doctrine adopted for the purposes of convenience, and from 
 the necessity of having some limited period for the deter- 
 mination of the rights of absent persons, and not as a de- 
 termination upon the death or the real time of the death, 
 there would appear to be no grave objection against it. I 
 am inclined to hold, therefore, that in the case of absent 
 persons it is within the province of the Court or jury to 
 infer from circumstances, if any appear in proof, the 
 probable time of death, but that if no sufficient facts are 
 shown from which to draw a reasonable inference that death 
 occurred before the lapse of seven years, the person will be 
 accounted, in all legal proceedings, as having lived during 
 that period." 
 
 Under this rule it would be necessary for the beneficiary 
 or assignee of a policy on the life of a person who had dis- 
 appeared without leaving any clue to his destination or any 
 reason, aside from such disappearance, to suppose him dead, 
 to continue the payment of the premiums for the seven years 
 following such disappearance before he could claim the 
 amount payable on the policy. At the expiration of that 
 period, the presumption being that the insured was dead, it 
 would devolve upon the insurer to prove that he was still 
 living, or that he died under circumstances which avoided 
 the policy. 
 
 Where the policy is payable to the insured, his executors, 
 administrators or assigns, and there has been no assignment 
 of it, the executor or administrator duly appointed by the 
 
 238
 
 THE LAW OF LIFE INSURANCE 
 
 Probate Court is the proper claimant. I have already dis- 
 cussed to some extent the matter of a claim by an assignee, 
 and where the beneficiaries are named in the policy it is not 
 always an easy matter to determine the proper person en- 
 titled to the fund. In the case of Bickerton vs. J agues (35 
 N. Y. Supreme Court, 129) the policy was taken out by the 
 insured upon his own life, payable upon his death to his 
 sister Elizabeth. She died during his lifetime and he sur- 
 rendered the policy, taking out another for the same amount 
 payable upon his death to his nephew David. He always 
 retained the policies in his own possession, paid the pre- 
 miums when due upon the first one, and allowed the dividends 
 declared upon the second to be applied to the payment of 
 the premiums accruing upon it. After his death a question 
 as to the title to the policy arose between the administrator 
 of the deceased sister and the nephew, and the controversy 
 was submitted to the General Term upon an agreed state- 
 ment of facts. Judge Daniels, in delivering the opinion of 
 the Court, says : " No decisive authority has been found in 
 favor of the position taken by the plaintiff (the adminis- 
 trator), the cases affecting the right of the person obtaining 
 the policy to surrender it and receive another payable in a 
 different manner in lieu of it having generally arisen under 
 the terms of the statute made for the benefit of the widow and 
 children. These cases are not applicable to the present con- 
 troversy, because the language of the statute is not broad 
 enough to include it. Its disposition is therefore dependent 
 upon the legal principles necessarily applicable to such a 
 transaction, and according to them it should be governed by 
 
 239
 
 THE LAW OF LIFE INSURANCE 
 
 the intention of the person obtaining the insurance so far as 
 that is capable of being gathered from the attending circum- 
 stances. That he did not intend to place the insurance 
 irrevocably beyond his own control is manifested with reason- 
 able clearness by the fact that he always retained the pos- 
 session of the policy himself, and he, and not his sister, paid 
 all the premiums which were paid upon it. And after such 
 payments were made, the insurance was kept up by the 
 dividends which had been declared and credited to it under 
 the rules and regulations of the company. In addition to 
 these circumstances the person to whom the first policy was 
 made payable was the sister of Henry H. Jaques (the insured), 
 by whom it had been obtained. She had lived with him, 
 taking care of his household and family for many years 
 prior to her own decease, and she was entirely dependent 
 upon him for her support and maintenance. It is reason- 
 ably plain from these facts that his intention in procuring the 
 policy was to provide for her after the time of his own decease 
 and when, by reason of that event, he would be incapable of 
 affording her any further assistance. This was probably the 
 sole and only intention by which he was actuated in procur- 
 ing the insurance and from that it must necessarily follow 
 that her right to it was designed to be contingent upon her 
 surviving him. That is the only fair and rational construc- 
 tion to be placed upon the transaction. It embodied a 
 provision for her support when by his decease he would be 
 unable to provide for it, and the occurrence of her death 
 before his own defeated the object and purpose by which he 
 had been actuated in taking out the insurance. Her 
 
 240
 
 THE LAW OF LIFE INSURANCE 
 
 administrator had no special claim upon his bounty, neither 
 did any of her next of kin, and no reason, therefore, can be 
 discovered for the existence of any disposition on his part to 
 provide for them in case she herself failed to become entitled 
 to the money. His primary and substantial purpose was to 
 secure the means of sustaining his sister after his own decease, 
 and as that purpose was defeated, he was left at liberty to 
 deal with the insurance as he himself deemed to be proper; 
 subject to the benefit and interest to be secured by it to his 
 sister after his own decease, it was his property. The pre- 
 miums had been paid upon it by him, and as it could not 
 be used as he intended it should when he obtained it, and 
 during the time he made these payments upon it, he had 
 the authority to give it another and different direction," and 
 the nephew was therefore adjudged entitled to the fund. 
 This case was not appealed but has been cited with approval 
 in the Court of Appeals (see Whitehead vs. Insurance Com- 
 pany, 102 N. Y., 143), and may, I think, be accepted as 
 settled law in this State. A somewhat similar question arose 
 in the case of Olmstead vs. Keyes (85 N. Y., 593). There 
 the insured took out a policy payable to the plaintiff, John 
 Olmstead, as trustee for Huldah Keyes, the wife of the 
 applicant. She died intestate in November, 1857, leaving 
 several children, and thereafter, in August, 1861, the insured 
 again married, and in 1864, the plaintiff, upon the request 
 and direction of the insured, assigned to the second wife all 
 his right, title, and interest as trustee of Huldah Keyes in the 
 policy. A controversy arose practically between the assignee 
 (the second wife) and the children of the first wife. The 
 
 241
 
 THE LAW OF LIFE INSURANCE 
 
 opinion of the Court was delivered by Judge Earl. The 
 Judge cites the general rule of the Common Law, "that all 
 the choses of the wife not reduced to possession during the 
 joint lives passed to the husband upon her death all without 
 any exception and there is no authority to the contrary," 
 and goes on to say that "this is true whether said choses are 
 then payable or are mere reversionary or contingent inter- 
 ests payable at a future day or mere possibilities." Upon 
 this principle, "the wife's interest in this policy was a chose 
 in action; at her death it passed to her husband. He then 
 caused it to be assigned to his second wife, Mary L., and 
 thus, within the meaning of the law, he reduced it to pos- 
 session. The assignment was valid as against him, and was, 
 therefore, valid against the whole world. The written 
 assignment is expressed to have been for value received, and 
 in the absence of proof to the contrary must be assumed to 
 have been, but whether it was for a valuable consideration 
 or not it was good as against him and that is sufficient, as 
 the rights of a surviving wife are not in question. Had the 
 chose in action been a note payable at his death, his assign- 
 ment thereof would have been valid, and for precisely the 
 same reason his assignment of this policy was valid. 
 
 "There is no case which holds that a life policy for the 
 benefit of the wife, her husband surviving, passes by the 
 rules of the Common Law to her personal representatives for 
 the benefit of her estate, to the exclusion of her husband. 
 On the contrary, it is stated by the Chancellor in Moehr- 
 ing vs. Mitchell (1 Harbour's Chancery, 264, affirmed in 
 the Court of Appeals, 4 Howard's Practice, 292), that a 
 
 242
 
 THE LAW OF LIFE INSURANCE 
 
 policy upon the life of a husband for the benefit of a wife, 
 in a case where the wife dies first and then the husband, 
 passed, like other choses of the wife, to the personal repre- 
 sentatives of the husband. In that case the general rule as 
 to the survivorship to the husband of the choses of the wife 
 was applied to the policy of insurance taken by her upon 
 his life. Even if it were true that, upon the death of Huldah, 
 this policy could remain valid only in the hands of some 
 person having an interest in the life insured, here it passed 
 to her husband and then to his second wife, and both had an 
 interest in the life insured." 
 
 Very many questions have arisen under the act in respect 
 to insurance on lives for the benefit of married women, 
 passed April 1, 1840, and the several acts amendatory there- 
 of. This statute provides in effect that a husband may insure 
 his life for the benefit of his wife or his children and that, no 
 matter what his financial condition may be, he may pay a 
 premium not exceeding $500 per year, and the insurance so 
 obtained shall be exempt from any claims of his creditors. 
 These policies are usually made payable to the wife, if living 
 at the death of the insured, and in case of her previous de- 
 cease to her children or their guardian. The most important 
 question under this act, and one still unsettled, is whether the 
 children of a deceased child take the share of their parent in 
 the policy. It was very fully considered by the Supreme 
 Court of Connecticut, in the case of Insurance Company 
 vs. Palmer (42 Conn., 60). The Court there says: "The 
 moment this policy was executed and delivered it became 
 property and the title to it vested in some one. It will not 
 
 243
 
 THE LAW OF LIFE INSURANCE 
 
 be claimed that it vested in the person whose life was insured. 
 It must have vested, then, in all or a part of the payees. 
 The payees consisted of two parties, the wife and the chil- 
 dren. As only one could take and enjoy the property, 
 ultimately, it did not vest in all as tenants in common, nor 
 did it vest in either so as to give a right to the present 
 enjoyment of it. It was not, however, a mere expectancy 
 nor a naked possibility, but it was a possibility coupled 
 with a present interest. It was visible, tangible property, 
 and, like any other insurance policy, it was capable of assign- 
 ment, and had an appreciable value. Each party took a 
 conditional, not an absolute, right to the whole policy. It 
 was not a condition precedent but subsequent. The title 
 vested in point of right immediately, but was liable to be 
 divested upon the happening of a subsequent event. The 
 right to the policy in a strict sense was not contingent; the 
 possession and enjoyment of the fund thereby created were 
 postponed to the future, and were contingent. This con- 
 tingency applied to both parties, to the wife as well as to 
 the children. Her enjoyment of the fund depended upon 
 her surviving her husband; the children's, upon her husband 
 surviving her. In respect to each it was a then present right 
 to the future enjoyment of property, but it was liable to be 
 defeated by a subsequent contingency, and it was certain to 
 be defeated as to one of them. That such a right is recog- 
 nized as property and is transmissible to heirs is a proposition 
 abundantly established by the authorities." This doctrine 
 has been followed in this State, in the case of Hull vs. Hull 
 a Special Term decision made by Judge Larremore of this 
 
 244
 
 THE LAW OF LIFE INSURANCE 
 
 city, and reported in 62 Howard's Practice, 100. The 
 case was not appealed, and this view has never been adopted 
 by the higher courts. The case of U. S. Trust Co. of New 
 York vs. Insurance Company (115 N. Y., 152) appears 
 to differ. In this the wife died, leaving her surviving her 
 husband, and three children, one of whom subsequently 
 died before her father, leaving three children, and another 
 died intestate and without issue, leaving her surviving her 
 husband, to whom letters of administration were issued. 
 The insurance company paid one third of the amount of 
 the policy to the surviving 'child, one third to the adminis- 
 trator of the deceased child, and the other third to the guardian 
 of the three grandchildren. 
 
 The plaintiff in this suit, as guardian of these infants, 
 sued the Company to recover the amount paid to the admin- 
 istrator of the deceased child, claiming that such payment 
 was wrongfully made. Judge Earl says: "We find no lan- 
 guage in the policy insuring any one but Mrs. Finn and the 
 children of Mr. and Mrs. Finn. If Mrs. Finn survived her 
 husband (the life insured) the sum mentioned in the policy 
 was payable to her. When she died before her husband the 
 only persons interested in the policy were her children then 
 living, and the whole policy as a chose in action belonged to 
 them. They held vested interests therein, as they could in 
 any other chose in action, payable at a future time. It is 
 true that it was the purpose of the act of 1840 to enable the 
 husband to make a provision for his family; but how that 
 provision should be made was to be determined by the parties 
 to the policy. The insurance could be for the benefit of the 
 
 245
 
 THE LAW OF LIFE INSURANCE 
 
 wife alone, in which case the amount insured would upon the 
 death of the husband be payable to her if she survived; but 
 if she died before him it would then vest in and be payable 
 to her personal representatives and not to her children. So, 
 too, the insurance could be made payable to the child; in 
 which case upon the death of the father it would be payable 
 to the personal representatives of the child, if dead. Her 
 grandchildren are not named and their names cannot be put 
 into the policy. In the event that has happened the policy 
 might be construed, and is payable precisely as if the children 
 alone had been named therein. Therefore when Mrs. Miles 
 died her interest in the policy passed to her administrator as 
 her personal representative and as part of her personal estate, 
 and upon the death of Mr. Finn, one third of the policy was 
 payable to the surviving child, one third to the administrator 
 of Mrs. Miles, and one third to the administrator of Mrs. 
 Anthon. The children of Mrs. Anthon, as such, could have 
 no standing to maintain an action to recover any sum due 
 upon the policy. But even if they could, their full share has 
 already been paid to them." So far, you will observe, the 
 decision of the Court does not differ very materially from the 
 doctrine in the Palmer case, it being only to the effect that 
 the persons entitled to the interest of the deceased child are 
 the personal representatives, and not the children. But the 
 learned Judge goes on to say: "If, however, we assume that 
 we are wrong in this construction of the policy, then upon 
 the death of Mrs. Finn the policy was payable to her children 
 as a class, and those of the class would take who were in 
 being at the time when the policy became payable, and in no 
 
 246
 
 THE LAW OF LIFE INSURANCE 
 
 event could grandchildren be included in the class. In that 
 case the whole policy would be payable to the only survivor 
 of the class, to wit: Caroline C. Finn." It is well settled in 
 this State that the word children in a will does not include 
 grandchildren (see Palmer and others vs. Horn, 84 N. Y., 
 516). And it is probable that the learned Judge had this 
 rule in mind in stating the dictum which I have just 
 quoted. 
 
 The same question has recently been presented and decided 
 at a Special Term of the Supreme Court in Albany County 
 by Mr. Justice May ham, in the case of Walsh vs. Insurance 
 Company. Here the wife had three children, one of whom 
 died before her mother, leaving her surviving her husband 
 and two children, and another died after the mother, leaving 
 him surviving a widow and two children, and letters of 
 administration were issued to the widow. After the death 
 of the insured, who survived his wife, one third of the policy 
 was paid to the surviving child, one third to the adminis- 
 tratrix of the deceased child, and the other third, which in 
 the opinion of the company's counsel belonged to the repre- 
 sentatives of the child who died during the lifetime of her 
 mother, was retained in the possession of the company to 
 be paid to those representatives on demand. A suit was 
 brought by the assignee of the surviving child and the ad- 
 ministratrix to recover the amount. The principal question 
 in the case was whether the child who died before her mother 
 took any interest in the policy which would pass to her 
 personal representatives or children. The learned Justice 
 dissents from the doctrine of the Palmer case, holding that 
 
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 THE LAW OF LIFE INSURANCE 
 
 " this policy was procured on the application of, and the pay- 
 ment of the premiums by, Rica Traub (the wife of the insured), 
 and was by its terms for her sole use. No other person or 
 persons had any interest in it or in its proceeds if she sur- 
 vived her husband. On the execution of the policy she 
 took a vested interest in the proceeds which could only be 
 divested on the happening of the event of her death before 
 that of her husband. The interest of her children was con- 
 tingent upon her death before that of her husband, and but 
 for the happening of that event the children could have taken 
 nothing under this policy. In Whiiehead vs. Insurance 
 Company (102 N. Y., 141) the policy provided that the 
 proceeds of the policy should belong to the wife and, in 
 case of her death before the one on whose life it was taken, 
 then to the children. The wife died before the husband on 
 whose life the policy was made. An action was brought by 
 one of the children, and the Court hi discussing the case 
 says: 'The wife, therefore, in this case had a vested interest 
 in the policies at the moment of their delivery, by force of 
 the statute which permitted them to be made in their existing 
 form.' None of the children in that case died before the 
 mother, and the only question in that case which is applicable 
 to this is as to the wife's interest under the policy at the time 
 of its execution. The vested interest which the wife, in that 
 case and in this, took was in the whole policy and to the 
 right to the whole of the proceeds of the same, and that 
 vested interest could only be divested by her death before 
 her husband. That event had not occurred at the time of 
 the death of Bessie Gross (the child who died during the 
 
 248
 
 THE LAW OF LIFE INSURANCE 
 
 lifetime of her mother), and at that time she could have had 
 no vested interest in the same. There was nothing, there- 
 fore, at that time for the personal representatives to take, 
 and as she had no vested interest her next of kin acquired 
 none by her death. Her children, who were the grand- 
 children of Rica Traub, were not named in the policy, and as 
 was said in U. S. Trust Co. vs. Insurance Company, supra: 
 'Her grandchildren are not named, and their names cannot 
 be put in the policy.'" This case is not yet reported, but an 
 appeal is to be taken, and it is to be hoped that an authorita- 
 tive decision will be rendered which will relieve the com- 
 panies of all further embarrassment in reference to this 
 question. 1 
 
 It has been before the General Term of the Supreme 
 Court in this Department in the case of Lane vs. De Metz 
 (66 N. Y. Supreme Court, 462). In this case the policy was 
 payable by its terms to the wife of the insured if living, and 
 if not living to his children or their guardian, and IS there 
 be no such children surviving, then to the executors, admin- 
 istrators, or the assigns of the insured. The wife died 
 before her husband, leaving two children, one of whom died 
 before the father, leaving issue. The Court distinguished the 
 Palmer case, holding that the provision making the fund 
 payable to the representatives of the insured, in case he left 
 no children surviving him, showed an intention that only such 
 children as survived should take an interest in the policy. 
 The late Judge Brady, who delivered the opinion, does not 
 
 1 This decision was reversed by the General Term See 39 State 
 Reporter, 710. 
 
 249
 
 THE LAW OF LIFE INSURANCE 
 
 agree with Judge Mayham in holding that the wife took a 
 vested interest in the policy. He says: "It is not doubted 
 that the wife of the insured did not take a vested interest in 
 these moneys. Her right to them depended upon the con- 
 tingency of her survival of her husband. It is apparent from 
 the provision in the policies that such money was to be paid 
 to her if living, which meant living at the time of the death 
 of the insured, at which time the policies matured and not 
 before. According to the terms of the policies, if the wife of 
 the insured was not living at the time of his death, the 
 amount of the insurance was to be paid to the children of the 
 insured or to their guardian for their use, and if there were no 
 such children surviving, then it was to be paid to the execu- 
 tors, administrators, or assigns of the insured. From this 
 phraseology the conclusion seems to be inevitable that the 
 children of the insured had not nor had either of them a vested 
 interest during the life of the insured; it being expressly 
 provided by the policies that if there should not be any 
 surviving children of his, the insurance money should go 
 to his executors, administrators, or assigns." So we must 
 await the decision of the Court of Appeals before knowing 
 whether, in this State, the interest of the wife in such a policy 
 is vested or contingent. 
 
