UNIVERSITY OF CALIFORNIA. 
 
 rlKT OK 
 
 Received 
 Accession No. 
 
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RITES HELD FOR 
 D.L 
 
 Services Take Place at Santa 
 Monica for Noted Cali 
 fornia Lawyer. 
 
 SANTA MONICA, Aug. 2. OP) 
 Funeral services for Delphin M. 
 Delmas, nationally known attor 
 ney, who died here yesterday, were 
 held today from the family resi 
 dence here. No announcement pre 
 ceded the service and only relatives 
 and a few intimate friends were 
 present. 
 
 Rev. Wallace N. Pierson, an in 
 timate friend of the famous bar 
 rister, read the Episcopal service. 
 The body was removed to Los An 
 geles for cremation. 
 
 One special request was made by 
 Delmas before his death, which 
 followed a brief illness after law 
 practice activity that extended up 
 to a few weegs ago. That request, 
 which will be carried out, was 
 that his ashes be intermingled with 
 those of his wife, who died ten 
 years ago, and strewn over Topanga 
 Canyon, a mountain gateway from 
 the seashore to the valley. 
 
 Delmas was born in France in 
 1844 and came to California with 
 his parents when 10 years old. He 
 was educated in Santa Clara county, 
 being graduated from Santa Clara 
 college with the highest honors. 
 He studied law at Yale, was admit 
 ted to practice in Connecticut on 
 graduation, and later became a 
 member of the California bar. He 
 practiced law 16 years in San Jose. 
 In 1867 he was elected district at 
 torney, the only public office he 
 
 MARRIED IN 1869. 
 
 Delroas and Miss Pauline Hoge, 
 daughter of Colonel* Joseph Hoge 
 of San Francisco, were married in 
 1869. Of the four children, Mrs. 
 Elsie D. Barnes and Miss Antoin 
 ette Delmas, both of Santa Monica, 
 are still alive. The mother died 
 some time ago. Delmas was made 
 regent of the University of Cali 
 fornia by Governor Stoneman in 
 1884, and he won distinction as a 
 Charter day orator. 
 
 Delmas established himself in 
 San Francisco about this time and 
 won distinction in important civil 
 and criminal cases. Among them 
 was the suit of Mrs. Ellen M, Col- 
 ton against Leland Stanford, Chas. 
 Crocker and Collis P. Huntington, 
 with the Southern Pacific railroad, 
 then worth $100,000,000, as the 
 stake. Delmas, as attorney for 
 Mrs. Colton kept the litigation alive 
 for more than two years. He was 
 opposed by Hall McAllister, an 
 equally famous attorney. 
 FAMOUS CASES. 
 
 In the famous James G. Fair will 
 case, Delmas represented Mrs. 
 Nettie Craven. He defended John 
 D. Spreckels in a suit brought by 
 Baron von Schroeder and cut the 
 baron s damages down, to $1. Del 
 mas obtained an acquittal of Trux- 
 ton Beale when he shot Frederick 
 Marriott for publishing statements 
 about Miss Marie Oge, Beale s 
 fiancee, using the "unwritten law" 
 defense. 
 
 Delmas most famous case was 
 the defense of Harry Thaw, 
 charged with the murder of Stan 
 ford White in New York. Delmas 
 brought forward his famous "de 
 mentia Americana" and proved a 
 thorn in the flesh of District At 
 torney Jerome, considered the 
 ablest prosecutor in the country, 
 until he obtained a jury disagree 
 ment. The disagreement, in the 
 public mind, was considered tanta 
 mount to an acquittal. 
 
 Delmas, by his personal resem 
 blance to Napoleon, was often re 
 ferred to as "The Napoleon of the 
 Bar" and took the title to his death. 
 Henry C. McPike, a former law 
 partner, who established an office 
 with Delmas in New York, is a resi 
 dent of Oakland* 
 
[Lyi+>v\ 
 
 
This edition is limited to 
 35 copies of which this is 
 
SPEECHES AND ADDRESSES 
 
Speeches and Addresses 
 
 By 
 
 D. M, Delmas 
 
 San Francisco 
 
 A. M. Robertson 
 
 1901 
 
COPYRIGHT, IQOI, BY 
 A. M. ROBERTSON 
 
 THE MURDOCH PRESS 
 
FREQUENT demands have led to the belief that 
 a collection of the speeches of Mr. Delmas which 
 have already separately appeared in print, sufficient 
 in scope to contain some examples of his addresses 
 to juries, courts, and public assemblies, would be 
 received with favor by the public. In this belief, 
 and with the sanction of Mr. Delmas, this volume 
 is published. 
 
 83693 
 
CONTENTS 
 
 Page 
 
 ARGUMENT IN VON SCHROEDER vs. SPRECKELS .... 9 
 
 ARGUMENT IN CONTEST OF PARKER S WILL .... 57 
 
 ARGUMENT IN RE SHORTRIDGE 115 
 
 ARGUMENT IN THE RAILROAD TAX CASES 161 
 
 SPEECH AT SANTA CRUZ 215 
 
 ADDRESS ON EDUCATION 257 
 
 EULOGY OF STEPHEN M. WHITE . . . 289 
 
 ADDRESS AT ELKS MEMORIAL SERVICE . . . ;. . . 298 
 
 ADDRESS BEFORE THE SONS OF THE REVOLUTION . . . 306 
 
 ARGUMENT IN JARMAN vs. REA: DESCRIPTION OF A POLITICAL 
 
 Boss ... ... 313 
 
 ADDRESS BEFORE THE CHIT-CHAT CLUB . . . . . . 317 
 
 ADDRESS ON INDEPENDENCE DAY 323 
 
 WALTER SCOTT: ADDRESS BEFORE THE ST. ANDREW S 
 
 SOCIETY v . . 329 
 
 ADDRESS ON THE INAUGURATION OF THE HON. HORACE DAVIS 
 
 AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA . 339 
 
 ARGUMENT IN THE CASE OF COLTON vs. STANFORD, ET ALS. 344 
 
 ADDRESS BEFORE THE LEGISLATURE OF CALIFORNIA . . . 353 
 
TO A JURY 
 
THE following argument was made by Mr. Delmas, in the Court 
 House, in San Rafael, on the 2 zd of December, 1900. The nature 
 of the controversy which called it forth is correctly stated in an 
 editorial of the Argonaut, published at the close of the trial: 
 
 "The case was, in many respects, a peculiar one. Baron von 
 Schroeder, the plaintiff, is a German subject, an officer in the 
 German army reserve, and for many years the husband of a Cali 
 fornia millionaire s daughter. He has been domiciled in California 
 for some twenty years. Among the other property belonging to 
 his wife is the Hotel Rafael, in Marin County, a popular summer 
 resort. The defendant was John D. Spreckels, son of Claus 
 Spreckels, the multi-millionaire, and himself a millionaire. In addi 
 tion to his many other properties, John D. Spreckels owns the Call 
 newspaper. In October, 1898, the Call printed an account of 
 certain alleged doings at the Hotel Rafael, making accusations con 
 cerning Baron von Schroeder s conduct toward the ladies there, 
 both married and single, winding up with the statement that the 
 lessee of the hotel was forced to throw up his lease by reason of 
 the scandalous conduct of the lessor, Baron von Schroeder. As a 
 result of this article, Von Schroeder brought suit against John D. 
 Spreckels for two hundred and fifty thousand dollars damages for 
 libel. The suit has just ended with a verdict in favor of Spreckels 
 and against Von Schroeder. 
 
 "The suit was remarkable in many respects. The prominence 
 of the two parties, their wealth, and the fact that the testimony in 
 the case would involve the names of some of the lady guests, 
 attracted wide attention." 
 
VON SCHROEDER vs. SPRECKELS 
 
 IF IT PLEASE YOUR HONOR, AND YOU, GENTLEMEN 
 
 OF THE JURY : In his opening the learned counsel 
 has dwelt upon the importance of this case to his 
 client. He has told you of its momentous conse 
 quences to him. All this is beyond question true. 
 But there is also another consideration which ren 
 ders your verdict one of paramount importance. 
 By that verdict you will define the proper limits of 
 the rights and duties of the press in this State. 
 You will authoritatively answer what I asked you 
 when examining you as to your competency as 
 jurors. You will decide the question whether, 
 whenever it acquires knowledge of individual con 
 duct of such an open and flagrant character as to 
 become a menace to morals, it is the right and duty 
 of a newspaper to protect the homes of the com 
 munity by holding up that conduct to public cen 
 sure. This consideration it is, gentlemen, which 
 will give port and stature to your deliberations, and 
 impart its true dignity to your verdict. Whilst, 
 therefore, I do not doubt the great interest which 
 the plaintiff has in your judgment, I feel confident 
 
ARGUMENT 
 
 that you will not fail to appreciate the fact that 
 the public have in the outcome an equally deep 
 concern. 
 
 The rights and duties of the press are, at times, 
 much misunderstood. No one contends, of course, 
 that it has a right to invade homes for the purpose 
 of prying into strictly private conduct, however de 
 praved. But whenever that conduct takes place 
 under such circumstances that the public must, of 
 necessity, be affected by it, then a public journal 
 has not only the right, but is charged with the 
 duty of exposing it. If, therefore, the character 
 of the life led by the plaintiff has been not only in 
 itself immoral, but has been displayed in such a man 
 ner that the public could not but be scandalized by 
 it, I shall appeal to you to establish by your verdict 
 that the newspaper which has held him up in his 
 true light is not only not open to the charge of 
 overstepping the bounds of its legitimate province, 
 but, on the contrary, deserves commendation for 
 what it has done. 
 
 It remains for you, therefore, in the discharge not 
 only of the duty which you owe to the plaintiff, but 
 of that which you owe to the community, carefully 
 to determine the facts of this case, and then to decide 
 whether those facts legally afford to the defendant as 
 the owner of this paper immunity for this publica 
 tion. 
 
 The proper attitude of the press with reference 
 to matters of this kind is outlined in the editorial 
 
 10 
 
VON SCHROEDER vs. SPRECKELS 
 
 published the day after the appearance of the article 
 in question. That editorial, put in evidence by the 
 plaintiff himself, has been read to you. It presents, 
 couched in very clear language, the canons of ethics 
 universally adopted for the guidance of the press in 
 the United States.* 
 
 * The editorial is in these words: 
 
 " THE EXPOSURE OF SCANDALS. 
 
 "A journal devoted to the welfare of society as well as to the 
 dissemination of news carefully abstains from the publication of 
 scandals in the lives of private individuals as long as it is possible to 
 do so without wrong to the community. When, however, the 
 scandals become notorious, and are committed by persons who by 
 reason of their wealth and the influence of their families have admis 
 sion to the homes of the city, it then becomes necessary for the pro 
 tection of womanhood to expose the evil, in order that the offender 
 may be known and society put on guard against him. 
 
 ** The contaminating effect of notorious wrong-doers who rely on 
 wealth and social position to enable them to practice a vicious course 
 with impunity is far-reaching. Persons thoroughly innocent of 
 wrong intent are not infrequently made the objects of unjust suspicion 
 simply because in their ignorance they associate with some unexposed 
 rascal in society. When to save innocent persons from that danger 
 it becomes necessary to make public the scandalous life of the offender, 
 then the exposure becomes a duty which the press owes to the 
 public. 
 
 " There are many persons of depraved tastes and appetites with a 
 fondness for violating the established code of social ethics who can 
 be restrained only by the fear that if they persist in evil courses they 
 will be exposed and held up to the public scorn. The existence of 
 an independent press, ready to make the exposure without fear or 
 favor, acts therefore as a safeguard to the community. Even where 
 it does not deter some bolder profligate from pursuing a career ot 
 notorious scandal, it at least gives notice of his character and puts 
 
 ii 
 
ARGUMENT 
 
 Was the article in question published in further 
 ance of the lofty and praiseworthy purposes so well 
 expressed in that editorial? Or, contrariwise, was it, 
 as claimed by the learned counsel, conceived in pre 
 judice and born in malice? If the former, then, I 
 repeat it, the article is not only blameless in law, but 
 is in fact commendable. If the latter, it is beyond 
 question deserving of the severest censure. 
 
 Here, then, we are confronted with the first great 
 question in this case : What were the motives which 
 prompted the publication of this article ? The learned 
 counsel has been pleased to describe them in the 
 following words: 
 
 " We say the article was wanton, willful, malicious, 
 false, and for the purpose, and the sole purpose, of 
 using a powerful metropolitan paper owned by an 
 unscrupulous millionaire to blast the reputation and 
 fame of a man against whom he entertained some 
 feeling of personal enmity or hatred." 
 
 Is this true? If it is, if this publication origi 
 nated in a malicious purpose wantonly to injure the 
 plaintiff, to destroy his character and to ruin his 
 happiness, then the defendant has indeed placed 
 himself beyond the pale of the law. Under such 
 
 the homes of the city on guard against him. The publication of 
 private offenses is therefore one of the disagreeable acts which must 
 at times be performed by even the most careful journal that has any 
 respect for virtue and any true comprehension of its duty to the 
 public. * 
 
 12 
 
VON SCHROEDER vs. SPRECKELS 
 
 circumstances justice would not only permit but 
 would demand that the jury visit with condign pun 
 ishment the publisher who could pervert to such 
 base uses the vast powers confided to his hands; and 
 you, gentlemen, would have the full warrant of the 
 law to express by your verdict the abhorrence 
 with which such a character should be looked upon 
 a character, as well stated by the learned counsel, 
 with which the cutpurse, the burglar, or even the 
 shedder of human blood, is, in point of depravity, 
 not to be compared. I ask you, then, had the 
 learned counsel any ground for this denunciation of 
 my client? Do his words find justification in the 
 evidence? 
 
 The evidence shows on the contrary, that the 
 defendant never entertained the slightest animosity 
 against the plaintiff. It shows that the article did 
 not originate in a desire to gratify a personal grudge. 
 It shows that the publication was not made with a 
 view to inflict injury. This is established by con 
 siderations to which I shall presently invite your 
 attention. 
 
 Before entering at large upon this field of discus 
 sion, however, let me dismiss with a smile the 
 suggestion, but half-voiced by the learned counsel, 
 as if his own good sense instinctively shrank from 
 giving utterance to such a proposition, that Mr. 
 Spreckels sought to destroy the reputation of the 
 resort owned here in San Rafael by the plaintiff, 
 because, forsooth, he himself has some interest in a 
 
 13 
 
ARGUMENT 
 
 similar establishment in the southern part of the 
 State some six hundred and twenty miles away! 
 
 And now as to the question of malice. In deal 
 ing with this branch of the case, gentlemen, I might 
 well rely upon the name which the defendant bears 
 as affording in itself a sufficient refutation of such a 
 charge. That name has been for nearly half a 
 century inseparably associated with the growth and 
 development of the resources of California. It is 
 indissolubly linked with our most important manu 
 facturing, commercial, and industrial enterprises. Its 
 very utterance at once suggests to the mind of every 
 man who hears it honorable dealing and enlightened 
 generosity. Prosperity has rewarded the labors of 
 the family of the Spreckels; public benefits have 
 flowed from the vast scope of its varied undertak 
 ings; and public gratitude has attested its open- 
 handed munificence. No man no group of men 
 could have successfully conducted enterprises so 
 protracted, diversified, and extensive, if the guiding- 
 star of their course had been personal spite or petty 
 malice. Such achievements must have for their 
 basis kindliness and good-will to all men. 
 
 The fair and broad-minded business methods 
 which have ever characterized Mr. Spreckels s under 
 takings did not desert him, when, now some three 
 years ago, he became the owner of the Call. The 
 work was novel. His walks had been in other 
 fields. Of the management of a great public jour 
 nal he had little knowledge. But his innate sense 
 
 14 
 
VON SCHROEDER vs. SPRECKELS 
 
 of right and justice afforded so far, at least, as 
 tone and policy were concerned a sufficient guide. 
 He promulgated one cardinal rule, from which he 
 has never permitted the paper to depart. He traced 
 a line of conduct, from which he has never allowed 
 it to swerve. He laid down one maxim, which he 
 has always compelled it unquestioningly to obey. 
 From the very start, his orders were that nothing 
 should be published without having first undergone 
 the most scrupulous examination as to accuracy and 
 truth; and that if in the unavoidable expedition of 
 the work some inaccuracy should elude the rigorous 
 vigilance imposed, then, as soon as the facts were 
 ascertained, a retraction or modification should at 
 once be printed, in a place as prominent and in type 
 as conspicuous as the original matter. 
 
 This was the spirit with which Mr. Spreckels 
 entered upon his new and important duties as the 
 owner and editor of the Call. And in this spirit he 
 has conducted it until now. These facts, gentlemen, 
 are established by uncontradicted testimony. Indeed, 
 no one disputes them. 
 
 When he speaks of the motives of Mr. Spreckels, 
 and affirms that he desired to " gratify his unscrupu 
 lous malice by the publication of this article," and 
 to "blast the reputation and fame of a man against 
 whom he entertained some feeling of personal 
 enmity/ does the learned counsel overlook the fact 
 that, from the time this article was first spoken, or 
 even thought, of until it saw the light, Mr. Spreckels 
 
 15 
 
ARGUMENT 
 
 was at his sugar factory in Salinas? Does he forget 
 that the first intimation he had of this article, or of 
 any matter connected with it, was when, on his 
 return home, he read it in the Call? Is it pretended 
 that before that time he knew of the information that 
 came, on the evening of the 24th, from San Rafael? 
 No one so pretends. Is it pretended that he knew 
 of the interview with General Warfield, which took 
 place that evening? No one so pretends. Is it 
 pretended that he sanctioned, or even had any 
 intimation of, the publication until after it was 
 made? No one so pretends. When all these things 
 took place he was quietly asleep one hundred and 
 twenty miles away. What, then, becomes of this 
 charge of malice? 
 
 Independent of this, which may be called nega 
 tive proof, the circumstances affirmatively show not 
 only the utter lack of malice, but even a feeling of 
 consideration of ill-advised and undeserved con 
 sideration, as the event proved for the plaintiff. 
 To these circumstances I now invite your atten 
 tion. 
 
 Fifteen days before the article in question was 
 published, on the night of the loth of October, 
 1899, news reached the Call office of a certain 
 episode that had just taken place at the Palace 
 Hotel in which the plaintiff and his brother were 
 implicated. What the nature of that episode was 
 may be inferred from the fact that the learned coun 
 sel who is here championing the reputation of his 
 
 16 
 
VON SCHROEDER vs. SPRECKELS 
 
 client durst not permit us, though we had the wit 
 nesses at hand, one of them actually on the stand, 
 to inquire into or prove it. Though the facts 
 were indisputable, the general manager would not 
 take upon himself the responsibility of giving them 
 to the world. In dealing with a matter which 
 affected the character and social standing of two 
 such prominent men he deemed it his duty to 
 invoke the decision of his chief, the owner of the 
 paper. Accordingly, though it was then past mid 
 night, he telephoned to Mr. Spreckels, calling him 
 to the editorial rooms. Upon his arrival, a little 
 before one o clock, Mr. Spreckels is made acquainted 
 with the condition of affairs. The article, then 
 already prepared, is shown him. He is told that 
 the facts stated in it are beyond question true. He 
 is informed that the manager and heads of depart 
 ments are unanimous in the opinion that the canons 
 of newspaper ethics warrant the publication. What 
 does he do? If he entertained feelings of enmity 
 against the plaintiff, here was an occasion to glut full 
 his hatred. All he needed to do was to sanction the 
 publication. Did he do so? On the contrary, he 
 forbade it. Was that done in malice? Was it done 
 to gratify revenge? Was it, to use the language of 
 the learned counsel, done " for the purpose of using 
 a powerful metropolitan paper to blast the reputa 
 tion and fame" of an enemy? 
 
 There is another circumstance which may be 
 adduced in confirmation of the fairness of Mr. 
 
 J7 
 
ARGUMENT 
 
 Spreckels, and the utter absence of malice on his 
 part. As already stated, he knew nothing of the 
 article until after it was published. He reads it, on 
 the afternoon of the 25th of October, while on his 
 way home from Salinas. He arrives in San Fran 
 cisco at about four o clock. He employs the 
 remaining moments of daylight in dispatching the 
 business accumulated in his office. In the evening, 
 he sees for the first time the publication in the Bul 
 letin purporting to be a letter signed by General 
 Warfield. He is at once struck with the apparent 
 contradiction which it gives to the statements con 
 tained in the article. He asks himself: " Is it pos 
 sible that during my absence my instructions have 
 been disregarded? Has my staff neglected the 
 observance of those rules of circumspection and 
 prudence which I have from the start inculcated? 
 Has a mistake been made? Has a wrong been 
 done to Baron von Schroeder?" He resolves to 
 obtain immediate information in answer to all these 
 questions. It is then too late, the night being 
 already somewhat spent. But the very next morn 
 ing he sends for General Warfield, requesting him 
 to come to the Call office. The General arrives 
 there shortly after midday. 
 
 What took place at that interview you know. It 
 is stated by Mr. Spreckels, whose evidence is in no 
 manner questioned. He testifies that he said, in 
 substance : " General, do I understand that, by your 
 letter published in the Bulletin,, you intend to deny 
 
 18 
 
VON SCHROEDER vs. SPRECKELS 
 
 the accuracy or truthfulness of the statements con 
 tained in the Call of yesterday?" The General, in 
 substance, replied: " No, Mr. Spreckels; I do not. I 
 have not said, and do not intend to say, that the state 
 ments contained in the article are not true. On the 
 contrary, I assert that I firmly believe them to be 
 true. Note that I do not say in this letter that 
 these statements are untrue, nor that I do not 
 believe them to be true, but, simply, that I have no 
 personal knowledge of the facts upon which they 
 are based." 
 
 Interpreted in the light of what we now know, 
 what was the meaning of this statement of General 
 Warfield? Simply this: "I personally did not sit 
 up from evening until dawn to see Baron von 
 Schroeder gambling with women in the club-house; 
 I personally did not remain in the wine-room from 
 eight at night until four in the morning, with him 
 and his male and female companions, to see them 
 carousing and getting drunk; I personally did not 
 see him leave the hotel on the night when, with a 
 bridegroom and bride and another woman, he drove 
 to a disreputable resort, and there remained alone 
 with the bride until three or half-past three in the 
 morning. None of these things did I see with my 
 own eyes. But they came to me from sources 
 which I could not question. I believed them to 
 be true when I stated them in the interview with 
 the manager of the Call. I believe them now. I 
 have not denied and do not intend to deny them." 
 
 19 
 
ARGUMENT 
 
 The learned counsel has sought to persuade 
 you that in the failure of the Call to retract the 
 article in question you must find an evidence of 
 Mr. Spreckels s malice against the plaintiff. But 
 after this interview with General Warfield, what 
 retraction was possible? What could the Call say? 
 That the information upon which its article was 
 based was incorrect? But General Warfield had 
 just confirmed it. That the facts related in the 
 article were not true? But General Warfield had 
 just reaffirmed them. 
 
 I can well imagine circumstances under which a 
 retraction would have been proper, and a refusal 
 to make it would have afforded evidence of malice. 
 Suppose at the interview in question General War- 
 field had said : " Mr. Spreckels, the article in the 
 Call is an unjust imputation against an innocent 
 man. The charges it contains are not true. Dur 
 ing the many years I have conducted the Hotel 
 Rafael Baron von Schroeder s behavior has been 
 that of a gentleman. His conduct toward the 
 ladies of the house has always been characterized by 
 courtesy and respect. I have never heard of his 
 doing anything that could offend modesty or 
 expose him to censure." If this had been said, then 
 indeed the refusal to retract would have been inde 
 fensible. 
 
 But do you believe, gentlemen, that if that had 
 been the language of General Warfield, Mr. Spreck 
 els would not at once have ordered a retraction 
 
 20 
 
VON SCHROEDER vs. SPRECKELS 
 
 published? Do you believe it, knowing the rules 
 of fairness and justice which he had prescribed from 
 the start for the conduct of his paper? Do you 
 believe it, knowing how he exercised his authority 
 on the night of the loth of October, when he sup 
 pressed the publication of the Palace Hotel episode? 
 Do you believe it, knowing that his first thought 
 after reading the Bulletin was to send for General 
 Warfield, to ascertain from his own lips whether a 
 wrong had been done, and whether there was just 
 cause for redress? You do not believe it. You 
 know that the promptings of his own heart, the 
 uniform policy of his paper, the considerateness 
 which he had already shown would all have irresisti 
 bly impelled him to cause such a retraction to be 
 published. But General Warfield made no such 
 statement. To retract in the face of what he had 
 said would have been to falsify the truth. 
 
 Permit me to submit, in addition to all this, that 
 the plaintiff s conduct since the publication has been 
 such as to confirm Mr. Spreckels s conviction that 
 the facts of the article were true and its strictures 
 deserved. The publication was made on the 25th 
 of October, 1899, about sixteen months ago. As 
 the plaintiff claims that it was both unjust and 
 untrue, it behooves us to ask whether his subse 
 quent course was that of an innocent and injured 
 man. What would such a one have done ? Would 
 he not have sought the person who had wronged 
 him, and, strong in the consciousness of his inno- 
 
 21 
 
ARGUMENT 
 
 cence, have said: "You have done me an injustice. 
 You have brought undeserved suffering upon me 
 and mine. The things you have published are not 
 true. The strictures you have made are unwar 
 ranted. Of all this I can give you proof. If I do, 
 may I not appeal to you to right the wrong you 
 have done?" Or, if he shrank from going person 
 ally, would he not have sent some representative in 
 his stead? Would he not have said to some friend 
 or attorney: "Go to the publisher of this paper. 
 Satisfy him that this article is not true. Impress 
 upon him the pain and suffering which it is calcu 
 lated to inflict. Appeal to his sense of justice to 
 set me right before the world?" Would not this, I 
 take leave to ask you, have been the course pursued 
 by an innocent and wronged man? But nothing of 
 the kind was done by the plaintiff. Neither in per 
 son nor by representative did he communicate with 
 Mr. Spreckels, nor question the truth or the justice 
 of the article, nor seek to prove the groundlessness of 
 its accusations, nor ask for reparation. His conduct 
 throughout was that of a man conscious of guilt. 
 Instead of thus seeking that redress which, had it 
 been deserved, he well knew Mr. Spreckels s sense 
 of fairness would gladly have accorded, he preferred 
 to demand it in a court, where, by means of techni 
 cal devices, he might hope to shut out the truth. 
 He sought not for reparation, but for money. 
 
 May I not at this point, therefore, confidently 
 hope to have established to your satisfaction that the 
 
 22 
 
VON SCHROEDER vs. SPRECKELS 
 
 charge that, in the publication of this article, Mr. 
 Spreckels was actuated by malice is unfounded? 
 
 I think I am warranted in the statement that the 
 learned counsel is by this time convinced that it is 
 unfounded; for, in despair of making good his 
 accusation of actual malice, he has sought to estab 
 lish malice by imputation. It is not doubtful that, 
 though one may not be actuated by feelings of per 
 sonal animosity, yet his conduct may be so reckless, 
 his disregard of the rights of others so wanton, as to 
 warrant the inference of a condition of mind equiva 
 lent to actual malice. Having endeavored to refute 
 having, I hope, refuted the charge of actual 
 malice, I am now, therefore, brought to consider the 
 question of imputed malice. I shall here endeavor 
 to show circumstances which prove that the conduct 
 of the Call was neither wanton nor reckless. In 
 order to do this, I am forced to enter into a brief 
 examination of the origin of the article in question. 
 
 How, then, did that article originate? In the 
 year 1899, Mr. Francis L. Perkins acted here as the 
 correspondent and representative of the Call. Early 
 in October of that year, he made a report to the 
 general manager, relating to the conduct of Baron 
 von Schroeder at the Hotel Rafael, and the con 
 sequences which that conduct was calculated to 
 bring about. That report was as follows: 
 
 " That Mrs. Warfield had informed him that the 
 General would be obliged to give up the lease of the 
 Hotel Rafael, on account of Baron von Schroeder s 
 
 23 
 
ARGUMENT 
 
 profligate conduct; that for months the conduct of 
 the Baron toward the lady guests of the hotel had 
 been such that it had grown notorious; that he had 
 insulted women; that there were other women who 
 were on such intimate terms with him that he could 
 not insult them, but that his conduct with them had 
 been an insult to decent women at the hotel; that 
 his conduct had not been confined to the hotel, but 
 had been carried on at roadside resorts with the 
 guests of the hotel, and, in particular, at a place 
 called Pastori s, or Fairfax Villa; that he had taken 
 guests of the hotel there, and his conduct had been 
 such that it had become noised about the town, and 
 that these stories were reflecting seriously upon the 
 hotel; that his carousals around the hotel with mem 
 bers of both sexes had been such that General War- 
 field had been compelled to make repeated protests 
 to him, and that, if that conduct did not cease, the 
 Warfields would be obliged to give up their lease; 
 that she did not believe that that conduct would 
 cease, because she did not believe the leopard could 
 change its spots." 
 
