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 UNIVERSITY 
 
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 THE 
 
 LEGAL REMEDY 
 
 FOR 
 
 PLUTOCRACY. 
 
 Address by Edgar Howard Farrar, A.M., of New Orleans, La., 
 
 Before the Society of Alumni of the University of 
 
 Virginia, on June 17th, 1902. 
 
 Reprinted from the University Bulletin.
 
 F
 
 Q 
 
 THE LEGAL REMEDY FOR PLUTOCRACY, 
 
 Address by Edgar Howard Farrar, A. M., of New- 
 Orleans, La., Before the Society of Alumni 
 of the University of Virginia, on 
 June 17th, 1902. 
 
 Reprinted from the "University Bulletin." 
 
 Mr. Chairman, Fellow Alumni of the University of Virginia, 
 Ladies and Gentlemen: 
 
 The generation of men to which I belong, who, full of 
 hope and strength, left the precincts of this university 
 thirty-one years ago, to enter upon the active duties of 
 life, found themselves face to face with social and political 
 questions that touched the foundations of the republic. 
 
 Those of us of Southern birth and bringing up (and then, 
 as now, those who were not such were a negligible quantity) 
 had seen in the impressionable period of youth the tide of 
 civil war pour over our land, leaving behind a track of pil- 
 laged cities, devastated farms and denuded homesteads. 
 
 From out of this wreckage, with loving and self-denying 
 hands, were garnered the almost tragic dollars that placed 
 and kept us in the bosom of this our venerable and cher- 
 ished mother. At the thought of the self-sacrificing sifts 
 of those tender hands, now mostly folded forever, there 
 wells up to each of our lips from each of our hearts a 
 choking stream of prayers and blessings for a race of men 
 and women, our fathers and mothers, scions of the Old 
 South, who, though brought up in the arts of peace, yet
 
 became in war antagonists that could be crushed by num- 
 bers, but not overcome, who, though nurtured in ease and 
 affluence, yet accepted poverty with grace and contentment, 
 who taught themselves and their children to rank princi- 
 ple above lucre, and whose ideal in public and in private 
 station, in life, and in death, was honor. Peace to their 
 ashes and unfading laurels to their memories forever. 
 
 The problems that came to them in their declining years, 
 and to you in the vigor of young manhood, were to build 
 up a wasted country, to revivify a perished commerce, to 
 reorganize upon a new* basis a destroyed society, to adjust 
 in its proper place a once servile and inferior race, who, by 
 the chicanery of politicians and the hypocritical snivel of 
 sham philanthropists, had been placed with their heels 
 upon your necks, to recover those rights of political and 
 civil liberty taken from vou bv the angry passions of civic 
 strife, to heal the gaping wounds caused by that strife, and 
 to resume your hereditary place in the federal galaxy as 
 the descendants of the men who had proclaimed the Decla- 
 ration of Independence, and had with their blood and their 
 fortunes established its principles as a common heritage for 
 all their posterity. 
 
 Thanks be to God, after a generation of struggle you 
 have achieved what you set out to accomplish. A few 
 embers still survive from the conflagration of forty years 
 ago, but without sufficient life to kindle a flame, and with 
 constantly ebbing vitality. 
 
 The American Republic of Republics — ''the indissoluble 
 union of indestructible States" — has reached a point of 
 unparalleled power, and has entered upon a career of 
 unparalleled prosperity. 
 
 There is no one to oppress us or to make us afraid. Our 
 autonomy and political liberties are beyond attack from 
 outside. No nation, and no combination of nations, will 
 assail the United States, unless the insolence that some-
 
 o 
 O 
 
 times attends power shall induce us to depart from the safe 
 lines laid down by the fathers of the republic, and to use 
 that power to oppress, instead of using it to win the world by 
 the arts of peace, and by the example of a free society teach- 
 ing mankind that the people are fit for self-government, 
 that true liberty exists only in the realm of wise law, that 
 the real object of government is to promote the growth and 
 development of the individual citizen, and that democracy 
 ought to be the hope and the aim of all the nations of the 
 earth . 
 
 We have, indeed, none to fear except God and ourselves. 
 In the bosom of our society alone can arise and develop 
 the evils that will work the downfall and ruin of the ideal 
 of the republic. Causes that work to this end are deep 
 seated and slow of operation. In their origins they are 
 often imperceptible to the masses. They usually have their 
 foundations in the rights of property, and in the inequali- 
 ties begotten between individuals resulting from property 
 rights, established and permitted by law in organized 
 society which cannot exist without defining and protecting 
 by law every species of property. Large inequalities neces- 
 sarily arise between men based on natural gifts, and on the 
 superior qualities of their ancestors. 
 
 To repress all inequalities, to force all men to a dead 
 level, to restrain the activity and enterprise of the in- 
 dividual, and to take from him for the benefit of the in- 
 competent mass what his skill and energy have acquired 
 is the sodden dream of socialism, which thus seeks to 
 reverse nature's universal law of the survival of the fittest 
 by which she has climbed the scale of existence from the 
 diatom to man, and has lifted man from the savage who 
 cannot count beyond three to the mathematician who 
 weighs the planets and measures the visible universe. 
 
 To foster and accentuate inequalities artificially and not 
 naturallv established, to give honors and privileges and
 
 birthrights to particular classes, to perpetuate certain fam- 
 ilies as though they were made of a superior quality of 
 flesh, and to that end to hold property out of commerce 
 in the coils of entails, family compacts, uses and trusts, 
 majorats, mayorazgos, marquisates, lordships, earldoms, 
 dukedoms and all the accursed devices of feudalism to 
 exalt the few and oppress the many, is the object and aim 
 of every aristocratic form of government. 
 
 To affirm and guard the equal rights of all its citizens, 
 to eradicate the last vestige of granted privilege, to keep 
 the course free and fair that all contestants for honor or 
 wealth may win on their merits, and particularly to stamp 
 all policy and all legislation with the robust seal of the 
 law of survival by which the strong and the fit will endure 
 and the weak and the unfit will perish, is the true ideal of 
 a republic. 
 