 Another subject of long-continued litigation in reference 
 to policies of this class is the assignability of such policies by 
 the husband and wife. In the case of Eadie vs. Slimmon 
 (26 N. Y., 10) the question was elaborately discussed. The 
 facts in the case would have justified an avoidance of the 
 assignment on the ground of duress, it having been obtained 
 
 250
 
 THE LAW OF LIFE INSURANCE 
 
 from the wife of the insured by threats; but the court pre- 
 ferred to base its decision upon the theory that the policy, 
 being issued under the statute for the protection of married 
 women, could not legally be assigned. Mr. Justice Denio, 
 in delivering the opinion of the Court, says: "By the Common 
 Law a person could insure his own life for any sum for which 
 he might choose to pay the premium, and the insurers would 
 engage to insure. But if one desired to insure the life of 
 another, he could only insure the interest which he had in 
 such other life. It he undertook to insure a gross sum, and 
 the contract was not susceptible of a construction which 
 would limit the recovery to the actual damages sustained, 
 the contract would be void under the statutes against betting 
 and gaming. This principle the legislature, by the act 
 of 1840, relaxed in reference to insurance effected by a mar- 
 ried woman for any sum which she and the insurance com- 
 pany might see fit to contract for. It was provided that 
 in the case of her surviving her husband, the amount payable 
 by the terms of the policy should be payable to her for her 
 own use, free from all claims of the representatives of her 
 husband or of his creditors. There is another feature in 
 the act which shows that it was an enabling and not a declar- 
 atory provision. By the general rules of law, a policy on the 
 life of one sustaining only a domestic relationship to the 
 insured would become inoperative by the death of such 
 insured in the lifetime of the cestui que vie, or if it could be con- 
 sidered as existing for any purpose after that event, it would 
 be for the benefit of the personal representatives of the in- 
 sured, but by this act the contract may be continued in favor 
 
 251
 
 THE LAW OF LIFE INSURANCE 
 
 of the children of the insured wife after her death. These 
 features distinguish this case from that of an ordinary chose 
 in action belonging to a married woman as her separate 
 estate. The provision is special and peculiar, and looks to a 
 provision for a state of widowhood and for orphan children; 
 and it would be a violation of the spirit of the provision to 
 hold that a wife insured under this act could sell or traffic 
 with her policy as though it were realized personal property 
 or an ordinary security for money." 
 
 This doctrine, which is really an example of judicial legis- 
 lation, has since been adhered to by the courts of this State, 
 and in the case of Brummer vs. Cohn (86 N. Y., 11) it was 
 extended to a policy payable by its terms to the wife, her 
 executors, administrators, or assigns. The Court, per Judge 
 Andrews, says: "The contention that to bring an insurance 
 by a wife upon the life of her husband within the operation 
 of the act of 1840, it must appear from the terms of the policy, 
 or from extrinsic evidence, that it was the intention of the 
 insured to avail herself of the provisions of the act cannot, we 
 think, be maintained. The right of a wife to insure the life 
 of her husband was not given by that act. She had an insur- 
 able interest in her husband's life at Common Law. The 
 amount insured must necessarily be the measure of damages 
 in case of death. The pecuniary interest of a wife in her 
 husband's life is incapable of exact measurement. The 
 insurer, by issuing a policy to the wife, agrees that her interest 
 is at least equal to the sum insured, and the policy is in the 
 nature of a valued policy and the full amount insured is 
 recoverable, in case of death, without proof of actual dam- 
 
 252
 
 THE LAW OF LIFE INSURANCE 
 
 ages. Nor did the provision in the second section of the act 
 of 1840, that the insurance by a wife on the life of her husband 
 may, in case of her death before the decease of her husband, 
 be made payable to her children, confer any new power, or 
 authorize a contract which before the statute would be un- 
 authorized. There does not seem to be any ground to doubt 
 that before the statute a provision in a life policy issued to a 
 wife on her husband's life, that in the event of her death 
 before the death of her husband the policy should inure to 
 the benefit of her children, would have been entirely valid 
 and enforceable. But the act of 1840 did secure to the wife 
 the benefit of an insurance on the life of her husband pro- 
 cured by or for her and in her name, in case she survived her 
 husband, free from any claim by him or his representatives 
 or creditors, subject to the limitation that the annual premium 
 paid should not exceed a specified sum. 
 
 "In this respect the act of 1840 is enabling and not declar- 
 atory. The act does not require that it should appear by the 
 policy that it was issued under the act in order that the in- 
 sured should have the benefit of its provisions. There are 
 no restrictive terms. The act is remedial and was passed for 
 the benefit of married women and their children, and the 
 intention of a married woman in insuring the life of her 
 husband to avail herself of its provisions is inferable from its 
 beneficial nature." 
 
 The rule of law thus established produced so much dis- 
 satisfaction that the legislature was compelled to interfere, 
 and it provided (by Chapter 341 of the Laws of 1873) that 
 such a policy could be surrendered for its cash value by 
 
 253
 
 THE LAW OF LIFE INSURANCE 
 
 the wife and husband, on complying with certain prescribed 
 formalities, to the company issuing it, or could be assigned 
 by the wife and husband provided there were no children. 
 As this act deprives the children of any rights which they 
 might have in a policy so issued, it has always been con- 
 sidered by counsel for insurance companies to be uncon- 
 stitutional as impairing the obligation of contracts in respect 
 to policies made before the passage of the act in favor of the 
 wife and children, and to apply only to policies issued since 
 its date. This question, so far as I am aware, has never been 
 presented for judicial construction. By Chapter 248 of the 
 Laws of 1879, it was further provided that any policy payable 
 to the wife could be assigned by her with the consent of her 
 husband, and this is considered valid so far as the interest of 
 the wife herself is concerned. The act came up for con- 
 struction in the case of Anderson vs. Goldsmidt (45 New 
 York Supreme Court, 360. Affirmed in the Court of Appeals 
 in 103 N. Y., 617). The policy is in the ordinary statutory 
 form, payable to the wife if living, and if not, to her children, 
 and the assignment was made by the husband and wife in 
 writing subsequent to the passage of the act of 1879. 
 
 Judge Earl says: "Objection is made that there was not 
 in this case, within the meaning of this statute, the written 
 consent of the husband to this assignment. But by uniting 
 with his wife in executing the assignment he consented thereto 
 in writing. It would be taking a very narrow view of the 
 statute, quite inadmissible, to hold that the purpose of the 
 statute was not fully answered by the execution of the assign- 
 ment in that way. The mere fact that she had children at 
 
 254
 
 THE LAW OF LIFE INSURANCE 
 
 the time she executed the assignment did not render her 
 assignment void. The statute, whether there be children or 
 not, gives the wife, with the consent of her husband, the 
 absolute power to assign or surrender the policy. It is quite 
 true that the children had a contingent interest in the policy 
 which would have become vested in case the wife had died 
 before the policy matured. But here she survived that 
 period, and hence the contingency did not arise which gave 
 the children any interest whatever in the policy. At the 
 time of this assignment there was no law and no public policy 
 which prohibited the wife from assigning any interest which 
 she had in the policy, and by the assignment which she 
 executed plaintiff's testator became vested with the entire 
 interest in the policy, and there is no defense to the plaintiff's 
 claims to the amount due thereon." 
 
 The statutory provision that an insurance policy in favor 
 of a married woman or her children is not liable for the debts 
 of the husband has been extended to mean that such a policy 
 is not liable for the debts of the wife. In the case of Smillie 
 vs. Quin (90 N. Y., 492) the wife during her husband's life 
 assigned such a policy in trust for the benefit of her children, 
 and the assignment was attacked by her judgment creditors. 
 Judge Earl, delivering the opinion of the Court, after refer- 
 ring to the statute of 1840, says: "The object of that statute, 
 as construed by the courts in cases like this, was to secure 
 the insurance for the benefit of the wife, if she should survive 
 her husband ; and in all the cases upon the subject the policies 
 had been assigned out of the family, in violation of the spirit 
 and policy of the law, and in all of them the wife asserted 
 
 255
 
 THE LAW OF LIFE INSURANCE 
 
 her claim against the assignment which had been made. 
 In this case, even if it be conceded the wife could have avoided 
 the assignments of these policies, could anybody else avoid 
 them ? 
 
 "It would certainly be in violation of the spirit and policy 
 of the law to allow her creditors to come in and avoid assign- 
 ments which she had made, either for her benefit or the 
 benefit of her children, and thus sweep away the whole in- 
 surance. It is sufficient to hold that in a proper case she 
 or her personal representatives can avoid the assignments, 
 and thus at all times claim the benefit which it was the pur- 
 pose of the statute to secure to her. But if she does not seek 
 to avoid the assignments and reclaim the policies, or to 
 secure the moneys due upon them, she cannot be compelled 
 to. She could take the money upon the policies and give it 
 away; and she could renounce all claim to it and allow any 
 person under her assignments to receive it. She is sufficiently 
 protected if she is permitted to assert the invalidity of the 
 assignments. It will do her no good and do her family no 
 good, if creditors or strangers are permitted to come in and 
 assert the invalidity of the assignments, for the purpose of 
 sweeping away the amount of the insurance. We are, there- 
 fore, of the opinion that this defendant, representing judg- 
 ment creditors of the wife, was not in a position to assail her 
 assignments under the statute of 1840. 
 
 "It, therefore, only remains to be inquired whether these 
 assignments were fraudulent as to the judgment creditors, 
 and, therefore, void; and we are clearly of the opinion that 
 they were not. At any time prior to the death of her husband 
 
 256
 
 THE LAW OF LIFE INSURANCE 
 
 she had no interest in these policies which a creditor could 
 seize. If she had, then the policy of the law could be thwarted 
 in every case. She could keep these policies in life if she 
 chose, or allow them to lapse. She was not bound to keep 
 up the insurance, neither was her husband bound to keep 
 it up for her benefit. As she was not in a position to assign 
 the policies to her creditors so as to absolutely cut off her 
 right, her creditors could not take them so as to bar her 
 right, and, therefore, it was no fraud upon her creditors for 
 her to make the assignments at that time to her children. It 
 was like the disposition of property exempt from execution, 
 of which creditors cannot complain." 
 
 A question may arise as to the amount to be claimed under 
 a policy. A case of this character has just been decided 
 (Reigel, Admx., etc., vs. Insurance Company, 140 Pa., 193) 
 by the Supreme Court of Pennsylvania, the Appellate Court 
 of that State, upon a somewhat novel state of facts. There 
 a creditor took out a policy on the life of his debtor and paid 
 premiums for a number of years, the payments being con- 
 tinued by his administratrix after his death. The burden 
 becoming heavy, she surrendered the policy to the company 
 by which it was issued, obtaining for it a paid-up policy for 
 a smaller amount, being the proportionate amount of insur- 
 ance equivalent to the premiums already paid. At the time 
 of this transaction, both the administratrix and the company 
 had lost sight of the life insured and assumed that he was still 
 living, but it was subsequently ascertained that he had died 
 some ten days before the change was made. She then de- 
 manded a restoration of the original policy, and upon the 
 
 257
 
 THE LAW OF LIFE INSURANCE 
 
 refusal of the company to grant her request filed a bill in 
 equity to compel its return to her for the purpose of bringing 
 suit upon it, to which the defendant demurred and had judg- 
 ment upon the demurrer. 
 
 An appeal was then taken to the Supreme Court, and in 
 deciding the appeal the Court, through Mr. Justice Williams, 
 says, referring to the surrender of the original policy: "At 
 the time she made it she was already relieved from the bur- 
 densome premiums and the entire amount of the policy was 
 honestly due her from the company. What was the effect 
 of the mistake upon her ? Simply to take from her the differ- 
 ence between the two policies and give her absolutely nothing 
 for it. She surrendered a policy for $6,000 on which the 
 liability of the company was already fixed, and received 
 for it one of $2,500, to secure relief from a burden already 
 removed. The company parted with nothing; she secured 
 nothing. The whole transaction was a mistake, and if the 
 decree of the court below stands, the result will be to take 
 $3,500 from her and give it to the insurance company. These 
 facts seem to us to present a clear and strong case for equitable 
 relief; so strong, indeed, that the mere statement of them is 
 the only argument necessary for its support. The duty of 
 the Chancellor to relieve in cases of mutual mistake is so 
 well settled that no citation of authorities can be needed. 
 The learned Judge who heard this case in the court below, 
 and who is thoroughly familiar with the principle to which 
 we have referred, seems to have been misled in regard to the 
 facts set up in the bill. 
 
 "He treats the arrangement made as a compromise of a 
 258
 
 THE LAW OF LIFE INSURANCE 
 
 claim against the company for the alleged death of the in- 
 sured, which the administratrix was unable to establish, 
 because unable to show his death. As the fact of his death 
 and the consequent liability of the company on the policy 
 were uncertain, it was a case for the application of the doc- 
 trine that an adjustment of a doubtful claim constituted a 
 valid consideration for the surrender of the policy and the 
 acceptance of a new one, and upon this theory the decree was 
 entered. But it nowhere appears that she made any claim 
 on the company or supposed that she had any; she asked 
 relief from future payments of premiums on a policy on which 
 she supposed future payments would have to be made, and 
 to get this relief she was willing to sacrifice more than one 
 half of the sum insured. The company was willing, in con- 
 sideration of this large reduction of its liabilities, to give her 
 a policy for what her payments would purchase and relieve 
 her in future. This is an exchange often made and adjusted 
 by well-settled rules. It was a compromise of nothing. We 
 do not doubt the correctness of the rule applied by the learned 
 Judge, in cases to which it is fairly applicable, but this is not 
 one of them. The plaintiff distinctly avers that she did not 
 know of the death of the insured until some ten days after 
 the exchange of the policies was effected, and that both 
 parties to the transaction were acting in respect thereto on 
 the basis that he was living. 
 
 "She distinctly avers that the object of the arrangement 
 was to secure relief for herself from the indefinite payment 
 of premiums that had become burdensome to her; that the 
 new policy was accepted for that reason and the old one 
 
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 surrendered at a time when, had she known of the fact, she 
 was entitled to demand the entire sum upon which she had 
 so long and so steadily paid the burdensome premiums. 
 Upon these facts, if the attention of the learned Judge had 
 not been directed from them, we feel sure that he would have 
 reached the conclusion that we have reached that it would 
 be grossly inequitable to hold the plaintiff to a bargain made 
 under the influence of a mistake of facts like that before us. 
 This mistake the demurrer admits. If there had been any 
 circumstances which the defendant could have set up to show 
 that a correction of this mistake at this time would be in- 
 equitable, it would have been shown to the Court by answer." 
 This opinion was approved by a bare majority of the Judges, 
 the vote being four to three. 
 
 THIRD LECTURE 
 
 As you are probably aware, the far larger proportion of 
 insurance policies are obtained through the personal solicita- 
 tions of agents. While every prudent man insures his house 
 or his household goods against the chance of destruction by 
 fire as a matter of course, comparatively few regard as equally 
 necessary insurance on their lives, or, rather, while they all 
 admit its advantage or desirability, the effecting of such in- 
 surance is postponed from day to day. So all the companies 
 employ numbers of agents throughout the countries where 
 they do business to solicit risks, and hence has arisen what 
 might almost be termed a conflict between the companies and 
 the insured. The companies, being obliged to employ great 
 numbers of men, of many of whom they can know but little 
 
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 THE LAW OF LIFE INSURANCE 
 
 at the "Home Office," have endeavored to restrict the powers 
 of those agents within the narrowest possible limits, and by 
 clauses in their applications, policies and published documents 
 bring these restrictions to the notice of the insured. On the 
 other hand, the applicant (it may be the inhabitant of a small 
 country village) knows nothing of the company or its officers 
 in a distant city, and relies entirely upon the agent, with 
 whom he is acquainted and whom he regards as the plenipo- 
 tentiary, if not the incarnation, of the corporation. The 
 Courts have endeavored to reconcile or rather mediate be- 
 tween these conflicting views, and a few of the cases upon the 
 points decided will be of interest. In the case of Insurance 
 Company vs. Wilkinson, reported in 13 Wallace, 222, the 
 trial Judge admitted parol testimony to show that one of 
 the answers in the application was not in fact made by the 
 applicant, but was filled in by the agent from information 
 obtained from other persons. One of the principal points in 
 the case on appeal was the propriety of the admission of this 
 evidence. On this question, Mr. Justice Miller said: "It is 
 obvious that the soundness of the Court's instructions must 
 be tested mainly by the answer to be given to the question, 
 'Whose agent was Ball (the man who wrote the answers) in 
 filling up the application?' 
 