 This report, you will recall, was based upon an 
 interview which Mr. Perkins had had, in the rear 
 office of the hotel, with General Warfield and his 
 wife. It was an echo of what had been said to him 
 by Mrs. Warfield, confirmed by the tacit assent of 
 her husband. That Mrs. Warfield made the state 
 ment as reported has not been questioned. Mr. 
 Perkins testifies to it; and the failure of the plaintiff 
 to call either General Warfield or his wife to con- 
 
 24 
 
VON SCHROEDER vs. SPRECKELS 
 
 tradict him is an admission of the truthfulness of 
 his testimony. Indeed, throughout the conduct of 
 this case, that evidence has been accepted as true. 
 Mr. Perkins is one of the few who have escaped the 
 general charge of perjury so broadly fulminated by 
 the learned counsel against our witnesses. 
 
 In investigating the origin of this article, we 
 start out, then, with the undisputed fact that, early 
 in October, 1899, in the presence of her assenting 
 husband, Mrs. Warfield, speaking to one whom she 
 knew to be the correspondent of a great metropoli 
 tan journal, made these statements touching the 
 character of the conduct of the plaintiff; and the 
 further fact that the correspondent immediately 
 reported his information to headquarters. 
 
 The next step brings us to the course pursued 
 after the reception of this information. What did 
 the management of the Call do ? Did it seize with 
 avidity upon this piece of interesting information, 
 coming from a source so manifestly reliable? No. 
 It proceeded with caution. It deferred action. Mr. 
 Leake said to Mr. Perkins: "Wait until we have 
 a confirmation of these statements. Wait until we 
 learn that there is substance enough in them to end 
 in the threatened culmination. If it shall turn out 
 that the Warfields are indeed compelled by the 
 Baron s conduct to give up the lease of the hotel, 
 your story will have materialized. It will have 
 assumed a tangible shape. The giving up of the 
 lease will become a matter of official record and 
 
 25 
 
ARGUMENT 
 
 public notoriety. Then will we be authorized to 
 acquaint the public with all the facts." Mr. Leake 
 accordingly withheld for the time being all publica 
 tion. This, too, is undisputed. 
 
 What happened next? On the 24th of that 
 month, Mr. Perkins who, in pursuance of his 
 instructions, had kept in touch with the matter 
 telephoned to Mr. Leake that the lease of the hotel 
 had been surrendered by the Warfields, and that 
 the formal documents were to be executed on the 
 following day. What did Mr. Leake do? Did he 
 unquestioningly accept the statement of his corre 
 spondent? No. In consonance with the spirit of 
 the instructions which Mr. Spreckels had from the 
 start laid down, that is, to publish nothing until 
 after every available source of information had been 
 exhausted, he at once telephoned to General War- 
 field to be informed whether it were true that he had 
 given up the lease of the hotel. The General 
 regretted that the news had got out, but stated that, 
 since it had, if Mr. Leake would come to him in 
 person, he would give him the facts and necessary 
 explanations. Though the duties of Mr. Leake s 
 position as general manager obviously did not per 
 mit him to act as an interviewer or gatherer of news, 
 nevertheless, leaving the more important labors of 
 his office, he proceeded in person to the California 
 Hotel to see General Warfield. 
 
 What took place at that interview? Upon that 
 subject the record is so complete, the bulwark of 
 
 26 
 
VON SCHROEDER vs. SPRECKELS 
 
 proof so impregnable, that the learned counsel has 
 not even attempted to assail it. As authentic 
 sources of information, we have, first, the testimony 
 of Mr. Leake; secondly, that of Mr. Raymond, the 
 reporter who accompanied him; and, thirdly, the 
 notes which the latter, writing down the words as 
 they fell from the General s lips, made at the time. 
 What, then, was the statement thus made, on the 
 evening of the 25th of October, 1899? It is this: 
 
 " That the Baron s conduct had brought scandal 
 on the hotel, and had driven many respectable people 
 away; that he had acted like a low, vile character; 
 that there was a certain prominent society woman of 
 San Rafael whose relations to the Baron were liable 
 to become a public scandal at any time; that she was 
 in the habit of inviting young women to parties or 
 dinners given to the Baron, and abetting him in 
 debauching them; that poker games were conducted 
 by the Baron; that he thought he could insult any 
 woman with impunity; that his presence at the golf 
 links had driven respectable people away; that a 
 young woman who had come to the hotel a respecta 
 ble girl, but susceptible to flattery, of which he was 
 a past master, had been ruined by him; that he had 
 debauched her right there in the hotel; that another 
 one had been degraded by the machinations of the 
 Baron and his brother; that they had ruined the good 
 name of the hotel, for the Baron took no pains to 
 cover up these acts, but rather took pride in flaunt 
 ing them; that guests had complained repeatedly of 
 his conduct; that he followed women through the 
 
 27 
 
ARGUMENT 
 
 grounds of the hotel and ogled them from the veranda; 
 that an elderly lady and her two daughters com 
 plained that he would follow them about the grounds, 
 bobbing up here and there and in every way making 
 himself so obnoxious that they finally left." 
 
 With this statement Mr. Leake returned to the 
 general office. Let me briefly foot up the sum of 
 his information at that point of time. First, he had 
 knowledge of the episode in which Baron von 
 Schroeder had been involved in the Palace Hotel 
 the episode whose publication Mr. Spreckels had 
 vetoed on the loth of that month; secondly, he had 
 the statement of Mrs. Warfield, made at the Hotel 
 Rafael, as communicated to him, in the same month, 
 by Mr. Perkins; thirdly, he had the statement 
 which General Warfield, under circumstances afford 
 ing ample warranty of accuracy and truth, had just 
 made; fourthly, he had, as an ultimate confirmation 
 of the whole matter, the character and position of 
 his informant, a general in our militia, a man of ripe 
 years and extensive experience. 
 
 With all this before him, how could Mr. Leake 
 doubt the accuracy of his information? Knowing 
 these facts to exist, what was he to do? It was his 
 duty to gather and to publish news of general and 
 public interest. He ordered this published. Who 
 will say, that, in so doing, he acted without due cir 
 cumspection? Who will say that he had not exer 
 cised every precaution that the most rigorous 
 prudence could exact? Place yourselves in his shoes. 
 
 28 
 
VON SCHROEDER vs. SPRECKELS 
 
 Imagine yourselves charged with the duties which 
 then rested upon him. If so circumstanced, would 
 you have believed that information coming to you 
 from such a variety of reliable sources was unworthy 
 of belief? Would you, on that ground, have with 
 held it from publication? 
 
 I now take leave of the question of malice. In 
 view of the circumstances which surround that sub 
 ject, am I not warranted in demanding from you, at 
 this point, your assent to the proposition that 
 neither is Mr. Spreckels chargeable with malice in 
 fact, nor is Mr. Leake taxable with malice by infer 
 ence ? Recalling, as concerns Mr. Spreckels, the 
 general instructions which he had given from the 
 start for the conduct of his paper ; the rigorous and 
 unvarying enforcement of those instructions ; his for 
 bearance, when he suppressed the publication of the 
 Palace Hotel episode ; his absence from the city 
 during the whole of the time elapsing from the 
 inception to the publication of the article in ques 
 tion ; his prompt sending for General Warfield, 
 when he read the letter in the Bulletin, to learn 
 whether an injustice had been done ; the assurance 
 he then received from the General that the facts 
 stated in the article were true, recalling all this, I 
 ask you to acquit Mr. Spreckels of this odious 
 charge of malice in fact. As regards Mr. Leake, 
 remembering the information which he received 
 from Mr. Perkins early in October ; the incidents 
 of the Palace Hotel episode, which he learned on 
 
 29 
 
ARGUMENT 
 
 the loth of that month; his suspending the publi 
 cation of the facts communicated to him by Mr. 
 Perkins until they should be substantiated by some 
 event of a public nature ; the corroborative infor 
 mation which he received from Mr. Perkins on the 
 24th of October ; his interview with General War- 
 field on the evening of that day ; the positive state 
 ments then made by the General in the presence of 
 the reporter, Mr. Raymond ; the character and 
 standing of General Warfield, remembering all 
 this, I call upon you to declare that Mr. Leake 
 acted throughout with commendable prudence. I 
 call upon you to acquit him of remissness or negli 
 gence, and, therefore, of malice by inference. 
 
 If I have dwelt at some length upon this ques 
 tion of malice, it is not only because justice requires 
 that my client should be fully cleared of the grave 
 imputation cast upon him by the learned counsel, 
 but because of the importance of the subject, 
 viewed from a purely legal standpoint. In cases of 
 this character, the damages which it is in the power 
 of the jury to award are of two kinds. The law 
 calls the first compensatory, and the second punitive. 
 It may not be improper to make some explanation 
 of these terms, in order to prepare your minds for 
 the reception of the ideas which his Honor will 
 convey to you through his charge. 
 
 Any one may recover compensation for the injury 
 occasioned him by the legally unwarranted act of 
 another. And if the act was prompted by malice, 
 
 30 
 
VON SCHROEDER vs. SPRECKELS 
 
 actual or presumed, he may, in addition, be awarded 
 such sum as a jury shall in its judgment deem an 
 adequate punishment of the wrong-doer. Take 
 the following illustrations : If, while burning off the 
 stubble of his field, a farmer, through want of proper 
 precaution, permits the fire to spread to his neigh 
 bor s house and consume it ; if, by negligent han 
 dling, a hunter causes his fowling-piece to be 
 discharged against his companion s dog and kill it ; 
 if a cabman carelessly upsets his hack and breaks 
 the arm of his passenger, they may each be called 
 upon to make good the damage they have caused. 
 But if their conduct is malicious, if the farmer 
 purposely sets fire to the dwelling, if the hunter 
 wantonly shoots the animal, if the cabman with in 
 sults and blows drags his patron from his vehicle, 
 then the jury may be called upon to award, in 
 addition to mere compensation, such an amount 
 as it may deem adequate punishment for the tur 
 pitude which accompanies the injury. The same 
 rule applies to the case at bar. Reputation is a 
 valuable possession, held by a title as valid as that 
 which secures the enjoyment of lands and chattels 
 or the safety of life and limb. Inasmuch as it 
 injures reputation, a libel is actionable. The per 
 son injured has a right to be made whole for the 
 damage which it inflicts the loss in reputation he 
 has suffered. But, beyond this, if the libel is not 
 only false, but the publisher, knowing it to be so, 
 gives it out for the purpose of gratifying his malice, 
 
 31 
 
ARGUMENT 
 
 then the law calls upon the jury to award not only 
 compensation to the victim, but punishment against 
 the wrong-doer. 
 
 With this explanation, gentlemen, you will per 
 ceive that, from a legal standpoint, all I have so far 
 said goes merely to prove that, whatever else you 
 may do in this case, there is no room for awarding 
 damages against Mr. Spreckels by way of punish 
 ment. 
 
 This leaves for consideration the question whether 
 there is any ground for rendering against him a ver 
 dict by way of compensation. In other words, if 
 the facts afford no warrant for punishing Mr. 
 Spreckels, do they afford any for awarding compen 
 sation to Baron von Schroeder? This depends 
 upon two considerations : First, is there any room 
 for awarding a verdict against Mr. Spreckels at all ? 
 and, if so, secondly, what considerations should 
 have scope in determining the amount of that ver 
 dict ? Briefly, has the plaintiff been, in law, injured 
 by this article ? and, if so, to what extent ? 
 
 In an action for libel, gentlemen, no recovery 
 whatever is allowable when the words uttered are 
 true. If, therefore, the statements contained in the 
 article in question were substantially correct, if the 
 conduct of the plaintiff at the Hotel Rafael revealed 
 him to the eyes of the community as a man of the 
 character delineated in that article, that ends your 
 inquiry. In this State no one can be held liable for 
 uttering or publishing the truth, however injurious 
 
 32 
 
VON SCHROEDER vs. SPRECKLES 
 
 to another the results may be. The policy of our 
 law requires that private and public affairs shall be 
 carried on upon a basis of truth ; and whoever, by 
 word of mouth, or through print, furthers that 
 policy commits no wrong, however grievous may 
 be the hurt which his utterances may cause to the 
 feelings or the business of another. To all who 
 complain of the utterance of the truth, the law 
 answers : <c You have no right so to conduct your 
 selves, or so to transact your affairs, as that truth 
 will injure either." 
 
 Such being the law, and that it is you will learn 
 from his Honor s charge, the only remaining 
 question is this : Is the article in question in sub 
 stance true ? I pray your attention, while I briefly 
 rehearse the testimony which tends to prove 
 which, I humbly submit, does prove the substan 
 tial truth of the charges contained in the article. Be 
 pleased to bear in mind that the question here is : 
 Was the conduct of Baron von Schroeder, as mani 
 fested and known at the Hotel Rafael, of such a 
 character that it may properly be characterized as 
 that of an immoral and profligate man ? 
 
 Examine, first, his conduct in connection with 
 drinking-bouts and nightly carousals with female 
 companions at the hotel. 
 
 Bernard Peters, a waiter there from May to Sep 
 tember, 1898, testifies that the plaintiff was in the 
 habit of drinking in the club-house with women, 
 staying at times as late as four o clock in the morn- 
 
 33 
 
ARGUMENT 
 
 ing, the women, to use his own words, "drinking 
 often more than they could stand." William S. 
 Ballard, the manager in the summer of 1898, states 
 that the plaintiff frequented the club-house with 
 women at late hours of the night, the party usu 
 ally disposing of four bottles of "Dry Mumm," 
 their favorite wine. Carl Schaubye, a waiter 
 there, while making substantially the same state 
 ment, adds that he had seen one of the women in a 
 state of intoxication. Thomas Flaherty, employed 
 about the stables, states that in these nightly carou 
 sals the women were often intoxicated. He de 
 scribes how, on one occasion, when the drinking 
 had commenced early in the evening, a young girl, 
 at an hour past midnight, fell fainting from her 
 chair ; how a physician had to be sent for ; and how 
 she was secretly taken into the hotel through the 
 side-door. 
 
 I pass next to the gambling at the club-house. 
 Upon this subject the testimony is equally explicit. 
 
 One of the plaintiff s own witnesses, speaking of 
 the gambling parties, at which poker was the game, 
 says, I quote his own language, "they usually 
 commenced at eight o clock in the evening." Carl 
 Schaubye, already mentioned, states that they lasted, 
 as a rule, until three or four in the morning. He 
 relates that on one occasion, when the group con 
 sisted of one single woman and half a dozen men, 
 he came into the room and stated that Mrs. War- 
 field, the wife of the manager, had ordered that the 
 
 34 
 
VON SCHROEDER vs. SPRECKELS 
 
 lights be put out. The woman who, the witness 
 says, was intoxicated became indignant, and would 
 not have it so. Schaubye afterward returned. Of 
 that return he says : " I came again later, and told 
 them that Mrs. Warfield insisted upon the lights 
 being put out ; and the Baron said that he wished 
 to play three or four more games, and then they 
 would go." 
 
 Take next the plaintiff s demeanor toward 
 women. 
 
 Upon that subject, Mr. Francis L. Perkins testi 
 fies that on one occasion which he specifies he saw 
 the plaintiff and his brother, in company with two 
 ladies, at Pastori s Fairfax Villa. It appeared to the 
 witness to express it in his own language that 
 "the Baron was pretty fresh with women; entirely 
 too loving with a lady for a married man ; his atten 
 tions to her a little too marked for the attentions of 
 a married man to a married woman in public." He 
 added to this, in his statement to Mr. Leake, that 
 the Baron s reputation in the town of San Rafael in 
 regard to women was bad very bad indeed. Ber 
 nard Peters, the waiter at the club-house, says that 
 once, when he brought wine into one of the rooms, 
 he found a certain woman seated on the Baron s 
 lap ; and that on another occasion, in the same 
 place, the Baron had his arm around her waist and 
 was calling her " My dear. He adds that he had 
 been asked by the Baron to give him warning if, 
 while he was at the club-house, his wife came in 
 
 35 
 
ARGUMENT 
 
 sight. Edward R. Ross testifies that the Baron 
 was in the habit of paying marked attentions to a 
 certain married woman ; that he had frequently seen 
 him seated on the porch of the club-house, while 
 the lights were turned out, holding her upon his 
 lap. William S. Ballard states that at one time, 
 when the Baron and his brother were in the club 
 house with two women one married and the other 
 unmarried drinking, he brought in a bottle of 
 wine ; that the unmarried woman took the bottle, 
 saying, "This is for my boy, Alex, and me"; that 
 he was then ordered to bring in another bottle ; and 
 that, when he came in with it, he found the women 
 seated on the men s laps the married one on the 
 Baron s, and the unmarried on his. brother s. He 
 adds that once, at an hour past midnight, the Baron 
 gave him five dollars, telling him to keep watch for 
 his wife, and if she made her appearance at once to 
 notify him. Gus Lally testifies that he had seen 
 the Baron scuffling and scrambling around the room 
 with his female companions ; that the party generally 
 consisted of four, the Baron, his brother, and two 
 women ; that they usually commenced drinking to 
 gether in one room, but frequently, after staying 
 there for a time, separated into pairs the Baron 
 and one of the women remaining in the room, and his 
 brother and the other retiring to a separate apart 
 ment. Thomas Flaherty tells you that one even 
 ing he saw the Baron in the Maze, seated on a 
 bench with a woman, one arm around her waist, the 
 
 36 
 
VON SCHROEDER vs. SPRECKELS 
 
 other upon her breast, and his cheek pressed close 
 to hers. Raymond O Neil, one of the bell-boys, 
 states that he had frequently seen the Baron com 
 ing, in the afternoon, out of the room of a particu 
 lar woman, whose husband s business called him to 
 San Francisco in the daytime. John Bailey, a 
 waiter in the dining-room, testifies to a scene which 
 he witnessed one afternoon in a grove upon a slope 
 back of the hotel. You have heard that testimony, 
 and I will not again assail your ears with a repeti 
 tion of its details. 
 
 There is one episode, gentlemen, connected with 
 this branch of the case, to which I desire to invite 
 your special attention. The circumstances of that 
 episode, though incomplete, have been sufficiently 
 brought to light. And if, when I shall -have re 
 hearsed the facts which are in evidence, it shall 
 appear that, owing to technical objections interposed 
 by the learned counsel, certain links in the chain 
 are missing, I feel confident that your good sense 
 and knowledge of life will readily supply them. 
 
 Baron von Schroeder was in the habit of send 
 ing at night to a livery-stable in the neighborhood 
 of the hotel for teams. These were used to go out 
 upon what one of the witnesses has called " the 
 Baron s escapades." One evening in the summer 
 of 1898, a message reached the stable ordering a 
 six-seater for what was known at the hotel as " the 
 Baron s party." Pursuant to orders, the rig was 
 taken from the stable at about half-past ten, not to 
 
 37 
 
ARGUMENT 
 
 any of the entrances of the hotel, but to a secluded 
 spot outside the grounds. The party, consisting of 
 a bridegroom, with his bride, and the Baron and a 
 female companion, shortly thereafter came to the 
 spot. The driver, Jewell, who had brought up the 
 rig, was ordered to await their return. It had 
 originally been intended, it would seem, that the 
 Baron s brother should be of the party; for, as they 
 started off, the bride said to the driver, " You tell 
 Baron Alex, when he comes up, to follow us to 
 Fairfax Villa/ and the plaintiff added, " Tell him 
 that he will find us at Pastori s." The character of 
 this resort as a roadside tavern, some three miles 
 distant from the hotel, you have learnt from the 
 evidence. The party must have reached it about 
 eleven o clock. How they spent the time there we 
 were prevented by objection of the learned counsel 
 from proving. 
 
 The next scene takes place about one o clock 
 past midnight, when the team returns with the 
 bridegroom and the other woman the Baron and 
 the bride being left behind. We were not allowed 
 to prove the bridegroom s condition. Conjecture it 
 from the fact that he came back without his bride, 
 and had to be taken out of the rig and hurried into 
 the hotel by a side-door. The younger Baron and 
 the bride s sister met the rig upon its return. 
 Imagine the latter s amazement and alarm, when 
 she found that her sister and the plaintiff were 
 missing. In her consternation, she gets her T-cart 
 
 38 
 
VON SCHROEDER vs. SPRECKELS 
 
 from the stable and starts out in the darkness of the 
 night to seek the absent couple. She finds them 
 where? We were not permitted to tell. What 
 doing? We were not allowed to prove. But is 
 evidence needed, gentlemen, to picture what had 
 detained the pair at Pastori s ? 
 
 The last scene takes place at about half-past three 
 in the morning, when two vehicles, some distance 
 apart, approach the hotel. One of them is the 
 young girl s T-cart, and the other the Baron s rig. 
 The former contains the bride and her sister, and 
 the latter the Baron and his brother. Jewell meets 
 them near the spot where he had been ordered to 
 remain. He has described in detail how they came, 
 how they entered the hotel by different doors, and 
 in what state of helpless intoxication the bride was 
 when taken out of the cart. 
 
 To all this testimony, gentlemen, to the state 
 ments of all these witnesses, what does the learned 
 counsel reply? He pursues a course which, I am 
 forced to confess, appears to me most extraordinary. 
 He first points out that these witnesses all come 
 from the humbler walks of life. They are, he says, 
 bell-boys, waiters, stablemen, and bar-tenders. I do 
 not deny that they are humble. I know that they 
 are poor. I admit, if it please the learned counsel, 
 that, unlike his client, they make no pretense to 
 wealth; that, unlike him, they dwell in no palatial 
 mansion; that, unlike him, they have married no 
 millionaire s daughter, nor received at her hands, nor 
 
 39 
 
ARGUMENT 
 
 squandered in revelry, her ample fortune. Acknowl 
 edging the contrast, I even go further. I admit that 
 they do not spend their nights in drink, quaffing wines 
 of renowned vintages. I admit that they do not sit 
 up with elegant and fashionable ladies gambling from 
 early eve till early morn. I admit that their man 
 ners are not attractive enough and their arts not 
 sufficiently fascinating to lure young brides from 
 the side of their husbands and take them to dis 
 reputable haunts. Yet, admitting all this, I fail to 
 discern in it anything disentitling their testimony to 
 challenge comparison with that of the noble Baron. 
 Still less do I perceive in it any warrant for the 
 attack which the learned counsel had made upon 
 them. He has successively called them fellows, hobo 
 witnesses, rogues, scoundrels, liars, sneak-thieves, 
 perjurers, unconvicted felons, vultures attracted by a 
 carcass, low comedians of perjury, men who should 
 be in the penitentiary, "witnesses who can be bought 
 like a bunch of asparagus." The virulence with 
 which they have been assailed has, I feel confident, 
 no parallel in the annals of the bar of this State. 
 
 Against two of the witnesses the learned counsel 
 has fulminated the special thunderbolts of his vitu 
 peration Bailey and Jewell. Of Bailey, he has 
 been pleased to tell you that, if the police records 
 were searched, it would be found that some of his 
 long absences would be accounted for, and that 
 during his short stays an unconvicted felon was 
 about; that if he were the Chief of Police, and a 
 
 40 
 
VON SCHROEDER vs. SPRECKELS 
 
 burglary were committed, he would arrest Bailey at 
 once on suspicion; that his look was of the kind 
 that one meets in docks of courts and in prison 
 cells; that a man with such a face should be in the 
 penitentiary. 
 
 Where is the warrant for all this vilification ? 
 Bailey s deposition was taken on the 26th of June 
 last six months ago. The learned counsel was 
 present. To that deposition he has referred here in 
 his cross - examination. Did Bailey at that time 
 say anything different from what he has said here ? 
 No. I am warranted in saying that he did not ; 
 because, if he had, the learned counsel would 
 promptly have referred to the deposition and con 
 fronted him with the discrepancy. Bailey, then, 
 related, six months ago, in the presence of the 
 learned counsel, the same story which he has testi 
 fied to here. That, if the scene which he describes 
 really took place, it holds up the plaintiff to the 
 scorn of every right-minded person no one doubts. 
 The plaintiff, then, had six months before the 
 commencement of this trial to investigate into the 
 character and antecedents of a witness whose single 
 testimony, if true, is fatal to this case. If that wit 
 ness s name could be found in the criminal records 
 of the police department, the learned counsel would 
 have found it, and would have proved that it was 
 there. If he had really been an inmate of a house 
 of punishment, the record of his conviction would 
 have been produced. If he had ever been a fugitive 
 
 41 
 
 D 
 
ARGUMENT 
 
 from justice, that fact would have been shown. If 
 his reputation is bad, he would have been impeached. 
 But nothing of the kind has been attempted. 
 Bailey is not a criminal. He is not a fugitive from 
 justice. His name is not on the prison -books. 
 His past life has not been such as the counsel has 
 denounced. His character in the community is 
 above reproach. He is secure in his integrity 
 against all attacks save one denunciation made at 
 a time and place when he is powerless to answer it. 
 When the heat of the contest shall have passed, 
 and calm reflection resumed its sway, I feel con 
 vinced that the learned counsel will be the first to 
 acknowledge that it is hardly generous to heap 
 vituperation, unwarranted by proof, upon the head 
 of one who, if he should rise to protest against its 
 injustice, would expose himself to punishment for 
 contempt. 
 
 Jewell has also been made a special target for the 
 learned counsel s shafts. His testimony, also, if 
 true, constitutes in itself a complete justification of 
 this publication. He, therefore, must be got rid 
 of in some way. And what is the way ? He is 
 denounced as a man without character. Upon what 
 evidence ? To prove that he does not bear a good 
 reputation among his neighbors two witnesses have 
 been produced. And who are they? Do you 
 remember, gentlemen, the elder Murray ? An old 
 man tottering upon the brink of the grave, he is 
 asked the simple question whether he is the father 
 
 42 
 
VON SCHROEDER vs. SPRECKELS 
 
 of another witness, who has just sworn he is his 
 son, and he answers with a leer : cc I suppose so ; 
 but you know a man can never be sure of those 
 things." And this is said within a stone s-throw of 
 the house where the mother of this son is still 
 iving. Is such a man competent to impeach the 
 reputation of any one ? A man whose innate per 
 versity and ingrained suspiciousness would make 
 him cast a doubt upon the paternity of his own 
 child, assail the fidelity and drag into the mire the 
 character of his gray-haired wife, he impeach the 
 reputation of any one ! 
 
 This man and his son and you recall the prov 
 erb, which time approves true, " Like father, like 
 son " are the only ones whom, after the most 
 exhaustive canvassing, the plaintiff has been able to 
 bring forward to testify against Jewell s reputation. 
 This, taken in connection with the fact that they are 
 both at this very moment in the employ and pay of 
 the plaintiff as coachmen, and the fact that, out of a 
 community in which Jewell has spent thirty years 
 of his life, only these two can be found to breathe a 
 word in disparagement of his character, and the 
 further fact that witnesses of the highest respecta 
 bility and standing have come here to support his 
 good name, this, I say, justifies me in declaring 
 the attempted impeachment of Jewell as unwar 
 ranted and unjustifiable. 
 
 But, why this denunciation of the witnesses ? 
 Why call them names ? Why traduce them as per- 
 
 43 
 
ARGUMENT 
 
 jurers ? Why when there is no denial no 
 attempt even at denial of the substantial truth of 
 their testimony ? Let me briefly rehearse the things 
 which they have testified to that are not denied. 
 
 Take first what has been said with reference to 
 drinking. What, upon that subject, does the 
 plaintiff deny? Does he deny the bouts at the 
 club-house, where heavy drinking was nightly in 
 dulged in, with married and unmarried women as 
 his companions ? Does he deny that the feasting 
 was often prolonged far into the early hours of the 
 morning ? Does he deny that one evening, at an 
 hour past midnight, one of the party, a young girl, 
 fell fainting from her chair, and had to be placed 
 under the charge of a physician? No; none of 
 these things does he deny. 
 
 Take next what has been said about the gam 
 bling. Is that questioned ? Is it denied that the 
 plaintiff was a member of these gambling assem 
 blages with women, which, commencing early, were 
 prolonged until dawn ? Is it denied that drink 
 accompanied the play? Is it denied that, on one 
 occasion at least, the lights were not put out until 
 the hotel management had issued peremptory orders 
 that they must be ? No ; none of these things are 
 denied. 
 
 Take lastly the plaintiff s conduct toward 
 women. Examine first the episode testified to by 
 Jewell. Is not every essential circumstance of this 
 episode confessedly true? Is it true that on this 
 
 44 
 
VON SCHROEDER vs. SPRECKLES 
 
 occasion, at about half-past ten at night, the plaintiff 
 ordered a carriage to be brought outside the hotel 
 grounds to a secluded spot, where he could meet it 
 unseen ? He does not deny it. Is it true that the 
 party, consisting of himself, with a female compan 
 ion, and a bridegroom with his bride, got into the 
 vehicle and ordered the driver to await their return ? 
 He does not deny it. Is it true that, as they 
 started, the bride, referring to a couple who were to 
 join them, said to the driver, "You tell Baron Alex, 
 when he comes up, to follow us to Fairfax Villa," 
 and that he added, "Tell him that he will find us at 
 Pastori s"? He does not deny it. Is it true that 
 they drove to Pastori s ? He does not deny it. Is 
 it true that the rig returned, at about one o clock at 
 night, with the bridegroom and the other woman, 
 and that he and the bride remained behind ? He 
 does not deny it. Is it true that he and the bride 
 did not start on their way back until her sister went 
 after them and forced them to return ? He does 
 not deny it. Is it true that he came back to the 
 hotel, after three o clock in the morning, in com 
 pany with his brother, the bride and her sister fol 
 lowing in a separate vehicle ? He does not deny it. 
 Is it true that each couple entered the hotel by sep 
 arate side entrances ? He does not deny it. 
 