 With prophetic vision, and with a profound knowledge 
 of the principle that adverse currents of polity cannot run 
 concurrently in any society, but that one must prevail over 
 the other, Mr. Lincoln said that this country could not 
 exist half slave and half free. So also must it be said that 
 it cannot exist dominated by both aristocratic and demo- 
 cratic doctrines. 
 
 Juxtaposition of such doctrines must beget an irrepres- 
 sible conflict, and as the one kind or the other prevails, so 
 will our society lean to democracy or to aristocracy. 
 
 But there is a congener of aristocracy, which springs from 
 the same root, which is made fertile by the same conditions, 
 which bears many of the same characteristics and which 
 is a growth much more hostile and harmful to liberty. 
 We call that foul weed plutocracy. It is the noxious form 
 which aristocracy takes among a free, rich and prosperous 
 people. It arrays itself at first with the wreath and toga 
 of simplicity, but its progress to the crown and purple is
 
 eager and rapid. Without the legal privileges, it apes the 
 airs and manners and arrogates to itself the rights of the 
 chartered superiors of mankind. It sets up liveries, and 
 degrades free citizens by compelling them to wear this 
 snobbish badge of servitude and inferiority. It manufac- 
 tures for itself coats of arras and crests and pedigrees* 
 although its progenitors were peasants and artisans from 
 the first migration of the Aryan races down to its fathers. 
 It baits its daughters with fat dowers to catch scrofulous 
 lordlings or impecunious counts, desirous of redeeming 
 their ancestral estates encumbered by the crimes and dissi- 
 pations of their equally unworthy ancestors. Sometimes 
 it betakes itself out of this plebeian land, upon the ground 
 that no gentleman can live here, and seeks consort with 
 kings and princes, and to win the guerdon of lordship by 
 lavishing American gold upon the congenital paupers that 
 crowd the almshouses of the realm. Sometimes it tickles 
 its own vanity by abundant largesse to eleemosynary in- 
 stitutions bearing its own name. But the sphere where its 
 power is to be dreaded, and not turned into ridicule, is 
 that it tends to monopolize the nation's property, industries 
 and sources of wealth, and to corrupt both the suffragans 
 and the lawmakers of the land. 
 
 The problem that confronts us to-day, and that will con- 
 front our descendants for generations, is how r to check this 
 plutocratic growth without trenching on the principles of 
 liberty and democracy. 
 
 It is not to be thought of for a moment that any restric- 
 tions be placed on the right and power of the individual to 
 gain all the wealth he can by the lawful and honorable 
 employment of his faculties. Spoliation of the rich by 
 organized society is as bad as grinding the faces of the 
 poor. Every one is the absolute owner of his own mental 
 and physical powers, and has the unqualified right to 
 exploit them under the moral law during his natural life
 
 6 
 
 to their full extent, with due respect to the same right in 
 every other individual. The despot and the socialist, who 
 professes the worst form of despotism, alone deny this 
 proposition. 
 
 We cannot, therefore, consistently with the principles of 
 liberty, legislate so as to prohibit the accumulation of wealth 
 by honest individual effort, but we can legislate consistently 
 with those principles in two ways : first, so as to destroy 
 the privileges out of which most of the great existing for- 
 tunes have grown ; second, so as to prevent wealth from 
 being hereditarily piled up in a few hands, so as to disperse 
 it in accordance with the operation of nature's laws, and so 
 as to keep it in commerce and out of the dead hand of the 
 family compact and of the trust estate. 
 
 The main sources of privilege are protective tariffs, 
 bounties from the public treasury, and the grants of fran- 
 chises to exploit public utilities, which franchises are essen- 
 tially common property, inalienable in their very nature, 
 and, if exploitable by private enterprise at all, then only 
 under limitations whereby they will revert at short inter- 
 vals, and whereby the public will obtain their full value. 
 
 It is not my purpose to discuss to-day this branch of the 
 problem propounded, nor to justify by argument the state- 
 ments just made. 
 
 In my judgment the second branch is of greater import- 
 ance than the first, because more far reaching, touching 
 more closely the life of the people, and yet less generally 
 known and understood. 
 
 Ought there to exist in any democratic society any rule 
 of law by which the posthumous avarice, or vanity or family 
 pride of a dead man can hinder or impede the welfare and 
 progress of mankind? 
 
 The answer of right reason to this question is No ! 
 
 The answer of the aristocrat and the plutocrat is that he 
 is mankind (or the only part of it to be taken into consid-
 
 eration), and he ought to have the right to perpetuate his 
 fortune, and to fortify and protect his descendants. Such 
 a one, having in life bestridden the narrow world like a 
 colossus, desires when he falls from the pedestal, to pro- 
 vide for the erection of his successor, and his successor's 
 successor to the end of time. He desires further the right, 
 in case his successor should be of clay, and not of bronze, 
 to stay and prop him with every form of vicious scaffolding 
 that the ingenuity of lawyers can devise. 
 
 It is my purpose to demonstrate that essential parts of 
 the system of laws generally prevailing in the United 
 States not only permit, but foster the evil in question ; 
 that such system takes its origin in feudalism, and that in 
 such respect it is hostile to the principles of democratic 
 government. 
 
 In obedience to the general rule of development, that 
 colonies adopt the law of the mother country, the common 
 law of England was implanted on this continent, and it 
 prevails to-day, modified sometimes by statute, in every 
 State of the American Union but one, and in all the British 
 Provinces, except Quebec. 
 
 Like every system of law, it bears the marks of the polit- 
 ical and social struggles through which the people, among 
 whom it grew up and was moulded, have passed since the 
 dawn of history. 
 
 While on one hand it exhales the inspiring breath of 
 liberty in the right of trial by jury, in the habeas corpus, in 
 the right of petition, in the right of local self-government, 
 in the citizen's freedom from taxation without his consent, 
 in his right of representation in the law-making body, yet, 
 on the other hand, it contains principles engrafted on it in 
 the interest of that aristocracy, the creature of feudalism, 
 which is now and has been for more than eight hundred 
 years one of the dominant factors in the life of the English 
 nation.
 