 "This question has been decided differently by courts of 
 the highest respectability in cases precisely analogous to the 
 present. It is not to be denied that the application, logically 
 considered, is the work of the assured, and if left to himself 
 or to such assistance as he might select, the person so selected 
 would be his agent, and he alone would be responsible. 
 
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 On the other hand, it is well known, so well that no court 
 would be justified in shutting its eyes to it, that insurance 
 companies organized under the laws of one State, and having 
 in that State their principal business office, send these agents 
 all over the land with instructions to solicit and procure 
 applications for policies, furnishing them with printed argu- 
 ments in favor of the value and necessity of life insurance, 
 and of the special advantages of the corporation which the 
 agent represents. They pay these agents large commis- 
 sions on the premiums thus obtained, and the policies are 
 delivered at their hands to the assured. The agents are 
 stimulated by letters and instructions to activity in procuring 
 contracts, and the party who is in this manner induced to 
 take out a policy rarely sees or knows anything about the 
 company or its officers by whom it is issued, but looks to and 
 relies upon the agent, who has persuaded him to effect the 
 insurance as the full and complete representative of the com- 
 pany in all that is said or done in making the contract. Has 
 he not a right to so regard him ? It is quite true that the 
 reports of judicial decisions are filled with the efforts of these 
 companies, by their counsel, to establish the doctrine that 
 they can do all this and yet limit their responsibility for the 
 acts of these agents to the simple receipt of the premium and 
 delivery of the policy, the argument being that as to all other 
 acts of the agent he is the agent of the assured. This propo- 
 sition is not without support in some of the earlier decisions 
 on the subject; and at a time when insurance companies 
 waited for parties to come to them to seek assurance, or to 
 forward applications on their own motion, the doctrine had a 
 
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 THE LAW OF LIFE INSURANCE 
 
 reasonable foundation to rest upon. But to apply such a 
 doctrine in its full force to the system of selling policies 
 through agents, which we have described, would be a snare 
 and a delusion, leading, as it has done in numerous instances, 
 to the grossest frauds, of which the insurance corporations 
 receives the benefits, and the parties supposing themselves 
 insured are the victims. The tendency of the modern deci- 
 sions in this country is steadily in the opposite direction. 
 The powers of the agent areprana facie co-extensive with the 
 business intrusted to his care, and will not be narrowed by 
 limitations not communicated to the person with whom he 
 deals. An insurance company establishing a local agency 
 must be held responsible to the parties with whom it transacts 
 business for the acts and declarations of the agent, within 
 the scope of his employment, as if they proceeded from the 
 principal. 
 
 "In the 5th Edition of American Leading Cases, after a 
 full consideration of the authorities, it is said: 
 
 By the interested or officious zeal of the agents employed 
 by the insurance companies, in the wish to outbid each 
 other and procure custom, they not infrequently mislead 
 the insured by a false or erroneous statement of what the 
 application should contain, or taking the preparation of it 
 into their own hands, procure his signature by an assurance 
 that it is properly drawn and will meet the requirements of 
 the policy. The better opinion seems to be that, when this 
 course is pursued, the description of the risk should, though 
 nominally proceeding from the insured, be regarded as the 
 act of the insurers.' 
 
 263
 
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 "The modern decisions fully sustain this proposition, and 
 they seem to us founded in reason and justice, and meet our 
 entire approval. This principle does not admit oral testi- 
 mony to vary or contradict that which is in writing, but it 
 goes upon the idea that the writing offered in evidence was 
 not the instrument of the party whose name is signed to 
 it; that it was procured under such circumstances by the 
 other side as estops that side from using it or relying on 
 its contents; not that it may be contradicted by oral testi- 
 mony, but that it may be shown by such testimony that it 
 cannot be lawfully used against the party whose name is 
 signed to it." 
 
 After taking this broad view of the agent's powers, the 
 same Court decided, in Hoffman vs. Insurance Company 
 (92 U. S., 161), that an agreement between an agent of an 
 insurance company and an applicant for insurance whereby 
 the former, without authority from the company, accepted, 
 by way of satisfaction of a premium payable in money, 
 articles of personal property, is a fraud upon the company, 
 and no valid contract against it arises therefrom. In this" 
 case the agent made an arrangement with the applicant by 
 which he accepted, among other things, in part payment of 
 the premium due the company, a horse valued at $400. Mr. 
 Justice Swayne, in delivering the opinion of the Court, says: 
 "Life Insurance is a cash business. Its disbursements are 
 all in money, and its receipts must necessarily be the same 
 medium. This is the universal usage and rule of all such 
 companies. Goodwin (the agent) had settled his own debt 
 to Hoffman of $53.67, and had appropriated to himself 
 
 264
 
 THE LAW OF LIFE INSURANCE 
 
 Hoffman's note of $100. If he had the right to take his per- 
 centage in such a way as he might think proper, this did 
 not justify his taking the horse at $400, nor, if the general 
 agent of the company had expressly agreed to take the horse 
 in payment of a premium pro tanto, could that have given 
 validity to the transaction. If the agent had authority to 
 take the horse in question, he could have taken other horses 
 from Hoffman, and have taken them in all cases. This 
 would have carried with it the right to establish a stable, 
 employ hands, and do everything else necessary to take care 
 of the horses until they could be sold. The company might 
 thus have found itself carrying on a business alien to its char- 
 ter, and in which it had never thought of embarking. The 
 exercise of such a power by the agent was liable to two objec- 
 tions. It was ultra vires, and it was a fraud as respects the 
 company. Hoffman must have known that neither Goodwin 
 nor the general agent had any authority to enter into such an 
 arrangement, and he was a party to the fraud. No valid 
 contract as to the company could arise from such a transac- 
 tion. This objection is fatal to the appellant's case." In the 
 case of Sands vs. Insurance Company (50 N. Y., 626) the 
 payment of a premium in January, 1862, to an agent of 
 the company at Mobile, in Confederate Treasury notes, then 
 substantially the only currency of the so-called Confederate 
 States for the general business of those States, was held to 
 be a valid payment. 
 
 It may be remarked, incidentally, that the prompt pay- 
 ment of the premiums accruing on an insurance policy is a 
 condition precedent to a recovery, and that nothing but the 
 
 265
 
 THE LAW OF LIFE INSURANCE 
 
 consent or waiver of the company can excuse the failure to 
 make the payment when due. In the case of Howell vs. In- 
 surance Company (44 N. Y., 276) the insured was stricken 
 with paralysis on the morning of the day on which the pre- 
 mium became due, and died the next day. Mr. Commis- 
 sioner Gray says: "The payment of the premium was an act 
 which could have been performed by any other person than 
 the plaintiff's husband (who was the life insured). Its pay- 
 ment did not necessarily depend upon his continued capacity 
 or existence; and hence, although he was, shortly prior to the 
 expiration of the policy, when about to pay the premium, 
 rendered incapable by the act of God, she is without the rule 
 that relieves a party from the consequences of an omission to 
 do an act rendered impossible by Omnipotent Power. It is 
 claimed that because Howell was, about two hours before 
 the expiration of the policy, fatally stricken, that he at once 
 relapsed into and remained in a dying condition until the 
 next day, when he died, he was, within the meaning of the 
 policy, dead before it expired. It must be borne in mind 
 that this is not a policy upon property, but upon life. It is 
 not enough that his life was in such peril that no hope was 
 left of a partial recovery, and that, so far as his continued 
 existence could have benefited the plaintiff or her children 
 by any provision he could have made for their comfort, his 
 life to them may in that respect have been worthless. It was 
 not against his ill health or against any attack of apoplexy or 
 paralysis or fatal epidemic that he was insured, but against 
 his death from any cause other than those excepted in the 
 policy. If it were not so, and he had been, on the day before 
 
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 THE LAW OF LIFE INSURANCE 
 
 the policy expired, in the last stage of consumption, and 
 from that cause in a dying condition, and had died the next 
 day after it had expired, the defendant would have been 
 liable. The length of time a diseased man may, before 
 death, be in a dying condition, whether from sudden attack 
 or long illness, is undefined. Howell might have been 
 attacked two days or more before the expiration of the policy 
 and remained in what is ordinarily understood as a dying 
 condition until a day or more after it expired, and the result 
 would be that, in cases of this kind, if from satisfactory evi- 
 dence a jury should find that the life insured was stricken 
 with disease and death two days before the policy expired, 
 and lived until after its expiration, the insurer would be liable. 
 And thus, in order that a party for whose benefit a policy is 
 issued may determine upon his rights under it, his first duty 
 would be to consult a doctor to learn whether his patient is 
 in a dying condition, instead of his policy to learn with cer- 
 tainty that, if he is alive when the policy expires, the insur- 
 ance will terminate." The same point was decided in the 
 Stathem case (93 U. S., 24) where Mr. Justice Bradley says: 
 "It must be conceded that promptness of payment is essential 
 in the business of life insurance. All the calculations of the 
 insurance company are based on the hypothesis of prompt 
 payments. They not only calculate upon the receipt of the 
 premiums when due, but on compounding interest upon 
 them. It is on this basis that they are enabled to offer assur- 
 ance at the favorable rates they do. Forfeiture for non- 
 payment is a necessary means for protecting themselves from 
 embarrassment. Unless it were enforceable the business 
 
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 THE LAW OF LIFE INSURANCE 
 
 would be thrown into utter confusion. It is like the for- 
 feiture of shares in mining enterprises, and all other hazardous 
 undertakings. There must be power to cut off unprofitable 
 members, or the success of the whole scheme is endangered. 
 The insured parties are associates in a great scheme. This 
 associated relation exists whether the company be a mutual 
 one or not. Each is interested in the engagements of all, for 
 out of the co-existence of many risks arises the law of average 
 which underlies the whole business. An essential feature of 
 this scheme is the mathematical calculations referred to on 
 which the premiums and the amounts assured are based. 
 And these calculations, again, are based on the assumption 
 of average mortality, and of prompt payments and compound 
 interest thereon. Delinquency cannot be tolerated nor re- 
 deemed except at the option of the company. This has 
 always been the understanding and the practise in this depart- 
 ment of business. Some companies, it is true, accord a grace 
 of thirty days, or other fixed period, within which the pre- 
 mium in arrear may be paid, on certain conditions of con- 
 tinued good health, etc. But this is a matter of stipulation 
 or discretion on the part of the particular company. When 
 no stipulation exists it is the general understanding that 
 time is material and that the forfeiture is absolute if the 
 premium be not paid. The extraordinary and even des- 
 perate efforts sometimes made when the insured person is 
 in extremis to meet a premium coming due demonstrates the 
 common view of this matter. The case, therefore, is one in 
 which time is material and of the essence of the contract. 
 Non-payment at the day involves absolute forfeiture, if such 
 
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 THE LAW OF LIFE INSURANCE 
 
 be the terms of the contract, as is the case here. Courts 
 cannot with safety vary the stipulation of the parties by intro- 
 ducing equities for the relief of the insured against their own 
 negligence." 
 
 Of late years, some companies have inserted in their 
 policies a general clause to the effect that they shall be incon- 
 testable after the lapse of two years from the date of their 
 issue, if the premiums be promptly paid. The effect of this 
 stipulation was considered in the case of Wright vs. Insur- 
 ance Company (50 N. Y. Supreme Court, 61), at the General 
 Term of the Fourth Department. Judge Follett says: "The 
 stipulation provides that the validity of the policy shall not 
 be questioned after the death of the insured; and not after 
 two years from the date of its issue. An action for the re- 
 covery of the sum insured not being maintainable until after 
 the death of the insured, one effect of the stipulation, if valid, 
 is to prevent the insurer from interposing as a defense the 
 falsity of the representations of the insured. But its effect 
 is not to prevent the insurer from annulling the contract upon 
 the ground of the fraudulent representations of the insured, 
 provided an action for that purpose is brought in the lifetime 
 of the insured, and within two years from the date of the 
 policy. The practical and intended effect of the stipulation 
 is, as held by the trial court, to create a short statute of limita- 
 tions in favor of the insured, within which limited period 
 the insurer must test, if ever, the validity of the policy. It 
 is settled that a stipulation in a policy limiting the time 
 within which an action may be brought thereon is not against 
 public policy, and that an action begun after the lapse of 
 
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 THE LAW OF LIFE INSURANCE 
 
 the stipulated time cannot be maintained. If a stipulation 
 shortening the period within which the statute permits the 
 insured to enforce his rights in the courts is not against public 
 policy, it is difficult to see upon what ground a stipulation 
 shortening the time which the statute and the rules of the 
 Common Law give an insurer to enforce its rights in the courts 
 can be held to contravene public policy. In Wood vs. Dwarris 
 (11 Exch., 493), an action on a life policy was defended on 
 the ground that it was issued upon the express condition that 
 if any statement in the application was untrue the policy 
 should be void, and that certain statements were untrue. 
 The plaintiff replied that the defendant issued a prospectus, 
 which came to the knowledge of the insured, stating that all 
 policies were indisputable, except in cases of fraud. The 
 defendant rejoined that the policy and the application formed 
 the contract, and that the prospectus was not binding; but 
 the Court held the rejoinder bad and the stipulation binding. 
 The stipulation in that case did not, like the one at bar, cut 
 off a defense based upon the fraudulent representations of 
 the insured, but in another respect it was broader than the 
 stipulation under consideration, because it absolutely cut off 
 the insurer's right to litigate the validity of the policy because 
 of the untruth of the representation, no time being given to 
 the insurer in which to contest upon the ground that the 
 representations were untrue. 
 
 "A stipulation like the one under consideration ought to 
 be an incentive for the insurer to exercise vigilance and good 
 faith in investigating the truth or falsity of the representations 
 upon which the policy is issued, while the matter is fresh. 
 
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 THE LAW OF LIFE INSURANCE 
 
 The witnesses are all alive and the exact truth can, if ever, 
 be ascertained; and the stipulation prevents the insured from 
 lying by and receiving the premiums during the life of the 
 insured, and after his death, when the good faith and truth 
 of his representations cannot be supported by his oath, con- 
 testing the policy upon the ground that the insured's repre- 
 sentations were false or untrue. Such stipulation is neither 
 unreasonable nor contrary to public policy. 
 
 "The stipulation in the application, that any fraudulent 
 or untrue statements vitiate the policy, and the stipulation 
 under consideration are not inconsistent. The stipulation 
 in the application preserves the company's right to avoid 
 the policy for fraud or untrue statements during the time 
 limited." 
 
 The case was affirmed in the Court of Appeals and is 
 reported in 118 N. Y., 237. In delivering the opinion of the 
 Appellate Court, Mr. Judge Potter says: "The Court is 
 asked to hold that the parties to the stipulation understood 
 (for unless the insured so understood the stipulation the 
 defendant was practising a fraud upon him) that while the 
 stipulation embraced all representations that were untrue, 
 it did not embrace the same stipulations if known by the 
 party making them to be untrue. The practical difference 
 or effect of this would be that, upon a trial to enforce the 
 contract, the proofs of the representations, their materiality 
 and untruth, would have to be made all the same, but the 
 stipulation would come in as a defense to all representations 
 save those the insured knew to be false. 
 
 "While I might, perhaps, entertain the idea that the 
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 THE LAW OF LIFE INSURANCE 
 
 insurer so understood the stipulation, I am very confident 
 that the insured did not so understand it. 
 
 "It seems to me the analogy is based upon the entire 
 misconception of the object and meaning of the stipulation. 
 It is not a stipulation absolute to waive all defenses and to 
 'condone fraud.' On the contrary, it recognizes fraud and 
 all other defenses, but it provides ample opportunity within 
 which they may be, but beyond which they may not be 
 established. It is in the nature of and serves a similar pur- 
 pose as statutes of limitation and repose, the wisdom of 
 which is apparent to all reasonable minds. It is exemplified 
 in the statute giving a certain period after the discovery of a 
 fraud in which to apply for redress on account of it, and in 
 the law requiring prompt application after its discovery if 
 one would be relieved from a contract infected with fraud. 
 The parties to a contract may provide for a shorter limitation 
 thereon than that fixed by law, and such an agreement is in 
 accord with the policy of statutes of that character. 
 
 "No doubt the defendant held it out as an inducement to 
 insurers by removing the hesitation in the minds of many 
 prudent men against paying ill-afforded premiums for a 
 series of years, and in the end, and after the payment of 
 premiums, the death of the insured and the loss of his and 
 the testimony of others, the claimant, instead of receiving the 
 promised insurance, is met by an expensive lawsuit to deter- 
 mine that the insurance which the deceased has been paying 
 for through many years has not and never had an existence 
 except in name. While fraud is obnoxious and should justly 
 vitiate all contracts, the courts should exercise care that fraud 
 
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 THE LAW OF LIFE INSURANCE 
 
 and imposition should not be successful in annulling an 
 agreement to the effect that if cause be not found and charged 
 within a reasonable and specified time, establishing the in- 
 validity of the contract of insurance, it should thereafter be 
 treated as valid." 
 
 With all due respect for the learned Court, I cannot concur 
 in this decision. To quote the somewhat exuberant lan- 
 guage of counsel in the brief filed in the case of the Com- 
 mercial Bank of Manchester vs. Bucker (20 Howard U. S., 
 108): 'Fraud vitiates everything into which it enters. It 
 is like the deadly and noxious simoon of arid and desert 
 climes. It prostrates all before its contaminating touch 
 and leaves only death and destruction in its train. No act, 
 however solemn, no agreement, however sacred, can resist 
 its all-destroying power. 
 