 Furthermore, he does not deny the frequent 
 visits, during the absence of her husband, to the 
 married woman s room, as testified to by the wit 
 ness Raymond O Neill. He does not deny that 
 
 45 
 
ARGUMENT 
 
 the drinking parties, composed of himself, his 
 brother, and the two women, after having com 
 menced the evening together in one room, often 
 separated, each pair thereafter occupying a separate 
 room, as testified to by the witness Gus Lally. He 
 does not deny that on one occasion, when the waiter 
 came in, a married woman was standing by him, he 
 having his arm around her waist and calling her en 
 dearing names, as testified to by the witness Bernard 
 Peters. 
 
 What, then, of all that has thus been testified to 
 by these witnesses upon the subject of drinking, 
 gambling, and conduct toward women does the 
 plaintiff deny ? Simply that on any of these occa 
 sions the women were intoxicated. He thinks, it 
 would, seem, that he negatives the impropriety, 
 wipes away the sin, and restores the bloom of 
 maidenhood and virtuous matronhood to the cheeks 
 of his female companions when he draws the line at 
 drunkenness. 
 
 Comment upon this attitude is difficult to make 
 within the bounds of moderation. Concede, if you 
 please, that the women stopped short of intoxica 
 tion does that mitigate the scandalous character of 
 these debauches ? What is the condition of a 
 woman who has spent the night in a club-house 
 drinking with men ? What is her moral worth ? 
 What value do you set upon the virtue of that 
 young girl who, in one of these carousals, fell, after 
 midnight, fainting from her chair? Admit, if you 
 
 46 
 
VON SCHROEDER vs. SPRECKELS 
 
 please, that at the gambling parties none of the 
 women were under the influence of liquor what say 
 you as to the propriety of these gambling scenes ? 
 Grant, if you please, that on the occasion testified 
 to by Jewell the bride, when she returned to the 
 hotel, after three in the morning, was not flustered 
 with wine how does that change the essential char 
 acter of the happenings of that night? What is 
 your judgment upon the conduct of the man a 
 man of mature years, prominent position, bearer of 
 a title which, in his country at least, is a badge of 
 distinction and a pledge of honor who took the 
 lead in these orgies ? Do you set upon it the seal 
 of your approval? Do you adjudge the journal 
 which held it up to public censure deserving of 
 punishment ? 
 
 I desire now briefly to invite your attention to 
 certain facts which, I venture to think, bring out in 
 still bolder relief all that I have said. 
 
 In the first place, it is a significant circumstance 
 that the plaintiff has not called General Warfield as 
 a witness. That the learned counsel deemed it 
 important to have it appear that the General con 
 troverted the facts stated in the article in question is 
 manifest. For that purpose he offered in evidence, 
 and in his argument dwelt at great length upon, an 
 alleged letter published in the Bulletin, which, it is 
 said, the General wrote as a denial of the facts 
 stated in the Call s article. As to this, let me 
 remark, in the first place, and, if your Honor will 
 
 47 
 
ARGUMENT 
 
 permit, I now ask an instruction to that effect, 
 that there is not a particle of legal evidence to show 
 that General Warfield ever wrote that letter. The 
 letter s superscription is " My Dear Sir," and its 
 subscription "Believe me, Very truly yours"; its 
 author professes amazement and regret at the pub 
 lication in the Call; it comes apparently from a 
 friend; it is directed to the plaintiff. If he has 
 received such a letter, if such a letter exists, why 
 does he not produce it? And this leads to the ques 
 tion, Why is not General Warfield called as a wit 
 ness? If the plaintiff s conduct at the Hotel Rafael 
 during his management there was such as to give 
 no scandal to the guests; if his behavior was cour 
 teous and respectful to ladies, no one better knew 
 it than the General. Why, then, is he not called? 
 
 The learned counsel retorts by asking why we did 
 not call him. That question, I respectfully submit, 
 it is not difficult to answer. What need had we of 
 his testimony? What controverted fact could he 
 have helped us to establish? He might, it is true, 
 have corroborated Mr. Leake and Mr. Raymond as 
 to the interview at the California Hotel. But the 
 testimony of these gentlemen is not impugned. He 
 might also have corroborated Mr. Perkins as to the 
 interview at the Hotel Rafael. But Mr. Perkins s 
 statements are not questioned. Why, then, corro 
 borate, when the learned counsel admits? 
 
 Another significant circumstance is, that while 
 this is a suit to recover damages for an injured 
 
 48 
 
VON SCHROEDER vs. SPRECKELS 
 
 reputation, and while the plaintiff has set upon that 
 reputation the high value of a quarter of a million, 
 he has not called a single witness to prove that he 
 had a reputation to lose. From the broad circle of 
 acquaintances, which, by virtue of his position, of 
 his wealth, and of the standing of the family into 
 which he married, he must have made, and from 
 the number of associates and friends among whom 
 he spent his life, you would naturally expect to see 
 some one come forward to bear witness to his good 
 reputation. Yet none has come. No, not from the 
 inhabitants of San Rafael, among whom he lives, 
 and with whom he has constant dealings; not from 
 the fashionable companions with whom he has wined 
 and played and feasted; not from the families into 
 whose homes he was received as an inmate, does a 
 single one appear to rebut the implication that, as 
 Mr. Perkins stated to Mr. Leake, his reputation in 
 respect to women was bad very bad, indeed. 
 
 In this connection, let me call your attention to 
 the fact that the plaintiff, through his counsel, 
 objected to our proving the Palace Hotel incident 
 of the loth of October, in which he was involved. 
 Would a man of spotless reputation have availed 
 himself of a technical right to exclude that testi 
 mony P Does an honest man, offering for sale what 
 he represents to be gold, object to the purchaser s 
 subjecting the metal to every test by which its purity 
 may be assailed? Does an honest man, proposing 
 to sell a horse as sound, refuse the purchaser s 
 
 49 
 
ARGUMENT 
 
 request to submit the animal to the inspection of a 
 surgeon? Then, why did the plaintiff lay hold on 
 a technicality to exclude the testimony of Acker- 
 gren, the night-watchman, called by us to prove the 
 episode of the Palace Hotel? 
 
 And now, gentlemen, if those things which have 
 been testified to by witnesses whose veracity is not 
 attacked and whose testimony is not contradicted be 
 true ; if those things which, though coming from 
 assailed witnesses, are not denied be true ; if those 
 things which, by irresistible inference and unerring 
 deduction, are drawn from conceded facts be true, 
 then, I ask you, are they not sufficient to establish 
 the substantial correctness of the statements of the 
 article in question ? Do they not prove that the 
 conduct of the plaintiff at the Hotel Rafael was 
 that of a profligate ? And if they do, then, in con 
 formity with the legal principles to which I have 
 referred, and upon which the Court will instruct 
 you, we are at this point entitled to your verdict. 
 
 The learned counsel has vaguely hinted at certain 
 results as likely to follow such a verdict. Appeal 
 ing to your local pride, he urges that the ruin of the 
 Hotel Rafael, and consequent loss to this town, 
 must flow from such a determination of this cause. 
 I do not believe, gentlemen, that any one of you 
 has any apprehension of such an outcome. No 
 one, I am confident, doubts that, under a changed 
 and proper management, this hotel will continue to 
 be in the future, what it has been in the past, a 
 
 50 
 
VON SCHROEDER vs. SPRECKELS 
 
 favored spot for those seeking in the country recre 
 ation and rest from their labors in the city. 
 
 But, if that resort is to be conducted in the future 
 as it has been in the past, if the plaintiff is still to 
 cast over it the shadow of his presence, then, if a 
 verdict in favor of the defendant shall have the 
 effect of barring its doors against a single reputable 
 woman, I appeal to you as members of this com 
 munity, as husbands of honorable wives, as fathers 
 of virtuous daughters, to welcome the result. Let 
 the consequences apprehended by the learned coun 
 sel come. Aye, let the house be fired by the torch 
 of the incendiary, until naught but a heap of smol 
 dering ashes remains, rather than that girls of tender 
 age shall continue to drag their vestal robes through 
 the slime of its midnight orgies, until overcome 
 with wine they faint, surrendering the treasures of 
 their purity, into the arms of heartless seducers. 
 Let the tornado with its whirling arms seize upon 
 the structure and scatter it to the winds, rather than 
 that matrons shall continue to spend their nights in 
 its gambling-rooms, and, amid the rank odors of 
 tobacco and the maddening fumes of wine, squander 
 the fortunes of their absent husbands. Let the 
 spot be blotted out until its very ruins shall have 
 perished, rather than continue to be a haunt from 
 which the young bride, her lips still tremulous with 
 vows pronounced at the altar, her brow still bound 
 with the blossoms of her hymeneal crown, shall be 
 taken out at midnight to adulterous assignations, 
 
 5* 
 
ARGUMENT 
 
 and brought back with the dawn to dishonor with 
 her polluted body the bed of the unsuspecting 
 bridegroom. Aye, let it perish, and this commun 
 ity will be all the healthier, all the stronger, all the 
 better for it. 
 
 But why ascribe such overweening importance to 
 the permanency of the place ? Stately and graceful 
 as are its structures, picturesque its gardens, delight 
 ful its arbors and its groves, what are they in com 
 parison with the surrounding nature, in whose 
 majestic presence they dwindle into nothingness ? 
 The plaintiff may have it in his power to destroy 
 what man has fashioned into artificial beauty ; but, 
 even thus, the hand which yearly clothes these val 
 leys and hillsides with verdure, plants the stately 
 redwood and broad-spreading oak upon the slopes 
 and ravines of yon mountains, and weaves at morn 
 the misty wreaths that encircle the brow of Tamal- 
 pais will not cease to lavish its gifts around you. 
 
 Of the results upon the plaintiff of an adverse 
 verdict what shall be said ? Of his condition I 
 would speak in terms of moderation. His state is, 
 indeed, one which must excite the pity of every gen 
 erous heart. Young, gifted, a nobleman in his own 
 country, an officer of distinction in a gallant army, 
 he came among us to wed one of the most lovable 
 of our daughters. Confiding in his manhood and 
 the chivalry which his rank seemed to avouch, she 
 intrusted into his hands the ample fortune which 
 her father had amassed. How has he repaid her 
 
 52 
 
VON SCHROEDER vs. SPRECKELS 
 
 confidence how requited her love ? Where is she 
 now? Where the children with whom she has 
 blessed his home ? Exiled from the land where she 
 was married, exiled from the land where they were 
 born, exiled from the land where the life of her 
 father and their grandsire had been spent and where 
 his ashes are buried ! Where are the holiday 
 friends who flocked about him during the brief 
 sunshine of his factitious prosperity? In this his 
 hour of supreme trial, do we see them gathering 
 about him ? Do they accompany him here to speak 
 into his ear the language of confidence, of solace, or 
 of hope ? No. Armed bullies and hired ruffians 
 may follow his footsteps as a guard against the 
 vengeance of outraged husbands, brothers, and 
 fathers friend there is none ! 
 
 Unfortunate man ! Your course among us has 
 been strewn with wrecks. Your position is re 
 deemed neither by the performance of great public 
 services, nor by the achievement of eminent success 
 in any walk of commerce, industry, or learned pro 
 fession. Hope not, therefore, to take up here the 
 broken thread of your life. Hope not by repent 
 ance, however sincere, by amendment, however per 
 severing, to carve out in this State a new career. 
 Return to your own country. Return to that land 
 in which the distant waves of this sea of scandal may 
 not yet have undermined your standing. Prostrate 
 yourself at the feet of that wife whom you have 
 wronged. Out of the abundance of her love ask 
 
 53 
 
ARGUMENT 
 
 forgiveness. Resume the place in that great army 
 which your title and your rank confer. Go forth, 
 if you may, to fight the battles of the Fatherland. 
 Go forth to unfurl the imperial standard, and extend 
 to the uttermost bounds of the earth the sway of 
 Germany s civilization and conquests. Blot out by 
 your future conduct the memory of your past 
 shortcomings. By your own deeds win back a new 
 reputation. Do not tarry here, vainly awaiting 
 what cannot be accorded you a verdict against the 
 evidence and the law. The province of the jury is 
 justice. Mercy and forgiveness are not theirs to 
 grant. At the hands of a higher power must these 
 be sought. And, perchance, in the time to come, 
 when suffering shall have purified your soul and 
 noble deeds shall have regenerated your life, kneel 
 ing, your children and grandchildren about you, 
 beneath the dim-lit arches of some mediaeval cathe 
 dral, as the white-robed priest, prostrate before the 
 altar, implores God to remit the trespasses of man 
 kind, you, too, may breathe a prayer, invoking the 
 mercy of Him who told the erring woman to go 
 and sin no more, in the hope that " he who loved 
 like Magdalen, like her may be forgiven." 
 
 54 
 
TO A TRIAL COURT 
 
AMONG the many notable will-contests which have been tried in 
 California, none, perhaps, has a more remarkable history than that 
 in which the following argument was made. The testator, George 
 H. Parker, died in his seventy-sixth year, in the county of Santa 
 Clara, leaving an estate valued at over a quarter of a million dollars. 
 He had made a will, wherein, after minor bequests, he devised the 
 whole of his estate to trustees in trust for his only son, Edward L. 
 Parker. The terms of the trust were, in substance, that the trus 
 tees should pay over to the son during his lifetime the whole income 
 of the property, and in case his wife died before him, then at once 
 to convey and transfer the property to him outright ; but if his wife 
 survived him, then to convey the property to third persons. The 
 testator died on the I7th day of August, 1893, and his will was 
 probated on the I4th day of the following month. His son sur 
 vived him but a few months, dying on the I4th day of December 
 of the same year, leaving his wife as his only heir. The latter in 
 due time instituted proceedings to revoke the probate of the will. 
 The contest was three times heard before a jury. The first trial 
 lasted from the 191)1 day of May to the 1st day of July, 1896, 
 resulting in a disagreement of the jury ; the second lasted from the 
 1st day of September to the I ith day of November, 1896, result 
 ing in a verdict against the will on the ground of unsoundness 
 of mind. A motion for new trial was at once made by the 
 respondents. This motion was granted and a new trial ordered. 
 The case was heard for the third time, the trial commencing on 
 May 3d and ending on August 5, 1898. Again the jury found 
 against the will, this time on the ground of undue influence. A 
 motion for new trial was again made by the respondents. This 
 motion was granted on November 13, 1899; and thereupon the 
 contest was abandoned. 
 
 In all these proceedings, Mr. Delmas appeared as counsel for 
 the respondents. The following argument was made by him in 
 support of the first motion for new trial, in the Superior Court of 
 Santa Clara County, sitting in bane, on the 1 2th and 1 9th days 
 of February, 1897. 
 
CONTEST OF PARKER S WILL 
 
 MAY IT PLEASE THE COURT : This, as your 
 Honors have already been informed, is a motion 
 for a new trial of an issue submitted to a jury in a 
 proceeding to revoke the probate of a will. The 
 outline of the proceedings to which it is proper to 
 call attention, in order to make my argument in 
 telligible, may be given as follows: 
 
 George H. Parker died in this county in March, 
 1893. A ^ ew weeks afterward, his will, with its 
 two codicils, was duly admitted to probate. Within 
 a year, the widow of his only son and heir filed a 
 contest of the probate, on three grounds, fraud, 
 undue influence, and unsoundness of mind. Upon 
 a challenge of these grounds by the parties inter 
 ested under the will, the issues came on to be tried 
 before a jury, in September last. At the close 
 of the contestant s case, the Court withdrew the 
 consideration of the issues of fraud and undue 
 influence, on the ground that there was no evidence 
 to support them. Upon the only remaining issue 
 the jury found against the will. In due time, the 
 respondents filed their notice of intention to move, 
 
 57 
 
ARGUMENT 
 
 upon the minutes of the Court, for a new trial, on 
 the ground of insufficiency of evidence to justify 
 the verdict. It is my object to support that motion. 
 
 I take leave to state at the outset that while the 
 verdict, when rendered, struck me with astonish 
 ment, yet, upon calmer reflection, I am convinced 
 that the result of the trial was such as might well 
 have been anticipated. It was not, after all, con 
 trary to our experience at the bar that a woman of 
 no uncomely appearance, who, if her story was to 
 be believed, had for twenty years been the loving, 
 dutiful, and self-sacrificing wife of the only son of 
 the deceased, and who in widow s weeds besought, 
 through sobs and tears, charity for the errors of 
 her earlier life, and, by the lips of ingenious and 
 eloquent counsel, implored her judges not to inflict 
 upon her the double stigma of poverty and of 
 shame, it was not, I say, contrary to our expe 
 rience that such a one, even by artifices such as 
 these, stale and threadbare however they might 
 appear to us, should play upon the unsuspecting 
 sympathies of twelve ingenuous men, and hurry 
 them, against the law and the evidence, to an 
 unconscious violation of their oaths. Besides, it 
 might, upon broader grounds, have occurred to the 
 mind that jurors habitually deal lightly with rights 
 vested under wills, and, under the guise of justice 
 to the living, cloak their disregard of duty to the 
 dead and disobedience of the law. 
 
 Indeed, it might not be unprofitable to advert 
 
 58 
 
CONTEST OF PARKER S WILL 
 
 here to the character of the right to make a testa 
 mentary disposition of property, the attitude of 
 courts toward that right, the habitual disregard of 
 it by juries, and the reasons which bring about that 
 result. Some lesson might be drawn from such 
 considerations helpful, perhaps, to admeasure the 
 true value of the verdict here rendered. 
 
 The history of jurisprudence teaches that the 
 inception of the right of testamentary disposition 
 is coeval with that of property itself, and that, 
 springing up at the same time, together they have 
 existed and developed throughout all successive 
 advances of civilization. So immemorial is its 
 origin, so universal its recognition, that it has long 
 since been looked upon as incident to the very 
 conception of property itself, and as equally 
 essential to its enjoyment as the right of gift or 
 other free alienation during life. Contemplated 
 from the standpoint of public policy, the recogni 
 tion by the State of the power of him who in life 
 was deemed the best judge of the management of 
 his property to dispose of it according to his 
 wishes after death must appear founded upon the 
 highest wisdom. It is recognized as an efficient 
 means of individual self-protection; and in the juris 
 prudence of all civilized countries its objects are 
 best subserved by leaving its exercise to the unfet 
 tered judgment and will of each individual owner. 
 
 Such being its nature and value, it would appear 
 at first blush strange that the popular branch of our 
 
 59 
 
ARGUMENT 
 
 tribunals should be the one which can ever be most 
 successfully called upon to do violence to the exer 
 cise of a right which affects each member of that 
 tribunal equally with every other individual in the 
 community. Yet the fact is notorious that it is to 
 jurors, all of whom, upon their voir dire, may have 
 sworn all of whom, upon their general oath to 
 obey the instructions of the Court, have certainly 
 sworn that they recognize in a testator the right 
 to dispose of his own according to his wishes, it 
 is to jurors, I say, that appeals are daily made with 
 success to set aside the wills of the dead, not upon 
 any substantive ground recognized by law, but 
 because their provisions may not conform to their 
 own particular views of propriety or justice. 
 
 This tendency has been the subject of much 
 judicial comment and the cause of strictures made 
 in general disparagement of the jury system. I 
 venture to think, however, that these animadver 
 sions may not be wholly deserved, and that the 
 verdicts given may be explained upon grounds 
 which in no wise affect the integrity of jurors nor 
 warrant any general attack upon the value of the 
 trial by jury. The experience of every one of ex 
 tended practice in nisi prius courts teaches that jurors 
 are, as a rule, actuated by a desire to do right, and 
 that, as a rule, their verdict represents the conclusion 
 which commends itself to their sense of justice. 
 This observation holds good, I think, even in cases 
 of wills. Upon a view of all the circumstances of 
 
 60 
 
CONTEST OF PARKER S WILL 
 
 the case, jurors become impressed with the con 
 viction that, from their standpoint, a will is just or 
 unjust, and their verdict voices that conviction. In 
 whatever shape the result of their deliberations may 
 be announced, it represents at bottom nothing more 
 than the conclusion reached upon the question of 
 the fairness or unfairness of the provisions of the 
 will. It is very much as in the criminal prosecu 
 tion of a man who has slain the seducer of his 
 wife or daughter, where a verdict of acquittal or 
 conviction on the plea of emotional insanity is in 
 reality nothing more than an expression of the jury s 
 approval or disapproval of the homicide. 
 
 The difficulty is that, in the case of wills, the 
 jurors sense of justice affords no guide for deter 
 mining whether the will should, in law or in morals, 
 be annulled. The reasons for this are obvious. In 
 the first place, the jury never can have fully revealed 
 to them all the elements of fact which operated 
 upon the testator s mind in determining the disposi 
 tion of his property ; and, in the next, if competent 
 to make it, the testator is by law constituted the 
 sole judge of the justness of his will. Speaking of 
 the disposition of property, the Supreme Court of 
 Missouri said: 
 
 " It was for the testator to say, from his own 
 standpoint, where no one else could stand, know 
 ing what he knew, and feeling what he felt . . . 
 how it should be given." * 
 
 * Maddox vs. Maddox, 21 S. W. 502. 
 61 
 
ARGUMENT 
 
 Says our own Supreme Court: 
 
 " It is well to remember that one has a right to 
 make an unjust will, an unreasonable will, or even 
 a cruel will. Generally, such questions turn our 
 thoughts, as they are often intended to, from the 
 only question at issue, which always is only, Is the 
 will the spontaneous act of a competent testator? 
 Of course, juries lean against wills which to them 
 seem unequal or unjust. But the right to dispose of 
 one s property by will is most solemnly assured by 
 law, and is a most valuable incident to ownership, 
 and does not depend upon its judicious use. The 
 beneficiaries of a will are as much entitled to pro 
 tection as any other property-owners, and courts 
 abdicate their functions when they permit the preju 
 dices of a jury to set aside a will merely upon 
 suspicion, or because it does not conform to their 
 ideas of what was just and proper." * 
 
 The same Court, in re Spencer, said: 
 " Even if we could consider the will as unjust, it 
 would make no difference. In disposing of her 
 property she [the testatrix] was not called upon to 
 consult the wishes or views of juries or courts; her 
 own will was supreme." f 
 
 And in the still later case of Langford it was 
 said : 
 
 " As the law now stands, that right cannot be 
 frittered away after the death of the testator, accord 
 ing to the tastes and notions of others. It is quite 
 
 * In re McDevitt, 95 Cal. 33. t 96 Id. 453. 
 62 
 
CONTEST OF PARKER S WILL 
 
 likely that in the case at bar the provisions of the 
 will did not meet with the approval of the jurors; 
 but their approval was not necessary." * 
 
 In the practical administration of justice, the 
 result of these observations, if they are correct, 
 would be to warrant not a general carping at the 
 jury system, but the exercise of the undoubted 
 powers of the court to scrutinize verdicts, and to 
 correct them whenever it is manifest that they have 
 been arrived at under a mistaken conception of 
 duty. 
 
 In the proceedings now before us, whatever justi 
 fication, from the standpoint of their ideas of justice, 
 the jury might have fancied they had for disapprov 
 ing of the provisions of the will, I contend, and 
 shall endeavor to show, that, according to the rules 
 of law and the evidence, they had none for finding 
 the testator of unsound mind. 
 
 The issue of unsoundness of mind was presented 
 to the jury under the aspect both of partial insanity, 
 born of specific delusions, and of general unsound- 
 ness, resulting from imbecility or dementia. These 
 I purpose separately to examine. 
 
 Can the verdict be supported upon the ground of 
 partial insanity consisting of insane delusions? This 
 was the ground insisted on in the argument on 
 behalf of the contestant to the jury. It was the 
 ground presented in the instructions of the Court, 
 given at contestant s request, upon which the verdict 
 
 * 108 Cal. 626. 
 63 
 
ARGUMENT 
 
 was based. Indeed, while the evidence relating to 
 general unsoundness, consisting of the opinions of 
 intimate acquaintances, was relied on to avoid a 
 nonsuit, and doubtless will be here again relied on 
 to support the verdict, partial insanity or delusion 
 formed the only theme of the argument of counsel 
 and the instructions of the Court. I will now, 
 therefore, proceed first to consider it. 
 
 Many definitions of delusion will be found in 
 the books. As it is not my object to include 
 within any of them the facts of this case, but, on 
 the contrary, to exclude them, it will not be neces 
 sary for me to read or comment upon these general 
 definitions. It will suffice to state the rule by 
 which a certain mental condition may be shown not 
 to be a delusion, and to demonstrate that the facts 
 of this case are covered by that rule. 
 
 Whatever other elements a belief may possess, it 
 is, according to all the authorities, not a delusion if 
 it is found to have the following characteristics: 
 First, if the thing believed is true; secondly, if the 
 belief, though untrue in fact, is based upon evi 
 dence, however slight, from which, by the use of 
 the reasoning faculties, however illogical the process, 
 the conclusion adopted has been drawn. 
 
 As to the first characteristic, it can hardly be 
 necessary to devote much time to it; for it is 
 obvious that to believe the truth can never be a 
 delusion, the very essence of which is that it is 
 a false belief. "Delusion/ says the Court of 
 
 64 
 
CONTEST OF PARKER S WILL 
 
 Appeals of New York, "is insanity where one per 
 sistently believes supposed facts which have no real 
 existence except in his perverted imagination."* 
 "All the authorities to which I have had access," 
 says Judge Redfield, "agree that to constitute a 
 delusion there must be a belief in the existence as a 
 fact of something which does not exist." ) 
 
 As to the second characteristic: "A belief/ says 
 Judge Redfield, "based upon evidence, however 
 slight, is not delusion, which rests on no evidence, 
 but upon mere surmise." J 
 
 In TitteFs Estate, a most accomplished probate 
 judge thus charged the jury: 
 
 "Belief based upon evidence, however slight, is 
 not delusion. One person from extreme caution, or 
 from a naturally doubtful frame of mind, will 
 require proof before acting, amounting, perhaps, to 
 demonstration ; while another, of different faculties, 
 but of equally sound mind, will act upon very slight 
 evidence. ... If she [the testatrix] believed, . . . 
 and any fact existed as a foundation for that belief, 
 she was not laboring under delusion, and the script 
 is her will, however much she might have been mis 
 taken in the couclusions at which she arrived. . . . 
 A person may act upon weak testimony, yet be 
 under no delusion." 
 
 * In re White s Will, 121 N. Y. 406. 
 
 t i Wills, p. 86. 
 
 t i Id., ibid. 
 
 $ Myrick Rep., p. 14. 
 
 65 
 
ARGUMENT 
 
 Says the Supreme Court of Oregon: 
 "Delusion is that which springs spontaneously 
 
 into the mind in absolute independence of process 
 
 of reasoning." * 
 
 Upon the trial, Parker was charged with having 
 entertained certain specific delusions. It was 
 claimed and argued, 
 
 First, that he entertained an insane delusion that 
 Emma L. Parker, his son s wife, was an adven 
 turess, who would squander her husband s money 
 and turn him out of doors; 
 
 Secondly, that he entertained an insane delusion 
 that his son was a drunkard, a spendthrift, and was 
 unworthy of his bounty; 
 
 Thirdly, that he entertained an insane delusion 
 that Emma L. Parker was supporting a man who 
 was a counterfeiter and a gambler and a roue, and 
 for that purpose was stealing money from her hus 
 band s store; 
 
 Fourthly, that he entertained an insane prejudice 
 respecting his son and his son s wife. 
 
 If these be examined in the light of the law and 
 the evidence, it will be found either that Parker did 
 not entertain the belief at all, or if he did, he did 
 so under circumstances which demonstrate that it 
 was not the spontaneous product of a perverted 
 imagination without evidence to support it. In 
 contending that every element necessary to consti- 
 
 * Smith vs. Smith, 25 Pac. Rep. 18. 
 66 
 
CONTEST OF PARKER S WILL 
 
 tute insane delusion is wanting in the alleged beliefs 
 of Parker, I shall try to show that, 
 
 First, his belief in relation to Emma L. Parker 
 was not only based upon information which he 
 possessed in regard to her, but was, under the 
 circumstances in which he was placed, perfectly 
 rational; 
 
 Secondly, his belief as to his son s improvidence 
 and drinking was based upon reliable information 
 communicated to him; and he never considered 
 him unworthy of his bounty; 
 
 Thirdly, his alleged belief as to Emma L. 
 Parker s entertaining a man is not shown by the 
 evidence to have been harbored by him; 
 
 Fourthly, his prejudice against his son s wife was 
 fully justified by her character and conduct. And 
 prejudice against his son he had none, but the 
 tenderest affection, instead. 
 
 Examine in the first place the alleged delusion of 
 Parker touching the character of his son s wife. 
 
 It is charged as a delusion that he believed that 
 his son had married an adventuress. That he 
 entertained such a belief and frequently gave expres 
 sion to it admits of no doubt. But was it an insane 
 belief? It was not, if it was true; nor if, though 
 not true, it was based upon information received by 
 him, from which, by the use of his reasoning facul 
 ties, he reached that conclusion ; nor, a fortiori, if 
 the information was such that it would have led any 
 rational man to the same conclusion. 
 