 8 
 
 Primogeniture, the exclusion of female by male heirs, 
 the entail of lands, the settlement of estates for lives in 
 being and twenty-one years thereafter, the constitution of 
 trust for accumulation and other purposes, are samples of 
 these principles. 
 
 To these must be added (also the work of feudalism, as 
 pointed out by Maine), the destruction of the limitations 
 imposed by the ancient common law on the right of testa- 
 mentary disposition, which, if not the same in nature, were 
 the same in effect, as the forced heirship of the civil law ; 
 and the consequent establishment of that frightful doctrine 
 now prevailing in England and generally in the United 
 States, that a father of a family, for any reason that ap- 
 pears to him good, may cut off the inheritance of his chil- 
 dren entirely, or may prefer any one of them and destitute 
 the others for the favorite's benefit. 
 
 All of these malign principles were imported into the 
 United States as part of the common law. Many of them 
 remain in full force to this day, and, in my judgment, afford 
 the firm foundation and vantage ground upon which plu- 
 tocracy is erecting its anti-democratic superstructure. 
 
 It was early recognized that the right of primogeniture, 
 or the right of the first born son to exclude all females and 
 all subsequently born males from the inheritance, was in- 
 consistent with republican government. 
 
 Mr. Jefferson accounted his authorship of the statute of 
 Virginia abolishing this right as one of the grounds upon 
 which his services to society rested. 
 
 It is no longer recognized in any of the American States, 
 so far as I know ; but, as I shall show directl\ r , the unqual- 
 ified power of disposition by testament produces the same 
 effect, and from that effect grow the same evils that spring 
 from the legally established right. 
 
 It has likewise been generally recognized, except perhaps
 
 9 
 
 in Delaware, that entails should not exist in a free 
 government. 
 
 The great apostle of liberty, whose name I have just 
 called, made the first move on this continent to prohibit 
 entails, and was the author of the statute of Virginia abol- 
 ishing them. 
 
 In his autobiography, he gives his reasons for this 
 measure, as follows : 
 
 "In the earlier times of the colony, when lands were to 
 be obtained for little or nothing, some provident individ- 
 uals procured large grants ; and desirous of founding great 
 families for themselves, settled them on their descendants 
 in fee tail. The transmission of this property from gener- 
 ation to generation in the same name, raised up a distinct 
 set of families, who, being privileged by law in the perpet- 
 uation of their wealth, were thus formed into a Patrician 
 order, distinguished by the splendor and luxury of their 
 establishments 
 
 "To annul this privilege, and instead of an aristocracy 
 of wealth, of more harm and danger than benefit to society, 
 to make an opening for the aristocracy of virtue and talent 
 which nature has wisely provided for the direction of 
 the interests of society, and scattered with equal hand 
 through all its conditions, was deemed essential to a well- 
 ordered republic." 
 
 His authorship of the statute named he also considered 
 one of the benefits he had conferred on his fellow-citizens. 
 
 That entails were contrary to the true spirit of Saxon 
 freedom appears in the sturdy struggle made to everthrow 
 them. Strict entails were imposed by the barons in the 
 reign of Edward I by the statute "De Donis." For two 
 hundred years thereafter in every Parliament attempts were 
 made to repeal that statute, but the House of Lords would 
 not permit the repeal. Finally the courts invented the 
 fictitious proceeding called a "common recovery," and sub-
 
 10 
 
 sequently, by a doubtful interpretation of a statute, another 
 fictitious proceeding called the "levying of a fine," by which 
 an entail could be barred. They can now be barred under 
 the statute of 1833 by a deed enrolled in the Court of 
 Chancery. 
 
 But while entails can be barred in England and are pro- 
 hibited in the United States, nearly all the evil results that 
 flow from the legal declaration of such a system, can be, 
 have been, and are daily set up in both countries by the 
 operation of the family compact and the trust estate. 
 
 We have among us many notorious instances of the fam- 
 ily compact, the most conspicuous of which occur in two 
 well known New York families, resulting in the piling up 
 of fortunes, the magnitude of which make insignificant 
 the "wealth of Ormus and of Inde," that fired even the 
 glorious imagination of John Milton. 
 
 These results have been accomplished by the handing 
 down from father to son for three or four generations of the 
 fixed tradition and compact that each testator shall leave 
 the whole, or the bulk, of the family fortune to some one 
 member thereof, who shall in turn do likewise, and whose 
 descendants for all time shall keep up the tradition. If 
 these fortunes have become so great in one century, w T hat 
 will they become in another? Property in the great com- 
 mercial heart of the Union that passes into the hands of 
 the reigning Astor or Vanderbilt passes absolutely out of 
 commerce, and the plain citizen who lives upon it and 
 pays rent for it, has no more hope that either he or his 
 descendants can ever get an opportunity to own it by law- 
 ful purchase, than the Irish peasant has that he can buy 
 the few acres of bog on which he and his ancestors have 
 lived from time immemorial. 
 
 But these days of prosperity and privilege have begotten 
 other fortunes which have assumed gigantic proportions 
 in first hands.
 
 11 
 
 With the law as it is, their owners have the power to 
 establish similar family compacts, and thus prevent the 
 dispersion of their wealth at their decease. Exploited under 
 these conditions, what will the fortune of Mr. Rockefeller, or 
 Mr. Morgan, or Mr. Carnegie become in three generations 
 more? How much more of the productive territory of our 
 fertile land will pass into this family mortmain — this dead 
 hand with unclenchable grasp? 
 
 What will be the condition of the republic as time goes 
 on, with the holders of these enormous fortunes standing 
 athwart every avenue of profit, owning the choice places of 
 the earth, controlling the great lines of transportation, with 
 power to punish with financial blight and disaster any man, 
 or even any community, bold enough to oppose them, and 
 with power to elevate and make prosperous every sycho- 
 phant who bows down and worships them? 
 
 The situation presents itself to every thinking man as 
 one to which some conservative remedy must be applied. 
 
 Another legal stronghold of aristocracy and plutocracy is 
 the doctrine of uses and trusts. 
 
 According to the recognized rule in England and in most 
 of the United States a man may tie up his estate in the 
 hands of trustees for any number of lives in being and 
 twenty-one years thereafter. 
 