 "All acts into which fraud enters are nullities." 
 The doctrine thus grandiloquently expressed is sound, and 
 it is well settled that "if a transaction has been originally 
 founded on fraud, the original vice will continue to taint it, 
 however long the negotiation may continue, or into whatever 
 ramification it may extend. Not only is the person who 
 committed the fraud precluded from deriving any benefit 
 under it, but an innocent person is so likewise, unless there 
 has been some consideration moving from himself. In 
 equity no length of time will elapse to protect and screen 
 fraud. 'Those,' said Lord Cottenham in Trevelyan vs. 
 Charter (4 L. J. Ch. N. S., 214), 'who may be disposed 
 fraudulently to appropriate to themselves the property of 
 others, may be assured that no time will secure them in the 
 
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 THE LAW OF LIFE INSURANCE 
 
 enjoyment of their plunder; and their children's children will 
 be compelled by this Court to restore it to those from whom 
 it has been fraudulently abstracted ' ! The right of the party 
 defrauded to have the transaction set aside is not affected by 
 lapse of time, so long as he remains, without any fault of his 
 own, in ignorance of the fraud which has been committed." 
 (Kerr on Fraud and Mistake, page 51.) This being the rule 
 of the Common Law, I am not satisfied, notwithstanding the 
 decision of the Court of Appeals, that the insurer would be 
 bound by a contract into which he had been misled by the 
 fraudulent misrepresentations of the insured, especially when 
 it is remembered that it is usually practically impossible for 
 him to ascertain the real facts in the case during the lifetime 
 of the insured. In this connection I may be pardoned in 
 quoting, from an address delivered some years ago, senti- 
 ments which my later experience in examining these cases 
 has not modified: 
 
 "The insurer of a life stands in a different position from 
 one who insures a house; the latter may examine his risk 
 carefully and thoroughly he may ascertain its distance 
 from neighboring buildings, the nature of the walls between 
 it and them, the internal supports, the arrangement of the 
 heating apparatus, the character of the roof, the probability 
 of total or partial loss in case of fire, the efficiency of the 
 department on which he must depend for the extinction of a 
 conflagration, the nature of the business carried on in it and 
 adjacent buildings, and every conceivable element which 
 enters into the calculation of his risk. They are all existent 
 patent to his investigation, and it is his own fault if he does 
 
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 THE LAW OF LIFE INSURANCE 
 
 not enter into his contract with a clear and perfect under- 
 standing of the risk which he assumes. With the insurer of 
 life the case is very different. Certain elements of the calcu- 
 lation are, of course, within his reach. He can estimate 
 properly the influence of the climate in which the proposed 
 life dwells, the hazard of his occupation, the especial diseases 
 to which his locality is exposed, and the average length of 
 human life. From all these facts he can deduce a table of 
 life which will enable him to rate exactly the cost of insuring 
 the theoretical man. But when he comes to carry his theories 
 into practise, he has in reality no means of ascertaining 
 whether the life proposed reaches the average standard but 
 the statements made to him by that proponent. Medical 
 men know very well that there may be inherited, or even 
 acquired, tendencies towards certain diseases which no 
 physical examination will detect, and against which the in- 
 surer can be warned only by a true and accurate family and 
 personal history. The tremendous influence over the ques- 
 tion of life or death, which is wielded by such tendencies, by 
 habit, by temperament, is an important factor in every cal- 
 culation upon a single life, and cannot be properly estimated 
 unless every circumstance and fact which the insurer desires 
 to know is stated to him fully and accurately. I recall a case 
 in which the applicant for insurance presented a clear, un- 
 questionable record. One sister had died of yellow fever; 
 it was true, but he omitted to add that, had the fever spared 
 her, she would have died of consumption within six months. 
 Another sister died of suppressed menses; it was also true, 
 but he omitted to state that vicarious menstruation ensued 
 
 275
 
 THE LAW OF LIFE INSURANCE 
 
 from the lungs, and caused her speedy death. So with several 
 members of his family, who, with well-developed phthisis, 
 had actually died from other causes. The applicant himself 
 was apparently sound, and physical exploration failed to 
 discover any symptoms of disease, yet his death within a year 
 from consumption showed that he must have had strong ten- 
 dencies towards that disease, and investigation developed the 
 facts I have detailed. As is usual in such cases, no ground of 
 suspicion was presented until the death occurred. Then the 
 very fact of such a death showed that misrepresentations must 
 have been made and not until suspicion was thus aroused was 
 such an investigation deemed desirable. It is practically 
 impossible to verify at the outset every statement made by an 
 applicant for life insurance, and as he knows, and from the 
 nature of the case must know, the truth or falsity of what he 
 alleges, it was only just that those claiming under him should 
 be bound by his representations. If his death occur from a 
 cause or under circumstances inconsistent with his statements 
 the insurer is, for the first time, informed that those statements 
 were false, and is justified, both in law and in good morals, 
 in resisting a demand based upon a contract into which he 
 was led by the misrepresentations of the contracting party 
 upon whom he relied." 
 
 That deliberate, intentional fraud is a good defense to an 
 action upon a policy, even in the absence of any express 
 stipulations, is held in the case of Smith vs. Insurance Com- 
 pany (123 N. Y., 85). The facts are, as Judge Finch says in 
 the opinion of the Court, unusual and extraordinary. " In 
 answer to the plaintiff's demand for the sum payable by the 
 
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 THE LAW OF LIFE INSURANCE 
 
 defendant's policy of life insurance, the company took upon 
 itself the difficult burden of proving that the insured perpe- 
 trated a deliberate fraud, planned upon a broad scale, and 
 accomplished by taking his own life; that his efforts to achieve 
 success failing, and a future of poverty and debt seeming to 
 await him, he determined to secure a large insurance ($282,- 
 000, in thirty-six different companies) upon his life, appro- 
 priate it to the payment of his creditors and the comfort and 
 support of his relatives, and reach the result by suicide. The 
 difficult burden was successfully borne, as the verdict of the 
 jury has determined, and the sole inquiry now is whether the 
 scope and range of the evidence admitted, showing the acts 
 and declarations of the assured, transcended the lawful limit 
 or violated the rules of evidence." After discussing the 
 several exceptions to the evidence the learned Judge says: 
 "These acts and declarations all occurred before the plaintiff 
 took his policy as collateral, and when they affected no one 
 but Tyler (the life insured) himself. They tended to show 
 the origin and progress of the fraudulent intent, the manner 
 of its growth and the motive from which it sprang. They 
 indicate a sane and deliberate purpose moving steadily to its 
 result, and constitute a part of the history of the fraud. They 
 were contemporaneous with the fraud in its formative stages; 
 they accompanied Tyler's efforts to raise money, which failed, 
 and to procure an insurance upon his life which he knew he 
 could not continuously maintain. They show the motive of 
 the fraud, and mark its progress and harmonize so com- 
 pletely with all which afterward occurred as to constitute, 
 with that, elements of the single transaction, the fraudulent 
 
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 THE LAW OF LIFE INSURANCE 
 
 conduct which raised the issue presented by the defense. 
 And so I think the proof came fairly within the rule relating 
 to the res gestw and did not transcend its limits. 
 
 "Some of this evidence was resisted upon the ground that 
 death by suicide was no defense under the terms of the policy. 
 That is true, but the defense was fraud, and suicide the 
 ultimate agency by which the fraud was accomplished. It 
 was necessary, therefore, to prove it, and in such manner 
 as to indicate that it was not an insane or sudden impulse, 
 but the culmination and effective working out of the deliber- 
 ately conceived purpose of fraud." 
 
 In the case of Wright (supra) it was intimated that it was 
 the duty of the insurer to exercise vigilance and good faith in 
 investigating the truth or falsity of the representations in the 
 application while the insured was living, and not, after re- 
 ceiving premiums for a series of years without question, raise 
 the issue after his death. This is a view commonly taken, 
 although, as I have shown, in most cases there is no reason to 
 doubt the good faith of the applicant until death occurs. 
 Judge Follett implies that the insurer may bring an action to 
 annul the contract on the ground of fraudulent misrepresen- 
 tations during the life of the insured, but this is not beyond 
 question. It has been held in England (Barker vs. Walters 
 8 Beaver, 96) that when a policy is void by reason of any 
 fraudulent misrepresentation the company is entitled to file a 
 bill, to have it delivered up to be canceled, and that this is a 
 right possessed in common with every person from whom any 
 deed or other instrument has been obtained by fraud or mis- 
 representation, but in this country the weight of authority 
 
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 THE LAW OF LIFE INSURANCE 
 
 appears to be against this proposition. In Insurance Com- 
 pany vs. Stanchfield, U. S. Circuit Court for the District of 
 Minnesota (2 Abbott, C. C., 1), before Justices Miller and 
 Dillon, and in Insurance Company vs. Bailey (13 Wallace, 
 616) the loss had occurred before the bills were filed, and they 
 were dismissed substantially on the ground that the insurers 
 could set up the facts alleged as a defense in suits upon the 
 policies, and that the cases were therefore amenable to the 
 familiar rule that equity will not intervene where the remedy 
 at law is perfect. 
 
 In Insurance Company vs. Insurance Company in the 
 U. S. Circuit Court of Connecticut (17 Blatchfo'rd, 142) the 
 suit was to cancel a policy that the company had already 
 attempted to cancel, upon the ground that the insured had 
 become so far intemperate as to impair his health, the policy 
 stipulating that it should be void if this contingency hap- 
 pened. The owner of the contract refused to agree to the 
 cancellation, but continued to tender the premiums. The 
 bill was filed to definitely determine the rights of the parties. 
 A demurrer was interposed to the bill and overruled. Two 
 reasons were alleged why the Court should sustain the de- 
 murrer. The first was that, while a Court of Equity has power 
 to cancel instruments which are void by reason of fraud in 
 their inception, it has no jurisdiction to cancel instruments 
 which have ceased to be binding since their execution; second, 
 that while, at the instance of the insured, a Court of Equity 
 may compel an insurance company to reinstate a canceled 
 contract, equity will not interfere to enforce a forfeiture. In 
 passing upon the demurrer Judge Shipman said: "Upon the 
 
 279
 
 THE LAW OF LIFE INSURANCE 
 
 first proposition it is true that a Court of Equity has not, or 
 will not exercise, jurisdiction to cancel a contract merely 
 because it has become void or inoperative by reason of some 
 fact which has taken place since its execution. Such an 
 exercise of power would give a Court of Equity concurrent 
 jurisdiction with the courts of law over all contracts which 
 one contracting party may allege to have been broken by the 
 other. But, while relief from the consequences of fraud 
 is peculiarly the province of a Court of Equity, it has not re- 
 fused to cancel contracts which have been performed, or 
 which have become inoperative, when the special circum- 
 stances of a case rendered it unjust or oppressive that the 
 contract should be an outstanding claim against the plaintiff. 
 The reasonable rule is that a Court of Equity will exercise 
 its power of setting aside contracts for defects not apparent 
 on their face, although such defects arose after the execution 
 of the contracts, in cases where the special circumstances 
 render it inequitable or unjust, or a hardship, to compel 
 the plaintiff to await a suit at law at the instance of the other 
 party. Chancellor Kent was inclined to think in Hamilton 
 vs. Cummings (1 Johnson's Ch., 517) that 'a Court of Equity 
 had jurisdiction to set aside a bond or other instrument, 
 whether the instrument was void for matter appearing on 
 its face, or from the proofs,' and that these assumed distinc- 
 tions were not well founded. He says: 'Perhaps all the 
 cases may be reconciled on the general principle that the 
 exercise of this power is to be regulated by sound discretion, 
 as the circumstances of the individual case may dictate, and 
 that the resort to equity, to be sustained, must be expedient, 
 
 280
 
 THE LAW OF LIFE INSURANCE 
 
 either because the instrument is liable to abuse from its nego- 
 tiable nature, or because the defense, not arising on its face, 
 may be difficult, or uncertain at law, or from some other 
 special circumstances peculiar to the case, and rendering a 
 resort here highly proper, and clear of all suspicion of any 
 design to promote expense and litigation. If, however, the 
 defect appears on the bond itself, the interference of this 
 court will depend upon the question of expediency, and not 
 on a question of jurisdiction.' Second, it is true that Courts 
 of Equity will not aid to enforce a forfeiture, or to divest an 
 estate for breach of covenant or condition subsequent, unless, 
 perhaps, under extraordinary circumstances. When an 
 estate has been forfeited, or when a pecuniary penalty has 
 been incurred, by reason of the happening of a condition 
 subsequent, or of the breach of a covenant, there is usually 
 an immediate remedy at law to regain possession of the estate 
 or to recover the penalty. There being such a remedy, equity 
 will not interfere. The great principle is that equity will 
 not assist in the recovery of a penalty or forfeiture when the 
 plaintiff may proceed at law to recover it. In this case there 
 is no estate to be regained, there is no sum in damages to be 
 recovered. The insured is still living, and a cancellation of 
 the contract is the only result which is to be attained. The 
 plaintiff has now no remedy at law, and unless it can resort 
 to a Court of Equity it must wait and become a defendant at 
 the future suit of the holder of the policy. When such a suit 
 will be commenced is a matter of uncertainty. The rule is 
 not applicable to the cancellation of a policy of insurance 
 upon the life of a living person." The Court then reasons 
 
 281
 
 THE LAW OF LIFE INSURANCE 
 
 that the relief should be given because of its expediency and 
 in order to be just to the other policy-holders; that the founda- 
 tion of insurance is the law of average, and if the insured 
 are permitted knowingly to indulge in practises that noto- 
 riously invite disease, the investment of other insured persons 
 is jeopardized. The Court quotes the language of Justice 
 Bradley, that '"the assured parties are associates in a great 
 scheme. The associated relation exists whether the com- 
 pany be a mutual one or not. Each is interested in the 
 engagement of all, for out of the co-existence of many risks 
 arises the law of average, which underlies the whole busi- 
 ness.' The objection that the company has already exercised 
 its option of declaring the forfeiture is disposed of by the 
 answer that it is important to the company to know before 
 the death of the assured whether it has made an error in this 
 action or not; that neither party should be left in doubt during 
 a series of years as to his or its pecuniary rights in the policy." 
 In a later case in the United States Circuit Court of North 
 Carolina (Insurance Company vs. Bear, 26 Fed. Rep., 582) 
 it was sought to cancel a policy upon the same ground 
 the intemperance of the assured, the latter being still living. 
 The Court, citing Insurance Company vs. Bailey (supra), 
 held that a Court of Equity would not set aside a policy of life 
 insurance during the life of the assured on the ground that it 
 had been rendered void by something not appearing on the 
 face of the policy, and which could be proved by extrinsic 
 evidence; that if such power existed, it was not a case for 
 the ordinary exercise of the discretionary power of the Court 
 of Equity to order a cancellation, because the assured, who is 
 
 282
 
 THE LAW OF LIFE INSURANCE 
 
 now intemperate, may reform and live out the ordinary 
 expectation of life. 
 
 In view of these conflicting decisions, neither of them by 
 a court of the highest authority, the question of the exercise 
 of this equitable power must be regarded as still an open 
 one. 
 
 A suit upon a life policy is an especially difficult one to 
 defend, for several reasons. In the first place, there exists 
 in this country a very general prejudice against corporations, 
 which inclines a jury to view with favor any claim by an 
 individual against one of them. Then the plaintiff is usually 
 a widow or some other dependent of the deceased, and the 
 contrast is strongly drawn by counsel arguendo between her 
 poverty and the heaped-up millions of the defendant, the 
 corresponding liabilities of the latter being carefully kept in 
 the background. Another consideration which is enter- 
 tained, but not put forward so prominently, is that a verdict 
 for the plaintiff will take from the treasury of what is generally 
 a distant company, chartered by another State, a sum of 
 money which will be invested or expended by a neighbor of 
 the jurors, to the benefit of the trade of their vicinage, and 
 consequently of themselves. Another difficulty for the 
 defense is that the most important evidence is often that of 
 the attending physicians, and this is unattainable by reason of 
 the statutes forbidding them to testify to any knowledge 
 acquired through their professional attendance, as well as by 
 reason of their own sense of the obligations of their profes- 
 sional honor. And to these considerations must be added 
 another of a much higher character, that natural human 
 
 283
 
 THE LAW OF LIFE INSURANCE 
 
 instinct which leads us all to speak well, and to endeavor to 
 think well, of the dead. The fall of the curtain upon a 
 human life covers at the same time his faults and vices, and 
 adds enormously to the difficulty of establishing to the satis- 
 faction of a jury facts which are notorious, but which blacken 
 his memory. The very neighbors who, during a man's life, 
 denounce him as a worthless sot, will, when called as wit- 
 nesses in a suit upon a policy on his life, reluctantly admit 
 that he perhaps on rare occasions drank to excess, but not to 
 an extent to impair his usefulness or affect his health. So 
 when a suicide takes place the associates of the deceased at 
 once begin to think that they had previously noticed symp- 
 toms of aberration of mind, quite sufficient to justify a 
 strong suspicion of his sanity, although no such idea had ever 
 occurred to them before the catastrophe. 
 
 The late Rufus Choate, one of the ablest and most expe- 
 rienced, as well as one of the most successful jury lawyers 
 that this country has ever seen, was accustomed to say that 
 God Almighty knew everything except what verdict a petit 
 jury would render upon a given state of facts. The counsel 
 for the defense in an insurance case knows only too well 
 what verdict the jury is almost certain to render, if allowed 
 to follow its own inclinations, and hence concludes that the 
 proper time to contest a claim upon a policy is, if you will 
 pardon the Hibernicism, before it is issued. 
 