 67 
 
ARGUMENT 
 
 It is not necessary for the purposes of this argu 
 ment to contend that Emma L. Parker was, in point 
 of fact, at the time of her marriage to Edward an 
 adventuress. It will suffice if I shall succeed in 
 proving that the information which George H. 
 Parker received concerning her after that event 
 was sufficient rationally to induce him to believe 
 that she was. In order to understand the opinion 
 which he formed of her, it will be useful to take a 
 brief retrospect of the relations he bore toward his 
 son. 
 
 That the testator loved his son has been amply 
 proven by the testimony of the contestant herself. 
 But, regardless of what she says, the facts abun 
 dantly attest that love. In 1870 himself then by 
 no means a rich man he started his son in business, 
 with a cash capital of ten thousand dollars. From 
 that on until his death he made him, from time to 
 time, further advances, amounting to more than a 
 like sum. When, in 1874, he learned of what the 
 family conceived to be his unfortunate marriage, he 
 crossed the continent in order to investigate the 
 matter and give him the benefit of his paternal guid 
 ance and advice. Though himself living in Cali 
 fornia, he visited him in Hartford from the time of 
 his marriage until his death, every two or three 
 years, and on these occasions was for weeks his 
 constant companion. When, in 1894, he learned 
 of his sickness, he, though at the time past seventy- 
 six, made a journey of twice three thousand miles 
 
 68 
 
CONTEST OF PARKER S WILL 
 
 to see him. Finding him stricken down, he then 
 furnished him all the funds necessary to procure 
 every comfort, and, in order that he might not be 
 harassed with business cares, met and canceled his 
 obligations at his bankers. Though convinced 
 that by his unfortunate marriage he had ruined his 
 life, he continued to love him to the last. 
 
 Nor do the provisions of this will denote 
 any other feeling than that of parental solicitude. 
 The testator had no wish more fondly cherished 
 than that of giving to his only son all he had in the 
 world. The very restrictions which he placed upon 
 the bequest to him were only calculated, in view of 
 the circumstances surrounding him, to make the 
 gift effectual. They were intended not to prevent, 
 but to secure, the enjoyment of the gift. After 
 making such charitable and benevolent legacies as 
 were proper for a man of his condition, he devised 
 the whole of his estate to his son, on the single 
 condition that he should survive his wife. During 
 her life he secured to him the whole of the income 
 of his property, and empowered his trustees, if that 
 income proved insufficient for his proper mainte 
 nance, to use the capital itself. The reason of 
 these restrictions was that, first, he did not deem 
 it wise to give his son the property absolutely dur 
 ing his wife s lifetime, because she was, he believed, 
 a woman who would squander it and leave him when 
 poor; and secondly, if his son, having the property, 
 should die, she as his heir would inherit it, and this, 
 
 69 
 
ARGUMENT 
 
 he considered, she did not deserve, and he by no 
 means wished. 
 
 That these views were adopted after mature 
 deliberation, and were adhered to with unswerving 
 tenacity, is shown by the fact that they were 
 embodied in every will he made. His hostility 
 toward the wife arose from the fact that he con 
 sidered her an adventuress who had inveigled his 
 son into an unfortunate marriage, and had thereby 
 ruined his life; that she was a woman whose past 
 life had been dishonored by misconduct, and whose 
 present career was guided by hypocrisy. 
 
 It is claimed that these opinions of the testator 
 were insane delusions. In order to understand 
 whether they were or were not, a brief sketch of 
 the character of the m an who entertained them, 
 of the training, education, and business career of his 
 son, and of the circumstances under which the con 
 testant came into the family is necessary. 
 
 The testator was born in Connecticut. In early 
 life he was an artisan, working as a clockmaker in 
 Hartford, side by side with Noah Pomeroy. The 
 acquaintance led to a marriage between Noah and 
 his sister Jane. He himself married in 1841, and 
 had as issue one only child, who was named Ed 
 ward L. Parker. His wife dying in 1851, he and 
 his son became for five years members of Noah 
 Pomeroy s household. At the end of that period, 
 he remarried, taking as wife Noah s niece, Delia 
 Pomeroy. The couple came to California in 1858, 
 
 70 
 
CONTEST OF PARKER S WILL 
 
 leaving Edward in Jane s charge. After engaging 
 in farming here for about two years, he returned 
 East in 1860. In 1865, he came back to California, 
 again leaving Edward with his sister Jane. 
 
 From that time on Edward became a member of 
 Noah s family, being treated as the adopted son 
 of the childless couple. They sent him to school 
 and to the best business colleges. When his educa 
 tion was completed, they secured him a position as 
 a clerk, in which he remained until 1870. He then 
 came to California to visit his father, returning with 
 him the same year. His father then set him up in 
 business in Hartford, furnishing him a capital of 
 ten thousand dollars. Though now in an indepen 
 dent position, Edward still made his home with his 
 aunt Jane. The Pomeroys being very wealthy, and 
 the young man, as their presumptive heir, moving 
 amid luxurious surroundings, became somewhat fast, 
 a member of clubs, a frequenter of the race-track, 
 having, while his home was still with his uncle and 
 aunt, sleeping apartments down-town, in a building 
 of questionable character. Such was the condition 
 of Edward Parker in 1873, when he first met the 
 woman who was destined to be his wife. 
 
 Who at that time was the contestant? Of her 
 past life and history, beyond the fact that she was 
 born in 1851, that her maiden name was Emma 
 Huff, she herself, though repeatedly questioned, has 
 steadfastly declined to speak. She would appear 
 before us in the attitude of a respectable woman, yet 
 
 71 
 
ARGUMENT 
 
 her antecedents she herself keeps under veil. Called 
 upon to believe the diamond of the purest water, 
 we must not be allowed to subject it to any test. 
 Assured that the fabric is of the finest texture, we 
 must purchase it upon trust, and will not be per 
 mitted to examine it or touch. 
 
 This much, however, we have succeeded in prov 
 ing: In 1870, she was living somewhere in New 
 York, where cannot be ascertained from her. She 
 was the companion of a Mrs. Lowe, who in early 
 days had left home to come to California under a 
 false name, passing herself off as a married woman, 
 and had then returned to New York, there to follow 
 such vocation as beseems such a character. Emma 
 Huff herself came to this State in 1869 or 1870, 
 being then in her eighteenth or nineteenth year. 
 Before starting she wrote to her mother that she was 
 married to a man named George L. Brown. She 
 came alone, taking lodgings somewhere in San 
 Francisco, where she cannot be persuaded to tell. 
 She then met a man named Tillinghast, a club 
 man and high liver, and frequented with him, and 
 in company with other men and women, restaurants 
 whose name and location she now finds it con 
 venient to forget. What her relations with this man 
 were may be vaguely gathered from the fact that, 
 though not married, she brought back to her home 
 his photograph and represented him to her family 
 and to the world as her husband. San Francisco 
 appearing too dull to her enterprising spirit, she 
 
 72 
 
CONTEST OF PARKER S WILL 
 
 went to Virginia City. Of her life there we know 
 absolutely nothing. She declines to be interrogated 
 upon it. What it had been we may conjecture from 
 the fact that in 1874 after her marriage with 
 Edward a man named Mitchell, who had been 
 with her a resident of that city, came to visit her in 
 her home in the Pomeroy mansion in Hartford ; that 
 she introduced him to the family, falsely represent 
 ing him as her agent, engaged by her to settle up 
 her dead husband s estate; and that he was over 
 heard, in a confidential conversation with her, to 
 say, " Now, Emma, that you have married into a 
 good family, behave yourself." In 1871 or 1872, 
 she returned to her home in Plantsville, in deep 
 mourning mourning for the dead husband whose 
 photograph she carried and whose name she had 
 given as George L. Brown. 
 
 In 1873, in the beginning of the winter, Edward 
 L. Parker first met her. The meeting was charac 
 teristic, and a foreboding of the events which were 
 to follow. She came to Hartford in company with 
 a woman whom she herself has represented as of no 
 reputable character. According to her story, while 
 she and this woman were at the hotel called the 
 Allyn House, Edward and a friend named Stanton, 
 total strangers, called upon them, introducing 
 themselves, and at once invited the couple to a ride 
 and supper in the country. They went. Upon 
 their return, she visited Edward s down-town sleep 
 ing apartments, leaving there some time in the 
 
 73 
 
 F 
 
ARGUMENT 
 
 night. Her companion was then a widow, and she 
 represented herself as such. From that time on, 
 she had frequent meetings with Edward at his 
 apartments, but never at his home. Their court 
 ship, if courtship it may be called, lasted eight 
 months, during which she never was introduced by 
 him into the Pomeroy family, nor he by her into 
 her own. He was brought at last to the point of 
 consenting to marry her, by what means the 
 evidence does not leave in doubt. She repre 
 sented herself to him as a widow from California, 
 relict of George L. Brown, rich, and on the point 
 of returning. He believed her story. About a 
 fortnight before the marriage, he advised his uncle 
 Noah and aunt Jane, telling them that his marriage 
 must take place inside of two weeks; that he was 
 to marry the widow of George L. Brown, of San 
 Francisco, who had died in the Occidental Hotel, 
 in that city. When they remonstrated and pointed 
 out to him that he was in no condition of fortune 
 to marry, he replied that she was a woman of 
 means, had property, was rich ; that he must marry 
 her right away, as she had presently to go back to 
 San Francisco, and he would lose her. 
 
 The marriage took place in New York, on the 
 a6th of June, 1873. There is no evidence 
 except her own statement that any of her family 
 knew of it. Certain it is that no member of that 
 family was present. None of the Pomeroys, nor 
 any other relative of Edward, was there. George 
 
 74 
 
CONTEST OF PARKER S WILL 
 
 H. Parker, the father, was never even apprised 
 of the coming event. No one witnessed their 
 union, except Edward s friend Stanton, who had 
 accompanied him on his first visit upon her in 
 the Allyn House. She represented herself to 
 the minister who performed the ceremony as the 
 widow of George L. Brown, giving her residence 
 as San Francisco, and certifying that she was now 
 married for the second time. Edward believed her 
 to be such, nor was he undeceived until, as I shall 
 presently show, some eight months had elapsed. 
 
 The very day of their marriage, they returned 
 from New York to Hartford, going to the 
 Pomeroys. She was received kindly and treated 
 considerately by all the household. This she her 
 self is compelled to admit. She played the widow s 
 part with a skill worthy of her former career in San 
 Francisco and Virginia City. She still wore 
 mourning for her departed husband, George L. 
 Brown. Around her neck hung a locket graven 
 with his initials. In her album on the parlor table 
 was his photograph, ostentatiously exhibited to the 
 servants and members of the family. She told 
 where they had lived ; spoke of their sojourn at 
 the Occidental Hotel in San Francisco. She expa 
 tiated upon his munificence. She impressed them 
 with his never- failing kindness. He denied her 
 nothing, she said. She had her horses and car 
 riages, a span driven to the door every morning 
 for her special use. She had all the money she 
 
 75 
 
ARGUMENT 
 
 desired he never left her side without showering 
 gold into her lap. She intimated that they had 
 traveled together far and wide in foreign lands. 
 She described with elaborate minuteness every 
 detail of his mournful taking-off at the Occidental. 
 He had been suddenly taken sick, she said ; she 
 had run to the druggist s for assistance ; on her 
 return she had found the poor man dead, and her 
 self left alone and desolate. To make the narra 
 tion of his demise still more circumstantial, she 
 pointed to a pin seen in the scarf of his photograph. 
 She stated that, when he was suddenly taken ill, 
 she had untied his neckwear to relieve him, and had 
 taken off his scarf-pin and stuck it in a cushion on 
 a bureau, where it had remained until his brother 
 had taken it away. 
 
 She told of the ample fortune her dead hus 
 band had left her. She had lands and stocks, she 
 said. She gave the very number of the house in 
 which their home was, 411 Powell Street, in San 
 Francisco. Nay, more, out riding one day in Hart 
 ford with Jane Pomeroy, she pointed out a house 
 that of a Mr. David Mayer as very much resem 
 bling the one of her dead husband. So deep, how 
 ever, she said, had been her grief for his demise 
 that she had kept the house closed she could not 
 bear to live in it for a whole year after his death. 
 She added that she had an agent in San Francisco 
 taking charge of all her property, collecting her 
 rents, gathering in the dividends from her mines, 
 
 76 
 
CONTEST OF PARKER S WILL 
 
 and no doubt scissoring off the coupons from 
 her bonds. She complained of the expense, saying 
 it cost her a great deal for a man to take care of 
 her property, and pay the taxes and insurance. She 
 introduced this very agent, in the shape of Mitchell, 
 to the Pomeroy household. 
 
 That this story was a monstrous falsehood she 
 now admits, and her counsel are forced to avow. 
 The deception practiced upon the unsuspecting 
 household of the Pomeroys was bound in the end 
 to break down. It did break down. In the first 
 place, the picture she attempted was overdrawn. It 
 seemed to these practical New England people 
 strange that a widow of but twenty years, in good 
 health, plump and sleek, should take on so for the 
 death of an aged husband a man, she had stated, 
 old enough to be her father as to keep his house 
 shut up for a year, especially so when she, still in 
 mourning, had contracted a new alliance with a 
 younger man. Then it struck this frugal couple as 
 odd that, while complaining of the expense of an 
 agent to take care of her property, she had rejected 
 their suggestion that her own husband s father 
 should, free of charge, represent her interests in 
 San Francisco. It appeared to them astonishing 
 that she should prefer to go on continuing to pay 
 commissions, of which she complained. Besides, 
 while giving herself out as very rich, she was con 
 stantly importuning her husband for money for 
 dress. 
 
 77 
 
ARGUMENT 
 
 Then people began to drop in and whisper. 
 Rumors reached the Pomeroys that she was not 
 perhaps of altogether too good a character. They 
 began to grow suspicious and to make inquiries. 
 Jane wrote to her brother George, under date of 
 January 15, 1874, that they had heard that she was 
 a woman of no character, and she wished that he 
 would come and investigate for himself. She sent 
 a copy of the photograph which the contestant had 
 represented to be that of her deceased husband, 
 George L. Brown, and also gave the number 411 
 Powell Street of the house in which she had said 
 she and her husband had lived in San Francisco. 
 She concluded by requesting him to find out whether 
 the facts so represented were true. 
 
 George s wife, Delia, answered by letter dated 
 January 25, 1874, in which she replied that, upon 
 seeing the picture, the photographer who had taken 
 it stated that the original was a Mr. Tillinghast, 
 a well-known man still living; and that further 
 investigation showed that this man was even now 
 carrying on the business of an importer in San 
 Francisco. As regards the house on Powell Street, 
 it was ascertained that no such person as Brown or 
 the contestant had ever owned or lived in the place. 
 
 Noah showed this letter to Edward, and told 
 him that it disclosed the facts as he understood 
 them. When Emma came home that night, there 
 was a stormy interview between her and her hus 
 band. She stamped the floor in rage, and called 
 
 78 
 
CONTEST OF PARKER S WILL 
 
 Jane all manner of vile names, threatening even her 
 life. Edward, who had been as a son to Jane, 
 restrained her, telling her that he would protect his 
 aunt, and would not hear a word spoken against 
 her. He furthermore informed her that she had 
 deceived him deceived him terribly ; that she was 
 no widow, and had no estate and no property. 
 She retorted that she had told the truth, and that 
 she would procure the certificate of her marriage. 
 He replied that she could not. "You cannot get 
 the certificate. I don t think you can get the cer 
 tificate," he said. Noah was called in, and in her 
 presence Edward said to him, " Uncle Noah, do 
 you believe that man is living in San Francisco now 
 which Emma has claimed was her dead husband, 
 George L. Brown?" and Noah replied, "I do." 
 Emma then exclaimed, " I will call on my God to 
 paralyze me here and now if that is n t my dead 
 husband in California." She said further that she 
 would show her certificate within four hours. And 
 she left the house, saying that she would go to 
 New Haven that very night and procure it. 
 While she was gone, Edward said, "Emma has 
 gone to New Haven to get her marriage certifi 
 cate," and Jane replied, " Do you think that she 
 will get it?" Edward retorted, "No; because I 
 don t think that she was ever married. She has 
 deceived me. I don t think there is any mar 
 riage certificate to get. She has deceived me 
 about her property. She has deceived me every 
 
 79 
 
ARGUMENT 
 
 way." His condition is best described in the sim 
 ple words of Jane, who says, "The man was about 
 crazy." 
 
 She returned the next morning or, at least, 
 pretended to return from New Haven, saying 
 that the minister who had married them was dead. 
 She asked for time to get her certificate from San 
 Francisco, for three months, saying that she 
 had a copy of it in her trunk there. She added 
 that if she could not get it within that time, she 
 would not ask her husband to live with her any 
 longer, and would leave of her own accord. 
 
 This transparent falsehood may have deceived 
 her husband. He may have believed the story. 
 But Noah Pomeroy had too much knowledge of 
 the world to be hoodwinked by such gauzy stuff. 
 He ordered the couple to leave his house that very 
 day, stating to Edward that its doors would always 
 be open to him, but that the woman whom he had 
 brought there, and with her so much disgrace, must 
 never darken its threshold again. 
 
 Shortly after this, George H. Parker came East 
 for the express purpose of investigating into his 
 son s marriage and ascertaining for himself the true 
 character of his wife. On his arrival in Hartford, 
 he stated to his sister Jane that he had made in 
 vestigations in San Francisco and found out that 
 there was no such person there as George L. 
 Brown ; furthermore, that he did not think his 
 son s wife had any property there on Powell Street, 
 
 So 
 
CONTEST OF PARKER S WILL 
 
 or anywhere else, nor any stocks nor bonds ; that 
 he had come to investigate Edward s wife, to satisfy 
 himself what she was ; that he was going to make 
 his investigations personally. 
 
 On this mission he stayed in Hartford six weeks. 
 He first called upon his son and his wife at the 
 United States Hotel, where they were stopping. 
 He found her at rst pleasant enough. "He 
 heard her story," says Jane, "and came back home 
 and felt as if the woman had been damnably 
 abused. He was going down the next day to see 
 her again." On his return the next day, he 
 offered, if she would make a true statement of her 
 previous life, to take her and her husband to Cali 
 fornia, set him up in business, and wipe out the 
 old slate. He told her if she would only tell him 
 the truth of her past history he would stand by her, 
 as she had married his boy. She admitted, with 
 apparent frankness, that "she had lied to Noah and 
 Jane, but would tell him the truth," and then told 
 him that it was true "that she had married a man 
 by the name of George L. Brown ; that he lived at 
 the Occidental Hotel in San Francisco, and that he 
 died at the Occidental Hotel." She gave him on 
 a slip of paper, in her own handwriting, the very 
 number of the room and the date of his death. 
 She added " that he was buried at Lone Mountain 
 near the Broderick monument." She requested 
 him to write to California himself and find out the 
 truth. He wrote accordingly, and informed her 
 
 81 
 
ARGUMENT 
 
 of the fact on his visit the next morning. She 
 expressed her regret that he had not telegraphed, 
 instead of writing, because, she said, " I have got 
 to wait so long to have a letter go and come, and in 
 this suspense, and I wish you had telegraphed." 
 She further told him that she had property in San 
 Francisco, a house at 411 Powell Street, and 
 also mining stock. He wrote to his wife con 
 cerning these matters, and she answered by letter 
 of March 6, 1874, in which she stated that she had 
 gone in person to the house, 411 Powell Street, 
 had inquired if any person by the name of Brown 
 had lived there within the last three or four years, 
 and had been answered by the lady of the house 
 that she had resided there for the last nine years, 
 and that no person by the name of Brown had ever 
 lived there during that time. 
 
 He wrote to a friend in San Francisco, to ascer 
 tain whether George L. Brown had ever lived or 
 died at the Occidental Hotel, and, as soon as his 
 letter reached its destination, received a telegram in 
 the following words : " No such man ever lived at 
 the Occidental Hotel. A big lie. Letter by mail." 
 After receiving this telegram, he called upon his 
 son s wife and told her, "Here, I have got the tele 
 gram." She exclaimed, " Oh, I am so glad!" He 
 showed her the telegram. She took it, read it, 
 tossed it off in a chair near by, and said, "What 
 do you suppose I care for that? I never told you 
 my husband died at the Occidental Hotel." He 
 
 82 
 
CONTEST OF PARKER S WILL 
 
 said, " You did." She replied, " If you say that, 
 you are a damned liar." 
 
 In due course of mail he received a letter from 
 his friend, confirming with great minuteness of 
 detail the former communication that no such man 
 as George L. Brown had ever lived or died at the 
 Occidental Hotel. 
 
 This letter ended his investigation into the char 
 acter of his son s wife. He had ascertained enough 
 to convince him that she was neither a truthful nor 
 a worthy woman. To use his own forcible language, 
 he had " found out that she was a liar, and he did 
 not want anything more to do with her." From 
 that time on, his opinion of her was irrevocably 
 fixed. He saw clearly that she had absolutely 
 dominated his son, and molded him to her will as 
 clay in the potter s hand. He retired in sorrow, 
 telling his son that if he wanted to live with her it 
 was his privilege to do so, but that he must not look 
 to him for support, as he certainly would not help 
 support her, but would abandon him to his fate. 
 Upon his return to California he wrote him to that 
 effect. 
 
 As early as that time, in the summer of 1874, 
 after having made these investigations and come 
 to these conclusions, he told his son that " if he 
 died and left him anything, he would leave it in 
 trust to him; he would never leave it where his 
 wife would get one dollar." 
 
 The facts above narrated, however, were not all 
 
 83 
 
ARGUMENT 
 
 the facts upon which Parker based his opinion of 
 the character of Edward s wife. The most conclu 
 sive evidence of the son s abasement and the wife s 
 pernicious influence over him, as well as her own 
 depravity, was yet to come. After his wife had 
 been expelled from the Pomeroy mansion, Edward 
 wrote to his father that his aunt Jane, who had been, 
 as I have shown, a mother to him, had hired low 
 lived men to go to " his home and put filth upon 
 his doorsteps, to insult him upon the street, as well 
 as to go to his house to do it, and that she had 
 reported that he was seen drunk in public on the 
 street, and that they were both rotten with disease, 
 and were living far beyond what they could afford 
 to." This letter, though in Edward s handwriting, 
 was the creation of his wife s malice. It was her 
 plan of revenge upon her husband s benefactors. 
 It was dictated by her. When Edward awoke 
 from the spell which his wife had thrown over him, 
 and under which he had been guilty of this ingrati 
 tude and baseness, he acknowledged with tears that 
 the letter was false, begged pardon for writing it, 
 and said, " Emma dictated the letter and made me 
 write it." He humbly asked that the letter might 
 be given back to him to be burned up. In his 
 weakness, however, he sought to palliate his wife s 
 wrong by saying that her motives were to protect 
 herself, in a measure, and to make it appear to his 
 father that the Pomeroys were to blame, to dis 
 credit any statement that Jane and Noah, who were 
 
 8 4 
 
CONTEST OF PARKER S WILL 
 
 then about to go to California, might make about 
 her and her husband. 
 
 I have now stated the facts within the testator s 
 knowledge relating to the character of his son s wife. 
 If, with this information, he reached the conclusion 
 and formed the belief that she was a depraved woman 
 and an adventuress, is it possible that any Court 
 can justify the finding of a jury that that belief was 
 an insane delusion a figment of the imagination, 
 springing spontaneously from a diseased mind, with 
 out evidence to justify it, without reason to support 
 it? 
 
 Examine next the charge that the testator enter 
 tained an insane delusion that his son was a spend 
 thrift and a drunkard, and was unworthy of his 
 bounty. 
 
 The pernicious effect of the ill-fated marriage of 
 Edward with Emma Huff did not stop with his 
 moral degradation. Its result was not only to ruin 
 the fair prospects which he had as the heir pre 
 sumptive to the ample fortune of the Pomeroys, but 
 also to involve him in financial ruin. 
 
 The three months within which Edward s wife 
 had promised to produce her marriage certificate 
 elapsed ; but, of course, she did not produce it. 
 The falsehood, however, had given her time to 
 fasten, or, rather, to tighten, the bonds by which 
 she held her husband in servitude. The natural 
 result followed. The very same year 1874 
 he asked his father for support, and begged him to 
 
 85 
 
ARGUMENT 
 
 become the indorser of his paper. Two years after 
 his marriage he was not only insolvent, but was 
 threatened with arrest for obtaining goods under false 
 pretenses. He was then owing from nine to ten 
 thousand dollars. The kind-hearted and forgiving 
 Jane came to his assistance with thirty-five hundred 
 dollars, and the no less kind-hearted Noah stepped 
 in and paid off all his debts, giving him for six 
 years thereafter the benefit of his own large credit, 
 standing behind him and practically assuming charge 
 of his business, as he would have done for his own 
 son. From that time on, he was a frequent appli 
 cant for, and the recipient of, assistance from Noah, 
 from Jane, and from his own father. He died in 
 1894, twelve years after Noah took off his helping 
 and sustaining hand. During that period his father 
 had furnished him ten thousand dollars in addition 
 to the ten thousand dollars capital with which he 
 had originally started him. When he died he was 
 insolvent. His estate paid only thirty-five cents 
 on the dollar. His finances were at such an ebb 
 that his father was compelled to furnish money for 
 his nursing in his last sickness, and to save his 
 credit, by paying off a note of one thousand dollars 
 which he owed at the bank. 
 
 George H. Parker knew his son well. If he 
 knew his good qualities, he also knew his weaknesses 
 and his faults. He had kept up his intercourse with 
 him, by constant visits and correspondence, up to 
 the very day of his death. He knew the thraldom 
 
 86 
 
CONTEST OF PARKER S WILL 
 
 under which he was to his wife. He was acquainted 
 with his habits and his lack of thrift. He labored 
 under a deep conviction that his wife had been his 
 ruin. He knew that she had been the means of 
 cutting him off from his prospective inheritance 
 from the Pomeroys. 
 
 If, in view of all he had done and all he knew, 
 he believed his son to be a spendthrift, his conclu 
 sion, I respectfully submit, was both rational and 
 sound. 
 
 A word now touching the subject of the testator s 
 belief that his son was a drunkard. The founda 
 tion of that belief, if it existed at all, is given in the 
 testimony of Mrs. Law. This witness was asked 
 to state a conversation that took place, she said, 
 between herself, the testator, and his sister Jane, at 
 the Palace Hotel in 1888. The counsel on the 
 other side said that their object was to prove that 
 Jane instilled into the testator s mind the belief that 
 his son was a drunkard. The witness then stated 
 that Jane had said to her brother " that his son was 
 all bloated up ; that he was going to ruin ; that he 
 would n t know him, and it was all on account 
 of that woman." The testator, turning to the wit 
 ness, had exclaimed, " My God, Ellen, see what 
 my son is coming to ! " It is claimed that from 
 that time on he believed his son was addicted to 
 drink. In the afternoon of October yth, Mr. Rod- 
 gers, counsel for the contestant, stated : " George 
 H. Parker believed these statements. He stated 
 
 87 
 
ARGUMENT 
 
 to Mrs. Dougherty his information came from 
 Jane." 
 
 Now, assuming all this to be true, how can it be 
 claimed that the testator s belief, if he entertained it, 
 was an insane delusion? The testimony shows the 
 most brotherly and touching relations between the 
 testator and his sister Jane. It is everywhere 
 charged by the contestant, not only in her written 
 grounds of contest, but here in open court, that he 
 had implicit confidence in her, and that she exer 
 cised great influence over him. How, then, can it 
 have been an insane delusion for this confiding 
 brother to believe that what his sister told him was 
 the truth, especially so when her statement tended 
 to reflect upon his son, and he recalled how tenderly 
 she had loved him, had made, and was still making, 
 her home his, cherishing him, even after his mar 
 riage, receiving him every week as a guest at her 
 house? How can it have been an insane delusion 
 for him to believe what she told him, when she was 
 at the very fountainhead of information and he 
 three thousand miles away? 
 
 As to the effect which the testator s knowledge 
 of his son s conduct and character had upon the 
 disposition of his bounty, there are certain facts 
 which it is well to bear in mind. He was a New 
 Englander of the old school. That he felt keenly 
 the disgrace brought about by his son s marriage 
 and conduct we know. But there is no proof that 
 his tenderness for his son in any manner diminished. 
 
 88 
 
CONTEST OF PARKER S WILL 
 
 He looked upon his errors more in sorrow than in 
 anger. He contemplated him with pity rather than 
 indignation. He did not permit what he knew of 
 him to smother his natural affection, nor hinder his 
 desire to bequeath him all he had. It only made 
 him solicitous so to dispose of his property that he 
 might be safe and protected in its enjoyment. All 
 this is made manifest by the testimony of the con 
 testant s own witnesses, and is proved by his own 
 conduct subsequent to the information he received 
 from Jane. 
 
 From one of these witnesses we learn that at one 
 time he appeared very much excited by letters 
 received from his sister Jane. He was crying, and 
 said that his only child was a disgrace to him. That 
 his son was a drunkard and going to the dogs. He 
 added that his son was a man any one ought to be 
 proud to look upon, but his conduct was a disgrace, 
 and he might as well have no child as to have a 
 child like that. He did not, however, blame him. 
 He thought it was his wife s influence. On a great 
 many occasions he said that he loved his son, and 
 the only thing he regretted was his marriage with an 
 adventuress. He " said his son was his heir, and 
 he ought to leave him his money, but he was afraid 
 if he did that that woman he was married to would 
 squander it and then turn him out of doors." 
 