 In some of the States this power has been cut to two 
 lives. Under this system, a man may select any number 
 of infants, and if any one of them happens to be long lived 
 and vigorous, the estate may be tied up out of commerce in 
 the hands of trustees for a century. Not only is the prop- 
 erty covered by the trust out of commerce, but the estate is 
 not dispersable during this period. If the beneficiary 
 should become insolvent, his creditors can only take the 
 income that would enure to him. They cannot sell and 
 scatter the property. The grip of the trustee remains, pos- 
 sibly, for an unborn heir.
 
 12 
 
 Another form which such trusts may take is that for 
 purposes of accumulation. One may devise his property 
 in trust to accumulate in the hands of a trustee, bv adding 
 income to principal during lives in being, and twenty-one 
 years thereafter, and direct the payment of the whole accu- 
 mulated estate, at the death of the last among the persons 
 named, to the then surviving children or grandchildren. 
 The monstrous outcome of this doctrine was brought home 
 to the English people by the will of an old miser named 
 Thellusson, the validity of which the courts maintained, 
 whereby he was able to tie up an estate of five hundred 
 thousand pounds for three generations, the accumulation 
 of which it was calculated would amount to one hundred 
 millions of pounds, if any one of his grandchildren lived to 
 be one hundred years old. 
 
 Parliament promptly passed an act, which is popularly 
 known by the name of the miser, limiting the power of 
 accumulation to twenty-one years after the death of the 
 settler, or during the minority of the beneficiary. 
 
 But the Thellusson act is not part of the law of the 
 United States, and the old rule of accumulation still pre- 
 vails generally in this country, modified as to term in some 
 of the States by statute. 
 
 Still another form which such trusts may take is what is 
 popularly styled a "spendthrift trust." 
 
 It is the device usually employed by the fond parent 
 to protect the idler, the incompetent, the weakling, the 
 gambler and the debauchee from the natural and legiti- 
 mate consequence of his own acts. Left to such conse- 
 quences, the career of such a one would be short, and it is 
 to the interest of society that it should be short. Nothing 
 can be more pernicious to good morals and to the public 
 welfare than the constitution of such trusts. It is almost 
 like erecting all over the body politic fortresses from which 
 the depraved may sally with impunity and to which they
 
 13 
 
 may return at pleasure for recuperation and safety. They 
 cultivate and coddle forms that ought to perish. They 
 promote extravagance and dishonesty. They create the 
 same conditions out of which grew up a worthless and 
 depraved class that were the shame and sorrow of France 
 under the old regime, and out of which the same class 
 must and will grow up wherever they are permitted. 
 Indeed, there are evidences among us that such a class is 
 forming. Its seed corn is found in that host of vapid, 
 cane-sucking dudes who delight to disguise themselves in 
 speech and habit like foreign cads, and whose present 
 highest ambition is to be arrested for running over some- 
 body with an automobile. 
 
 The approved form of such a trust, and one which I 
 regret to say has passed muster in the Supreme Court of 
 the United States, is this : Property is given or bequeathed 
 to a trustee to pay the income to a named person during 
 his life, and after his death in trust for his children who 
 attain majority, with the proviso that if the beneficiary 
 should alienate or dispose of the income given, or, if by 
 bankruptcy, or insolvency, or any other means whatever, 
 the said income can no longer be personally enjoyed by 
 him, but the same would be vested in or payable to some 
 other person, then the trust to pay the income ceases, and 
 thereafter it is to be paid to his wife, or his children, or, if 
 at that time he has no wife or child, the income accumu- 
 lates during his life, or until he has a wife or child ; with 
 the further power in the trustee, after the income has 
 been forfeited, to apply so much of it as he may choose to 
 the use and benefit of the beneficiary. The beneficiary 
 may even be one of the trustees for his own benefit, and 
 after his bankruptcy may, by collusion with his co-trustee, 
 pay over to himself as much of the legally lost income as 
 be chooses. This comes as near as possible to proving that
 
 14 
 
 there is an exception to the supposed maxim that one can- 
 not eat his pie and have it at the same time. 
 
 Some of the courts of this country have issued their ipse 
 (licit that such trusts are not against public policy. An 
 examination of those opinions will demonstrate that the 
 question is not looked into analytically or historically. 
 They are based upon that savage and unchristian doctrine 
 of ownership which holds that one may do, alive or dead, 
 what he pleases with his own, or upon a sentimentalism, 
 which, in the name of humanity, love and affection, im- 
 poses the selfishness of the individual as a burden upon the 
 body of society ; and they show a lamentable knowledge of 
 both history and political economy. 
 
 The interests of humanity and society concur, but there 
 is a point where the interest of society begins, long before 
 the claims of personal love and affection end. Therefore, 
 the interests of humanity and society can always be recon- 
 ciled, while those of society and of individual love and 
 affection cannot. It is the desire of love and affection, and 
 all the other sentiments, to guard and preserve their object, 
 but that object may be something injurious to society, 
 something which its best interests require to be eliminated. 
 If the means permitted to the individual to guard and pro- 
 tect the object of his affections will produce more harm 
 than good to the many, then such means must be prohibted. 
 
 In order, therefore, to determine whether a given thing 
 is against public policy, we must look to its general ten- 
 dency, and not to how it may work in a particular case, 
 and above all we must read the page of history to find out 
 how it has worked among peoples where it was permitted. 
 
 Spendthrift trusts are condemned in England as against 
 public policy. 
 
 It is a matter of legal history that the whole doctrine of 
 trusts had its origin in fraud. 
 
 The fidei commissa of the Roman law, the parent of the
 
 15 
 
 modern equitable doctrine of trusts, were practiced for the 
 purpose of establishing an order of succession different 
 from that ordained by law, and to evade those provisions 
 declaring certain persons incapable of inheriting. 
 
 Whilst existing in fact during the whole period of the 
 republic, they were not recognized, nor enforceable, until 
 made so by Augustus under the empire. 
 