 As you have doubtless discovered, I have stated to you 
 only a few general principles and leading cases in the Law of 
 Life Insurance, which is all I expected to do even if I had 
 ventured to assume that I could have given a more complete 
 
 284
 
 THE LAW OF LIFE INSURANCE 
 
 abstract of it. But, as Chief Justice Abbott wisely remarked, 
 in summing up the case of Montrio vs. Jeffreys (2 Carrington 
 & Payne, 116), "No attorney is bound to know all the law 
 God forbid that it should be imagined that an attorney or 
 a counsel or even a judge is bound to know all the law." 
 The volumes of text-books and reports have multiplied enor- 
 mously since his time, and there is still less ground for such an 
 imagination at present. But I have, I hope, said enough to 
 interest you in the subject, and to indicate the lines of study 
 to be pursued. Life Insurance Law is practically the growth 
 of the last twenty years, for only within that time has the 
 spread of Life Insurance been so great as to require much 
 consideration from the courts, and many important questions 
 are still undetermined, while many more are certain to arise 
 and demand judicial decision. 
 
 The tendency of the age is towards specialism. In both 
 law and medicine this tendency is especially marked, and if, 
 as I presume will be the case with most, if not all, of you, 
 you enter upon the practise of your profession in any of the 
 great centres of wealth and population, you will find it neces- 
 sary, in order to be successful, to devote most of your atten- 
 tion and study to some particular branch of the law. In 
 making the selection of the object of your life's devotion, I 
 trust that these lectures may have their weight in inducing 
 some of you to turn your minds towards the Law of Life Insur- 
 ance. In that trust I commit the subject to your consid- 
 eration. 
 
 285
 
 SPEECH AT BOSTON, MASS. 
 
 AT THE DINNER OF THE AGENTS OE THE MUTUAL 
 
 LIFE INSURANCE COMPANY OF NEW YORK 
 
 AT BOSTON, MASS., ON JANUARY 
 
 25-TH, 1893
 
 SPEECH AT BOSTON, MASS. 
 
 IT gives me great pleasure to appear before you this even- 
 ing, and I congratulate myself that this meeting takes 
 place at a season of the year when all the executive officers are 
 busily engaged in studying the results already accomplished, 
 and making preparations for the future, so that they were 
 obliged to delegate to me the very agreeable duty of repre- 
 senting the Company on this occasion. And it is particu- 
 larly agreeable to me that my first appearance in that capacity 
 should be made here. Massachusetts has always been one 
 of the foremost States of the Union, her sons have been 
 prominent and successful in every walk of life, and the work 
 which has been done on behalf of the Mutual Life by the 
 gentlemen assembled shows that their energy and ability is 
 what is to be expected from the sons of the old Common- 
 wealth. And if I may be allowed to refer to personal matters, 
 both my mother and my wife were born in Boston, so the 
 city and State are very dear to me. As a small boy, I used 
 to accompany my mother on her annual Thanksgiving visits 
 to her father's house, on the corner of Summer and Arch 
 Streets, then a fashionable residence quarter, and the change 
 in the city since that time is marvelous indeed. There 
 were then no Public Gardens, the water in the Back Bay 
 
 289
 
 SPEECH AT BOSTON, MASS. 
 
 still flowed to and fro unhampered, and the stately residences 
 of Commonwealth Avenue and Beacon Street, and the great 
 warehouses and roomy stores which adorn the business 
 sections, were not even dreamt of in the distant future. The 
 increase of population, of wealth, of business, of resources of 
 every character, has been enormous, and you may congratu- 
 late yourselves on having a field of action so capable of yield- 
 ing abundant fruit. 
 
 This occasion is one of especial interest in view of the 
 fact that the Company has nearly completed the first fifty 
 years of its existence. To recite its growth from the receipt 
 of the first premium to the magnificent accumulation of 
 assets which we see to-day would be but to repeat an oft-told 
 tale, doubtless as familiar to you as it is to me; but the fact 
 that the growth has been so great shows us that there is 
 no conceivable limit to what may be attained in the future. 
 No man can undertake to say when its usefulness shall cease, 
 or how the broad wide-spreading stream of its beneficence 
 can ever be stayed. Yet at this time it is becoming that we 
 should rejoice over the past and make plans for the future. 
 Since its first establishment in the early days of Jewish his- 
 tory, the year of Jubilee has been one of balancing accounts, 
 of estimating results, and of rejoicing over what has been 
 done. Church and State alike from time to time have cele- 
 brated such occasions with every manifestation of joy, and 
 with all the pride and pomp which circumstances permitted. 
 Surely it is fitting that a great institution which has benefited 
 so many thousands of families, which has provided food 
 for the widow, and education for the children, in many cases 
 
 290
 
 SPEECH AT BOSTON, MASS. 
 
 sorely needed, which has encouraged thrift and prudence, 
 and enabled the man of small means to obtain the advantage 
 of the most favorable investments under the guidance and 
 advice of the most experienced and successful financial and 
 business men, which to-day holds in its hands the future of 
 so many thousands of individuals, and does so with the as- 
 surance of absolute safety and reliability such an insti- 
 tution may well celebrate its Jubilee and call upon the world 
 to celebrate with it. We honor also in this year the memory 
 of Christopher Columbus, and it is right that we should do 
 so, for if he had failed to discover America, the Mutual Life 
 might have been established elsewhere, but among all the 
 grand results of that discovery, and the great institutions 
 which have been developed on the American Continent, there 
 is none which, considering its feeble beginning, and its sturdy 
 age, deserves more of our admiration and respect than the 
 grand old Company which we serve and love. 
 
 You, gentlemen, are practically the army advancing into 
 the enemies' country, or perhaps I should more properly say, 
 the reapers going forth to gather the harvest, while we at 
 the home office furnish the tools and the supplies which are 
 needed to keep you in the field and to enable you to do the 
 work. You are all doubtless kept well advised by the effi- 
 cient General-Agent of this District, the courteous gentle- 
 man and genial good fellow who is our host to-night, how 
 actively and thoroughly the Home Office performs its part, 
 and how constant is the effort to furnish every incentive and 
 every needed supply to the men at the front. My own close 
 personal relations with the officers may perhaps make my 
 
 291
 
 SPEECH AT BOSTON, MASS. 
 
 praise of them seem a matter of course, but I cannot allow 
 this opportunity to pass without expressing my admiration 
 and affection for the President of the Company, and for the 
 clear, keen intellect, the untiring industry, the dauntless 
 energy and the warm heart which Mr. McCurdy brings to 
 the discharge of his duties, and to which is due the marvelous 
 increase of the Company's business during the last eight years. 
 Among the tools with which you have been supplied are 
 two new forms of policies, the so-called five per cent deben- 
 ture, and the continuous instalment, both of them novelties 
 of high promise which should aid materially to make the 
 business of this semi-centennial year enormous in amount. 
 I assume that you have all read the circulars which have been 
 issued in regard to these new plans, and are familiar with 
 their general characteristics, so that it is not necessary for me 
 to discuss them in minute detail. But the important point 
 to be observed in the debenture policy is, that it is in effect 
 a five per cent bond for twenty years, that is, the beneficiary 
 of such a policy, upon the death of the insured, holds a bond 
 which is as reliable and as certain of payment as that of any 
 Government, State, Municipality, or Corporation in the wide 
 world which has twenty years to run at what is now the high 
 rate of interest of five per cent per annum, and is payable 
 at par at the end of that time. The advantage to the in- 
 sured is that should he survive the distribution period the 
 application of the surplus then credited to him to the pur- 
 chase of an annuity would go far to reduce, if not altogether 
 extinguish, future payments on the policy. And there is 
 another of much greater importance. With my long ex- 
 
 292
 
 SPEECH AT BOSTON, MASS. 
 
 perience in the Company's service, and my knowledge of the 
 embarrassment often caused by the death of beneficiaries, 
 the necessity of going to the expense of appointing adminis- 
 trators or guardians, or of probating wills, in order to transfer 
 an interest, I can thoroughly appreciate the immense saving 
 and convenience caused by making the interest of the nominee 
 contingent on his surviving the nominator. The latter may 
 have selected, for example, his wife as his first choice, as most 
 good husbands, and it is to be hoped all Massachusetts hus- 
 bands, would do, and in the event of her death during his 
 lifetime, instead of probating her will or administering on 
 her estate, he has only to file with the Company an affidavit 
 of the fact, and nominate another person to receive the benefit 
 of his forethought. Again death may defeat his intention, 
 and again he has only to file his affidavit and his nomination. 
 The simplicity of this method, its avoidance of the annoyance 
 of asking for releases from next of kin, and of any expense or 
 trouble whatever, is a point which should commend it strongly 
 to the insuring public. In brief, it enables a man to provide 
 with absolute certainty for the future of any one dependent 
 on him, and yet empowers him to transfer the fund to another 
 when his bounty is no longer needed by the one for whom 
 it was intended. At the same time these policies will be 
 assignable or available as collateral security. I have no 
 doubt that the interest of the nominee would be held to be 
 of such a character that he could not be deprived of it without 
 his own consent, but that an assignment by nominator and 
 nominee together would be valid is to my mind beyond 
 question.
 
 SPEECH AT BOSTON, MASS. 
 
 The continuous instalment policy possesses advantages of 
 another character. Many a prudent man hesitates about 
 insuring his life, because he is not at all sure that his wife or 
 children would be able to use to advantage any large sum of 
 money coming to her or them at his decease, and fears that 
 through their incapacity or the possible frauds or defalca- 
 tions of executors or trustees the result of his thrift and econ- 
 omy may be dissipated or lost by unwise investment. The 
 old form of policy payable in instalments did not altogether 
 relieve this apprehension, for under it the beneficiary would 
 receive payment for a certain number of years and then the 
 income would cease, at a time when habits had been formed 
 and a mode of life become customary, based upon regular 
 receipts. But by the plan now in question these instalments 
 are continued throughout the life of the beneficiary, and the 
 dying husband who has made this provision for his wife has 
 the satisfaction of knowing that should she survive him for 
 forty or any number of years, she has an assured income for 
 all that time. I use the word assured deliberately, for it is 
 not so many years since the failure of a railroad which had 
 been a favorite investment with Massachusetts merchants 
 involved so many estates and so many families in serious 
 embarrassment. Here you have to offer to your customers a 
 security which is absolute in which there is no possibility 
 of a shrinkage of value, or of the passing of a dividend, which 
 will be always at par, if not at a premium, and on which the 
 payments will be made as they become due with the regu- 
 larity of the sweep of the solar system around the sun. These 
 policies are also assignable during the hie of the insured 
 
 294
 
 SPEECH AT BOSTON, MASS. 
 
 with his consent, but it is contemplated that the instalments 
 shall be, and may be made, absolutely inalienable by the 
 beneficiaries. 
 
 I have not thought it necessary to refer to the numerous 
 advantages which The Mutual Life offers over all its com- 
 petitors, and to the many other kinds of policies designed to 
 meet every taste and fancy, and every desirable method of 
 insurance and investment. In the language of the late Judge 
 Kent, when a young counsel commenced his argument with 
 an historical sketch of the origin and growth of the Common 
 Law, "The Court must be presumed to know something," 
 and I do not venture to undertake to instruct you gentlemen 
 in subjects on which you are doubtless far better informed 
 than myself. But as the two forms of policies I have men- 
 tioned are entirely new, I have called your attention to what 
 seem to be their special features. 
 
 These are the tools which we have forged and prepared, 
 and which we expect you to use to the mutual benefit of the 
 Company, of the insured and their families, and of your- 
 selves. 
 
 And in speaking of the business to be done, it seems to me 
 proper to refer to the question recently mooted as to the 
 propriety of limiting the transactions of great corporations. 
 There is undoubtedly a growing feeling among the people 
 that some bounds must be set to the growth of corporate 
 capital in the near future, and some restrictions placed upon 
 the amount of their accumulations. One remedy has been 
 proposed by that distinguished actuary, Mr. D. P. Fackler, 
 who advises that the assets of any one company be limited 
 
 295
 
 SPEECH AT BOSTON, MASS. 
 
 by law to two hundred millions of dollars, and that any com- 
 pany which has accumulated that amount shall be prohibited 
 from writing any new policies. This, with all respect to the 
 high authority by whom it was promulgated, seems to me 
 crude and unsatisfactory if we consider the necessary conse- 
 quence of such action. The company which had reached 
 this point would cease to do new business, yet its assets would 
 continue in the nature of things to increase for years, then 
 through an enlarged death rate and the absence of new life 
 slowly to diminish, until the company were at length at 
 liberty to endeavor to replenish its emptying coffers. But 
 by that time, a species of dry-rot would have set in; the offi- 
 cers, accustomed only to the business of a trust company or 
 a bank, would have forgotten how to appeal to the insuring 
 public, the agency system would have fallen into " innocuous 
 desuetude," to quote a phrase not long ago famous, and 
 would have to be reconstructed at a large expense. On the 
 other hand, the proposal to limit the insurance which any one 
 company can write to, say one thousand millions, is open to 
 no reasonable objection. This was first proposed by Mr. 
 Beers while President of the New York Life Insurance Com- 
 pany, and the only criticism I have seen upon it is the caustic 
 remark that he in effect wanted somebody to hold him to 
 prevent him from going too far in his rivalry with other 
 companies. But this does not seem to me quite fair. What 
 he really wanted was that somebody should hold the other 
 fellow and prevent him from getting too far ahead. Such a 
 limitation upon the amount of business would at once put an 
 end to the present unseemly strife about agents, commissions, 
 
 296
 
 SPEECH AT BOSTON, MASS. 
 
 and rebates, which has been and is such an injury to the 
 business of life insurance generally and to the great competing 
 companies especially, for they, knowing that the end was 
 near at hand, would have no object in hastening its approach. 
 But the limitation of the amount of assets would make it to 
 the interest of each to attain that limit at the earliest possible 
 moment from premiums on new policies which would con- 
 tinue in the future, and so tend to strengthen to an unbearable 
 degree, for some years to come, the present competition. 
 This we at least are anxious to avoid, and will willingly accept 
 the proposed limitation of insurance in force to one thousand 
 millions of dollars. 
 
 Nor need you fear that such action would seriously restrict 
 your labors. To keep that amount in force upon our books, 
 to replace the deaths, the surrenders and the lapses, we should 
 have to write every year from sixty to seventy millions of 
 new business, to say nothing of the amount yet to be written 
 before we reach the limit. So you will still be required to 
 use every effort to increase your transactions and to make 
 this semi-centennial year memorable in the history of the 
 Company for the work you do. 
 
 And so, speaking for the President and in his name, I urge 
 you on to your work, and wish you God-speed. 
 
 The Alpine climber in the Bernese Oberland sees before 
 him a towering mountain summit which seems to kiss the 
 heavens and be enveloped in the clouds. Yet when after 
 long and painful effort he has reached his point, it is only to 
 find another peak rising still higher, and calling upon him for 
 fresh exertion. So your efforts can never cease. The fact 
 
 297
 
 SPEECH AT BOSTON, MASS. 
 
 that through your aid the Company wrote so many millions 
 of insurance last year means that this year we intend to 
 write much more, and the amount of achievement is only the 
 standard by which to measure the expected achievement of 
 the future. The law of life, the law of nature, requires con- 
 stant progress or regress. No human being and no human 
 institution can stand still, it must either advance or retreat, 
 and for us only advance is possible or conceivable. It re- 
 mains for you and for me, and especially for you, so to bear 
 our part in the great work which we have undertaken that 
 when our Centennial year shall dawn, what seems to 
 us the lusty manhood may appear by comparison to the then 
 representatives of the Grand Old Company only the feeble 
 childhood of the infant, puny indeed but of vast potentiality, 
 born fifty years ago. 
 
 298
 
 SPEECH AT SAVANNAH, GA. 
 
 MADE AT A DINNER GIVEN BY THE BOARD OF 
 TRADE OF SAVANNAH, FEBRUARY STH, 1893.
 
 "THE UNITED STATES" 
 
 I PRESUME it is expected, or if it is not expected, it is cer- 
 tainly most natural, that any stranger speaking in your city 
 on any subject should preface his remarks by the expression 
 of his admiration for the city itself. Its broad streets and 
 beautiful squares, its parks and drives, first impressed them- 
 selves most pleasantly upon me in a brief visit which I made 
 here about eleven years ago, and the charming recollections 
 of Savannah which I entertained have been greatly enhanced 
 by the observations now made, and by the courteous hos- 
 pitality which I have enjoyed. The growth of the city in the 
 interval to which I have referred is obviously very great, and 
 I congratulate you that the increase of business, of wealth 
 and resources of every character, is of corresponding mag- 
 nitude and argues so strongly for a prosperous future. I 
 have not thought it necessary to quote from gazetteers and 
 encyclopedias statistics with which you are doubtless 
 familiar, to prove to you how great you are; but the advance 
 that has been already made since De Soto wandered through 
 the mountains of Georgia, or since, in comparatively recent 
 times, Oglethorpe founded his little colony here, is the best 
 earnest of what may be expected in the future. I need 
 scarcely add how much I feel honored by the invitation to 
 
 301
 
 SPEECH AT SAVANNAH, GA. 
 
 attend this dinner, and how much gratification it affords me 
 to be present. 
 
 I am asked to respond to the toast of "The United States," 
 and feel somewhat appalled at the magnitude of the task 
 set before me, as one to which little justice can be done in the 
 brief time which can be given to an after-dinner speech. 
 Thank God that they are now in fact and in truth the United 
 States, and that the differences which once tended to sever 
 them have vanished forever. It is a somewhat curious 
 coincidence that some days ago, and before I had even heard 
 of this dinner, I was so struck by an article in the Atlanta 
 Constitution of December 23d, bearing upon this point, that 
 I cut it out for my scrap-book. It was in reference to the 
 rosy dreams entertained at intervals by our British cousins, 
 that the bonds issued by the late Confederacy will some day 
 be paid, and in the hope that it is not familiar to you I ven- 
 ture to quote a portion of it. "It is purely visionary, this 
 expectation that any of the Confederate bonds will ever be 
 redeemed. The federal government will not redeem them; 
 the Confederacy's ghost is not able to attend to business, and 
 the new South is forced by circumstances over which she has 
 no control to draw the line between sentiment and taxes. 
 The Confederates had to accept the fortune of war, and 
 their friends who aided and abetted them will have to do 
 likewise. 
 