 When he learned of his last sickness, he went 
 East, as soon as his age and condition would per 
 mit, " to see his son and ascertain if he and his wife 
 
 89 
 
ARGUMENT 
 
 were well cared for ; he was going to take him and 
 his wife to Cuba ; he had money enough for them 
 all." And, as stated by one of our adversary s 
 witnesses, " while he was talking the tears came into 
 his eyes." Though a very old man, he then crossed 
 the continent to see him. He furnished him money 
 to secure the best possible attendance. He took up 
 his note of one thousand dollars at the bank. He 
 left three hundred dollars with his clerk upon his 
 departure. He attended to the payment of the 
 premium on his life-insurance. He offered to pay 
 the rent of his house. He went out riding with 
 him every day during his visit at Cottage City. 
 
 The claim that he was lacking in affection toward 
 his son is best refuted by the contestant s own testi 
 mony relating to the last interview he had with 
 him. When informed that the son had policies of 
 three thousand dollars on his life, the father said, 
 " We will see that your policies are kept up." He 
 then added, " What kind of a home have you got ? 
 I want you to keep that house up. Give him every 
 thing he wants. You 11 be provided for. I want 
 you to see that Ed has the best of care and every 
 thing he wants." In the very first conversation he 
 had with his son s wife, upon his arrival, he had 
 said to her, cc I find my boy a very sick boy. I never 
 expected to find him like this " ; and then, at part 
 ing, he " threw his arms around him and kissed 
 him." 
 
 In view of all this testimony, I ask, is it not 
 
 90 
 
CONTEST OF PARKER S WILL 
 
 preposterous to claim that George H. Parker s be 
 lief that his son was a drunkard was entertained 
 without any evidence to support it a creation of a 
 diseased imagination ? Upon this evidence are your 
 Honors prepared to sanction the conclusion that 
 the testator deemed his son unworthy of his bounty ? 
 In the face of these facts, are you ready to announce 
 that when this frugal old New Englander, who had 
 risen by his own unaided exertions from poverty to 
 affluence, saw his son, in spite of the aid he had got 
 from Noah and Jane, and from himself, within the 
 verge of the criminal law, and ending in ultimate 
 bankruptcy, it was an insane delusion a mental 
 condition having no evidence to justify it, the dis 
 ordered offspring of a diseased imagination to 
 believe that that son was a spendthrift ? 
 
 The third delusion charged against the testator is 
 that he entertained an insane belief that his son s 
 wife was supporting a man who was a counterfeiter, 
 a gambler, and a roue with money stolen from her 
 husband s store. 
 
 The whole of this charge is based upon the testi 
 mony of the contestant alone. She testifies that, 
 in one of the interviews which the testator had with 
 her in 1874 at the United States Hotel, he said, 
 " I understand you are supporting a man who is a 
 gambler and a roue, with money stolen from your 
 husband s store," and that Edward then replied, 
 " When you find anything of that kind, you can 
 ask me to leave my wife." There the subject 
 
 91 
 
ARGUMENT 
 
 dropped, never was again alluded to by the testator 
 nor anybody else in his lifetime, and the contestant 
 and her father-in-law went out that morning to take 
 a ride together. 
 
 I submit that to set aside a will upon the ground 
 that this single statement made by the testator, by way 
 of inquiry and for the purpose of eliciting informa 
 tion, more than twenty years before he made his 
 will, constituted an insane delusion which directly 
 operated upon the testamentary disposition of his 
 property would be a reproach upon the administra 
 tion of justice. 
 
 It is said lastly that the testator entertained an 
 insane prejudice against his son and his son s wife. 
 
 As to any prejudice against the son, I have 
 already shown that the whole evidence refutes such 
 a claim. It cannot upon this record be doubted 
 that the father was deeply attached to his son, none 
 the less so for that he deplored the misfortune in 
 which his marriage had involved him. As to the 
 prejudice against the son s wife, I have already 
 endeavored to show that the settled and deep- 
 rooted aversion which Parker entertained toward 
 her, far from being insane, was, under the circum 
 stances, perfectly natural and rational, if not com 
 mendable. 
 
 Besides, men s wills are not to be set aside be 
 cause of their likes or dislikes, their loves or hatreds, 
 their rational inclinations or their violent prejudices. 
 The law does not undertake the difficult task of 
 
 92 
 
CONTEST OF PARKER S WILL 
 
 tracing back to their source the feelings of the 
 human heart. It is the privilege of every testator 
 a privilege without which the right to make a 
 will would be valueless to reward those he loves 
 and to exclude from participation in his bounty 
 those he hates. The law does not undertake to 
 deal with purely moral obligations. It may be more 
 commendable to love than to hate, but a testator 
 has the legal right to entertain and act upon the 
 one feeling as much as the other. 
 
 Says Mr. Justice McFarland, speaking for the 
 Supreme Court of this State: 
 
 " The likes and dislikes of human beings their 
 confidences and mistrusts are often capricious and 
 arbitrary; but they are not evidences of insanity 
 because they cannot be logically defended to the 
 satisfaction of those who think them wrong. In the 
 case at bar there is no warrant for the claim that 
 the testatrix s dislike . . . was an insane delu 
 sion; it was simply such a feeling, arising out of the 
 recondite principles of attraction and repulsion, as is 
 quite common among people of undoubted sanity."* 
 
 Said the same Court, speaking through Mr. Jus 
 tice Temple, in an earlier case: 
 
 "It is quite common for people to be offended at 
 imaginary injuries, to take offense when none was 
 meant, to have a firm belief that they have been mis 
 treated, not based on fact, and when the offending 
 party would believe for generally the baselessness 
 
 * In re Spencer, 96 Cal. 452. 
 93 
 
ARGUMENT 
 
 of the belief could only be proved by them that 
 there was not even rational ground for such belief. 
 . People may hate their relations for bad 
 reasons, and yet not be deprived of testamentary 
 power." * 
 
 The claim that Parker was lacking in testamen 
 tary capacity on account of an insane prejudice 
 against his son or his son s wife is, I submit, abso 
 lutely without foundation. 
 
 Upon the whole case, I submit that a verdict 
 finding the testator of unsound mind by reason of 
 the alleged delusions mentioned, has manifestly no 
 evidence to support it. 
 
 Having now said all I desire to say upon the 
 subject of insane delusions, I next invite your 
 Honors consideration of the other contention of the 
 contestant, general mental unsoundness. 
 
 In the first place, I call attention to the testimony 
 given upon this subject on behalf of the respondents. 
 We have produced twenty-five witnesses and it 
 must be apparent we could have produced a hundred 
 more who, in the most satisfactory manner, have 
 testified to the testator s mental soundness. These 
 witnesses represent all classes of society. They 
 come from all ranks, professions, and occupations. 
 They are lawyers, physicians, capitalists, farmers, 
 horticulturists, merchants, refined and accomplished 
 women. Among them are his intimate acquaint- 
 
 * Estate of Carpenter, 94 Cal. 417-419. 
 94 
 
CONTEST OF PARKER S WILL 
 
 ances, friends, companions, and business associates 
 of a lifetime. They give us a complete picture of 
 his life for a period of over fifty years from 1840 
 to his death, in 1893. With one accord they speak 
 of hjm not only as a man of perfect mental health, 
 but as one who to the last manifested exceptional 
 business ability and intelligence. 
 
 In addition to this showing, there are not a few 
 other considerations which bear upon the subject. 
 In examining these, and, indeed, the whole of this 
 part of the case, it is well ever to bear in mind that 
 in the making of this will there was no fraud, no 
 imposition, no undue influence. This is conclu 
 sively established by the action of the Court in with 
 drawing those issues from the jury, on the ground 
 that there was no evidence whatever to support 
 them. We have here, then, a testator acting in 
 accordance with the spontaneous promptings of his 
 own mind, carrying out in his own way the purposes 
 which, without suggestion from any quarter, he had 
 conceived. If we add to this the circumstances 
 attending the making of the will, we shall have 
 before us a group of facts which, according to all 
 authorities, is entitled to the greatest weight in 
 determining the question of the testator s mental 
 soundness. 
 
 According to the books, and in consonance with 
 common sense, if a person goes of his own accord 
 to the office of a man of law of his own selection, 
 and there, alone with his adviser, gives, without 
 
 95 
 
ARGUMENT 
 
 assistance or prompting, intelligent directions for the 
 making of his will, indicating the manner in which 
 he desires his property to be bestowed, and naming 
 the objects of his bounty, and if, in addition, the 
 provisions of the will are in themselves rational, all 
 these circumstances are among the most cogent that 
 can be adduced as proof of his soundness of mind. 
 It appears from the testimony that, in 1888 or 
 1889, I do not now recall which, Parker had 
 made a will as similar in every substantial respect 
 with the one now in controversy as the circum 
 stances then surrounding him his wife being still 
 alive permitted. This will had been drawn by 
 his attorney, Mr. Charles E. Wilson, of San Fran 
 cisco. After his wife s death, the provision as to 
 her needing alteration, and the testator being, 
 besides, desirous of bestowing certain legacies upon 
 relatives and friends, he went to the office of Mr. 
 Patton, a prominent attorney in San Jose, and 
 there, alone with Mr. Patton, gave the requisite 
 directions for his new will. After the will had 
 been drawn according to these instructions and 
 executed, it was, upon further inspection by the 
 testator, found deficient, in omitting legacies 
 amounting to twenty-five thousand dollars to the 
 children of Marshall Pomeroy. It was accordingly 
 returned to Mr. Patton, the omission pointed out, 
 and a new will the one now before us was 
 drafted and signed. Subsequent to this, Parker, 
 being desirous of adding one or more codicils, went 
 
 96 
 
CONTEST OF PARKER S WILL 
 
 to Mr. Pattern s office, and procured the requisite 
 legal formula for that purpose. He used it later 
 in drafting with his own hand the two codicils 
 which are now appended to his will. After doing 
 so, he submitted the instrument with these codicils 
 to Mr. Patton for revision or approbation. Noth 
 ing being found that needed alteration, the docu 
 ment is now as it was then shown him. The 
 testimony of Mr. Patton upon these subjects is 
 very full, explicit, and without contradiction. 
 
 Apart from the testimony of Mr. Patton, that in 
 all this Parker acted in a manner denoting mental 
 soundness, the circumstances themselves and the 
 provisions of the will show, and the whole trans 
 action evinces, conduct in every way rational and 
 intelligent. 
 
 There are two other facts entitled to the greatest 
 consideration. First, that for several years after it 
 is claimed by contestant Parker was of unsound 
 mind he kept a regular diary of his daily transac 
 tions, both of business and of social life; and, 
 secondly, that during the year in which his will and 
 codicils were drawn, and up to the time of his 
 death, he was in frequent correspondence with his 
 sister, Jane Pomeroy, and Mrs. Husbands, the 
 lady who claims to have been engaged to marry 
 him, for a year continuously before his death. It 
 would be an idle consumption of time to read the 
 details of these diaries and letters. It is sufficient 
 for my present purpose to state, and the Court 
 
 97 
 
ARGUMENT 
 
 will find that nothing in them can be discovered 
 "sounding in folly." On the contrary, they are 
 all emanations of an intelligent and strong mind. 
 
 Finally, I desire to call your Honors attention 
 to a fact, which, under the authorities, is quite 
 conclusive upon this subject. There is no contra 
 diction whatever that, up to the last, though Parker 
 was over seventy-six when he died, he continued 
 actively engaged in business and managed his 
 affairs with prudence and sound judgment. 
 
 Such being the showing on behalf of respondents, 
 and our opponents being charged with the heavy 
 burden that rests upon those who rely upon insanity 
 for their cause, what has the contestant brought 
 forward to overthrow it and the natural presump 
 tion of soundness ? 
 
 The only evidence upon which a motion to with 
 draw this issue from the jury could have been 
 resisted, is that of three women, Mrs. Dough 
 erty, Mrs. Greenman, and Mrs. Smith. These are 
 not new names. These women were all sworn upon 
 the first trial, and, to the best of their ability, then 
 supported the case of the contestant. Though her 
 avowed champions then, brought here to prove 
 the testator insane, they at that time had not been 
 able to persuade themselves to testify that, in their 
 opinion, he was of unsound mind. Not that the 
 contestant did not on that trial attempt to offer the 
 opinions of various persons as to the condition of 
 his mind, for that attempt was repeatedly made. It 
 
 98 
 
CONTEST OF PARKER S WILL 
 
 failed because the witnesses could not show the 
 requisite legal qualifications to entitle them to testify. 
 But these three women, who now assert that they 
 were Parker s intimate acquaintances, were not then 
 asked, nor did they then even by accident state, that, 
 in their opinion, he was of unsound mind. This 
 silence, I repeat, can be accounted for only upon 
 the assumption that at that time, however eager to 
 lend support to contestant s case, they could not 
 persuade themselves to maintain so monstrous a 
 proposition. They have testified now, however, 
 and their testimony being before us, it behooves 
 us to proceed to examine it. * 
 
 The value of the opinion of these three witnesses 
 is to be determined by the value of the reasons 
 which they give for the faith that is in them. The 
 Code of Civil Procedure allows lay witnesses to 
 testify as to the mental capacity of others, on 
 condition that they give the reasons upon which 
 their opinions are based. " Evidence may be given," 
 says section 1870, "of the opinion of an intimate 
 acquaintance respecting the mental sanity of a per 
 son, the reason for the opinion being given." 
 
 It being, then, a rule of law as well as of com 
 mon sense, that in investigations of this kind the 
 opinion of no witness can rise higher than the rea 
 son given for it, if the reason given has no tendency 
 to show insanity, the opinion must be rejected as 
 
 * Here Mr. Delmas went into a minute examination of the tes 
 timony. 
 
 99 
 
ARGUMENT 
 
 valueless. For instance, if a witness should testify 
 generally to his opinion that a certain person was 
 of unsound mind, and give as his reason the fact 
 that that person believed in the spiritual communi 
 cation of the living with the dead, and did not 
 believe in the Christian religion, his opinion would 
 have no legal weight, since the entertaining of such 
 belief or disbelief has no tendency to show insanity. 
 Said the Supreme Court of Michigan, in a case 
 decided in 1893 : 
 
 " An opinion that a man is incompetent must be 
 supported by some evidence that is inconsistent with 
 competency. . . . An opinion that a testator was 
 incompetent can only be given when the witness 
 has testified to circumstances upon which it is predi 
 cated, and which to some extent justify it."* 
 
 The same Court, in a subsequent case, said: 
 
 " Where the testimony of the witness only goes 
 the length of showing acts which are entirely con 
 sistent with sanity, and which have not the slightest 
 tendency to show insanity, it would be a danger 
 ous rule which would permit his opinion to be 
 received." f 
 
 In conclusion, upon the general proposition that, 
 where the reasons given by the witness as the basis 
 of his opinion that a testator was of unsound mind 
 are frivolous, or such as afford no rational warrant 
 
 * O Connor vs. Madison, 57 N. W. Rep. 105, 107. 
 t Buys vs. Buys, 58 N. W. Rep. 331, 332. 
 
CONTEST OF PARKER S WILL 
 
 for reaching that conclusion, the opinion is worth 
 less, and must be disregarded, I submit to your 
 Honors the observation of the Court of Appeals 
 of Maryland, which said: 
 
 "It is contended by the learned counsel for the 
 appellees that ... if the medical expert gives the 
 reasons upon which his opinion is founded, and they 
 are such as men of ordinary knowledge can weigh, and 
 are in the judgment of the court such as no rational 
 inference can be deduced therefrom that the testator 
 was wanting in the required mental capacity, his 
 opinion does not afford evidence legally sufficient to 
 show such want of capacity. As we understand this 
 proposition of law, we are not prepared to dispute it. 
 Merely because a witness is an expert does not 
 require the court to be bound by his opinion if it is 
 founded on such reasons as are clear absurdities. 
 If, for example, a physician were to testify that, in 
 his opinion, a testator was not of sound and dispos 
 ing mind, capable of executing a valid deed or con 
 tract, and would in his further examination say that 
 the only reason he had for such opinion was that the 
 testator used patent medicines, or was a member of 
 some religious or political faith other than his own, 
 such opinion would be based on a foundation so 
 clearly repugnant to right reason that a court would 
 not hesitate to instruct the jury that it was not suffi 
 cient to support a verdict. * 
 
 Tested by this rule, it must be apparent that the 
 opinion of these, the witnesses of the contestant 
 
 * Crockett vs. Davis, 31 Atl. Rep. 701, 712. 
 101 
 
ARGUMENT 
 
 upon the issue of insanity, is valueless. The rea 
 sons they give have no tendency to show insanity. 
 The utmost that is claimed for them is that they 
 show eccentricity. But this is not sufficient to prove 
 unsoundness of mind. The unwise as well as the 
 wise, the ignorant as well as the learned, the uncouth 
 as well as the urbane, the eccentric as well as the 
 perfectly balanced in mind, are all equally entitled 
 to make a will. Says the Supreme Court of Dela 
 ware : 
 
 " It does not take a wise man to make a will. A 
 man must be possessed of sufficient memory to know 
 what he has. He has a right, under the laws under 
 which we live, to dispose of his property just as he 
 pleases. It matters not whether he gives it to his own 
 relatives or to somebody else. He may have eccen 
 tricities and peculiarities, but if those are accom 
 panied at the same time with a sound judgment, 
 discretion, and reason, he has a perfect right to do 
 as he pleases with his property." * 
 
 As to all the trifling peculiarities of conduct to 
 which these three witnesses testify as a basis for their 
 opinion, the best answer that can be given is found 
 in the language of Chief Justice Cooley: 
 
 " Now that it has become so common to assail, on 
 allegations of mental disease, the wills of those who 
 in life, in all their business and family relations, were 
 treated as sane, it becomes of high importance that 
 evidence should not be received as suggesting insan- 
 
 * Ethridge vs. Bennett s Ex rs., 31 Atl. Rep. 813. 
 102 
 
CONTEST OF PARKER S WILL 
 
 ity unless it has some legitimate tendency to prove 
 it. We are persuaded that much wrong has unwit 
 tingly been done in many cases by allowing misfor 
 tunes, family calamities and personal peculiarities to 
 go the jury as having some necessary tendency to 
 unsettle the mind, and therefore some bearing on the 
 issue of mental unsoundness. As disturbing causes 
 may be discovered in the family or personal history 
 of almost every living person, the general result is 
 that occasion is found for contesting the validity 
 of almost every will, especially if the estate is 
 sufficient to tempt the endeavor. Was the deced 
 ent afflicted with a loathsome disease? Then 
 this presumably affected his mental health. Were 
 his ambitious hopes disappointed? Then his rea 
 son must have given way. Did a brother have 
 fits? Then there must have been insanity in some 
 ancestor which has tainted the brain of all descend 
 ants. Has the only son gone to ruin? Then he 
 must have inherited mental weakness from his 
 father, and his bad conduct has probably reacted 
 upon the father and disturbed his reason. Did the 
 deceased have ways differing from most men, and 
 rendering him eccentric? Then, surely, as most 
 men are sane, he must have been insane. Has he 
 failed to remember some nurse or some cousin in 
 the distribution of his bounty? Then, behold, in 
 ingratitude and want of family affection, the plain 
 indication of mental disorder. But we need not 
 pursue the list. Give free admission to such 
 evidence, and no man can feel assured that the jury 
 which examines his will in the light of his family 
 
 103 
 
ARGUMENT 
 
 history and personal peculiarities, will not adjudge 
 him a madman." 
 
 But it is not alone the inherent weakness of the 
 testimony of these three witnesses which condemns 
 it and demonstrates the hollowness of the contest 
 ant s case. To this inherent weakness must be 
 superadded the fact that a large number of other 
 witnesses, far more intimately acquainted with the 
 testator and infinitely better able to testify truly as 
 to his mental condition, were not, though at hand, 
 called by the contestant. Mr. and Mrs. Law, Mr. 
 Sheldon, Mrs. Bickel, and Mrs. Husbands were all 
 witnesses for the contestant. They were called and 
 gave testimony in her behalf upon other points. 
 They were the persons nearest and closest in inti 
 macy to the testator. Their acquaintance with him 
 ran back, in some instances, more than a quarter of 
 a century. In all, it had continued unbroken up 
 to the time of his death. Mr. and Mrs. Law had 
 been his friends and neighbors since 1858. Speak 
 ing of them in his argument to the jury, Mr. 
 Coogan called them "his oldest and best friends." 
 Mr. Sheldon was his constant companion during 
 the last eight or nine years of his life. They were 
 accustomed to go out riding together almost daily, 
 discussing the whole range of topics of ordinary 
 personal and business conversation. Mrs. Bickel 
 was, at the time he died, and had been for a long 
 
 * Fraser vs. Jennison, 42 Mich. 227228. 
 104 
 
CONTEST OF PARKER S WILL 
 
 time before, his housekeeper, living alone with 
 him in the same house. Mrs. Husbands claims 
 to have been his fiancee during the year preceding 
 his death, at all events, a very close and dear 
 friend, carrying on a constant correspondence with 
 him. 
 
 Why were none of these persons thus eminent 
 ly qualified asked whether, in their opinion, the 
 testator was of unsound mind? Their silence 
 and the failure of the shrewd and ingenious coun 
 sel for the contestant to interrogate them upon 
 the subject is broadly significant. This silence, 
 added to the inherent weakness of the testimony 
 of the witnesses that were called, is sufficient to 
 destroy the whole of this part of the contestant s 
 case. 
 
 Where a party having at hand a witness pos 
 sessed of full knowledge upon the subject under 
 discussion purposely refrains from calling him, and 
 contents himself with bringing forward a weaker 
 one, the presumption is that if the former had been 
 called his testimony would have been adverse. 
 
 Under the provisions of the Code of Civil Pro 
 cedure, * the double presumption arises "that evi 
 dence willfully suppressed would be adverse if 
 produced," and "higher evidence would be adverse, 
 from inferior being produced." In conformity 
 with this rule, the Supreme Court of New York 
 said, in a case where a party failed to call in her 
 
 *Sec. 1963. 
 105 
 
ARGUMENT 
 
 behalf one who the evidence showed must have 
 been an eye-witness to the transaction: 
 
 " There was also in this case a circumstance which 
 was entitled to some weight against the plaintiff. 
 That was the fact that the plaintiff had it apparently 
 in her power to call a witness who, if her testimony 
 was true, was, besides the parties, the only living 
 eye-witness of the transaction upon which her cause 
 of action depended, and she neglected to call 
 him. . . . The omission to call that witness, or to 
 account for not calling him, was, as the record 
 stands, a potent circumstance against the theory of 
 the plaintiff s case." * 
 
 The remarks of Lord Brougham in closing his 
 argument in the House of Lords in defense of 
 Queen Caroline have as full application to this case 
 as to that: 
 
 "Such, then, my lords, is this case. And, again, 
 let me call on you, even at the risk of repetition, 
 never to dismiss for a moment from your minds the 
 two great points upon which I rest my attack upon 
 the evidence; first, that the accusers have not proved 
 the facts by the good witnesses who were within 
 their reach, whom they had no shadow of pretext for 
 not calling; and, secondly, that the witnesses whom 
 they have ventured to call are, every one of them, 
 irreparably damaged in their credit." 
 
 As against the fantastic testimony of the three 
 women called to support this branch of the con- 
 
 * Smith vs. Gunn, 12 N. Y. S. 808. 
 106 
 
CONTEST OF PARKER S WILL 
 
 testant s case, weak in itself, and doubly weak by 
 reason of the consideration just mentioned, the 
 respondents can safely rely upon the single fact 
 that up to the last moment of life the testator con 
 tinued in the active and intelligent management of 
 a varied and extended business. This of itself is 
 conclusive evidence that he was not wanting in the 
 mental capacity required to make a will. In saying 
 this I am not speaking of any possible delusion 
 which might coexist with general business capacity. 
 I have treated of the subject of delusions before. I 
 am now addressing myself to the question of general 
 mental incapacity springing from imbecility or de 
 mentia only. 
 
 Says Mr. Schouler in his Treatise on Wills : 
 
 " If a person has sufficient understanding and in 
 telligence to transact his ordinary business, he is 
 sufficiently capable of making a will; and to such a 
 test testamentary capacity is often referred in dealing 
 with witnesses who testify to the point of mental 
 unsoundness. . . . It is a rule of law that a per 
 son who is capable of transacting ordinary business is 
 also capable of making a valid will. It is not required 
 that he should possess a higher capacity for tJiat than 
 for the transaction of the ordinary affairs of business. 
 A man capable of buying and selling property, set 
 tling accounts, collecting and paying out money, or 
 borrowing or loaning money, must usually be re 
 garded as capable of making a valid disposition of 
 his property by will." * 
 
 * Sec. 67, note 
 107 
 
ARGUMENT 
 
 Says the Supreme Court of New Jersey: 
 
 " Upon a careful review of the evidence in this 
 case, I have no doubt of the testator s capacity to 
 make this will, or any other that seemed to him right. 
 There was no evidence upon which a jury should be 
 permitted to find against testamentary capacity. 
 Such a verdict could not be sustained except by 
 applying the maxim voluntas stat pro ratione to the 
 jury instead of the testator. The testator transacted 
 his own business long after the date of the will with 
 the entire approbation of all his friends. No one 
 appears then to have doubted his capacity, even 
 when his conduct was disapproved of." * 
 
 In the case at bar, we have before us a man who 
 at the time of making this will was extensively 
 engaged in buying and selling real property, mak 
 ing upon his own judgment large loans of money, 
 planning and erecting houses, and, in general, man 
 aging with prudence and thrift an estate of over a 
 quarter of a million dollars. No one testifies that 
 in any business transaction he showed any weak 
 ness, or was ever taken advantage of or overreached. 
 No one pretends to say that his purchases were 
 extravagant or unprofitable. No one claims that his 
 loans were not always made upon ample security. 
 
 Putting the matter to the test of the rule laid 
 down by Schouler, I ask, if any of the various 
 transactions in which the testator was engaged at 
 the time he made this will, or up to the very day of 
 
 * Boylan vs. Meeker, 28 N. J. L. 278. 
 108 
 
CONTEST OF PARKER S WILL 
 
 his death, should now be attacked on the ground 
 of lack of mental capacity on his part to under 
 stand or transact it, would any one have the audacity 
 to say that the attack could be successfully main 
 tained ? Upon such evidence as has been sub 
 mitted here, would a suitor have the front to seek 
 in this tribunal to set aside a deed of property made 
 by him during that period, upon the ground that he 
 was of unsound mind ? Upon the testimony of 
 the three women I have named, would his executors 
 ever dare to come into court to claim for his estate 
 immunity from liability upon a contract entered 
 into by him, on the ground that their evidence 
 shows that he was at the time insane? Suppose 
 that having determined to devote a part of his 
 fortune to benevolent purposes, the testator had, on 
 the day he made his will, given that part in money 
 outright, instead of bestowing it by way of legacies, 
 suppose, for instance, that instead of bequeathing 
 twenty-five thousand dollars to the five children of 
 his brother-in-law, Marshall Pomeroy, he had then 
 and there given them that amount in money, could 
 his legal representatives now recover back the money 
 thus given, on the ground of lack of mental capa 
 city on his part to make the gift? Suppose that 
 at the same time, instead of making a legacy of 
 five thousand dollars to the Sheltering Arms Soci 
 ety, he had given that amount outright to the 
 kind-hearted ladies who manage that beneficent 
 institution, would your Honors permit his legal 
 
 109 
 
ARGUMENT 
 
 representatives to come here now to claim a return 
 of the gift, on the ground that he was insane at the 
 time it was made ? 
 
 To ask these questions is to answer them. Yet 
 if upon testimony such as this his contracts or gifts 
 while living could not be set aside, still less can his 
 will. It takes less mental capacity to make a will 
 than to make a contract. If the courts would 
 support his contracts made with the mental capacity 
 shown in this case, it is their duty to support his 
 will. In the language of Chief Justice Ryan: "It 
 is as much the duty of courts to uphold his will 
 after death as to uphold and enforce his contracts 
 during life." * If, then, this, instead of being an 
 attack upon his will, were an attack upon a contract 
 executed by him on the same day that he executed 
 his will, would not a charge of unsoundness of 
 mind based upon such testimony as has been here 
 adduced be laughed out of court ? 
 
 And now, in conclusion, I respectfully submit 
 that the ends of justice and the rules of positive 
 law both require that the verdict be set aside. 
 
 It has been repeatedly said by our courts that 
 the right to make a will to take effect after death 
 stands upon the same footing as the right to make 
 a gift during life ; that the one is as valuable and 
 as sacred as the other ; that the title which bene 
 ficiaries have to their bequests is as valid as any 
 other title to property ; that the upsetting of wills 
 
 * Dodge vs. Williams, 50 N. W. 1104. 
 no 
 
CONTEST OF PARKER S WILL 
 
 is a growing evil ; that it is the duty of courts not 
 to permit the prejudice, caprice, or individual sense 
 of justice of juries to set aside the wishes of the 
 dead. These grave utterances of learned and 
 eminent judges sound like a mockery if upon such 
 testimony as I have rehearsed a testator can be 
 adjudged insane and his will broken. 
 