 There is no doubt that the object and purpose of the 
 statutes of Richard III and Henry VIII were to abolish 
 and prohibit every form of trusts which were then called 
 uses, and which had become a great abuse in the kingdom ; 
 but by the cunning and pious fraud of the chancellors, who 
 were then ecclesiastics, thev simplv changed the name of 
 the thing from a use to a trust, and they and their lawyer- 
 successors w r ent on gradually building up that great mass 
 of judge-made law now administered in courts of equity, 
 and which, as I have already mentioned, grew up under 
 the pressure of a greedy and domineering aristocracy. 
 
 In process of time the judges were confronted with the 
 question of perpetuities, i. c, the tying up of property in 
 such a wav that it would not vest for several generations. 
 They entertained no doubt that a perpetuity was against 
 public policy. As the matter was put much later: "A 
 perpetuity is a thing odious in the law and destructive to 
 the commonwealth. It would stop commerce and prevent 
 the circulation of property." 
 
 At first the judges limited the power to tie up an estate 
 to one life. But apparently the pressure against them was 
 too strong. The common law judges having invented the 
 plan of barring entails, the pride of famil}" required some 
 other means of perpetuating the family estate. As stated, 
 a moment ago, the feudal power gradually destroyed the 
 restrictions of the common law on the right to dispose by 
 will, and established the unlimited power to dispose of one's
 
 16 
 
 estate. Hence, as Lord Bacon says, a refuge was sought in 
 perpetuities. 
 
 To maintain itself, the aristocracy needed the power to 
 tie up its property for more than one life, and it got that 
 power; because the doctrine was gradually extended until 
 at last it was settled that the power to tie up might extend 
 over any number of lives in being and twenty-one years, 
 and nine months if necessary, thereafter. 
 
 In this shape American lawyers and judges imported 
 this doctrine into this country, because they found it in the 
 only books they read and studied, and they knew no other. 
 They apparently never stopped to think whether it was 
 consistent with the principles of our government, and were 
 caught in its toils before they realized the end to which, 
 under changing conditions, it might lead. 
 
 Strange to say the bulk of this importation was made 
 after the revolution had separated us from the mother 
 countrv. Prior to the revolution there were rudimentary 
 beginnings of equitable jurisdiction and doctrines in some 
 of the colonies, and in others none. Now, the full flower 
 blows all over the land. 
 
 This introduction, in my judgment, was due to three 
 causes : first, to that ingrained spirit of routine which 
 makes it easy to follow a beaten track, especially when 
 one is educated in that track ; second, to the undoubted 
 existence in this countrv during the first fortv vears after 
 the revolution of an influential aristocratic party which, 
 under the leadership of Hamilton and his confreres, sought 
 to increase and concentrate the powers of government and 
 to destroy, as far as possible, the rights of the people ; and, 
 third, to the reaction caused during the same period by 
 the atrocities of the French Terror, committed in the name 
 of liberty, a reaction which chartered every defender of 
 an ancient abuse to paralyze the reforming influence of 
 the liberal minded man by denouncing him as a Jacobin }
 
 17 
 
 which produced in England laws, the enforcement of which, 
 as Lord Campbell says, would have made Englishmen slaves 
 or revolutionists in order to escape servitude, which gave 
 rise to that gloomy period in our politics so pathetically 
 described by Mr. Jefferson in his memorial to the legisla- 
 ture of this State, and which finally culminated in the 
 Holy Alliance — that conspiracy between the crowned heads 
 of Europe to crush republican government w T herever it 
 should raise its head. 
 
 Conclusive proof of the pernicious influence upon the 
 life of a nation of trust estates, operating through a long 
 period, and of the theme which I uphold, that they are the 
 main prop of aristocracy and its congener, plutocracy, is 
 found in the history of France, and in the opinions of her 
 great statesmen and law writers. 
 
 These same trust estates, from their origin in the Roman 
 law, are known under the French law as substitutions, or 
 to speak more strictly, fidei-commissary substitutions. They 
 are sometimes called simply fidei eommissa, which is noth- 
 ing but the Latin for the English term "Trust Estate." 
 
 Their injury to the commonwealth was recognized at an 
 early period. The property of the realm passed out of com- 
 merce and was concentrated in great estates, the possessors 
 of which were not the owners. An idle class of spend- 
 thrift debauchees arose, who would not pay their debts, 
 and whose creditors could not levy. The natural order of 
 succession and distribution was turned aside. The courts 
 were filled with scandalous litigations to protect the inter- 
 ests of the remote beneficiaries from waste ; and there was 
 built up, to confound the student and the judge, an enor- 
 mous and intricate mass of law, defining the rights and 
 duties of the parties, which was absolutely beyond the com- 
 prehension of laymen, and which was interpenetrated with 
 all the subtleties and bristling witth all the quibbles of 
 scholasticism.
 
 18 
 
 As early as 1560, by the ordinance of Orleans, substitu- 
 tions were limited to two degrees, or, in other words, to 
 two generations. This is practically the same as the Eng- 
 lish rule against perpetuities. Justinian had limited them 
 to four generations. But this ordinance did not even miti- 
 gate the evil. The feudal sentiment, aided by the inge- 
 nuity of lawyers and the complaisance of the courts, found 
 means to evade the prohibition, so that substitution was 
 piled on substitution, and no sooner was property out of one 
 net than it immediately passed into another. 
 
 The same rule was re-enacted by the ordinance of 1747, 
 but with the same results; and the nation moved on, 
 oroaninff under its burden, to meet the catastrophe of the 
 revolution, when the whole miserable system was wiped out 
 by the law of November 14, 1792. This law was no fren- 
 zied outburst of the sans culottes. It simply gave effect to 
 the unanimous opinion expressed through more than two 
 hundred years, of all the great jurists of France, that sub- 
 stitutions were odious, embarrassing, the matrix of fraud, 
 and no7i satis republics expcdientcs. 
 
 Although there is some apparent conflict in his deliver- 
 ances, Montesquieu said in his Persian Letters that substi- 
 tutions were useful only in an aristocracy, but that they 
 should not be permitted either in a monarchy or in a 
 democracy, except in a very limited degree, and under the 
 most stringent regulations. 
 