 "The holders of Confederate bonds in England are rich 
 men with a speculative bias. If they desire to make money 
 out of the South they can easily do it in the right way. They 
 will find opportunities for investments here that will yield 
 
 302
 
 SPEECH AT SAVANNAH, GA. 
 
 them surer, larger, and quicker returns than they can reap 
 anywhere else. Let them withdraw their capital from the 
 South American countries, where it is always endangered by 
 revolutionary upheavals, and invest it in the rising industries 
 of the South. If they will do this they will bless their Con- 
 federate bonds and frame them for their heirs with the state- 
 ment that these souvenirs of a lost cause drew them to this 
 favored region where they multiplied their millions. There 
 is no money to be made out of the late Confederacy, but there 
 is plenty of it to be made out of the States that composed it 
 not by digging up ancient history, but by judicious 
 investments in what is destined to be the richest section of 
 the Union." 
 
 This view of the situation is unquestionably correct, and 
 it is hoped that the advice will be accepted in the kindly 
 spirit in which it is given. 
 
 I would that I had the silver tongue of your eloquent and 
 lamented Grady to do justice to this subject. New York 
 has not yet forgotten the thrill of enthusiasm aroused by the 
 message which he brought from the new South and is only too 
 glad to work heart and hand with her in developing the pros- 
 perity of the entire country. The old fable of JEsop has not 
 ceased to have force and meaning for later generations. Hearts, 
 hands, digestion, and brains must all work together in har- 
 mony to accomplish any result. 
 
 And the elements at our hands for use are incalculable. 
 Statisticians estimate that the agricultural products of this 
 country can feed one thousand millions of people. The 
 Comstock lode alone in 1877 produced over thirty-seven 
 
 303
 
 SPEECH AT SAVANNAH, GA. 
 
 millions of dollars: twelve little holes in the side of a moun- 
 tain yielded more wealth that year than three million eight 
 hundred and ninety thousand acres planted to corn. In 
 coal, in natural deposits of every character, we have the 
 advantage of the known world, and as our population grows, 
 as it will grow, sufficiently large to make proper use of them, 
 Mr. Gladstone's prophecy will be fulfilled when he said, 
 referring to this country, that "She will probably become 
 what we are now, the head servant in the great household of 
 the world, the employer of all the employed, because her 
 service will be the most and the ablest." It has been well 
 written, "If it is not unreasonable to believe that our agri- 
 cultural resources alone, when fully developed, are capable 
 of feeding one thousand million, then surely, with our agri- 
 cultural and mining and manufacturing industries all fully 
 developed, the United States can sustain and enrich! such a 
 population. Truly has Matthew Arnold said, 'America 
 holds the future! " 
 
 I had the fortune to pick up in England last summer a 
 book entitled, "Uncle Sam at Home," a very laudatory and 
 appreciative description of this country, written by a visitor 
 to us. He sees clearly our many natural advantages and 
 gives many reasons for our growth, and among them one 
 which is so consonant with our own views that I venture to 
 quote it: "Commerce is the simple exchange of commodities, 
 and so long as these get into the hands of the consumer it 
 matters little whether they come from Tartary, Timbuctoo, 
 or Maine. It is rather the quantity and quality of an article, 
 and not the place of its growth and manufacture, that most 
 
 304
 
 SPEECH AT SAVANNAH, GA. 
 
 concern the person using it ; and that American consumers 
 have quantity is shown by the fact that the internal commerce 
 of the United States divided among the population averages 
 seven tons per head, against six tons in Britain, although a 
 greater proportion of the latter is for export. The mer- 
 chandise sent from New York to San Francisco is, so far as 
 distance can make it, foreign, as foreign as that sent from 
 Liverpool to Philadelphia, and exchanges between Baltimore 
 and Chicago have as foreign a character as those between 
 London and Genoa. America presents, indeed, the greatest 
 example of free trade the world has ever seen. It is also the 
 most beneficent, for without this free trade there could be 
 no union." 
 
 Happily all this is now thoroughly understood in all sec- 
 tions of our great country, and the result of this understanding 
 is to grapple all together with hooks of steel. We shall have 
 this year at Chicago, in the Columbian Exposition, the 
 greatest exhibit which the world has ever seen, of art, science, 
 literature, mechanics, material development and prosperity 
 of every character, and yet we stand but upon the threshold 
 of what is possible to us. With the reform administration 
 now coming into office, and the expected relief from the 
 onerous taxation of the present tariff, we may confidently 
 anticipate a future which will not only far surpass all realized 
 actualities, but even the wildest dreams of the most vivid 
 imagination. 
 
 In speaking of the United States, I must be pardoned for 
 referring to what is to me the greatest institution developed 
 in them, The Mutual Life Insurance Company of New York, 
 
 305
 
 SPEECH AT SAVANNAH, GA. 
 
 to my connection with which I am indebted for the honor 
 and pleasure of being with you this evening. It is an insti- 
 tution now not only of the United States, but of the world, 
 and is a wonderful illustration of the possibilities of our day 
 and generation. Commencing business fifty years ago, upon 
 the purely mutual plan, without any capital, and without any 
 resources but the premiums paid in by its policy holders, 
 it is to-day of such magnitude that "should it expand no 
 further, and simply carry out the contracts it has already 
 made until the last dollar of its magnificent accumulation is 
 paid to the family of the last survivor, it must still continue 
 in the generation to come the vastest pecuniary trust which 
 the world has ever known. It will administer more of the 
 wealth of the world than the richest empire of the East ever 
 controlled, and will pay out year by year a larger sum than 
 the government of the United States collected for its entire 
 revenue within the memory of men now living." 
 
 I am not touting for policies on this occasion, and I assume 
 that every member of this Board has sufficient business cau- 
 tion to induce him to carry all the life insurance he can get; 
 so you need not be apprehensive that I shall urge you to 
 take out applications. What the people of Georgia think 
 of us is shown by the fact that they insured their lives in our 
 Company during the last year alone for over $4,000,000. 
 What we think of the people of Georgia is shown by the 
 other fact that when we closed our books on the 31st of De- 
 cember last we held among our investments securities of the 
 State, and of various municipal, railroad, and other corpora- 
 tions of Georgia for more than $4,000,000, and that we rely 
 
 306
 
 SPEECH AT SAVANNAH, GA. 
 
 upon the payment of every dollar of that indebtedness with 
 the same undoubting confidence which is entertained by 
 every honest holder of a policy in our Company. And we 
 take a pardonable pride in the fact that we were the first to 
 recognize the potentialities of the new South, and that we 
 subscribed for an entire issue of bonds of the State of Georgia 
 at a time when others hung back and felt no confidence in 
 her future. Nor are we discouraged by any temporary 
 embarrassment of a solvent corporation. In the nature of 
 things we wish for the prosperity of every community in 
 which we are interested, for in the fullest sense of the words 
 we are a mutual company their prosperity is our pros- 
 perity, and their loss is our loss. We must endeavor to 
 conserve rather than destroy, since to destroy values is to 
 injure ourselves. Further, from the nature of our business 
 we can never be compelled to realize upon our assets; we 
 can always give any needed time for recuperation; so our 
 will, our interest, and our ability combine to induce us to aid 
 the weak rather than to oppress them. 
 
 The old Mutual Life, now celebrating its jubilee, looking 
 backward proudly over fifty years of unexampled progress 
 and development, looking forward confidently to still greater 
 growth in the future, sends by me its greeting to the Board 
 of Trade of Savannah, and to the fair city here represented, 
 and wishes for both similar prosperity and success. 
 
 307
 
 ADDRESS TO BOSTON LIFE UNDER- 
 WRITERS 
 
 DELIVERED AT THE DINNER OF THE BOSTON LIFE 
 UNDERWRITERS' ASSOCIATION ON 
 
 FEBRUARY 14-TH, 1893. 
 Reprinted from the Standard, Boston, Mass., of February ISxn, 1893,
 
 ADDRESS TO BOSTON LIFE UNDER- 
 WRITERS 
 
 IT gives me great pleasure, gentlemen, to be with you this 
 evening, and to be with you as the representative of one of 
 the greatest institutions of the world. I presume it cannot 
 be necessary at this time and before this assembly to exploit 
 the history and the position of the Mutual Life. I presume 
 that most of you, in a business way, have had occasion to 
 study her methods and her figures, in order to prove to pos- 
 sible customers the vast superiority of the companies in which 
 you are respectively interested over the pioneer in the busi- 
 ness. But I should not attempt now to refute your arguments 
 or to question your assertions. To paraphrase the language 
 of Webster: "I shall enter upon no encomium upon the 
 Mutual Life. She needs none. There she stands. Behold 
 her and judge for yourselves. There is her history; the 
 world has it by heart. The past, at least, is secure." In 
 the fifty years which have elapsed since her organization she 
 has become the greatest financial organization in the world. 
 She has developed the principles of life insurance until what 
 was a misty chaos of doubt and uncertainty has become a 
 coherent system of scientific laws, and she feels now that 
 even her most strenuous and her most active rivals in business 
 
 311
 
 ADDRESS TO BOSTON LIFE UNDERWRITERS 
 
 sympathize with her and congratulate her as she celebrates 
 her jubilee. 
 
 Yet to have lived for fifty years is no great achievement, 
 either for a man or for a corporation, unless that life has 
 been of some benefit to humanity. A selfish, narrow exist- 
 ence, which serves only the individual and adds no appreciable 
 force to the great movement of the world, is a wasted existence, 
 valueless and unprofitable. Not such has been the career 
 of the Mutual Life and of the other life insurance companies 
 which in these latter days have added so much to the com- 
 forts of life, by enabling the husband and father under all 
 circumstances to provide for the future of those whom sooner 
 or later he must leave behind him to enter on the conflict 
 with the world in their own behalf. How many deathbeds 
 this phase of modern civilization has made easy, how many 
 widows it has helped to comfort, how many children it has 
 saved from poverty and vice, is known only to the Omniscient. 
 But every worker in the field can recall instances in his own 
 experience which satisfy him, at least, how much good has 
 been accomplished. 
 
 So I think that those of us who are engaged in disseminat- 
 ing and inculcating the principles of life insurance, and in 
 doing the work of the companies, whether with the army in 
 the field or with the executive and staff departments at the 
 Home Office, deserve well of our day and generation. From 
 time to time the old idea of a more primitive era crops up, 
 that all middle men or non-producers, of every class and 
 variety, are mere vampires of society and mere drags upon 
 its progress. We cannot all be hewers of wood and drawers 
 
 312
 
 ADDRESS TO BOSTON LIFE UNDERWRITERS 
 
 of water, and a slight acquaintance with the principles of 
 political economy teaches us that the savings of the farmer, 
 of the professional man, of the clerk, of every one who is not 
 engaged in business which needs the use of his own capital, 
 would be of little value if there were not others to save and 
 invest for him what can be saved for the exigencies of the 
 future from the necessities of the present. It is as unjust as it 
 is ungenerous to say that the energies and toils which have 
 been devoted to providing for the prudent and cautious a 
 competence for their old age, or for their dependents, are 
 wasted and unproductive. I think that all of us so engaged 
 and having so passed our lives, as we near the end and look 
 back, can do so with the well-earned satisfaction of those 
 who, in helping themselves, have done so much to help others. 
 It may not be out of place on this occasion to refer to a 
 discussion recently going on as to the propriety of limiting 
 the transactions of great corporations. There is un- 
 doubtedly a growing feeling in the minds of the people that 
 some limit should be placed upon the growth of corporate 
 capital, some limitation placed upon its increase. How far 
 that feeling may be justified by facts I do not care to discuss. 
 But it undoubtedly exists and it must be heeded. One 
 suggestion has been made by the eminent actuary, Mr. D. P. 
 Fackler, the president of the Actuarial Society of America, 
 who advises that the assets of any one company be limited 
 by law to the amount of two hundred millions of dollars, and 
 that any company which has accumulated that amount shall 
 be prohibited from doing any new business until they sink 
 below that sum. With all respect for the eminent authority 
 
 313
 
 ADDRESS TO BOSTON LIFE UNDERWRITERS 
 
 by which it is promulgated, I think that it is somewhat crude 
 and unsatisfactory, in view of the consequences of such 
 action. When the company had reached this point it would 
 be prohibited from doing new business. But in the nature 
 of things its assets would continue to grow for many years, 
 until finally, through the operation of an enlarged death rate 
 and the absence of new life, they would slowly sink, until the 
 company was again at liberty to endeavor to replenish its 
 emptying coffers. But by that time a species of dry rot 
 would have set in. The officers, used only to the business 
 of the bank and trust company, would have forgotten how 
 to appeal to the insuring public. The agency system would 
 have fallen to pieces and would have to be re-established at 
 large expense. 
 
 On the other hand, the proposition to limit the business in 
 force on the books of any one company to the sum of one 
 thousand billions of dollars, as proposed by a bill lately 
 introduced into the legislature of the State of Connecticut, 
 appears to be open to no reasonable objection. Such a 
 limitation would at once put an end to the present unseemly 
 strife about agents, commissions, and rebates, which has 
 been and which is such a serious injury to the business gen- 
 erally and to the great competing companies especially. For 
 each company, seeing the end in view, would have no special 
 object in hastening its approach. And this limitation would 
 still leave a large scope for the labors of the agents and for 
 work to be done. For to maintain that amount of insurance 
 in force, and to replace the losses from deaths and surrenders 
 and lapses, would require a new business of from sixty to 
 
 314
 
 ADDRESS TO BOSTON LIFE UNDERWRITERS 
 
 seventy millions every year. On the other hand, the limita- 
 tion upon the amount of assets would make it to the interest 
 of each company to attain that point at the earliest possible 
 moment from premiums on new policies, which would con- 
 tinue to swell the assets in the future, and so tend to strengthen 
 to an unbearable degree the competition now existing. This 
 we, at least, are anxious to avoid, and are willing to accept 
 the proposed limitation of business in force as one thousand 
 millions of dollars. 
 
 I need scarcely, and yet it is but courteous to say, how 
 greatly honored I have felt by the invitation to attend this 
 dinner, and how much pleasure it has given me to be present. 
 The rivalries and contests of business may sometimes tend 
 to embitter our feeling toward each other, and it is good on 
 such occasions as this to meet together on a common ground 
 and to recognize the great underlying fact that we are all, 
 each in our own way, working for a common object, that we 
 are all striving for the spread of the great modern system of 
 life insurance, and through it for the protection of the homes 
 and the families of our country. 
 
 315
 
 SPEECH AT WILMINGTON, DEL. 
 
 AT A DINNER OF THE AGENTS OF THE MUTUAL 
 
 LIFE INSURANCE COMPANY OF NEW YORK, 
 
 MAY 26, 1893
 
 SPEECH AT WILMINGTON, DEL. 
 
 IT gives me great pleasure, gentlemen, to have the honor 
 of speaking on such an occasion as this in this ancient city, 
 founded but thirty-one years after the settlement of Jamestown, 
 and about eighteen years after the landing of the Pilgrims on 
 Plymouth Rock. It goes back to what is for this country a 
 very respectable antiquity, and the old Swedish Church 
 which still stands in your midst must be accounted among our 
 very oldest buildings. Yet not for antiquity alone is this 
 city or this State to be honored and esteemed, but for patriotic 
 services rendered by its citizens during the War of the Revo- 
 lution, and for the industry and enterprise which charac- 
 terize this city to-day. 
 
 I appear as a representative of an institution very far 
 junior in years, and yet not unlike the city of Wilmington 
 in its marvelous and successful growth. We are now cele- 
 brating the Jubilee Year of our history, and in the fifty years 
 of our existence not only have we accumulated the enormous 
 amount of assets which we now hold, but we have been 
 pioneers in the great system of life insurance, which has 
 become one of the great institutions of our country and age. 
 When we commenced business, the principles upon which 
 it should be founded were but vaguely understood, the 
 
 319
 
 SPEECH AT WILMINGTON, DEL. 
 
 importance of a reserve was not duly estimated, the risks to be 
 assumed were largely matter of guess work, and the premiums 
 to be charged were equally uncertain. It is largely owing 
 to the studies and experiments of this company, that what 
 was then misty and indefinite has become definite and cer- 
 tain, and that the elements upon which the calculations of 
 to-day are based are as absolutely correct as are the founda- 
 tions of any other science. 
 
 I suppose it is hardly possible to make an after-dinner 
 speech without repeating a story, and I venture to tell you 
 one which I heard last winter, and which being entirely new 
 to me is, I hope, equally so to you. It was the experience of 
 a good brother living in one of the suburbs of Boston, who 
 had undertaken to entertain over Sunday a clergyman who 
 was visting the place to supply a vacant pulpit for the day. 
 As the narrator says, when the parson arrived late on Satur- 
 day night he seemed pretty glum and pretty quiet, and we 
 didn't say much to each other, and we didn't say much when 
 we met at breakfast next morning. As we walked to church 
 he was so sour and so glum and so quiet that I hadn't the 
 heart to speak; and then he got up and preached us a most 
 dismal and depressing sermon about man as a miserable 
 worm, crawling in the dust and expecting every moment to 
 encounter the just wrath of an offended Creator, and by the 
 time he got through, and we started home, I was about as 
 dismal and low down in my mind as I could be; and it oc- 
 curred to me that he looked like a prohibitionist, and I was 
 in the habit of drinking a bottle of champagne for my dinner 
 on every Sunday, and I thought perhaps I had better omit it 
 
 320
 
 SPEECH AT WILMINGTON, DEL. 
 