 Thanking your Honors for the patience, courtesy, 
 and kindness vouchsafed me during this argument, 
 I now submit into your hands this motion for new 
 trial. 
 
 in 
 
TO THE STATE SUPREME COURT 
 
THE following argument was made in the Supreme Court of 
 California sitting in bane, on the 8th day of March, 1893. The 
 question presented for discussion was whether a court has the 
 power to make and enforce an order forbidding the publication of 
 the proceedings of a trial pending before it. Mr. Delmas contended 
 that it had not ; and in this view was sustained by the Court. 
 
 The facts out of which the controversy arose are stated in the 
 opinion of the Court delivered by Mr. Justice Paterson, as follows: 
 
 "When the case of Price vs. Price an action for divorce 
 was called for trial in the Superior Court of Santa Clara County, 
 the court was advised that the evidence would probably be of a 
 filthy nature, and thereupon made an order directing that during 
 the trial all persons be excluded from the court-room except the 
 officers of the court, the parties, and their counsel. It was 
 further ordered that no public report or publication of any char 
 acter of the testimony in the case be made. On the following 
 day the petitioner herein caused to be published in the San Jose 
 Mercury, a newspaper of which he was the editor and publisher, 
 an article referring to the order of the court and containing what 
 purported to be the testimony of the witnesses. Upon an affidavit 
 setting forth the facts stated, the court made an order commanding 
 Shortridge to appear and show cause why he should not be 
 adjudged guilty of contempt. Mr. Shortridge in his answer and 
 at the hearing disclaimed any intention to reflect upon the court, 
 or show any disrespect therefor, and claimed that in publishing a 
 fair and true report of the testimony and proceedings he was 
 simply exercising a constitutional right with which the court could 
 not interfere by order or otherwise. Thereafter an opinion was 
 filed showing that the learned judges of the court, sensible of the 
 delicate position they occupied in determining the scope of their 
 own judicial powers, had given the subject most careful consider 
 ation, and holding it to be their duty in support of the honor of 
 the State and the dignity of the court to punish the respondent for 
 violating the order. A judgment was entered adjudging Shortridge 
 guilty of contempt of court, and ordering him to pay a fine of one 
 hundred dollars. Thereupon the petitioner herein applied for a 
 writ of certiorari, which was granted, and the matter having been 
 heard and submitted, we are now called upon to determine whether 
 the court exceeded its jurisdiction in adjudging the petitioner guilty 
 of contempt on the facts stated." * 
 
 * 99 Cal. Rep., p. 5*8. 
 
IN RE SHORTRIDGE 
 
 MAY IT PLEASE YOUR HONORS : This proceed 
 ing was instituted to review a judgment punishing 
 the petitioner for contempt, charged to have been 
 committed in publishing the testimony given on the 
 trial of a case, in disregard of an order forbidding 
 such publication. 
 
 The facts lie within a narrow compass, and may 
 be briefly stated as follows : On the loth day of 
 January of the present year, when the divorce case 
 of Price vs. Price was called for trial, the Superior 
 Court of the County of Santa Clara ordered that 
 the hearing be had in private, and that no publica 
 tion or other report of the testimony be made. 
 The following morning, the petitioner, though 
 aware of the order, published in a newspaper of 
 which he was the editor a fair and truthful statement 
 of the evidence given on the preceding day. Being 
 advised of this fact, the court cited him to show 
 cause why he should not be punished for his dis 
 obedience. He appeared, and maintained that it 
 was his right to publish the proceedings ; that that 
 right was not impaired by the fact that the trial was 
 
 "5 
 
ARGUMENT 
 
 had behind closed doors, nor affected by the order 
 forbidding the publication. The court, not acced 
 ing to these views, adjudged him guilty of contempt. 
 In the elaborate opinion rendered by the court, 
 this course is vindicated on the ground that it was 
 warranted by that provision of the Code of Civil 
 Procedure which authorizes it to punish as a con 
 tempt any disobedience of its lawful orders. It 
 said : 
 
 "In this matter, the court relies for its authority 
 upon section 1209 of the Code of Civil Procedure, on 
 Contempts, which says : * That any disobedience to 
 a lawful order of court shall be contempt. The court 
 is not asserting that there has been any unlawful 
 interference with its process or proceedings, but that 
 there has been a disobedience to a lawful order 
 which it had authority to make." 
 
 The court held that section 125 was enacted for 
 the purpose of securing absolute secrecy of the 
 proceedings in divorce cases ordered tried in private, 
 and that, by necessary implication, it conferred the 
 power of preventing their publication out of court. 
 In its opinion it said : 
 
 The evident purpose of that act was, that in 
 cases of divorce, criminal conversation, seduction, 
 and breach of promise of marriage those being 
 alone enumerated in the statute the entire evi 
 dence should not be produced before the public." 
 
 The court considered that section to have been 
 enacted in furtherance of morality, and to have for 
 
 116 
 
IN RE SHORTRIDGE 
 
 its object the protection of the public mind from 
 contamination by the prurient revelations often inci 
 dent to actions of divorce, criminal conversation, 
 seduction, and breach of promise of marriage. Said 
 the court in its opinion : 
 
 " The main purpose of this enactment was to pro 
 mote public morals. How the public morals can be 
 promoted by detailing to the world the testimony in 
 low and filthy divorce cases, or blazoning forth the 
 injuries that some poor, unfortunate girl may have 
 suffered, or by heralding the connection of good and 
 respectable and moral people with divorce proceed 
 ings, where they are unfortunately and unwillingly 
 as witnesses, is something which the court cannot 
 understand, and which the Legislature unquestion 
 ably intended to prohibit." 
 
 The position of the court, and of the learned 
 and eminent counsel who represent it, however 
 stated, ultimately amounts to this : that the pub 
 lication in question was an interference with the 
 proceedings of the court, which the court had the 
 inherent power to punish as a contempt ; that it 
 constituted a disobedience of a lawful order of the 
 court prohibiting it ; and that it was a violation of 
 the secrecy of the proceedings of the court enjoined 
 by the statute law of the State. 
 
 The petitioner challenges the correctness of these 
 positions. His contentions may be stated as fol 
 lows : 
 
 First The liberty of speech and of the press is 
 117 
 
ARGUMENT 
 
 his by natural right, consecrated and made invio 
 lable by the Constitution of the State. The only 
 limitation placed upon that liberty is the condition 
 that it shall not be exercised to the injury of others. 
 As regards a court of justice, the lawful limits of 
 that liberty are not transgressed until its exercise is 
 made to interfere with the due and proper per 
 formance of the duties with which the court is 
 charged. Before the court can complain, this in 
 terference must be proven. It being conceded that 
 the publication in this case was a true and correct 
 report of the testimony given in the cause on trial, 
 such publication cannot have interfered with the 
 due and proper performance of the duties of the 
 court in that case, and cannot therefore constitute 
 an unlawful use of that liberty. 
 
 Secondly The order prohibiting the publication 
 is a false quantity in the case. The power of a 
 court to control action by command or prohibition 
 is restricted to the persons before it. It cannot 
 determine the conduct of those over whom it has 
 acquired no jurisdiction. The petitioner not being 
 a party to the action on trial, the order forbidding 
 the publication of the proceedings cannot operate 
 to affect his rights or abridge his liberty. If what 
 he did is not by law made unlawful, it cannot be 
 made so by the order of a court which had no 
 jurisdiction over him. If, then, the publication 
 made by the petitioner would not have been 
 unlawful in the absence of an order prohibit- 
 
 118 
 
IN RE SHORTRIDGE 
 
 ing it, it was not rendered unlawful by such an 
 order. 
 
 Let it be noted here that there was nothing in 
 the publication in question which could shock 
 public morality. But were it otherwise it would 
 not affect the question. The duties and functions 
 of a court are limited to the adjudication of contro 
 versies of which it has acquired jurisdiction. It 
 is not constituted the champion or defender of 
 morality at large. The author of an obscene pub 
 lication may be guilty of an offense triable by 
 indictment if he therein violates the law of the 
 land. He does not become guilty of an offense 
 triable as a contempt from the mere fact that he 
 therein disobeys the order of a court which has no 
 jurisdiction over him. 
 
 Thirdly It is the right of the public to know 
 the proceedings of courts. Judges are but the 
 servants of the people, appointed to dispense that 
 justice of which the people, as sovereigns, are the 
 source. The people, therefore, have a right to be 
 informed of the manner in which these, its servants, 
 are performing the task assigned them. The pro 
 ceedings of courts are, therefore, public property. 
 Any legislative enactment that the public shall be 
 debarred from a knowledge of their proceedings 
 would be void. If, then, section 125 of the Code 
 of Civil Procedure was intended to shut out the 
 public from information of the proceedings in the 
 cases which it enumerates, the provision is uncon- 
 
ARGUMENT 
 
 stitutional. But that section has no such scope or 
 purpose. It aims simply at the regulation of pro 
 ceedings in court, and not their divulgment or 
 discussion out of court. 
 
 Before entering upon a vindication of the posi 
 tions thus assumed by the petitioner, I desire to 
 eliminate from the discussion a matter which was 
 attempted to be imported into it in the court below, 
 and which may again be insisted on here. 
 
 The petitioner was neither charged with nor tried 
 for a contempt consisting of an interference with the 
 conduct of the trial, or with the witnesses or testi 
 mony to be produced before the court. There 
 was no allegation of such interference in the affidavit. 
 That document, after setting forth the order of the 
 court directing that the trial be had in private, and 
 that no public or other report or publication of any 
 character of the testimony be made, simply states 
 that the trial was accordingly had with closed doors, 
 and that the testimony of various witnesses was 
 therein given. It then avers that Charles M. 
 Shortridge, being the editor and publisher of the 
 San Jose Daily Mercury, " willfully and unlawfully 
 and contumaciously disregarding the order of said 
 court, made and entered as above recited, caused to 
 be printed and published in said San Jose Daily 
 Mercury what purported to be the testimony of 
 said witnesses, . . . and did publish to a con 
 siderable extent the testimony as given in fact by 
 said witnesses." The citation issued upon that 
 
 120 
 
IN RE SHORTRIDGE 
 
 affidavit required Mr. Shortridge to appear and 
 show cause why he " should not be punished for 
 contempt of court, in publishing in the San Jose 
 Daily Mercury of the issue of January n, 1893, the 
 testimony of certain witnesses given in the above 
 case, contrary to the order of the judge of Depart 
 ment i of the Superior Court, duly made and 
 entered on January 10, 1893, prohibiting it." 
 
 Of course, the trial of Mr. Shortridge for con 
 tempt could not be broader than the charge thus 
 made. The law provides that "when the contempt 
 is not committed in the immediate view and pres 
 ence of the court or judge at chambers, an affidavit 
 shall be presented to the court or judge of the facts 
 constituting the contempt." * The party may then 
 be cited to answer, f When he appears, " the court 
 or judge must proceed to investigate the charge, and 
 must hear any answer which the person arrested may 
 make to the same," J and " upon the answer and 
 evidence taken, the court or judge must determine 
 whether the person proceeded against is guilty of 
 the contempt charged." The affidavit stands in 
 the place of an indictment. The power and juris 
 diction of the court are to inquire into the charge 
 made in the affidavit. The trial cannot be broader 
 than the charge. This is not only manifest from 
 the language of the statute and the general princi 
 ples of law applicable to criminal proceedings, but 
 
 * C. C. P., sec. 121 1. J Id., sec. 1217. 
 
 t Id., sec. 1 21 2. $ Id., sec. 1218. 
 
 121 
 i 
 
ARGUMENT 
 
 is the direct result of the doctrine laid down by the 
 Court in Batchelder vs. Moore. * 
 
 Had the court made an order excluding the wit 
 nesses from the court-room, and had the petitioner, 
 by publication pending the trial, communicated the 
 testimony to the excluded witnesses, thereby impart 
 ing information which the court, in the exercise of 
 its legitimate powers, had, in effect, ordered withheld 
 from them, and had these facts been regularly 
 brought to the attention of the court by an affidavit 
 under section 1211, he might then possibly have 
 been tried for an improper interference with the 
 proceedings of the court. There is here, I repeat, 
 no such charge. Nor has the petitioner been tried 
 for any such interference. It is not stated that the 
 witnesses were excluded from the court-room, nor 
 that, if they were, they ever saw or heard of the 
 publication made by the petitioner. The court, in 
 its opinion, expressly removed the case from that 
 ground, saying: 
 
 " When the court orders the exclusion of witnesses 
 pending the trial, so that there cannot be communi 
 cated to witnesses outside the evidence which is being 
 given by the witnesses on the stand, I am fully satis 
 fied and the authorities sustain me that it does 
 not lie with the newspapers to make an entire pub 
 lication of that testimony, so that what the court 
 prohibited them to learn may be given to witnesses 
 on the outside. If it is done, that is an interference 
 
 * 42 Cal. 412. 
 
 122 
 
IN RE SHORTRIDGE 
 
 with the proceedings of the court, and is punishable 
 as a contempt. I am not, however, basing the action 
 of this court upon that code provision, and the 
 matter is not narrowed down into that channel, and 
 cannot be drifted there by the position of counsel." 
 
 The whole question in the case really is whether 
 the facts stated in the affidavit presented to the 
 court show the commission of an act constituting a 
 contempt. If they do not, the petitioner could not 
 be punished for one; for, as was said by this Court 
 in Batchelder vs. Moore, "if there be no affidavit 
 presented, there is nothing to set the power of the 
 court in motion; and if the affidavit, as presented, 
 be one which, upon its face, fails to state the sub 
 stantive facts which in point of law did or might 
 constitute the contempt on the part of the accused, 
 the same result must follow, for there is no dis 
 tinction in such a case between the utter absence 
 of an affidavit and the presentation of one which is 
 defective in substance in stating the facts constitut 
 ing the alleged contempt." 
 
 The question, broadly stated, then, is briefly this : 
 When in this State a Superior Court is trying a 
 divorce case in private, and has made an order that 
 no public or other report or publication of any 
 character of the testimony be made, does the mere 
 fact that a person, in conscious disregard of the 
 order, publishes the testimony given upon the trial 
 constitute a contempt ? 
 
 The petitioner claims, in the first place, that the 
 
 123 
 
ARGUMENT 
 
 publication did not and could not interfere with the 
 proceedings of the court, and was, therefore, within 
 the limits of his constitutional rights. 
 
 That the freedom of the press is one of the most 
 valuable and important of the liberties enjoyed by a 
 free people, one which it is the duty of all concerned 
 in the administration of public affairs to protect, and 
 the right of every citizen to defend and maintain 
 inviolate, is a truth too obvious to need elaboration. 
 It is a topic upon which judges and statesmen have 
 lavished their combined encomiums. Though the 
 mind is prone to swell with the magnitude of the 
 subject, yet when I say that the liberty of speech is 
 one of the invaluable rights, one of the great bul 
 warks of liberty, essential to the freedom and 
 security of the State, to be held sacred and forever 
 inviolate, I do not echo the tropes with which poets 
 and orators have adorned an inspiring theme, but 
 repeat the words which the sober and thoughtful 
 founders of States from the days of the Revolution to 
 the present time have incorporated in every Ameri 
 can constitution. When I say that the freedom of 
 the press is a principal pillar of a free government, 
 and that when this support is taken away the consti 
 tution of a free society is dissolved and tyranny is 
 erected on its ruins, I reutter the very words of 
 one who among the Fathers of our Government 
 was perhaps the least inclined to hyperbole. 
 
 This liberty, however priceless, cannot never 
 theless be said to be boundless and absolute. 
 
 124 
 
IN RE SHORTRIDGE 
 
 Nothing can be so in a society ruled by organized 
 government. The right of life the foundation 
 of all others is itself held under certain unavoid 
 able limitations. What, then, are the bounds within 
 which the liberty of the press must be enjoyed, and 
 beyond which it cannot extend? In ages past gov 
 ernments undertook to regulate and limit it by com 
 pelling the submission of all intended publications 
 to their inspection, and suppressing those which did 
 not receive their sanction. The same era which 
 brought forth the invention of printing also gave 
 birth to the licenser of the press. The earliest 
 formed of the American commonwealths were the 
 first to break the fetters of a licensed press, and to 
 proclaim liberty of speech as one of the fundamen 
 tal rights of freemen. 
 
 What are, then, the constitutional limitations 
 imposed upon the enjoyment of this right? None 
 other, I say, than those which are imposed upon 
 the enjoyment of all other rights ; that is, that it 
 must not be exercised to the injury of others. Any 
 thing short of this is permissible. The maxim, sic 
 utere tuo ut alienum non l<edas y which formulates the 
 only limitation upon the use of property, also formu 
 lates the only limitation upon the enjoyment of 
 personal liberty. The acquisition of property is a 
 fundamental right, but it must be exercised without 
 injury to others. It does not sanction robbery or 
 theft. Freedom of action is similarly limited. It 
 does not justify assaults upon the person or destruc- 
 
 125 
 
ARGUMENT 
 
 tion of the property of others. It gives no immunity 
 to arson, rape, or murder. And so the liberty of 
 the press stops at the point where a further exercise 
 would invade the rights of others. It does not war 
 rant libel or violations of public decency or morality. 
 All within these limits, however, is legitimate. 1 
 venture to lay it down as an axiom, that in a court 
 of justice no one can complain of the use which 
 another has made of his liberty, unless he can show 
 that that use is an invasion of some right which is 
 his. Failing that, the proper bounds of that liberty 
 have not, as to him, been transgressed. 
 
 The case before your Honors is one where a 
 court of justice claims that, as to it, a citizen has 
 abused the liberty of a free press. What must the 
 court show in order to substantiate that claim ? 
 Upon the principles already announced, it must 
 show that that liberty has been used so as to inter 
 fere with the rights of the court. The court, com 
 plaining of an individual, is bound, like any other 
 person or body, first, to show interference with its 
 rights. If there is no such interference, there is, 
 so far as the court is concerned, nothing legally 
 reprehensible. 
 
 Apply these principles to the matter in hand. 
 When the divorce case of Price vs. Price was called 
 for trial, the Superior Court of Santa Clara County 
 became at once charged with the performance of 
 certain duties. Those duties were to hear the 
 testimony of the parties, and decide the controversy 
 
 126 
 
IN RE SHORTRIDGE 
 
 according to the evidence and the law. Any act 
 which interfered with the proper performance of 
 these duties would constitute an invasion of the 
 rights of the court, and consequently an abuse of 
 the actor s liberty of action. For instance, and 
 merely by way of illustration, if during the session 
 of the court an individual had conducted himself 
 in a noisy and boisterous manner, so as to interfere 
 with the hearing of the testimony or arguments, or 
 if he had prevented witnesses from attending court, 
 this would have constituted an invasion of the 
 province of the court and a transgression of the 
 proper bounds of his liberty. But if the complaint 
 were leveled against an act which did not so trans 
 gress, it would have no foundation in law. 
 
 What, now, is the act complained of by the court 
 in this case ? This : that while a certain cause was 
 being tried by the court, sitting without a jury, 
 Mr. Shortridge published a truthful report of the 
 testimony. Was this use by Mr. Shortridge of the 
 liberty of the press a use which could afford just 
 ground of complaint ? In other words, was the 
 publication an act which interfered with the due 
 and proper performance by the court of the duties 
 with which it was charged in the trial of that case ? 
 If there was no such interference, there was no 
 abuse of the liberty, and the court cannot be heard 
 to complain. 
 
 That there was no such interference is manifest. 
 Mr. Shortridge merely published testimony already 
 
 127 
 
ARGUMENT 
 
 given. He but echoed a voice which the court had 
 already heard. How could this be an interference 
 with the performance of the duties and functions 
 of the court, which were to hear the testimony and 
 decide the case according to the evidence and the 
 law? How can the truthful publication of the 
 proceedings of the trial produce or have the 
 tendency to produce such a result ? Does it inter 
 fere with the judge s reception or consideration of 
 the evidence that he reads in a newspaper a report 
 of testimony which he has already heard from the 
 witnesses lips, and which, in all probability, before 
 deciding the cause, he will again read from his own 
 notes or in the reporter s transcript ? It is impos 
 sible to imagine that it does. Can the publication 
 of a truthful report of proceedings interfere with 
 the proper decision of a cause? It is not conceiv 
 able that it can. 
 
 But it is claimed that the publication of the pro 
 ceedings might have interfered with the testimony 
 in the case. How? Because, it is answered, wit 
 nesses might well make disclosures, under the 
 assurance that their utterances would remain secret, 
 which they might be tempted to withhold if op 
 pressed with the fear of publicity. 
 
 In the first place, the argument proves too much. 
 If it is sound, it would result in the prohibition of 
 the publication of testimony in all cases. If it be 
 assumed that a witness may for these reasons with 
 hold testimony in a private action for seduction, 
 
 128 
 
3 R A 
 rUNIVERSlT 
 
 IN RE SHORTRIDGE 
 
 divorce, or criminal conversation, he might for the 
 same reason withhold it in a criminal prosecution for 
 rape or adultery. Will it, then, be held at this date 
 that on this ground it is an interference with the 
 proceedings, and therefore a contempt of court, to 
 publish the testimony given upon a public trial for 
 these offenses? 
 
 In the next place, if the contempt charged con 
 sists in interfering with the proceedings of the 
 court, the facts showing such interference must be 
 alleged. It cannot be sufficient to aver generally 
 that the accused has interfered with the proceedings, 
 or that he has done something which might possi 
 bly have had that effect. The act done must be 
 stated, and it must further be shown how it did in 
 point of fact interfere. Proceedings for contempt 
 are criminal in their nature. All intendments are 
 in favor of the accused. All the facts essential to 
 show the commission of the offense must be cate 
 gorically set forth. If, then, the contempt is charged 
 to consist in interference with the proceedings of 
 the court in a given case, in that the accused pre 
 vented a witness from testifying, or knowingly 
 attempted to do so, the facts constituting such pre 
 vention or attempt must be definitely alleged. There 
 is no averment here that any witness did, on account 
 of any act of the accused, fail to testify, nor that 
 after the publication in question there were any wit 
 nesses to be called into court who might, on account 
 of the publication, have been prevented from testi 
 ng 
 
ARGUMENT 
 
 fying. From the mere fact of the publication of 
 the testimony it will surely not be inferred, either as 
 matter of law or fact, that witnesses were actually 
 so prevented. If the publication were made after 
 the close of the testimony, or if it were made pend 
 ing the giving of the testimony, in a remote county, 
 in a print which the witnesses never saw, it surely 
 could not be held to have prevented, nor to have 
 had a tendency to prevent, any witness from testify 
 ing. The bare fact stated here is, that the testimony 
 was published nothing more. This, I repeat, 
 does not amount to an allegation that there was an 
 interference with the proceedings, in preventing or 
 attempting to prevent any witness from testifying. 
 
 But, lastly, this whole argument proceeds upon 
 the assumption that witnesses will not tell the truth 
 if they know that their testimony is to be made 
 public. What warrant is there for this assumption ? 
 A witness is sworn to tell the truth and the whole 
 truth. A violation of his oath is a crime. What 
 right have you to assume that he will incur the 
 penalties of a felony because he knows that the 
 truth which he is called upon to tell will be repeated 
 out of court ? No more, I submit, than you have 
 to assume that a juror will not render a true verdict, 
 or a judge will not proceed to judgment according 
 to law, because he knows that the verdict or deci 
 sion will appear in the next morning s papers. 
 
 It has also been urged that the publication of 
 proceedings in this class of cases will have a ten- 
 is 
 
IN RE SHORTRIDGE 
 
 dency to prevent parties from instituting them, 
 that, for instance, an injured wife might seek redress 
 for the misconduct of her husband if assured of 
 secrecy, who would shrink from doing so if the 
 proceedings in her action for divorce were to be 
 made public. 
 
 But is not this assumption fanciful ? Is there 
 any real danger that any innocent woman will ab 
 stain from seeking redress for fear of exposing the 
 misdeeds of the husband who has wronged her ? 
 If innocent, what has she to fear from publicity ? 
 Will not secrecy, on the other hand, expose her to 
 the misrepresentations which slander is sure to dis 
 seminate in obscurity, and which the light of truth 
 would dispel ? Indeed, the effect of the statute, if 
 thus construed, would seem to be rather to shield 
 the guilty than to protect the innocent. 
 
 But let us bear in mind that the argument I am 
 now dealing with is one put forward to show that 
 the publication in question interfered, or had a 
 tendency to interfere, with the proceedings in the 
 case then on trial not with cases that might there 
 after be brought. Because the publication he made 
 may have a tendency to deter the bringing of future 
 actions of divorce, Mr. Shortridge could surely not 
 be held, on that account, to have interfered with 
 the proceedings in the action then on trial. That 
 publication had certainly not interfered with the 
 institution of that action. To the argument, there 
 fore, that what Mr. Shortridge did was an inter- 
 
ARGUMENT 
 
 ference with the proceedings of the trial of the 
 action then pending in this, that such publication 
 has a tendency to deter parties from instituting such 
 actions, the simple answer is, that it caused no such 
 interference in that case, for the action had been 
 brought before the publication. That such pub 
 lication may deter parties from bringing actions for 
 divorce in the future is a matter which could not 
 constitute an interference with the proceedings in 
 that case ; and that is all that the accused could 
 possibly be charged with here. 
 
 In what way, then, has the petitioner transgressed 
 the proper limits of his constitutional liberty ? 
 What rights guaranteed to others has he invaded ? 
 Whose freedom of action coexistent and coequal 
 with his own has he abridged? Whom has he 
 injured? The answer is, No one. He stands 
 here before a court of justice, charged with an 
 offense, called upon to answer for a crime. If he 
 has interfered with no one, who shall complain ? If 
 he has injured no one, who shall demand redress ? 
 If he has done no wrong, by what law shall he be 
 punished ? 
 
 It is submitted that, in making the publication in 
 question, the petitioner exercised his constitutional 
 right within proper limits ; that the publication was 
 not of a nature to interfere with the duties and 
 functions of the court ; that there is no charge that 
 he interfered with the conduct of the trial or the 
 proceedings of the court, and that, therefore, he 
 
 132 
 
IN RE SHORTRIDGE 
 
 cannot, by virtue of any inherent power in the 
 court, be subjected either to punishment or censure. 
 
 But it is urged that the court made an order 
 prohibiting the publication of its proceedings ; that 
 the publication made by the petitioner was in con 
 scious disregard of that order, and is therefore 
 unlawful and a contempt. 
 
 With great respect for the learned judges of the 
 court below, who laid much stress upon it, it is 
 submitted that the order is a false quantity in the 
 case. The petitioner was not a party to the action 
 of Price vs. Price. He was not before the court. 
 The court had acquired no jurisdiction over his 
 person. No order, then, which the court could 
 make in that case could affect his rights or operate 
 as a regulation of his conduct. Judicial power is 
 the power to hear and determine the controversies, 
 redress the wrongs, or enforce the rights of parties 
 regularly brought within its jurisdiction. Beyond 
 this, the functions of a judicial tribunal do not 
 extend. It has no power of command or prohi 
 bition over the community at large. It may by 
 its decrees control the actions of the parties before 
 it, and prescribe rules for their conduct, to dis 
 regard which would in them be unlawful. But it 
 cannot adjudicate beforehand that parties not before 
 it shall have no right to pursue any given line of 
 action. 
 
 When the Superior Court of Santa Clara County by 
 its order prohibited the whole community, and inclu- 
 
 133 
 
ARGUMENT 
 
 sively the petitioner, from making any public or 
 other report or publication of any character of the 
 testimony in the cause then pending before it, it 
 adjudged, by necessary implication, that the com 
 munity, the petitioner included, had no legal right 
 to make such report or publication. But the court, 
 having no jurisdiction over the community at large, 
 or over the petitioner, had no power to determine or 
 adjudge what their rights were or were not. To 
 prescribe rules of conduct for a community is the 
 function of a legislator, not a judge. To furnish a 
 standard by which the legality or illegality of the 
 actions of the people of a State at large shall be 
 determined is to promulgate a law, and not a judicial 
 decree. 
 
 Undoubtedly, disobedience of a lawful order of 
 a court constitutes an offense. It is so expressly 
 declared by subdivision 5 of section 1209 of the 
 Code of Civil Procedure, which says that dis 
 obedience to any lawful judgment, order, or process 
 of the court is a contempt of the authority of the 
 court. But it is obvious that this disobedience must 
 be by one whom the court had a right to command, 
 over whom it had acquired jurisdiction. Any at 
 tempt of the court to command others is vain. As 
 to them the order is a nullity. 
 
 The justification of the order made in this case is 
 stated in the proposition that the court had a right, 
 by forbidding their publication, to protect the public 
 from the moral contamination of the disclosures 
 
 134 
 
IN RE SHORTRIDGE 
 
 which attend the trial of actions of divorce, criminal 
 conversation, seduction, or breach of promise of 
 marriage. 
 
 A short answer to this proposition lies in the fact 
 that the publication made here by Mr. Shortridge 
 was neither in form nor substance of a nature to 
 offend the most delicate sensibility. This justifica 
 tion of the position of the court being based upon 
 the assumption that the publication will be against 
 public morals, if in point of fact it is not so, the 
 public are in no danger, they need no protection, 
 and the justification vanishes. 
 