 Chancellor D'Aguesseau said that the best of all laws 
 would be that entirely abrogating all fidei commissa. 
 
 Cardinal Mantica gives the names of a host of learned 
 doctors who had declared against substitutions and fidei 
 commissa, and sums up twelve cogent reasons against their 
 existence. 
 
 In the discussions which took place over the Civil Code 
 of 1804, all the jurisconsults expressed their utter disap- 
 probation of substitutions, and Napoleon himself, who, as
 
 19 
 
 First Consul, took part in those discussions, declared that 
 their only purpose was to maintain the so-called great fam- 
 ilies, and to perpetuate in their eldest sons the splendor of 
 a great name, and that they were contrary to good morals 
 and to reason. When he forgot his republican principles 
 and set up the empire, he re-established substitutions in 
 support of the majorats or landed estates descending 
 with an honorary title created by him. The Restoration 
 of the Bourbons, which followed the empire, abolished 
 majorats and re-established substitutions, but the repub- 
 lican government of 1849 again swept them away. 
 
 Marcade, oue of the great modern commentators, says : 
 "There is little legislation which has undergone so many 
 changes as that relative to fidei-commissary substitutions, 
 and the cause of it is that there is no other subject than 
 this more closely allied to governmental forms and holding 
 more intrinsic relation to political systems." 
 
 Demolorabe, another of such commentators, says : 
 "Among all the subjects of private law, substitutions are 
 most closely attached to public law, and therefore they 
 must inevitably receive the shock of the revolutions which 
 take place in the form of government and the political sys- 
 tem of the country. Hence the history of substitutions in 
 the last half century is nothing more than the history itself 
 of our changes of constitution." 
 
 The same close connection between the form of govern- 
 ment and substitutions is exhibited in Belgium and Spain. 
 
 In Belgium they fell with the empire and have not been 
 re-established. 
 
 In Spain the mayorazgos, established by the laws of 
 Toro, and all forms of fidei commissa were abolished when 
 the liberals came into power in 1S20 and forced Ferdinand 
 the VII to restore the Constitution of Cadiz. They were 
 re-established in 1823, when the constitutional S} T stem was 
 overthrown by the Holy Alliance, who sent the Duke of
 
 20 
 
 Angouleme into Spain with a hundred, thousand men at 
 his back to suppress the aspirations of a brave people for 
 liberty and to re-inaugurate the absolute power of the 
 most despicable and degraded wretch that ever disgraced 
 humanity. 
 
 When the liberals again attained power in 1836, they 
 forced the Queen Regent to restore by decree the law of 
 1820; and under the constitution of 1837, the Cortes in 
 1841 reinforced the Act of 1820. 
 
 The historian Mariana savs that this law released more 
 than half of the capital and property of Spain from the 
 clutches of a system which a learned Spanish judge de- 
 nounces as "repugnant to the principles of wise and just leg- 
 islation," and as "the abortion of the monster of feudalism." 
 
 Jovellanos, DeCastro, Sempere, and in fact all of the 
 Spanish jurists, are as unanimous as the French juriscon- 
 sults in their hostility to fidei-commissary substitutions. 
 
 Struck by the apparently necessary connection between 
 the downfall of substitutions and the rise of the power of 
 the people, the learned professor of law in the University 
 of Ghent says : "The future belongs to the democracy ; 
 and whether we rejoice at it or deplore it, it is a fact, and 
 a providential fact against which all the efforts of the men 
 who belong to the past have broken in shipwreck. Re- 
 actionary laws have all been repealed, and the democratic 
 wave rolls on increasing. We must make room for it in 
 society, or it will brim over and destroy everything." 
 
 It is the general opinion of the political economists who 
 have touched this question — and I must say there is a 
 great dearth of discussion on the subject among them — 
 that laws relative to inheritances are the most powerful 
 means of acting on the distribution of the wealth of a 
 country. 
 
 Mr. Jefferson thought that the best of all agrarian laws 
 is the law of equal distribution.
 
 21 
 
 DeTocqueville said that he was "surprised that ancient 
 and modern jurists have not attributed to the law of in- 
 heritance a greater influence on human affairs. It is true 
 these laws belong to civil affairs ; but they ought neverthe- 
 less to be placed at the head of all political institutions ; 
 for they exercise an incredible influence upon the social 
 state of a people, whilst political laws only show what the 
 State already is. They have moreover a sure and uniform 
 manner of operating upon society, affecting as it were gen- 
 erations yet unborn. Through their means max ac- 
 quires A KIND OF PRETERNATURAL POWER OVER THE FUTURE 
 OF HIS FELLOW CREATURES. WHEN THE LEGISLATOR HAS 
 ONCE REGULATED THE LAW OF INHERITANCE, HE MAY REST 
 FROM HIS LABOR. THE MACHINE ONCE PUT IN MOTION WILL 
 GO ON FOR AGES AND ADVANCE AS IF SELF-GUIDED TOWARDS 
 A POINT INDICATED BEFOREHAND. WHEN FRAMED IN A PAR- 
 TICULAR MANNER THIS LAW UNITES, DRAWS TOGETHER AND 
 VESTS PROPERTY AND POWER IN A FEW HANDS J IT CAUSES 
 AN ARISTOCRACY TO SPRING, SO TO SPEAK, OUT OF THE 
 GROUND. IF FORMED ON OPPOSITE PRINCIPLES, ITS ACTION 
 IS STILL MORE RAPID ; IT DIVIDES, DISTRIBUTES AND DIS- 
 PERSES BOTH PROPERTY AND POWER." 
 
 In my humble judgment no profounder truth was ever 
 formulated than the one contained in the quotation I have 
 just read. 
 
 Exactly the same idea is set forth in the great oration 
 pronounced by Mr. Webster on December 22, 1820, the two 
 hundredth anniversary of the landing of the Pilgrims. He 
 declared that "a republican form of government rests not 
 more on political constitution than on those laws which 
 regulate the descent and transmission of property," and 
 that "governments like ours could not have been main- 
 tained where property was holden according to the prin- 
 ciples of the feudal system."
 