 
 
 on that day, and then I thought I wouldn't; and when we 
 came in to dinner, I said, " Parson, I have an old uncle up in 
 Vermont who every fall sends me down a barrel of cider, and 
 I have a bottle of it for my dinner every Sunday through the 
 winter, and I would like to have you try it." The parson 
 said he was pretty strict, but he was willing to take cider, 
 and he took a glass and said it was the best cider he ever 
 drank; and then he took another glass, and then he took a 
 third; and when we went back to church in the afternoon, 
 he held up his head and he pranced up the middle aisle and 
 up into the pulpit like a coupe horse; and he preached us a 
 rousing sermon on the text, "And God created man in his 
 own image." The two states of mind are widely different, and 
 I can imagine the first to have been that which was enter- 
 tained by the first president of the Mutual Life, when he 
 endeavored to discount the Company's note to raise funds to 
 pay the first loss by death, and was obliged by his bank to 
 obtain the personal indorsement of some of his trustees, 
 and the other that of the present able chief executive, one of 
 whose great anxieties is to invest in safe and profitable secur- 
 ities the millions of dollars constantly rolling in upon him 
 from every section of the civilized world. 
 
 But there are other gentlemen present brimming over with 
 eloquence which they are anxious to outpour upon this 
 audience, and I do not feel justified in taking more of your 
 time for the Mutual Life. Let me only add how thoroughly 
 I have enjoyed this my first visit to your State, and how 
 earnestly I hope that some similar occasion may soon call me 
 here again. 
 
 321
 
 LIFE INSURANCE IN ITS RELATION 
 TO LEGAL MEDICINE 
 
 A PAPER READ BEFORE THE WORLD'S CONGRESS 
 AUXILIARY OF THE WORLD'S COLUMBIAN EXPO- 
 SITION, DEPARTMENT OF COMMERCE AND 
 FINANCE LIFE INSURANCE CONGRESS 
 AT CHICAGO, ILL.. JUNE 21, 1893.
 
 LIFE INSURANCE IN ITS RELATION TO LEGAL 
 MEDICINE 
 
 IN treating the subject allotted to me, it seems not improper 
 as a preliminary to consider the relations which the two 
 professions whose united efforts produce the science of Legal 
 Medicine bear to Life Insurance. It is a truism to remark 
 that the whole fabric depends upon the fidelity, the learning, 
 and the skill of medical men. When a company is formed, 
 the lawyer may carefully draw its charter and its by-laws and 
 formulate the contracts upon which it is willing to enter; the 
 actuary may accurately estimate the risks to be encountered, 
 the rate of interest to be expected, and the loading necessary 
 to cover expenses; the executive may organize with skill and 
 economy the working force and the agents in the field, but 
 unless the medical examiner does his duty in barring out 
 undesirable risks and accepting only those who may reason- 
 ably be expected to live out their theoretical expectation of 
 life, the company is predestined to loss and ruin. He stands 
 as a sentinel at the gate to prevent the ingress of those who 
 would only destroy the structure, and upon his vigilance and 
 care depend its continued existence. Any lapse from the 
 strict performance of duty, any concealment of facts which 
 the company should know in order to properly estimate the 
 
 325
 
 LIFE INSURANCE IN ITS 
 
 risk to be assumed, any approval of doubtful lives from 
 motives of personal friendship or unwillingness to incur local 
 enmities, is to admit a traitor to make a breach in the growing 
 edifice which may easily result in its total downfall. I speak 
 from my long experience in the service of The Mutual Life 
 Insurance Company of New York, when I say that no lan- 
 guage can be too strong to express my sense of the faithful 
 and careful work by the medical examiner. Nor would I 
 belittle the importance of my own profession in this great 
 field of modern enterprise. Not only are the services of the 
 lawyer necessary in the first inception of the company to 
 prepare the charter and rules of government, the forms of 
 policies, the agreements with agents and all the contracts 
 with various individuals necessary to set the machine in 
 active operation, but in supervising its investments, in de- 
 claring in what securities its funds may, and in what they 
 may not, be invested, in examining the countless questions as 
 to insurable interest, the form of policy, the next of kin of a 
 deceased beneficiary, the rights of adverse claimants, the 
 validity of assignments, to say nothing of the payment of 
 legitimate claims to the persons entitled to the money, and in 
 examining claims which may be doubtful and even fraudu- 
 lent, his aid is indispensable. Not only in this branch of 
 business but in many others are the relations of the two pro- 
 fessions so closely connected that when Prof. John J. Elwell, 
 in 1859, published his "Medico-Legal Treatise on Malprac- 
 tice and Medical Evidence comprising the Elements of 
 Medical Jurisprudence," he wisely chose as the motto of his 
 work the remark of David Paul Brown, Esq., in his day a 
 
 326
 
 RELATION TO LEGAL MEDICINE 
 
 distinguished member of the Philadelphia Bar, "a doctor 
 who knows nothing of law and a lawyer who knows nothing 
 of medicine, are deficient in essential requisites of their pro- 
 fessions." But it would be difficult to find any form of com- 
 mercial transactions more directly and absolutely dependent 
 upon those two professions than the great business of Life 
 Insurance. 
 
 In the discussion of any subject it is well to begin with 
 clear definitions as the only preventative of misunderstanding 
 and error. I think I may safely assume that all in this 
 audience are sufficiently familiar with Life Insurance to 
 comprehend me when I say that I mean the system as prac- 
 tised and carried into effect by the great companies of this 
 country. The term Legal Medicine, or, as it has been also 
 called, Medical Jurisprudence or Forensic or State Medicine, 
 has been defined by many writers, but the most satisfactory 
 definition to my mind is that given by Dr. Alfred Swaine 
 Taylor, in his great work on the subject. He says it is "that 
 science which teaches the application of every branch of 
 medical knowledge to the purposes of the law; hence its 
 limits are, on the one hand, the requirements of the law, and 
 on the other the whole range of medicine. Anatomy, physi- 
 ology, medicine, surgery, chemistry, physics, and botany 
 lend their aid as necessity arises; and in some cases all these 
 branches of science are required to enable a court of law to 
 arrive at a proper conclusion on a contested question affecting 
 life or property." 
 
 Assuming that the medical examiner has performed his 
 duty fully in the first instance, that the application is satis- 
 
 327
 
 LIFE INSURANCE IN ITS 
 
 factory on its face, and that a policy has been issued, the 
 questions which are likely to arise in which legal medicine 
 must be called in to assist the company may be broadly 
 divided into three groups as follows: 
 
 1st. Questions arising under misrepresentations or false 
 statements made in the original application. 
 
 2d. Subsequent violation of his obligation by the insured, 
 such as gross intemperance, or transgression of the restric- 
 tions imposed on residence or occupation. 
 
 3d. Death in violation of the contract as by suicide, or a 
 fraudulent attempt to prove the death of the insured while 
 still living. 
 
 Misrepresentations or false statements in the original 
 application when important refer either to the physical con- 
 dition or to the habits of the applicant. If the medical man 
 who is called as a witness on the trial has been the attend- 
 ing physician of the insured, he is in many States barred from 
 testifying as to the disease or diseases of his patient by the 
 statutes forbidding a physician to testify concerning any 
 information which he may have acquired from any patient 
 while attending him in a professional character, and which 
 information was necessary to enable him to prescribe for 
 such patient, or do any act for him as a surgeon. In the 
 case of Gartside vs. Insurance Company, reported in 76 Mis- 
 souri, page 446, an attempt was made to draw the distinction 
 that the statute forbids the physician to disclose only such 
 information as has been communicated to him orally by his 
 patient. But the Court very properly said: "It is doubtless 
 true that a physician learns more of the condition of a patient 
 
 328
 
 RELATION TO LEGAL MEDICINE 
 
 from his own diagnosis of the case than from what is com- 
 municated by the words of the patient; and to say that 
 while the mouth of a physician is sealed as to the informa- 
 tion acquired orally from his patient, it is opened wide as 
 to information acquired from a source on which he must 
 rely, viz., his own diagnosis of the case, would be to 
 restrict the operation of the statute to narrower limits than 
 was ever intended by the legislature, and virtually to over- 
 throw it." 
 
 I have cited this case in preference to many others on the 
 same subject, because the reporter has attached to it a foot- 
 note giving the names of the States and Territories (twenty in 
 all) which have enacted similar statutes, and the date of each, 
 from that adopted in New York in 1828, to that in the Terri- 
 tory of Washington in 1882. 
 
 Yet the attending physician may often give testimony of 
 the utmost importance, notwithstanding this limitation. 
 Among the questions upon truthful answers to which depends 
 the validity of a policy is usually one, "When did you last 
 consult a physician ?" or, "When were you last attended by a 
 physician ?" and if the evidence of the medical attendant 
 shows that this was falsely answered, his testimony would be 
 fatal to the plaintiff, since the fact of such attendance would 
 be the point at issue, and the disease for which the attendance 
 was required would be immaterial. 
 
 Other misrepresentations or false statements in the applica- 
 tion usually refer to some personal illness or injury. 
 
 What is a serious illness or injury must depend upon the 
 circumstances of each particular case. The insurance com- 
 
 329
 
 LIFE INSURANCE IN ITS 
 
 panics at the present day are disposed to deal liberally with 
 their policy-holders, to take no advantage of technical points, 
 and to contest a claim only when thoroughly satisfied that 
 their duty to their honest constituents compels them to do so. 
 This point was well considered by Mr. Justice Earl in the 
 case of Cushman vs. Insurance Co, (70 New York, p. 72), 
 when the applicant had answered in the negative the question 
 whether he had ever had congestion of the liver. The learned 
 Judge says, "In construing contracts words must have the 
 sense in which the parties used them, and to understand them 
 as the parties understood them, the nature of the contract, 
 the objects to be attained and all the circumstances must be 
 considered. By the questions inserted in the application 
 the defendant was seeking for information bearing upon the 
 risk which it was to take the probable duration of the life 
 to be insured. It was not seeking for information as to 
 merely temporary disorders, or functioned disturbances, 
 having no bearing upon the general health or continuance 
 of life. Colds are generally accompanied with more or less 
 congestion of the lungs, and in such a case there is no disease 
 of the lungs which an applicant for insurance would be bound 
 to state. So most, if not all, persons will have at times con- 
 gestion of the liver, causing slight functional derangements 
 and temporary illness, and yet in the contemplation of 
 parties entering into contracts of Life Insurance, and 
 having regard to the general health and continuance of life, 
 it may be safely said that in such cases there is no disease 
 of the liver." 
 
 "In construing a policy of Life Insurance it must be gen- 
 330
 
 RELATION TO LEGAL MEDICINE 
 
 erally true that before any temporary ailment can be called 
 a disease it must be such as to indicate a vice in the constitu- 
 tion, or to be so serious as to have some bearing upon the 
 general health and the continuance of the life, or such as 
 according to common understanding would be called a 
 disease; and such has been the opinion of the best writers 
 and judges. Hence, whether the insured had congestion of 
 the liver, and whether the congestion was of such a character 
 as to constitute a disease of the liver, within the meaning of 
 the policy, were both questions properly submitted to the 
 jury, and their determination thereon is conclusive." 
 
 So in regard to the habits of the insured, as to the use of 
 alcohol, morphine, tobacco, or any other drug or stimulant. 
 It is not sufficient to prove an isolated case of indulgence or 
 excess, but a customary-, habitual use. In the case of Foley 
 vs. Insurance Company (105 United States, p. 350), this 
 distinction is ably drawn by Mr. Justice Field. He says: 
 "The question was as to the habits of the insured. His 
 occasional use of intoxicating liquors did not render him a 
 man of intemperate habits, nor would an exceptional case of 
 excess justify the application of this character to him. 
 
 "When we speak of the habits of a person we refer to his 
 customary conduct, to pursue which he has acquired a ten- 
 dency from frequent repetitions of the same acts. It would 
 be incorrect to say that a man has a habit of anything from 
 a single act. A habit of early rising, for example, could not 
 be affirmed of one because he was seen on the streets in the 
 morning before the sun had risen: nor could intemperate 
 habits be imputed to him because his appearance and actions 
 
 331
 
 LIFE INSURANCE IN ITS 
 
 on that occasion might indicate a night of excessive indulgence. 
 The Court did not, therefore, err in instructing the jury that 
 if the habits of the insured, 'in the usual, ordinary, and every- 
 day routine of his life were temperate,' the representations 
 made are not untrue within the meaning of the policy, al- 
 though he may have had an attack of delirium tremens from 
 an exceptional over-indulgence. It could not have been 
 contemplated from the language used in the policy that it 
 should become void for an occasional excess by the insured, 
 but only when such excess had by frequent repetitions be- 
 come a habit." 
 
 In the second group I have mentioned, medical testimony 
 would become necessary only to prove violation of the promise 
 of the insured not to become so far intemperate as to impair 
 his health, some policies stipulating that they shall become 
 void if this contingency happen, and would be subject to the 
 limitations already recited. I know of but two cases on this 
 point, one of Insurance Company vs. Insurance Company in 
 the U. S. Circuit Court of Connecticut (17 Blatchford, p. 142), 
 where a suit was brought in equity to cancel the policy on 
 this ground, and the Court held that the desired relief should 
 be granted, because of its expediency and in order to be just 
 to the other policy-holders; that the foundation of insurance 
 is the law of average, and if the insured are permitted know- 
 ingly to indulge in practises that notoriously invite disease, 
 the investment of other insured persons is jeopardized. But 
 in the case of Insurance Company vs. Bear (26 Federal Re- 
 porter, p. 582), upon a precisely similar state of facts, the 
 Court refused the prayer of the Company holding that a Court 
 
 332
 
 RELATION TO LEGAL MEDICINE 
 
 of Equity would not set aside a policy of life insurance during 
 the life of the assured on the ground that it has been rendered 
 void by something not appearing on the face of the policy, 
 and which could be proved by extrinsic evidence; that if 
 such power existed, it was not a case for the ordinary exer- 
 cise of the discretionary power of the Court of Equity to order 
 a cancellation, because the insured, who was then intemperate, 
 might reform and live out the ordinary expectation of life. 
 
 The two cases offer another illustration of the great truth 
 that lawyers, as well as doctors, often differ in opinion. 
 
 But important as are the functions of the medical witness 
 in these two groups of cases, it is in the third that his services 
 become absolutely indispensable. Many of the companies 
 have now, and for many years to come will have, policies in 
 force prohibiting suicide either absolutely or within a limited 
 period after date, under penalty of forfeiture of the insurance. 
 Indeed, I am not at all sure that public policy would not, or 
 at least should not, prevent a man from procuring a pecuniar}* 
 benefit to his estate by his deliberate self-destruction. This 
 was intimated by Judge Rapallo in the case of Van Zandt vs. 
 Insurance Company (55 New York, 139), when he says, 
 "The policy creates in the insured a pecuniary interest in 
 his own death. To a man laboring under the pressure of 
 poverty, and the urgent wants of a dependent family, or of 
 inability to discharge sacred pecuniary obligations, or other 
 similar causes, the policy offers a temptation to self-destruc- 
 tion. To protect the insurers against the increase of risk 
 arising out of this temptation is the object for which the 
 condition in question (that the policy should \w void if the 
 
 333
 
 LIFE INSURANCE IN ITS 
 
 insured should die by his own hand) was inserted. The 
 condition, therefore, is to be so construed as to exclude only 
 those cases in which these motives could not have operated 
 such as accident or delirium. So far as considerations of 
 public policy have any place in determining such a question, 
 they are undoubtedly in favor of confining the exceptions 
 to the condition to cases in which the self-destruction is clearly 
 shown to have been accidental or involuntary." 
 
 It is well settled that the beneficiary under a policy cannot 
 obtain the money by killing the insured see Armstrong 
 vs. Insurance Company, 117 U. S., p. 591, in which the facts 
 were as follows: A creditor of Armstrong, one Hunter, per- 
 suaded him to insure his life and assign the policy as security 
 for the debt, and some six weeks after murdered him, for 
 which he was convicted and hung. Before his execution, 
 he assigned the policy to the widow of his victim, who of 
 course, under the familiar rule of law, took it subject to all 
 equities existing between her assignor and the company. 
 The Court per Mr. Justice Field held that " independently 
 of any proofs of the motives of Hunter in obtaining the policy, 
 and even assuming that they were just and proper, he for- 
 feited all rights under it when, to secure its immediate pay- 
 ment, he murdered the assured. It would be a reproach to 
 the jurisprudence of the country if one could recover insur- 
 ance money payable on the death of a party whose life he 
 had feloniously taken. As well might he recover insurance 
 money upon a building that he had wilfully fired." 
 
 The same views of public policy control where the death 
 follows as the result of a crime, even without any express 
 
 334
 
 RELATION TO LEGAL MEDICINE 
 
 stipulation to that effect. This principle was first laid down 
 in a suit on a policy upon the life of the celebrated forger 
 Fauntleroy, who was hung for the commission of felonies. 
 The policy was sustained in the Rolls Court, but upon appeal 
 to the House of Lords the decree was reversed upon the 
 advice of Lord Chief Justice Lyndhurst. He thought that 
 an insurance expressly against the event would be void, and 
 therefore effect could not be given to a general policy upon 
 an event which, if expressed in terms, would have rendered 
 the policy, as far as the condition went, at least, absolutely 
 void. A stipulation to uphold a policy in any such case 
 would be contrary to sound policy, as taking away one of the 
 restraints operating on the minds of men against the com- 
 mission of crimes by the interest which they have in the 
 welfare and prosperity of their connections. (Amicable So- 
 ciety vs. Bottand, 4 Bligh, N. S., 194.) 
 
 This case was followed in Hatch vs. Insurance Co. (120 
 Mass., p. 550), where a married woman, upon whose life a 
 policy was issued, voluntarily submitted to an operation for 
 abortion without any justifiable medical reason, from which 
 death resulted. Judge Endicott, speaking for the Court, says: 
 "It is therefore established that this voluntary act on her 
 part, condemned alike by the laws of nature and by the laws 
 of all civilized states, and known by her to be dangerous to 
 life, did actually result in death. And the question is raised 
 whether for a death so caused the defendant is liable. 
 