 But I prefer to place the reply upon a broader 
 footing. That the court has, upon the grounds 
 claimed here, no power to make such an order is a 
 proposition which results from the inherent limita 
 tions imposed upon judicial authority. As I have 
 already remarked, a court is created to interpret and 
 apply the law in controversies pending before it. 
 Its functions are limited to the redress of the wrongs 
 or the enforcement of the rights of parties legally 
 brought to its bar. Beyond this they do not extend. 
 If it takes cognizance of the claims of public moral 
 ity, it does so no further than is necessary to do 
 justice in the cause on trial. In an action between 
 private individuals it has no power to make rules for 
 the benefit of the State at large. It has no more 
 warrant to deal generally with questions of public 
 morals than it has with the regulations of public 
 finance. The community at large are not before it. 
 
 135 
 
ARGUMENT 
 
 It has no jurisdiction over their concerns. To make 
 regulations for the benefit of the public is not the 
 function of a judge. Such regulations are laws, not 
 judgments. 
 
 Whence does the court derive the extraordinary 
 power set up here? When, I ask, have the people 
 constituted their judges the guardians of morality 
 at large ? When have they appointed them censors, 
 clothed with power to determine, a priori, what lit 
 erature is wholesome and what noxious to the 
 community? When have they surrendered into 
 their hands the custody of the liberty of speech or 
 of the press, vouchsafed in England only after a 
 struggle of centuries against arbitrary rulers, and 
 erected here from the first dawn of government as 
 the main pillar of the temple of American com 
 monwealths, when, I say, have the people sur 
 rendered that liberty into the hands of judges, and 
 given them the right to decide beforehand that there 
 are subjects which the people may not read of, and 
 may not even discuss? 
 
 The claim made by the court below is of the 
 most extraordinary and startling character. It 
 assumes not only to paralyze the pen and stop the 
 press, but also to seal the lips and stifle the utter 
 ances of the community. Its order, as given in 
 the affidavit, is that " no public or other report or 
 publication of any character of the testimony in 
 said cause be made." Under this order no man 
 may repeat the evidence, either in private or in 
 
 136 
 
IN RE SHORTRIDGE 
 
 public. He may not only not disseminate it in 
 print, he must not even confide it to the sanctity 
 of a private correspondence or whisper it in the 
 most confidential conversation. But this is not all. 
 No limits are set for the duration of this order. It 
 is to continue in force for all time. The secrecy 
 imposed is eternal. The silence enjoined is the 
 silence of the tomb. An unfortunate wife who, 
 falling a victim to the perjury of suborned witnesses 
 or a corrupted jury, such things have happened, 
 has been unjustly found guilty of infidelity may not 
 appeal for a reversal to the tribunal of public 
 opinion. She may not outside of court raise her 
 voice or wield her pen in her own defense. She 
 may not only not interpose against the weight of 
 infamy which crushes her in the mire the disclosure 
 of the villainy of which she is the victim, but even 
 in the presence of mother, sister, or friend, her 
 heart must burst under the burden of the repressed 
 vindication which struggles in vain for utterance. 
 She must walk the rest of life s journey and go 
 down to the grave in silence. 
 
 Is an order fraught with such fearful consequences 
 the order of a judge made in this, the second 
 century of American Independence, or is it the 
 decree of an inquisitor, formulated in days when 
 the victims of fanaticism were burnt at the stake, 
 and their writings thrown into the flames by the 
 executioner? 
 
 It is unnecessary to pursue the subject further. It 
 
 137 
 
 j 
 
ARGUMENT 
 
 must be apparent that, under the plea of protection 
 of public morals, the Superior Court of Santa 
 Clara County had no more right to prevent the 
 public from reading the testimony in the case of 
 Price vs. Price than it had to forbid their perusing 
 the memoirs of Casanova or the tales of the 
 Decameron. 
 
 Whether, therefore, the petitioner acted illegally 
 in making the publication in question is determina- 
 ble by the law, and not by the order of the court. 
 If the law, under the circumstances stated, pro 
 hibited the publication, the order of the court was 
 superfluous, and the petitioner is censurable regard 
 less of that order, for the all-sufficient reason that 
 he has violated the law. If, on the other hand, the 
 law did not, under the circumstances, prohibit the 
 publication, the petitioner had the right, under 
 the law, to make it, and that right could not be 
 abridged or taken away by an order made, without 
 giving him a hearing, by a court which had no juris 
 diction over him. It would be a violation of the 
 plainest and most fundamental principles of our 
 form of government, and would constitute a most 
 intolerable despotism, to have it established that the 
 conduct of the community may be regulated by 
 the ex parte orders of a court, or that persons must 
 guide their course of life not by the rules which the 
 law of the land lays down, but by such orders as 
 the judiciary may in secret make. The disobedience 
 of such orders is no offense. Nay, it is deserving 
 
 138 
 
IN RE SHORTRIDGE 
 
 of the highest commendation. Resistance to illegal 
 usurpation of authority is none the less the right 
 and the duty of a citizen because the usurpation is 
 made by the judiciary, else were the dearest rights 
 which organized governments are instituted to pro 
 tect held at the mercy of the whim or caprice of 
 every accidental incumbent of the bench. 
 
 If the first proposition which I have sought to 
 establish is true, that the publication in question 
 did not and could not interfere with the proper dis 
 charge by the court of the powers and duties con 
 ferred upon it; that there is no charge that it 
 interfered with the proceedings of the trial, and that 
 it was, therefore, within the proper limits of the 
 liberty of the press, Mr. Shortridge had a con 
 stitutional right to make that publication, and that 
 right was not lost to him by reason of the order 
 forbidding its exercise. 
 
 It is claimed, in fine, that the case of Price vs. 
 Price was an action for divorce ; that the law author 
 izes the court to order such an action to be tried in 
 private, excluding from the court-room all persons 
 except the parties, their counsel, and their witnesses ; 
 that in this case the court made such an order, and 
 the trial proceeded with closed doors. It is insisted 
 that these facts amounted in law to an injunction 
 of perpetual secrecy, and consequently operated as a 
 prohibition of the publication of the proceedings 
 of the trial, in other words, that, under these cir 
 cumstances, the law itself prohibited the publication. 
 
 139 
 
ARGUMENT 
 
 This claim is made under section 125 of the Code 
 of Civil Procedure. The section is in these words : 
 
 " In an action for divorce, criminal conversation, 
 seduction, or breach of promise of marriage, the 
 court may direct the trial of any issue of fact joined 
 therein to be private, and may exclude all persons 
 except the officers of the court, the parties, their 
 witnesses and counsel; provided, that in any cause 
 the court may, in the exercise of a sound discretion, 
 during the examination of a witness, exclude any 
 or all other witnesses in the cause." 
 
 Was this section intended to enjoin absolute 
 secrecy, and to exclude the public from all knowl 
 edge of the proceedings of a trial had with closed 
 doors ? and if it was, is it in that regard constitu 
 tional ? These questions deserve consideration. 
 
 That in a free country the administration of jus 
 tice is a matter of public concern, and that the 
 people have a deep interest in the conduct, actions, 
 and decisions of their judges, and a right to be 
 informed and know what is done in their courts, are 
 propositions not open to doubt. Were judicial 
 precedents needed in their support, no long search 
 would be necessary to find them. Under the law, 
 the publication of a truthful report of judicial 
 proceedings is privileged ; and however severely and 
 unjustly the publication may reflect upon private 
 individuals, it is no libel. Why is this so ? Why 
 must the private injury remain under these circum 
 stances unredressed ? The answer is given in the 
 
 140 
 
IN RE SHORTRIDGE 
 
 language of the judges of England, who had estab 
 lished the doctrine upon common-law principles 
 long before we copied and incorporated it into our 
 statute-book. In 1799, in the case of Rex vs. 
 Wright, Lawrence, J., said : 
 
 " Though the publication of such proceedings may 
 be to the disadvantage of the particular individual 
 concerned, yet it is of vast importance to the public 
 that the proceedings of courts of justice should be 
 universally known. The general advantage to the 
 country in having these proceedings made public 
 more than counterbalances the inconvenience to the 
 private persons whose conduct may be impugned."* 
 
 In Davison vs. Duncan, decided by the Queen s 
 Bench in 1857, Lord Campbell, Chief Justice of 
 England, said : 
 
 " A fair account of what takes place in a court of 
 justice is privileged. The reason is that the balance 
 of public benefit from publicity is great. It is of 
 great consequence that the public should know what 
 takes place in court. . . . The inconvenience, 
 therefore, arising from the chances of the injury to 
 private character is infinitcsimally small as compared 
 to the convenience of publicity. "f 
 
 And in 1868, another Chief Justice of England, 
 Lord Cockburn, in Wason vs. Walter, said : 
 
 " The advantage to the community from publicity 
 being given to the proceedings of courts of justice is 
 so great that the occasional inconvenience to indi- 
 
 * 8 T. R. t 7 E. & B. 
 
 141 
 
ARGUMENT 
 
 viduals arising from it must yield to the general 
 good."* 
 
 This is the language of grave and learned judges, 
 giving voice to a fundamental principle of the com 
 mon law of England. But why, it may be asked, 
 is it of vast importance to the public that the pro 
 ceedings of courts of justice should be universally 
 known ? I answer again, in the language of another 
 distinguished judge, the Chief Baron of the Court 
 of Exchequer, in the case of Gathercole vs. Meall,^ 
 because the "conduct of judges and proceedings 
 of all persons who are responsible to the public at 
 large are deemed to be public property," and in that 
 of Lord Cockburn, in the case already cited, be 
 cause "the nation profits by public opinion being 
 thus freely brought to bear on the discharge of 
 public duties." 
 
 If these doctrines are recognized in England, 
 how much more true are they in commonwealths 
 where all power, judicial as well as executive or legis 
 lative, is derived directly from the people ! If the 
 conduct of English judges appointed by the crown 
 is confessedly public property, and the discharge of 
 their functions is a matter upon which it is of profit 
 to the nation that public opinion should be freely 
 brought to bear, how much more are these truths 
 applicable to the judges of an American State, who 
 are elected for limited terms by the people ! In 
 
 L. R., 4 Q^ B. t 15 M. & W. 
 
 142 
 
IN RE SHORTRIDGE 
 
 England the monarch is the fountain of justice ; the 
 judges are his ministers, appointed to assist him in 
 the discharge of his duty to dispense justice among 
 his subjects. In our commonwealths the administra 
 tion of justice is the sovereign right of the people. 
 The power of courts is held by direct delegation of 
 the people. The judges are but the servants of the 
 sovereign, invested with power to deal out justice 
 according to the people s behests, expressed in their 
 constitutions and laws, to dispense the people s 
 justice according to the people s commands. That 
 the people should be excluded from all knowledge 
 of the manner in which their judges discharge the 
 functions with which they are clothed, presents the 
 anomaly of excluding the master from knowledge 
 of the manner in which the servant does the mas 
 ter s work. 
 
 In the early days of the English monarchy, the 
 king himself sat in his own hall, and, in proper per 
 son, exercised his royal prerogative of dispensing 
 justice. As the law became a complex science, 
 demanding special study for its understanding and 
 application, the exercise of this royal prerogative 
 was in practice abandoned, and the administration of 
 justice was left entirely to the judges. Still was 
 the king, in the eye of the law, always present in his 
 own court, and the writs issued from the King s 
 Bench were returnable before the king himself. To 
 deny the king information of what is being done 
 in a court in which he is presumed to be always 
 
 143 
 
ARGUMENT 
 
 present would offer no greater anomaly than to 
 deny the same information to the sovereign people 
 of an American commonwealth. 
 
 To recognize the right of withholding from the 
 public information of the proceedings of courts of 
 justice would be to roll back the tide of history for 
 centuries, and to surrender the ground which the 
 advancing spirit of popular liberty has conquered 
 from the arbitrary and despotic encroachments of 
 governments. As said by Chief Justice Cockburn, 
 in the case already cited, " the recognition of the 
 right to publish the proceedings of courts of justice 
 has been of modern growth. Till a comparatively 
 recent time, the sanction of the judges was thought 
 necessary, even for the publication of the decisions 
 of the courts upon points of law." Blackstone, 
 writing less than a century and a half ago, lays it 
 down as the law of England at his day, that it was 
 unlawful and a contempt of court to print " false 
 accounts or even true ones, without proper per 
 mission of causes then dependent in judgment."* 
 
 This claim on the part of the judges was coeval 
 with a similar claim on the part of the Houses of 
 Parliament to prohibit the publication of their 
 debates ; and both were overthrown but a few years 
 before the Revolution of the American Colonies, 
 after the memorable contest between the House of 
 Commons and the printers, in the days of John 
 Wilkes. A century and a half ago in England, the 
 
 * 4 Bl. Com. 285. 
 144 
 
IN RE SHORTRIDGE 
 
 Parliament and the courts undoubtedly claimed and 
 exercised the right to prohibit the publication of 
 their proceedings. The law there has not been 
 formally changed. As to the courts, no statute has 
 been passed altering the common law; and there is 
 still a standing order in the journals of both Houses 
 of Parliament prohibiting, even at this day, the 
 publication of their debates. The enforcement of 
 the claim has been paralyzed by the spirit of liberty 
 and the force of public opinion. The Parliament 
 which should undertake to-day to punish as a con 
 tempt the publication of its debates would be 
 crushed under the weight of universal derision ; and 
 the judge who should attempt to withhold his 
 decisions from the public would, if not held de 
 mented, certainly incur the risk of impeachment. 
 
 If the people have an inherent sovereign right to 
 be informed of the proceedings of their own courts 
 of justice, any attempt on the part of the Legisla 
 ture, directly or indirectly through a judge, to 
 deprive them of that right must be void. Secrecy 
 in judicial proceedings is not only opposed to the 
 true interests both of the courts and the people, but 
 is repugnant to the whole spirit of American institu 
 tions and to the sentiments of a free people. The 
 idea suggested by Star Chamber proceedings brings 
 the mind back to the darkest epochs of tyranny and 
 the times when a pliant, pusillanimous, and venal 
 judiciary carried out in secret the behests of despotic 
 monarchs. 
 
 145 
 
ARGUMENT 
 
 It is not conceivable that the people of this State, 
 in framing their government, ever contemplated 
 that the Legislature should have the power to enact 
 laws the enforcement of which would lead to with 
 holding from the public information of the pro 
 ceedings of courts of justice. 
 
 By the Declaration of Rights, which is part of 
 the Constitution of 1849, * and of that of 1879,")* 
 there was guaranteed to every citizen of the State 
 the right freely to speak, write, and publish his 
 sentiments on all subjects. In view of this declara 
 tion, will it be claimed that it was ever contem 
 plated that the proceedings of courts of justice and 
 the decisions and conduct of judges should be 
 withdrawn from public discussion, and should con 
 stitute subjects upon which the people should have 
 no right to speak, write, or publish their senti 
 ments ? If it was not intended that these subjects 
 should be withdrawn from public discussion, will it 
 be claimed that it was ever contemplated that such 
 proceedings, decisions, and conduct should be kept 
 secret, and all information and knowledge con 
 cerning them, which alone could afford the basis for 
 the formation of an intelligent opinion, should be 
 withheld from the people ? 
 
 The reasons for imparting to the community this 
 information and knowledge are of the most cogent 
 character. The judiciary are with us elected for 
 
 * Const. 1849, art - !> sec> 9 
 t Const. 1879, art - ! sec 9 
 146 
 
IN RE SHORTRIDGE 
 
 stated terms, at the end of which the people are 
 periodically called upon to set the seal of their 
 approbation or disapprobation upon the past per 
 formance of their judges, by re-electing or rejecting 
 them. The only guide for the proper exercise of 
 this right is a knowledge of the conduct of the 
 judges during their incumbency of the bench. 
 What greater folly could be imagined than to 
 exclude the people from that knowledge, by draw 
 ing the veil of secrecy over the performance of 
 judicial functions ? In this condition of ignorance, 
 not only would the people be bereft of one of 
 their most important rights, but the judiciary itself 
 would be the first to suffer ; for while an unworthy 
 judge might thus be able to escape censure for 
 neglect or violation of duty, a deserving one could 
 never be assured of the approbation or reward 
 which should attend the proper discharge of public 
 office. 
 
 There are still further reasons which protest 
 against the secrecy of judicial proceedings. In 
 discharging their functions courts not infrequently 
 discover imperfections in the laws which they inter 
 pret. The defects thus perceived it is to the 
 interest of the State to remedy. An injunction of 
 secrecy upon the proceedings of courts would 
 deprive the lawmaker of the knowledge of these 
 defects, and condemn the laws to a state of irreme 
 diable and perpetual imperfectness. Did the people 
 in framing our government ever contemplate such 
 
 147 
 
ARGUMENT 
 
 a result ? Furthermore, laws are in their operation 
 what the judiciary declare them to be. The inter 
 pretation of judges is not seldom widely different 
 from that which laymen, from a reading of the law, 
 adopt. Yet the community must live and shape 
 its conduct according to the laws as interpreted by 
 the judges. How shall it do so if it is excluded 
 from all knowledge of judicial proceedings ? 
 
 That the people never meant that what takes 
 place in their courts should be kept secret is mani 
 fest upon the face of the Constitution itself. It is 
 provided by section 2 of article VI. that in the 
 determination of causes all decisions of the Supreme 
 Court, in bane or in department, shall be in 
 writing, and the grounds of the decisions shall be 
 stated, and by section 16 of the same article, that 
 all opinions shall be free for publication by any 
 person. It is true that by their language these 
 provisions apply to the Supreme Court only ; but 
 can it for a moment be imagined that, while explicit 
 provision was made for absolute publicity of the 
 decisions of that court, it was intended that the 
 proceedings of inferior tribunals might remain 
 shrouded in secrecy ? Vain and puerile would be 
 the effort to withdraw from public gaze the pro 
 ceedings of inferior courts if the decisions and 
 judgments of the ultimate appellate tribunal are, by 
 express command of the Constitution, public prop 
 erty. What could be gained by forbidding the 
 publication of the proceedings had on the trial of a 
 
 148 
 
IN RE SHORTRIDGE 
 
 cause in a Superior Court if everybody is at liberty 
 to publish the decision in the same case on appeal, 
 which may review and embody the whole of those 
 proceedings ? 
 
 The subject may be viewed from another stand 
 point. The Constitution, both of 1849 an d of 
 1879,* declares that no law shall be passed to 
 restrain or abridge the liberty of speech or of the 
 press. The liberty of speech or of the press, as I 
 have already endeavored to show, is the liberty to 
 say or print whatever one may choose, short of 
 interfering with the rights of others or giving 
 offense to public decency or morality. If this is 
 not what is meant by this section, it would be 
 difficult to conceive what is that liberty which the 
 framers of the Constitution have been at such 
 pains to consecrate and declare inviolate from all 
 attempted restraints or abridgments by the law- 
 making power. Any law declaring illegal utter 
 ances or writings which do not so interfere or 
 offend would be abridging and restraining the right 
 of speech or of the press within narrower bounds 
 than those prescribed by the Constitution. To say 
 that it shall be unlawful for any citizen to speak of 
 or publish the proceedings of courts of justice is to 
 condemn such utterances or publications before 
 hand, regardless of the fact whether they do or do 
 not interfere with the rights of others or offend 
 public morality or decency. Concede the power 
 
 * Art. I., sec. 9. 
 149 
 
ARGUMENT 
 
 to make such an enactment, and the liberty of 
 speech and of the press is gone forever. If the 
 proceedings of courts may be thus withdrawn from 
 public discussion, so may those of the Senate, 
 of the Assembly, of boards of supervisors, of 
 city councils, of town trustees, and of all other 
 public bodies. Nor, if the power to pass such a 
 statute be admitted, need the Legislature stop 
 here, for there is no conceivable subject upon 
 which it may not declare it unlawful to speak or 
 write. 
 
 That the Legislature may within constitutional 
 limits pass laws to define and punish the abuse of 
 the liberty of speech or of the press, I do not ques 
 tion ; but that it can say beforehand that a certain 
 utterance which may be made or a certain writing 
 which may be published in the future is if so facto 
 illegal I deny. That it can enact that libels of 
 persons in office, as, for instance, the Governor or 
 the judges of the Supreme Court, shall be punished 
 is clear; but that it can say that it shall be a libel to 
 speak or write about the conduct of the Governor 
 of the State or the judges of the Supreme Court I 
 deny. Whether words which I have uttered or 
 written constitute slander or libel, and are therefore 
 an abuse of my liberty, is a question upon which I 
 have a right to be heard when called upon to answer 
 for them; but to say beforehand that what I shall 
 utter to-morrow upon a given subject will be a 
 slander or a libel is to condemn me unheard. If I 
 
 150 
 
IN RE SHORTRIDGE 
 
 have a constitutional right to speak, write, and pub 
 lish my sentiments upon all subjects, and the Legis 
 lature is not permitted to restrain or abridge that 
 right, a statute which forbids my speaking, writing, 
 or publishing on a particular subject for instance, 
 the proceedings of courts or the conduct or decisions 
 of judges is an unconstitutional restraint and 
 abridgment of my right. 
 
 Nor can this conclusion be eluded by claiming 
 that the Legislature may exercise the power when, 
 according to its wisdom, the public can be bene 
 fited thereby. This would leave the boundaries of 
 action wholly at the discretion of the Legislature, 
 and would be equivalent to saying that it might 
 exercise the power in all cases if it chose. If the 
 Legislature has the right to prevent the people from 
 discussing or being informed of the proceedings in 
 cases of seduction, criminal conversation, breach of 
 promise of marriage, and divorce, it has an equal 
 right of prevention in all cases. If it may do it in 
 one, it may in all. The Constitution denies the 
 existence of the power in every case. 
 
 But it is not to be assumed without the most 
 cogent proof that the Legislature ever undertook to 
 exercise such a power. No such evidence is found, 
 I submit, in section 125 of the Code of Civil Pro 
 cedure. On the contrary, the reverse is apparent. 
 Had the Legislature intended by that section to 
 prohibit, or to authorize the courts to prohibit, the 
 publication of proceedings of cases tried in private, 
 
ARGUMENT 
 
 it would have been easy to say so in plain terms, 
 and it would have said so. It would not have left 
 to intendment and inference the task of discovering 
 its purpose. Its silence is the most significant 
 proof that no such intent existed. 
 
 The learned Superior Court decides that to per 
 mit the publication of proceedings in divorce cases 
 tried with closed doors is to frustrate the whole 
 object which the Legislature had in view in enacting 
 that section of the code. This decision has for its 
 basis the assumption that the sole object of that 
 section is to insure the absolute secrecy of such 
 trials, to the end that the public may be protected 
 from the contamination of the evidence not infre 
 quently given in such cases. 
 
 As the basis of this argument consists in ascrib 
 ing to the Legislature an intent to deny the people 
 the right to know what is going on in their own 
 courts, it should not be assumed, but demonstrated. 
 I deny the assumption. I say that the sole pur 
 pose of the enactment is to regulate the mode of 
 trial in court, and not the divulgement of the pro 
 ceedings outside, to protect the rights of the parties 
 litigant, and not diminish the inherent privileges and 
 liberties of the public. 
 
 The object of such an enactment is not difficult 
 to conceive. In cases of seduction and criminal 
 conversation the relation of the sexes always forms 
 the main topic of the investigation, whilst in cases 
 of divorce and breach of promise of marriage it is 
 
 152 
 
IN RE SHORTRIDGE 
 
 not infrequently involved in the issue. The wit 
 nesses forced to testify on this subject are often 
 females of modest demeanor and delicate sensibili 
 ties. To call upon them to reveal in the presence 
 of a crowded assemblage affronts to their chastity, 
 the violation of their own persons, or the coarse 
 and vulgar epithets of conversations which they 
 may have heard, would often impose a task beyond 
 their strength. Modesty would seal the lips from 
 which truth would in vain struggle to issue. The 
 conflict between the efforts of the court to enforce 
 its authority by compelling utterance and a witness 
 whose tongue is paralyzed by terror and shame 
 could not but be most painful. From this conflict 
 there must inevitably ensue either a defeat, or, at 
 least, a great embarrassment, of the administration 
 of justice. I conceive that it is with a view to 
 obviate these difficulties, by the exclusion of the 
 audience from the court-room, that the section 
 under consideration was enacted. 
 
 But it is said that the intention of the Legislature 
 to prohibit the publication of the proceedings in 
 actions for divorce is manifest from the provisions 
 of section 1032 of the Political Code. That section 
 provides that in all actions for divorce the pleadings 
 and the testimony taken and filed in said actions 
 shall not be made public by the clerk with whom 
 the same are filed or the referee before whom the 
 testimony is taken ; nor shall the same be allowed 
 to be inspected by any person except the parties 
 
 153 
 
ARGUMENT 
 
 that may be interested or the attorneys to the 
 action, or by an order of the court in which the 
 action is pending. 
 
 If it was intended by this section to prohibit the 
 publication of the testimony in actions for divorce, 
 why is it not so stated in plain terms? The failure 
 so to state is the most conclusive evidence that no 
 such intention existed. 
 
 That the Legislature did not purpose by this 
 section of the Political Code, or by section 125 of 
 the Code of Civil Procedure, to insure the secrecy 
 of the proceedings in actions for divorce is manifest 
 from other provisions of the Constitution and the 
 law. The defeated party in such an action may 
 appeal to the Supreme Court, and file with its clerk 
 a transcript, containing, it may be, the whole of the 
 proceedings, the testimony included, of the lower 
 court. The moment this is done the transcript 
 becomes, by virtue of section 1032 of the Political 
 Code, a public record, open at all times to the 
 inspection of any citizen of the State. Besides, 
 there is no provision in the law that the hearing of 
 the appeal shall be had in private; on the contrary, 
 by express constitutional requirement, * the court 
 " is always open for the transaction of business." 
 Nor is there any provision that the printed argu 
 ments of counsel, which may set forth the whole 
 case, shall be kept secret. And, lastly, the appellate 
 court in deciding the case is obliged under the 
 
 * Const., art. VI., sec. 2. 
 154 
 
IN RE SHORTRIDGE 
 
 Constitution to render its decision and the reasons 
 of its conclusions in writing.* This decision may 
 embody and discuss the whole of the proceedings, 
 including the testimony. The moment this de 
 cision is filed it is public property, and any one 
 has the absolute constitutional right to publish it. f 
 How utterly vain, then, must be all attempts 
 to enjoin secrecy of the proceedings in actions for 
 divorce ! 
 
 It is submitted, in fine, that none of the sections 
 of the code which have been cited have for their 
 object the prohibition of the publication of the 
 proceedings in cases of divorce, and that if they 
 have, they are in that respect unconstitutional. 
 
 I have thus endeavored to subject the positions 
 of the court and of my learned adversaries to the 
 test of reason and fundamental principles. I may 
 be permitted to remark that if I have referred to 
 no authorities, it is because in such a discussion 
 precedents could afford little aid. I have no doubt 
 that my learned friends opposite are ready with 
 precedents on their side. They were cited in the 
 court below, and may again be here. Decisions may 
 be adduced to show that, at common law, English 
 judges possessed and exercised the power to prohibit 
 in all cases the publication of the proceedings of 
 their courts. But has American liberty made so 
 little advance that its limits to-day must be deter 
 mined by the precedents of a former age and another 
 
 * Const., art. VI., sec. 2. fid., art. VI., sec. 16. 
 155 
 
ARGUMENT 
 
 country ? Granting that there are such precedents 
 in England, has the liberty of free utterance and a 
 free press made no progress since the days when in 
 that realm the Church and the State undertook to 
 prohibit all books which did not receive their sanc 
 tion and license ; the days when Sir Thomas More 
 died upon the scaffold a martyr in the cause of liberty 
 of conscience ; the days when Speakers of the House 
 of Commons went upon their knees at the feet of their 
 sovereign to crave forgiveness for undue indulgence 
 in the freedom of debate ; the days when a member 
 was sent to the Tower for daring to publish his 
 speeches in Parliament, and his book was burned 
 by the public hangman ; the days when Sydney s 
 Discourse upon the Principles of Government 
 brought him to the block ; the days when Mansfield 
 even Mansfield prostituted the principles of 
 the law of libel to serve a party in power ; the days 
 when every comment upon the ministers of the 
 crown was deemed a seditious utterance ; the days 
 when the eloquence of Erskine was tasked to 
 its uttermost to avert the punishment of Stock- 
 dale, and across the Irish Channel the genius 
 of Curran strove in vain to save Rowan from the 
 pillory P 
 
 Why should we pause, then, curiously to trace 
 the course of judicial decisions of bygone genera 
 tions ? The stride of the full-grown man is not to 
 be cramped into the footprints of the child. The 
 flight of the eagle soaring above the clouds and 
 
 156 
 
IN RE SHORTRIDGE 
 
 measuring the distance from mountain peak to 
 mountain peak is not to be circumscribed within 
 the bounds of the nest which limited the first flut 
 tering of its callow pinions. We are dealing here 
 with a question of liberty under our Constitution 
 and form of government. You cannot gauge it by 
 the rules of an age when constitutions were un 
 known and personal liberty was a delusion. The 
 light which is to guide your footsteps is not the 
 light of the past, but of the present. Vain would 
 be all attempt to ignore it. You might as well bid 
 the commander who by the search-light at his mast 
 head steers the stately ironclad through the darkness, 
 and with the rapidity of thought throws a dazzling 
 splendor upon the outermost bound of the horizon, 
 discard the lightning which he has torn from the 
 clouds and trace his course by the rays of the pine 
 torch with which the Indian guides his canoe through 
 the rapids of the Truckee ; you might as well bid 
 the astronomer who from the heights of Hamilton 
 scans the heavens, explores the configuration of the 
 planets, determines the composition and measures 
 the distance of the stars, throw aside the glass which 
 the genius of modern science has given him and 
 take up instead the rude instrument with which, 
 before the birth* of Christ, Egyptian priests or Chal 
 dean shepherds watched Orion and the Pleiades, as 
 tell us that, standing to-day upon the threshold of 
 the twentieth century, we are to shut our eyes to 
 the effulgence which the spirit of liberty throws 
 
 157 
 
ARGUMENT 
 
 around us, and guide our footsteps by the lamp of 
 the dead past, snatched from the charnel-house 
 where the forgotten judges of Plantagenet, or Tudor, 
 or Stuart dynasties lie buried. 
 