 22 
 
 Speaking further of the conditions under which the 
 pilgrim fathers reached these shores, he said : 
 
 "Their situation demanded a parcelling out and division 
 of the lands, and it may be fairly said that this necessary 
 act fixed the future frame and form of their government. The 
 character of their institutions was determined by the fund- 
 amental laws respecting property. The laws rendered 
 estates divisible among sons and daughters. The right of 
 primogeniture, at first limited and curtailed, was after- 
 wards abolished. The entailment of estates, long trusts, and 
 other processes for fettering and tying up inheritances, were not 
 applicable to the condition of society and were not made use of. ,, 
 
 He then proceeded to venture a prediction, based on the 
 principle he had announced, that the laws of property and 
 inheritance regulate the form of government. The French 
 monarchv had but latelv been replaced on the ruins of the 
 empire, but it had not touched the law of forced heirship, 
 nor the rule of equal distribution of property established 
 by the Napoleon Code, which w r as the outcome of the revo- 
 lution. He said : "If the government do not change the 
 law, the law in half a century will change the government, 
 and this change will not be in favor of the power of the 
 crown but against it." 
 
 His prediction was verified in twenty-eight years. The 
 coup d'etat of Napoleon III reversed the current for two 
 decades, but France to-day is solidly fixed upon a repub- 
 lican foundation, and her lawyers, her statesmen, her polit- 
 ical economists and her historians unanimousl} T ascribe the 
 breadth and firmness of that foundation to her inherit- 
 ance laws and to her prohibition against fidei-commissary 
 substitutions. 
 
 Standing upon the shoulders of these eminent statesmen 
 and observers, even a pigmy can see into the future, and 
 the humblest thinker can safely venture the prediction 
 
 that UNLESS THE AMERICAN STATE GOVERNMENTS CHANGE
 
 23 
 
 THEIR PROPERTY LAWS, THOSE LAWS WILL, IN PROGRESS OF 
 TIME, CHANGE NOT ONLY THOSE GOVERNMENTS, BUT THAT OF 
 THE FEDERAL AGENT AS WELL. 
 
 Under such influences, this change of government will 
 either come by revolution or by imperialism ; by revolu- 
 tion where the great masses, deprived of hope, seeing 
 nothing- for them and their children forever but the. life of 
 mere expletives to receive slim salaries, or a scanty wage, 
 and seeing the whole horizon of the future filled by gigantic 
 forms, thrust forward by an apparently irresistible power, 
 coming out of the past and intrenched in the law, rise in 
 the desperation of a blind Samson and pull down the 
 whole temple of society ; by imperialism, where, like in 
 Rome, the forms of the republic will be scrupulously kept, 
 down to the naming of the smallest constable, but the 
 powers of government will be deposited beyond the control 
 or reach of the people. 
 
 It is useless for us to brag and boast, and say that we are 
 exempt from the laws that govern the growth and develop- 
 ment of societv, and that the same social forces that have 
 operated under similar conditions among other peoples 
 cannot produce the same results among us. It is the part 
 of wisdom to change the conditions, and to seek remedies 
 that will check evil tendencies. 
 
 We have those remedies at hand. They are not new, 
 nor of small authority, nor untried. On the contrary, they 
 are honorable with years, they bear the imprimature of 
 "the great of old, the dead but sceptered sovrans who still 
 rule our spirits from their urns," and they are and have 
 been practiced in the civilized nations of the earth. 
 
 These remedies are the establishment of forced heirship 
 and the absolute prohibition of every form of trust estates. 
 
 Under the custom of our Saxon forefathers, traces of 
 which were found even down to the time of Charles I, no 
 father of a family had absolute power over the disposition
 
 24 
 
 of his estate. One-third went to his wife, one-third to his 
 children, and one-third was at his disposal. 
 
 The corrupt period of the Restoration, when all laws, 
 human and divine, were relaxed, appears to be that in 
 which the unqualified power to dispose of both real and 
 personal estate was finally established. This change, as 
 shown just now, was the work of feudalism. It rolled back 
 the law of England to the law of the XII Tables. It was 
 an example of legal atavism whereby an ancient and 
 lower type reappeared clothed with all of its pristine 
 hardness and cruelty, and purged of every softening influ- 
 ence which sixteen hundred years of civilization and of 
 Christianity had injected into its composition. 
 
 Even before the benign influence of the Christian reli- 
 gion began to work upon the civil law of Rome, a pagan 
 society had found a means to modify and control the man- 
 date of the ancient law — uti legassit, sic lex esto — by giving 
 excluded heirs an action before the Prsetor, called Querela 
 Inofficiosi Testamenti; or, as it has been well translated, 
 "The Plaint of an Unduteous Will," which was based on 
 the presumption that one who had violated in his testa- 
 ment the ties of family, the duty of a parent, or the dic- 
 tates of natural affection, was essentially non compos mentis, 
 and devoid of testamentary capacity. 
 
 An analogous action exists to-day in the common law 
 countries, whereby wills are attacked for undue influence ; 
 and juries and surrogates, in order to remedy a rank injus- 
 tice, catch at the smallest straws, and often violate every 
 rule of evidence, of logic, and of common sense, to over- 
 throw a will. These melancholy actions which rake the 
 dust off of buried scandals, which draw from their closets 
 the hideous family skeleton, which sever the ties of kin- 
 dred, which cast fire-brands into peaceful and united 
 households, are not permitted where forced heirship pre- 
 vails. As soon as forced heirshin was established in Rome
 
 25 
 
 the Querela was reduced to a mere action for the recovery, 
 or the supplement of the legitimate portion. Under the 
 Code Napoleon, no proof is admitted that a testamentary 
 disposition was made through anger, hatred, suggestion or 
 captation. 
 
 Forced heirship, or the reservation in the ascending and 
 descending line of a certain portion of an estate, is the law 
 to-day of everv civilized country of the world, except Eng- 
 land, and her present and former colonies, and in some form 
 it has been the law of the European countries since they 
 were Roman colonies. Nowhere are the ties of family 
 more closely knit than in those countries. Children are 
 as obedient and as dutiful as in England, or in the United 
 States. Disinherison is not permitted except upon grounds 
 that rest in the law of nature, and society is saved from 
 such tragedies as that which lately sent a thrill of horror 
 through this land, when a wrongfully disinherited son be- 
 came both a fratracide and a suicide. 
 