 " We are of opinion that no recovery can be had in this 
 case, because the act on the part of the assured causing death 
 was of such a character that public policy would preclude the 
 
 335
 
 LIFE INSURANCE IN ITS 
 
 defendant from insuring her against its consequences: for we 
 can have no question that a contract to insure a woman 
 against the risk of her dying under and in consequence of an 
 illegal operation for abortion would be contrary to public 
 policy, and could not be enforced in the courts of this Com- 
 monwealth." 
 
 In my opinion, these cases establish definitely the principle 
 that no one can profit by his own wrong, and I think them 
 fairly applicable when the estate of the insured is to receive 
 the benefit of his deliberate self-destruction. 
 
 It is well settled that there is no presumption of suicide, 
 and where a dead body is found under circumstances con- 
 sistent with either an accidental injury or a suicidal act, in 
 the absence of proof, " the presumption is against the latter. 
 It is contrary to the general conduct of mankind; it shows 
 gross moral turpitude in a sane person." (Insurance Com- 
 pany vs. McConkey, 127 United States, p. 661.) So when 
 a medical man is called to view a corpse he should note all 
 the attendant circumstances and surroundings with the 
 minute attention to details prescribed by the standard writers 
 on Medical Jurisprudence, as the elucidation of the truth 
 often depends upon matters which appear at the time to be 
 of the most trivial importance. A very striking story on this 
 point was told by Lord Eldon, late in life, and is thus recorded 
 in his biography: "I have heard some very extraordinary 
 cases of murder tried. I remember in one where I was 
 counsel, for a long time the evidence did not appear to touch 
 the prisoner at all, and he looked about him with the most 
 perfect unconcern, seeming to think himself quite safe. At 
 
 336
 
 RELATION TO LEGAL MEDICINE 
 
 last the surgeon was called, who stated that the deceased had 
 been killed by a shot a gun shot in the head, and he 
 produced the matted hair and stuff cut from and taken out 
 of the wound. It was all hardened with blood. A basin of 
 warm water was brought into court, and as the blood was 
 gradually softened, a piece of printed paper appeared the 
 wadding of the gun which proved to be half of a ballad. 
 The other half had been found in the man's pocket when he 
 was taken. He was hanged." 
 
 In this case the evidence was direct and conclusive, but 
 often, and it may be said usually, the proof of a suicide or 
 murder is largely inferential and circumstantial. \Ve have 
 recently had in our State a case of this character, which has 
 attracted much attention, and aroused great interest, that of 
 Carlyle W. Harris, tried and convicted for the murder of his 
 wife by poison. I would advise any one who still entertains 
 a lingering doubt of the justice of that conviction to read the 
 masterly opinion of Judge Gray in the Court of Appeals (136 
 New York, p. 423), in which the facts are summed up with a 
 directness and force which amount to a demonstration. 
 The Judge very truly observes that "the mind may be reluc- 
 tant to conclude upon the issue of guilt in criminal cases 
 upon evidence which is not direct, and yet if the facts brought 
 out, when taken together, all point in the one direction of 
 guilt and to the exclusion of any other hypothesis, there is no 
 substantial reason for that reluctance." 
 
 While cases may and do occur in which the fact of suicide 
 may be proved by direct evidence, such as the letters or 
 declarations of the deceased, or the testimony of eye-witnesses, 
 
 337
 
 LIFE INSURANCE IN ITS 
 
 as a rule it is necessary to invoke the aid of the medical expert 
 and depend upon his deductions from the observations he 
 has made. 
 
 Most important is his assistance in the numerous attempts 
 which have been made to defend companies by substituting 
 a corpse represented to be that of the insured. Here we come 
 to the domain of personal identification, one of the most 
 perplexing subjects which has ever bothered and confused 
 judges as well as juries. From the days of Martin Guerre 
 down to those of the Tichborne claimant, men have been able 
 to conceal or simulate identity, and to produce evidence in 
 abundance perfectly honest and yet directly contradictory. 
 The reason is not far to seek and is so happily stated by a 
 writer in the London Spectator, cited in the Third Edition of 
 Wharton & Stille's Medical Jurisprudence (Vol. 2, Sect. 
 1240), that I allow myself the pleasure of quoting freely from 
 his article. 
 
 " We are all apt to think that we observe faces very carefully; 
 but it is quite certain, more certain than almost any assertion 
 of the same kind, that we do not so observe them. We are 
 also apt to believe that the difference in faces is very great, 
 is radical, and not dependent upon accidental features, yet 
 it is almost certain that no such difference exists; that men 
 are in reality as nearly alike as animals appear to be. Take, 
 for instance, in evidence of both of these propositions of 
 the carelessness of our usual glance, and of the similarity 
 among men a fact which a number of our readers can test 
 for themselves. No man, on landing at an Indian or Chinese 
 port for the first time, can for a few days tell one man from 
 
 338
 
 RELATION TO LEGAL MEDICINE 
 
 another. The natives are more decidedly unlike than so 
 many Englishmen, because, in addition to every other dis- 
 tinction, their complexions cover a wider range of color; but, 
 being similarly dressed, they seem for a few days as much 
 alike as so many sheep, who are all alike to a Londoner, but 
 among whom a shepherd or a dog makes no mistake. Now, 
 if men were much unlike, more unlike than the sheep are, 
 no such curious haziness would be possible: nor would it be 
 if the observer were unconsciously in the habit of studying 
 the form and character of each face. Death, as a rule, 
 while it leaves much unchanged, absolutely destroys every 
 distinction based either upon color or upon fatness, and 
 modifies thinness in the most unexpected way, revealing 
 unsuspected depths about the brow and mouth, while leaving 
 the cheek untouched. No child is recognizable in death by 
 mere acquaintance, because in children's faces the prominent 
 points are color and contour. Expression changes quickly 
 may change permanently. We all say, every now and 
 then, 'his face is quite changed,' while nothing is changed 
 except perhaps the expression and the color. Madness, 
 extreme anger, drink, will all change a well-known face till 
 it is almost unrecognizable; and though no doubt it requires 
 a combination of circumstances to deceive a wife as to her 
 husband's identity, still there is one expression she has never 
 seen, and that is death, of all the influences the one which 
 may most modify expression, both by altering the set of the 
 features and changing the emotional medium through which 
 we regard them." 
 
 It follows that while the identification of the living is some- 
 
 339
 
 LIFE INSURANCE IN ITS 
 
 times difficult, this difficulty is enormously increased after 
 death, especially when, as usually occurs when an attempt 
 at substitution is made, the corpse is partially burned or other- 
 wise mutilated. It then becomes important to seek for some 
 personal marks or defects, and these are frequently found in 
 the teeth. It is well remarked by Mr. George E. Harris, 
 in his able treatise on the Law of Identification, that 
 "we often complain of decayed teeth and resort to the 
 dentist. But it seems, from observation and scientific tests, 
 that after death, when the human remains have mingled 
 with the dust, or been consumed by fire, the teeth remain 
 and may be identified, and the dentist may recognize and 
 identify his work on the teeth, performed in the lifetime of 
 the subject." 
 
 This matter became of great importance to the Mutual 
 Life Insurance Company in the case of Winfield Scott 
 Goss, a young mechanic, who, after insuring his life for 
 twenty-five thousand (25,000) dollars, in that and other 
 companies, hired a small shanty in the outskirts of Balti- 
 more, for the ostensible purpose of using it as a laboratory 
 for some experiments in the effort to make an artificial 
 india-rubber. Soon after, the building took fire, was totally 
 consumed, and amid the ruins were found the charred 
 remains of a human being, which were identified by Goss's 
 wife and his brother-in-law, one Udderzook, as the body 
 of the insured. The circumstances were suspicious in 
 view of the large amount of insurance compared to the 
 pecuniary resources of the alleged decedent, but the corpse 
 was so far consumed that the only hope for the com- 
 
 340
 
 RELATION TO LEGAL MEDICINE 
 
 ponies lay in the examination of the teeth. These were 
 found to be so defective that the articulation of the deceased 
 must have been affected, while Goss was noted for a 
 set of fine, regular teeth, and interviews with more than 
 fifty dentists in Baltimore, Philadelphia, and Washington 
 failed to show that he had ever had any work done upon them. 
 The jury, of course, found a verdict for the plaintiff, but the 
 murder of Goss soon after by Udderzook brought the whole 
 plot to light, and proved the correctness of the position taken 
 by the companies. 
 
 In a quite recent case, the resident of a Western State ob- 
 tained a large amount of insurance on his life, and soon after 
 his residence (a small farmhouse) was burned down one 
 night, and he was alleged to have perished in the flames. In 
 this case also the corpse found after the fire was mostly con- 
 sumed, but the ingenious speculator was, unfortunately for 
 himself, not conversant with the principles of Legal Medi- 
 cine. He was not aware that the human skeleton changes 
 with years, showing indelible marks of the flight of time, and 
 while he was himself but thirty-three (33) years of age, he 
 had procured the dead body of one whom the medical exam- 
 iners pronounced to have lived for at least sixty years. The 
 arrest of the insured, still in the flesh, followed soon after, and 
 again vindicated the claim of Legal Medicine to be of service 
 to Life Insurance. 
 
 In the short time which can be given for a paper on any 
 subject on such an occasion as the present, it is impossible 
 to do more than offer the briefest outlines of one so important 
 as that which I have considered. But I trust I have said 
 
 341
 
 LIFE INS. IN RELATION TO LEGAL MEDICINE 
 
 sufficient to show how vital to the interests of life insurance 
 is a careful study of the science of Medical Jurisprudence 
 by both the physicians and the lawyers interested in the 
 growth and development of that wonderful product of modern 
 civilization. 
 
 342
 
 SPEECH AT ST. NICHOLAS CLUB 
 DINNER 
 
 AT A DINNER GIVEN BY THE ST. NICHOLAS CLUB ON 
 
 OCTOBER 218T, 1898, COMPLIMENTARY TO 
 
 CHAPLAIN GEORGE R. VAN DE WATER 
 
 r
 
 SPEECH AT ST. NICHOLAS CLUB 
 DINNER 
 
 Mr. President and Fellow Members of the St. Nicholas Club: 
 
 IT is with feelings of gratification too deep for expression 
 that I enter upon the discharge of the duty committed to 
 me in presenting this token of a sincere respect and affection 
 to one whom we all honor and love. 
 
 Whatever may be our views as to the merits or justness of 
 the late war with Spain, whatever we may think of the pro- 
 priety of keeping for ourselves the far distant Philippines, 
 or the nearer islands of Cuba and Porto Rico, whether we 
 approve or disapprove the details of the campaigns, Demo- 
 crat or Republican, Expansionist or Contractionist, Tros 
 Tyriusve we unite in admiration for the American soldier. 
 When the guns which thundered against Fort Sumter awoke 
 the nation from a delusive dream of peace, the dandies of 
 Fifth Avenue and of Beacon Street were among the first 
 to rush to the defense of the insulted flag, as the dandies 
 of Hyde Park but a few years before had followed their flag to 
 the walls of Sebastopol, and led the assaults on the Malakoff 
 and the Redan. So, when the emergency arose, the so-called 
 dudes of to-day showed the same manly courage and action 
 as did their predecessors, and the same high spirit was 
 
 345
 
 SPEECH AT ST. NICHOLAS CLUB DINNER 
 
 manifested by men of every class and calling. Nor is it the 
 least valuable result of this war that men from every section, 
 North and South, East and West, dude and cowboy, rallied 
 around one flag in the service of one country. Nor have we 
 less regard for those who, sharing the dangers and privations 
 of the others, were men of peace, not war, whose duty it was 
 to comfort the sick and wounded, to bury the dead, to console 
 the survivors a service, it may be said, more trying and 
 exhausting and requiring a higher courage for while others 
 on the fighting line were absorbed in the active discharge of 
 their work, and the intense demand upon their physical 
 strength left no leisure for reflection, these had no such dis- 
 traction to blind their eyes to the horrors which they wit- 
 nessed and the dangers to which they were exposed, and of 
 these one of the bravest, calmest, and most efficient is our 
 honored guest to-night. 
 
 I will not detain you by reciting the deeds of the Seventy- 
 First Regiment from the time it left New York until the poor 
 and feeble remnant returned. They are part of the history 
 of our country, familiar to all, and what details of interest 
 there may be should properly come from the lips of the Regi- 
 mental Chaplain. I am concerned only to express to him 
 the pride that his fellow-members of the St. Nicholas Club 
 feel that one of their number should have borne himself so 
 nobly amid such sufferings and dangers as he has experienced, 
 and the sincere affection, which they entertain for him 
 widened and deepened as it has been by this episode in his 
 life. As a token of that pride and affection, on their behalf 
 I present to him this loving cup. 
 
 346
 
 SPEECH AT ST. NICHOLAS CLUB DINNER 
 
 And I do so, Sir, in the hope and firm belief that 
 it will ever hereafter serve not only to recall the kindly 
 feelings of its donors, but also the memory of gallant 
 deeds well done, and arduous and distressing duty faithfully 
 performed. 
 
 r 
 
 347
 
 SPEECH AT DINNER OF ALUMNI 
 OF TRINITY COLLEGE 
 
 AT THE DINNER OF THE ALUMNI OF TRINITY COL- 
 LEGE AT HARTFORD, CONN., ON JUNE 27-TH, 1906 
 AFTER RECEIVING THE DEGREE OF LL.D. 
 AT THE COMMENCEMENT THAT 
 MORNING
 
 SPEECH AT DINNER OF ALUMNI 
 OF TRINITY COLLEGE 
 
 Mr. President and Gentlemen: 
 
 IT gives me great pleasure to be called upon to respond to 
 this toast, as I am thereby given the opportunity to say 
 what I wish. My experience at public dinners, both as speaker 
 and listener, has taught me that the statement of a toast, like the 
 announcement of a text, serves simply to present the speaker 
 to the audience. When I was first advised of the honor which 
 the Trustees of my dear Alma Mater had voted to confer 
 upon me, I was somewhat puzzled to know what I had done, 
 to deserve it; but in justification for their conduct I will ven- 
 ture to relate one incident in my long experience at the Bar. 
 
 Shortly before I left the service of the Mutual Life Insur- 
 ance Company of New York, some twelve years ago, the 
 State of Pennsylvania passed an act providing that no re- 
 striction or condition contained in an application for a policy 
 of life insurance should be binding upon the insured, unless 
 a copy of the application were delivered to him with his 
 policy. Through some carelessness, the Company was not 
 advised of the passage of this act until some few days after it 
 had gone into effect, and in the interval several policies were 
 issued, among which was one to a man in Philadelphia, who, 
 a few days after the receipt of his policy and payment of the 
 
 351
 
 SPEECH AT DINNER OF ALUMNI 
 
 first premium, committed suicide. Investigation showed that 
 his affairs were hopelessly involved, that he could not by any 
 possibility have carried the policy, and it seemed to be clearly 
 an attempt on his part to swindle the Company out of the 
 moneys. But the restriction against suicide was contained 
 in the application, of which no copy had been furnished him, 
 and therefore under the act mentioned that defense was not 
 available. In thinking it over I concluded that what is called 
 the rule in Fauntleroy's case would apply, - s - Fauntleroy 
 having been a banker in London of considerable prominence, 
 who committed a forgery and was hung for it about one 
 hundred years ago. The Company in which his life was 
 insured refused payment on the ground that death at the 
 hands of justice as a punishment for crime was not a risk 
 which they had assumed, and the Court sustained their con- 
 tention. I advised the Company, therefore, to refuse pay- 
 ment of the policy and defend the suit on the ground that it 
 did not insure against suicide, and I am happy to say that 
 the Supreme Court of the United States, to which the case 
 finally went, concurred in my views, and that is now the law 
 of this land. 
 
 Another aspect of the matter appeals to me very strongly. 
 Many who hear me doubtless remember the Reverend Dr. 
 Washburn, for many years Rector of St. John's Church in 
 this city, and subsequently Rector of Calvary Church in New 
 York, where he died. The Doctor was a profound scholar 
 and deep thinker, an earnest and scholastic preacher, but 
 was so absorbed in his pursuits that he had little time for the 
 social side of life. As long ago as when I was in college, the 
 
 352
 
 OF TRINITY COLLEGE 
 
 story was told that one of his vestrymen took occasion to 
 remonstrate with him on his indifference to those amenities, 
 telling him that he would very largely increase his strength 
 and his influence by paying some attention to them. The 
 Doctor replied that the congregation must take their choice, 
 as he could do one of two things: he could write sermons, or 
 he could make parochial calls, but he hadn't time for both. 
 He maintained the same course of life after his removal to 
 New York, and saw very little of his fellow-men, but his 
 church was crowded at every service. His funeral was 
 attended by the Bishop and all the prominent clergymen of 
 the city, as well as by many others, and after the service a 
 meeting of the clergy was held in the vestry-room of the 
 church, to take appropriate action on the death of their 
 departed brother. One after another of the clergy rose to 
 express in the strongest terms his high appreciation and 
 deep affection for their dead friend. During all these pro- 
 ceedings, as Bishop Potter tells the story, a pale-faced, tearful 
 little woman stood in the doorway, supporting herself by the 
 jamb, and listening with intense eagerness to even' word 
 that was spoken, until finally, unable to contain herself any 
 longer, she burst out with the bitter cry, "Oh, if you all 
 loved Edward so, why didn't you tell him it while he was 
 alive?" 
 
 This reproach cannot apply to you, and from the bottom 
 of my heart I thank you, Mr. President, and through you the 
 gentlemen composing the Board of Trustees, that you have 
 conferred upon me this token of your regard and esteem, 
 while I am still alive to receive it and to enjoy it. 
 
 353