 Under the operation of such a law the family compact 
 necessarily and inevitably disappears, because it is expect- 
 ing too much of human nature to suppose that those who 
 are entitled by law to a share in a large estate would vol- 
 untarily surrender it. 
 
 I do not hesitate to affirm that if this law had prevailed 
 in New York, both the Astor and the Vanderbilt fortunes 
 would by this time have been dispersed. 
 
 It has had an equalizing and dispersing effect wherever 
 applied, and it must have the same effect when applied 
 here. 
 
 We can never say that we have abolished primogeniture 
 as long as one may by will leave all his property to his 
 eldest son, and agree with him that he in turn shall leave 
 all his property to his eldest son ; and it cannot be gainsaid 
 that primogeniture, or anything that is its equivalent, is 
 hostile to the fundamental principles on which our govern-
 
 26 
 
 ment rest. With this cancer in our vitals, we can never 
 realize the maxim propounded by Daniel Webster, that 
 ''subdivision of soil and equality of condition are the true 
 basis of a popular government." 
 
 Operated by themselves under the rules of forced heir- 
 ship, which include the principle that the legitimate por- 
 tion must go to the forced heir absolutely unfettered with 
 conditions and limitations, trust estates, or executory de- 
 vises, or substitutions, or fidci commissa, or whatever the 
 thing they all essentially represent, may be called, are 
 curtailed of part of their power of injuring the common- 
 wealth. 
 
 But when they are permitted to be operated in conjunc- 
 tion with the unlimited power of disposition, then we are 
 confronted with all the evils not only of primogeniture, but 
 of entails. For in such case there is nothing to hinder the 
 concentration of a whole estate in one heir, and the piling 
 of a trust on top of a trust, just as the French lawyers piled 
 substitution on top of substitution, thus keeping the prop- 
 erty perpetually out of commerce : because there is no 
 reason why a remote beneficiary should not transfer the 
 property, as soon as it vests in him in trust for another 
 remote beneficiary, and so on ad infinitum. 
 
 Large estates, however, may be owned by persons who 
 have neither ascendants nor descendants nor any relatives 
 who could properly be placed in the catagory of forced 
 heirs. How regulate their estates? The answer is that 
 childless men are the exception to the rule. But, by the 
 absolute prohibition of all trusts except purely naked trusts, 
 >uch as executorships, guardianships of minors, and of per- 
 son- non compos, assigneeships in bankruptcy and insolv- 
 ency and the like, we not only reach this exceptional class, 
 but all others who may desire to tie up property and keep 
 it out of commerce, whether to build up their own families, 
 or to accumulate an enormous estate for some remote heir,
 
 or to ensure an unfailing supply of funds to minister to the 
 wants and vices of some decadent. To say that there may 
 be cases where a trust is necessary to provide for the 
 welfare of a helpless person, is no answer to the proposi- 
 tion, because the case put is exceptional, and because while 
 society, from motives of humanity looks after the infant, 
 the feeble-minded and the feeble-bodied, for whose benefit 
 naked trusts are admissible, it is clearly against its interest 
 to constitute itself a hothouse for the cultivation and re- 
 production of fragile forms that cannot stand contact with 
 the affairs of everyday life. Besides, experience with the 
 operation of this prohibition in countries where it applies, 
 has worked nothing but good, and has tended to develop 
 self-reliance and capacity for affairs among the people. 
 
 The extent to which the property of this republic is 
 being tied up in trust estates is appalling. I believe that 
 authentic statistics on the subject would shock the nation 
 from centre to circumference ; and it is to be hoped that 
 in the next census some investigation mav be made of this 
 grave question. 
 
 The conditions have fundamentals changed in the last 
 eighty years. 
 
 Although the pilgrim fathers may not have used "long 
 trusts and other processes for fettering and tying up in- 
 heritances," because inapplicable to their conditions, their 
 descendants, as well as those of the cavaliers, and particu- 
 larly the holders of large fortunes, are daily forging legal 
 chains to shackle their estates to the uttermost limit their 
 advisers think will run the gauntlet of the courts. 
 
 They are no longer troubled with the old question of the 
 shortness of life, or the insolvency or the incompetency of 
 their trustees. Corporations of indefinite existence, with 
 great capital stocks, and keen business men at the fore, now 
 perform the duties and functions of trustees. In every
 
 28 
 
 metropolitan city, these trust corporations have sprung up 
 with startling rapidity. 
 
 In the City of New York alone there are thirty-seven 
 of such companies, with an aggregate capital stock of 
 $98,000,000. Assuming them to have, on the average, the 
 prosperity of one small company in a Southern city, which 
 I know holds $35,000,000 of property in trust estates, there 
 being two other trust companies in the same city, and we 
 reach the startling figure of over one thousand millions of 
 such property as the probable holdings in trust of these 
 New York companies alone, without reference to the hold- 
 ings of similar strong companies in the other great centres 
 of population. 
 
 No doubt there is a large field in business and in society 
 in which these companies can and do operate with no other 
 result but good to individuals and to the community. For 
 these purposes they ought to be permitted and even en- 
 couraged. But when they are yoked up in harness with 
 our existing property laws, and are made the depositaries 
 in trust of the fortunes of all the rich men in the common- 
 wealth, then government by the people will cease, and gov- 
 ernment by trust companies will begin. 
 
 For these reasons, I have long maintained the opinion, 
 and deem it my duty, as an alumnus of the institution 
 founded by the father of American liberty, to express here 
 to-day the opinion, that the only effectual way to arrest the 
 progress of plutocracy in this republic, is to set our laws of 
 property and the right to inherit and to dispose of property 
 b} 7 will back again upon lines as near as possible to those 
 simple and uncomplicated rules that prevailed among our 
 Saxon ancestors, to purify the law of the land with demo- 
 cratic fire, and to pluck up by the roots the last remnant of 
 feudalism with which our society is tainted.
 
 ^08 7
 
 LAW LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 LOS ANGELES
 
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