 158 
 
TO THE SUPREME COURT OF THE 
 UNITED STATES 
 
THE following argument was made in the Supreme Court of 
 the United States on the 26th day of January, 1885. The case 
 is reported in 118 Wall., p. 394. Though the Court avoided, 
 at that time, a decision of the important constitutional questions 
 discussed, the views here presented by Mr. Delmas ultimately 
 prevailed ; and, after a contest extending over a period of thirteen 
 years, 1882 to 1895, the railroad companies were finally com 
 pelled to pay their taxes. The last decision upon the subject is 
 that of People vs. Central Pacific R. R. Co., 105 Cal., p. 576. 
 
IN THE RAILROAD TAX CASES 
 
 MAY IT PLEASE YOUR HONORS : This litigation 
 involves the validity of the Constitution and 
 statutes of California relating to the taxation of 
 railroads. After a controversy covering a period 
 of six years, the people of that State are now at 
 your bar, to learn at last whether they have any 
 laws by which the vast property of railroad corpora 
 tions which receives the protection of their gov 
 ernment can be made to bear its share of the public 
 burdens, or whether the scheme of taxation devised 
 by the framers of their Constitution, carried out by 
 their legislators, and approved by their highest 
 court of law, is a nullity. They are here to learn 
 not only whether the vast sums of six years unpaid 
 revenue, for which these corporations stand delin 
 quent to the State, must be forever lost to the 
 treasury, but, also, whether the expense, loss of 
 time, and labor of reframing or amending their 
 Constitution must be assumed anew. 
 
 That these are grave questions no one, I think, 
 will doubt. That they lie within a narrow com 
 pass, and that the difficulty of their solution is not 
 
 161 
 
ARGUMENT 
 
 commensurate with their magnitude, it will now be 
 my endeavor to demonstrate. 
 
 The portions of the Constitution which the de 
 fendant attacks are sections i and 4 of article 
 XIII. * The statute assailed is section 3664 of 
 the Political Code, f 
 
 * These sections read as follows : 
 
 "Section I. All property in the State, not exempt under the 
 laws of the United States, shall be taxed in proportion to its value, 
 to be ascertained as provided by law. The word property,* as 
 used in this article and section, is hereby declared to include 
 moneys, credits, bonds, stocks, dues, franchises, and all other 
 matters and things, real, personal, and mixed, capable of private 
 ownership. 
 
 " Section 4. A mortgage, deed of trust, contract, or other 
 obligation by which a debt is secured, shall, for the purposes of 
 assessment and taxation, be deemed and treated as an interest in 
 the property affected thereby. Except as to railroad and other 
 quasi-public corporations, in case of debts so secured, the value 
 of the property affected by such mortgage, deed of trust, contract, 
 or obligation, less the value of such security, shall be assessed and 
 taxed to the owner of the property, and the value of such security 
 shall be assessed and taxed to the owner thereof, in the county, 
 city, or district in which the property affected thereby is situate. 
 The taxes so levied shall be a lien upon the property and security, 
 and may be paid by either party to such security ; if paid by the 
 owner of the security, the tax so levied upon the property affected 
 thereby shall become a part of the debt so secured ; if the owner 
 of the property shall pay the tax so levied on such security, it 
 shall constitute a payment thereon, and to the extent of such pay 
 ment, a full discharge thereof. " 
 
 t That section is in these words : 
 
 "Section 3664. On or before the first Monday in May in 
 each year the State Board of Equalization shall assess the franchise, 
 
 162 
 
IN THE RAILROAD TAX CASES 
 
 In order to understand the character ot the 
 attack upon this section, it is necessary to observe, 
 at the outset, that section 9 of article XIII. of the 
 Constitution provides for the election and organiza 
 tion of a State Board of Equalization. To this 
 board is confided the duty of assessing the fran 
 chise, roadway, roadbed, rails, and rolling stock of 
 all railroads operated in more than one county in 
 the State. All other property is assessed by the 
 local assessors of each county. The State Board 
 of Equalization has its office at the State capital ; 
 and section 3692 of the Political Code provides 
 
 roadway, roadbed, rails, and rolling stock of railroads operated in 
 more than one county. The president, secretary, cashier, or 
 managing agent, or such other officer as the State Board of Equal 
 ization may designate, of any corporation operating any railway in 
 more than one county in this State, shall furnish said board, on or 
 before the first Monday of April, in each year, a statement, signed 
 and sworn to by one of such officers, showing in detail for the year 
 ending on the first Monday in March, in such year : 
 
 " (rf) The whole number of miles of railway owned, operated, 
 or leased in the State by such corporation, making the return, and 
 the value thereof per mile, with a detailed statement of all property 
 of every kind located in the State. 
 
 " () Also a detailed statement of the number and value 
 thereof of engines, passenger, mail, express, baggage, freight and 
 other cars or property used in operating or repairing such railway 
 in this State, and on railways which are parts of lines extending 
 beyond the limits of this State. The returns shall show the actual 
 amount of rolling stock in use on the corporation s line in the State 
 during the year for which the return is made. The return shall 
 show the amount of rolling-stock, the annual gross earnings of the 
 entire railway, and the proportionate annual gross earnings of the 
 
 163 
 
ARGUMENT 
 
 that it is "to hold regular meetings at the State 
 capital on the second Monday in each month, and 
 such special meetings as the chairman may direct/* 
 The validity of these provisions of the Consti 
 tution and Code has been fully settled, so far as 
 the State is concerned, by the decision of the 
 Supreme Court of California. * Upon well-estab 
 lished principles, that decision is binding upon this 
 
 same in this State, as nearly as practicable, and all the property 
 designated hereafter in this section, and such other facts as the State 
 Board of Equalization may in writing require. 
 
 " If such officer or officers so designated shall fail to make and 
 furnish said statements, said Board of Equalization shall fix the 
 value and proceed to assess the property of the corporations so 
 failing ; the valuation so fixed by them shall be final and conclusive. 
 The said property shall be assessed at its actual value. Assessment 
 shall be made upon the entire railway within the State, and shall 
 include the right of way, roadbed, track, bridges, culverts, and 
 rolling stock. The depots, station grounds, shops, buildings, and 
 gravel beds shall be assessed by the assessor of the county where 
 situated, as other property. On or before the fifteenth day of 
 May, in each year, said board shall transmit to the county 
 assessor of each county through which any railway, operated in 
 more than one county, may run, a statement showing the length 
 of the main track or tracks of such railway within the county, 
 together with a description of the whole of said tracks within the 
 county, including the right of way by metes and bounds, or other 
 description sufficient for identification, and the assessed value per 
 mile of the same, as fixed by a pro rata distribution per mile of the 
 assessed value of the whole franchise, roadway, roadbed, rails, and 
 rolling stock of such railway within this State. Said statement 
 shall be entered on the assessment roll of the county. * 
 
 * Central Pacific R. R. Co. vs. the State Board of Equalization, 
 60 Cal. 35. 
 
 164 
 
IN THE RAILROAD TAX CASES 
 
 Court as to any right claimed under the State 
 merely. As to rights claimed under the Consti 
 tution of the United States, it has, of course, no 
 authority here. Still it narrows the field of inquiry 
 to the single question, Do these provisions of the 
 Constitution and Code of California contravene the 
 Federal Constitution ? 
 
 The defendant claims that they do, upon three 
 grounds. Its contention is as follows: 
 
 First The defendant is a Federal corporation. 
 Its franchise is derived from the Federal Govern 
 ment. It is not, therefore, subject to State taxation. 
 And since, upon the face of the assessment on 
 which the plaintiff relies, the whole property of the 
 corporation is assessed in gross, and the value set 
 upon the franchise cannot be determined or sepa 
 rately ascertained, it follows that the whole assess 
 ment fails, and the tax cannot be collected. 
 
 Secondly Neither the Constitution of the State 
 nor its Code provides for giving the defendant 
 notice of the assessment of its property, nor 
 opportunity to be heard therein. Therefore, they 
 contravene that part of the Fourteenth Amendment 
 which requires that no person shall be deprived of 
 property without due process of law. 
 
 Thirdly The Constitution, in declaring that a 
 mortgage shall, for the purposes of assessment and 
 taxation, be deemed and treated as an interest in the 
 property affected thereby, in the case of private 
 property, but not in the case of property of a rail- 
 
 165 
 
ARGUMENT 
 
 road or other quasi-public corporation, and in 
 declaring further that in the case of private prop 
 erty the amount assessed to the owner shall be the 
 value of the property less the value of the mortgage 
 interest, but in the case of railroad and other quasi- 
 public corporations the whole value of the property 
 shall be assessed without any deduction for the 
 mortgage interest, violates that portion of the Four 
 teenth Amendment which provides that no State 
 shall deny to any person within its jurisdiction the 
 equal protection of the laws. 
 
 This, I believe, is the statement of defendant s 
 positions in their logical order, and in that order I 
 shall now examine them. 
 
 The first contention is met and rejected by the 
 opinion of Mr. Justice Field, delivered in this case 
 in the Circuit Court. I cannot hope to add any 
 thing to the reasoning of the learned Justice. 
 
 To the second contention, relating to notice and 
 opportunity to be heard in the assessment, the late 
 decision of this Court in the Kentucky tax case 
 affords a complete answer. 
 
 The third contention, briefly stated, is, that our 
 Constitution denies the defendant the equal pro 
 tection of the laws, in that, whilst it permits the 
 deduction of the value of the mortgage interest in 
 the assessment of private property, such deduction 
 is inhibited in the assessment of the property of 
 railroad and other quasi-public corporations. 
 
 In defending the provisions of our Constitution, 
 
 166 
 
IN THE RAILROAD TAX CASES 
 
 permit me, in the first place, to reply to an attack 
 made upon it, which, if tenable, would place the 
 organic law of California in a position ridiculous in 
 the extreme. 
 
 The learned Circuit Court, in examining the Con 
 stitution, finds it, according to its reading, to declare 
 in terms that a mortgage is made, in all cases, for 
 purposes of taxation, an interest in the property 
 assessed; that this interest, which, by the construc 
 tion of the Court, is declared to belong in all cases 
 to the mortgagee, must, nevertheless, in the case of 
 railroad and other quasi-public corporations, be 
 assessed to the mortgagor. That I may state this 
 position aright, I must beg leave to refer to the 
 record. There Mr. Justice Field says : 
 
 " It [the Constitution] also declares that a mort 
 gage, deed of trust, contract, or other obligation by 
 which a debt is secured shall, for the purposes of 
 assessment and taxation, be deemed and treated as 
 an interest in the property affected thereby. And 
 that, except as to railroad and other quasi-public 
 corporations, in case of debts so secured, the value 
 of the property affected by such mortgage, deed of 
 trust, contract, or obligation, less the value of such 
 security, shall be assessed and taxed to the owner of 
 the property, and the value of such security shall be 
 assessed and taxed to the owner thereof. ... A 
 mortgage, as seen by the provisions of the Con 
 stitution quoted above, is deemed and treated for the 
 purposes of assessment and taxation as an interest 
 in the property affected. . . . By the Constitution 
 
 167 
 
ARGUMENT 
 
 a mortgage, for the purpose of assessment and taxa 
 tion, operates in like manner to transfer the mort 
 gagor s interest to the extent represented by the 
 amount secured. . . . If, by a mortgage on the prop 
 erty of railroad or other quasi-public corporations, a 
 taxable interest in such property is transferred by 
 the corporation to another, or the whole interest is 
 vested in him, the holder of such interest is exempted 
 from taxation for it, and the corporation is assessed 
 and taxed for it notwithstanding the transfer. . . . 
 On what principle, or by what species of reasoning, 
 a tax upon property can be upheld and assessed 
 against a party, be the party a natural or an artificial 
 person, when the taxable interest in it had, at the 
 time of the levy of the tax, been transferred to 
 another, I am at a loss to understand. . . . That 
 the proceedings by which the taxes claimed in these 
 several actions were levied against the railroad com 
 panies on taxable interests with which they had 
 parted was not due process of law, seems to me so 
 obviously true as to require no further illustration. 
 It goes almost without saying; and any additional 
 argument would rather tend to obscure a truth which 
 should be evident upon the simple statement." * 
 
 The learned Justice concludes this arraignment 
 of the Constitution by saying : 
 
 " This position of the case was suggested to counsel 
 on more than one occasion during the argument, and 
 no answer was made to it. To every other position 
 an answer was attempted, but to this none ; and, as 
 
 * Pages 88, 89, 90, and 99. 
 1 68 
 
IN THE RAILROAD TAX CASES 
 
 we think, for the best of reasons, because none was 
 possible." 
 
 This position of the learned Circuit Court has 
 never been taken by any of the numerous and 
 eminent counsel for the defendant who have argued 
 this cause here and elsewhere, and, I think, for the 
 simple reason that the position is based upon an 
 obvious misreading and palpable misconstruction of 
 the language criticised. This misreading and mis 
 construction were pointed out in the court below 
 by counsel for plaintiff, who said : 
 
 " Now, I think that the reading of that would be 
 very much improved by a change of the punctuation. 
 As it stands it reads: A mortgage, deed of trust, 
 contract, or other obligation by which a debt is 
 secured, shall, for the purposes of assessment and 
 taxation, be deemed and treated as an interest in 
 the property affected thereby. There is a full stop 
 there. We think it ought not to be there. It ought 
 to read: Shall be deemed and treated as an interest 
 in the property affected thereby, except as to railroad 
 and other quasi-public corporations. 
 
 Counsel for defendant here are forced to abandon 
 the position taken by the Circuit Court, by admit 
 ting that its reading of the Constitution is wrong, 
 and the reading of the plaintiff right. Say counsel 
 in the brief here : 
 
 " There is an obvious mistake in punctuation in 
 the language I am about to quote. The period which 
 is placed after the word thereby should have been 
 
 169 
 
 L 
 
ARGUMENT 
 
 placed after the word corporations in the next 
 line. ... In quoting the passage in question, 
 I shall, therefore, put the period after the word cor 
 porations. It then reads as follows: A mortgage, 
 deed of trust, contract, or other obligation by which 
 a debt is secured, shall, for the purposes of assess 
 ment and taxation, be deemed and treated as an 
 interest in the property affected thereby, except as to 
 railroad and other quasi-public corporations^ 1 " * 
 
 Indeed, long before the argument of this cause 
 at Circuit, the Supreme Court of California had 
 construed this section of the Constitution and de 
 clared it to mean what the counsel for plaintiff con 
 tended for in the court below, and what the counsel 
 for defendant admit here. It had said : 
 
 " Reading the whole section, it seems very plain 
 that as to mortgages, deeds of trust, contracts, or 
 other obligations secured upon the property of rail 
 road and other quasi-public corporations, they should 
 not be deemed and treated as an interest in the prop 
 erty affected by them for the purposes of taxa 
 tion. "! 
 
 Instead, therefore, of holding the Constitution to 
 say that a mortgage is, in every case, an interest in 
 the property, it must be held to say that, in the case 
 of railroad and other quasi-public corporations, it is 
 not such an interest. Thus read, the Constitution, 
 
 * Page 30. 
 
 t Central Pacific R. R. Co. vs. State Board of Equalization, 
 60 Cal. 35, 59. 
 
 170 
 
IN THE RAILROAD TAX CASES 
 
 whatever its other imperfections, is readily absolved 
 from the absurdity of deliberately declaring in one 
 and the same breath that certain property belongs 
 to A, but shall, nevertheless, be assessed to B. 
 
 But it is next urged that even if a mortgage be 
 considered in the light of a mere charge upon the 
 property affected, still, as the Constitution makes it 
 an element of deduction in the valuation of private 
 property, and not in that of railroad property, there 
 is here a plain and injurious discrimination against 
 railroad property. The learned Circuit Justice 
 states this position very clearly, as follows: 
 
 " If any element which is taken into consideration 
 in the valuation of the property of one party be 
 omitted in the valuation of the property of another, 
 a discrimination is made against one and in favor of 
 the other, which destroys the uniformity so essential 
 to all just and equal taxation. Such an element 
 exists where, in the assessment of property subject 
 to a mortgage, the value of the mortgage is deducted 
 if the property be owned by a natural person, and is 
 not deducted if owned by a railroad corporation. 
 And the Constitution of the State declares that, in 
 the ascertainment of values as the basis of taxation, 
 such deduction shall be allowed in the one case and 
 denied in the other."* 
 
 Before undertaking the defense of our Constitu 
 tion upon this point, permit me first to observe, 
 that if to take an element into consideration in the 
 
 * Page 92 of the Record. 
 171 
 
ARGUMENT 
 
 valuation of certain property and to omit it in that 
 of other property, or if, in valuing property, to per 
 mit a deduction for the owner s debts in certain 
 cases and to forbid it in others, " destroys the uni 
 formity so essential to all just taxation/ and is a 
 sin against the Federal Constitution, California is 
 not the only State which has offended. Alabama, 
 Nebraska, Illinois, and Pennsylvania are all equally 
 guilty. * 
 
 * The Code of Alabama of 1876 (sec. 362, subd. 8) provides 
 that all "money loaned, and solvent credits, or credits of value," 
 shall be assessed. Section 365, subdivision 3, speaks of assessing 
 "lien notes, mortgage notes, and other notes." Under section 372, 
 in the case of building and loan associations, the notes and mortgages 
 of the stockholders or members of such associations, given to the 
 associations for purchase-money or advances of stock made at 
 the distribution of the funds thereof, are exempt from taxation. 
 Yet the Constitution of the State provides that all property shall be 
 assessed in exact proportion to its value, and the property of corpo 
 rations at the same rate. (Const., art. II., sec. I., subd. 6.) 
 
 In Nebraska, the taxpayer is assessed for credits, but is allowed 
 " to deduct from the gross amount of credits the amount of all 
 b on a fide debts owing by such person, company, or corporation to 
 any other person, company, or corporation, . . . provided, 
 that nothing in this section shall be so construed as to apply to any 
 bank company or corporation exercising banking powers or privi 
 leges." (Comp. Stats. 1881, Revenue, sec. 27, p. 404.) 
 
 Precisely the same rule prevails in Illinois. (Revised Stats. 1880, 
 p. 873, sec. 27.) 
 
 In Pennsylvania, " mortgages, money owing by insolvent debt 
 ors, . . . owned or possessed by any person or persons what 
 soever, except . . . obligations given to banks for money loaned," 
 shall be taxed. Mortgages are exempt from all taxation except for 
 State purposes, "provided, the provisions of this act shall not 
 
 172 
 
IN THE RAILROAD TAX CASES 
 
 The basis of the whole argument of the learned 
 Circuit Court upon this question of discrimination 
 lies in the assumption that in the levy of a property 
 tax the State is bound to treat railroad property 
 precisely like private property, and is permitted to 
 make no discrimination whatever between them. If 
 this be so, it is safe to say that there is hardly a State 
 in this Union whose revenue system is not in danger 
 of overthrow. There is hardly a State which does 
 not apply to railroad property a special mode, 
 either of valuation, assessment, or taxation. Among 
 those which do so are numbered Alabama, Ar 
 kansas, Connecticut, Delaware, Kentucky, Maine, 
 Michigan, Mississippi, Nebraska, New Hampshire, 
 Ohio, South Carolina, and Virginia. * 
 
 apply to building and loan associations." (Laws of 1881, p. 99, 
 sec. i.) 
 
 Further: "All mortgages . . . shall be exempt from all 
 taxation except for State purposes, . . . provided, that nothing 
 !n this act shall be construed to apply to mortgages . . . given 
 by corporations; provided, that this act shall only apply to the 
 counties of Berks, Schuylkill," etc. ( Brightly s Purdon s Dig., 
 1369, sec. 83.) 
 
 * In Alabama, the law fixes the minimum valuation of railroad 
 property that minimum being a sum which, if placed out at 
 interest at eight per cent, per annum, would yield the yearly net 
 earnings of the road. (Code, sec. 383.) 
 
 This system of valuation is applied to railroad property alone. 
 No such minimum value, or mode of valuation, is applicable to 
 other property. 
 
 In Arkansas, " the roadbed, water and wood stations, stations, 
 and such other realty as is necessary to the daily running operations 
 
 173 
 
ARGUMENT 
 
 These various revenue systems of the States de 
 monstrate that, in practice at least, the rule of uni 
 formity, which, it is stoutly maintained here, requires 
 that railroad property shall not be burdened differ 
 ently from other property, is seldom observed. 
 Indeed, this course of legislation fully illustrates the 
 language of this Court, speaking through Mr. Justice 
 Field, in the Delaware Railroad Tax Cases,* that 
 
 of the road, shall be treated and estimated as personal property.** 
 (Gantt. Dig., 5099.) 
 
 This treatment of realty as personal property is applied to the 
 realty of railroads alone. No such rule obtains as to other realty. 
 
 In Connecticut, a railroad pays, in lieu of all other taxes, on its 
 franchise, funded and floating debt, and property, a tax of one per 
 cent, on the market value of its stock and funded and floating debt, 
 after deducting from such valuation the amount of cash on hand, 
 and from the amount required to be paid the amount paid for taxes 
 on its real estate not used for railroad purposes. The statute 
 declares that the valuation so made shall be the measure of the 
 value of such railroad, its rights, franchises, and property in the 
 State. (Gen. Stats. 1875, P- 7 ! 7> sec - 4^.) 
 
 Note here that this mode, both of assessment and taxation, is 
 special and applicable to railroad property alone. The mode of 
 valuing the property is special. The tax imposed one per 
 cent. may be more or less than that imposed upon other property 
 in the State. If more, then, according to defendant s theory, the 
 company might complain ; if less, the other taxpayers might feel 
 aggrieved. 
 
 In Delaware, a special tax is imposed upon incorporated railroads 
 of ten per cent, of their annual net income ; besides one hundred 
 dollars for every engine, twenty-five dollars for each passenger-car, 
 ten dollars for each freight-car, and one-half of one per cent, upon 
 the cash value of every share of stock. One particular road the 
 
 *i8 Wall, 231. 
 174 
 
IN THE RAILROAD TAX CASES 
 
 "the State may impose taxes upon the corporation 
 as an entity existing under its laws, as well as upon 
 the capital stock of the corporation or the separate 
 corporate property. And the manner in which the 
 value shall be assessed, and the rate of taxation, 
 however arbitrary or capricious, are mere matters 
 of legislative discretion." 
 
 It may be answered that these various revenue 
 
 Philadelphia, Wilmington, and Baltimore Railroad is allowed to 
 pay a gross sum of twenty-seven thousand dollars per annum in 
 lieu of all taxes, with certain exceptions. (Codes, 1874, P* 4 1 -) 
 
 In Kentucky, it is provided that railroads shall be assessed for tax 
 ation at the rate of twenty thousand dollars per mile for broad-gauge 
 roads, and ten thousand dollars for narrow-gauge. They are to 
 pay upon this valuation " the same rate of tax on the assessment as 
 is levied by law on real estate." (Gen. Stats. 1883, p. 744.) 
 
 In Maine, under the act of 1880 (ch. 249), the Governor and 
 Council are to appraise the several railroads in the State, with their 
 franchises, rolling stock, and fixtures, at their cash value, and upon 
 this valuation to levy a tax of one per cent. The Constitution 
 requires all taxes upon real and personal estate to be apportioned 
 and assessed equally, according to its value. 
 
 In Michigan, the Constitution expressly declares that the Legis 
 lature may provide for the collection of specific taxes from railroad 
 and other corporations. (Art. XIV., sec. 10.) 
 
 In Mississippi, the Constitution provides that taxation shall be 
 equal and uniform, all property shall be taxed in proportion to its 
 value. (Const., art. XIII., sec. 20.) 
 
 The value of railroad property is ascertained by a board in a 
 special way ; but certain enumerated companies are allowed to pay 
 a gross tax of so much per mile, "and," says the code, "the 
 payment shall be in full of all State and county taxes." (Revised 
 Code, 1880, sees. 489, 597, 599, 607, 608.) 
 
 In Nebraska, railroad property is assessed by a board, "and," 
 
 175 
 
ARGUMENT 
 
 systems are all unconstitutional. It will, I think, 
 require no little boldness to assert that so many States 
 have legislated in ignorance or in defiance of the 
 principles of the Federal Constitution or their own 
 organic law of equality. At all events, the univer 
 sality of the practice of discrimination suggests, at 
 least, some common ground of action, some common 
 principle of legislation. That principle is, I con 
 ceive, the right of classification of property in matters 
 of taxation. The revenue systems of the various 
 
 says the statute, " such property shall, for the purpose of taxation, 
 be deemed personal property." (Com. Stats. 1881, p. 407, 
 sees. 39, 40.) 
 
 In New Hampshire, railroads are taxed specially ; but railroads 
 "the construction of which was commenced since the fifteenth day 
 of September, 1868, or hereafter constructed in this State, * are 
 exempt from taxation for ten years. (Gen. Laws, 1878, pp. 
 159, 160.) 
 
 In Ohio, a State board assesses of railroads * all the personal 
 property, which shall be held to include roadbed, water and wood 
 stations, and such other realty as is necessary to the daily running 
 operations of the road." (Rev. Stats. 1880, sec. 2770.) 
 
 In South Carolina, the law provides that " the roadbed, right 
 of way, station buildings, toll-houses, structures, and real estate 
 owned and necessarily used by any railroad . . . company in the 
 prosecution of its business, shall, if the company be organized in 
 this State, be treated as personal property." (Gen. Stats. 1882, 
 sees. 179, 1 80.) 
 
 In Virginia, the Constitution provides that " taxation shall be 
 equal and uniform ; all property shall be taxed in proportion to 
 its value." (Const, of 1870, art. X., sec. I.) Yet a special 
 tax of fifty cents on the hundred dollars is laid " on the real and 
 personal property of every railroad and canal company." (Code 
 of 1873, p. 349, sec. 8.) 
 
 176 
 
IN THE RAILROAD TAX CASES 
 
 States show that it has been the practice to classify 
 railroad property, to make of it a class apart, 
 and to apply to it special modes of valuation, assess 
 ment, and taxation, and to impose upon it special 
 burdens, not applied to and not imposed upon any 
 other kind of property. 
 
 This right of classification I do not understand 
 to be denied by the defendant ; and if it were, it is 
 universally recognized, and has been expressly sanc 
 tioned by this Court in the Kentucky tax case. 
 Says the Court there : 
 
 " There is nothing to forbid the classification of 
 property for the purposes of taxation and the valua 
 tion of different classes by different methods. The rule 
 of equality, in respect to the subject, only requires 
 the same means and methods to be applied impar 
 tially to all constituents of each class, so that the 
 law shall operate equally and uniformly upon all per 
 sons in similar circumstances. There is no objection, 
 therefore, to the discrimination made as between rail 
 road companies and other corporations in the meth 
 ods and instrumentalities by which the value of their 
 property is ascertained. The different nature and 
 uses of their property justify the discrimination in 
 this respect which the Legislature has seen fit to 
 impose." 
 
 What is there, then, to inhibit the State ot Cali 
 fornia from classifying the property of railroads and 
 other quasi-public corporations, and applying to it 
 a system of valuation and taxation different from 
 
 177 
 
ARGUMENT 
 
 that applicable to private property ? The fact that 
 such property is affected with a public use affixes to 
 it at once a badge to distinguish it from other prop 
 erty. It is, by its very nature, made to enjoy special 
 privileges and to bear certain special burdens not 
 enjoyed or borne by other property. The use of 
 property dedicated to a public use is subject to 
 regulation by the public a burden not imposed 
 upon strictly private property. The enjoyment of 
 such property carries with it the right of eminent 
 domain, which is not accorded to the enjoyment of 
 strictly private property. As an agency of the sov 
 ereign, it enjoys certain sovereign attributes, and is 
 subjected to a certain corresponding sovereign con 
 trol. And the fact that it is an agency of the sover 
 eign an instrument of state might well, in the 
 wisdom of the sovereign, lead to its absolute ex 
 emption from any other public burdens than such 
 as necessarily attach to it. But if such an exemp 
 tion would be no discrimination of which other 
 property could complain, so an unfavorable discrimi 
 nation by which it is burdened is not a ground upon 
 which it can complain. But grant the power to 
 make a discrimination, and the question of advan 
 tage or disadvantage becomes at once immaterial. 
 
 Certain objections are made, however, to the 
 classification contained in our Constitution, which I 
 purpose now briefly to consider. 
 
 It is urged, in the first place, that while the Con 
 stitution might have classified and properly classi- 
 
 178 
 
IN THE RAILROAD TAX CASES 
 
 fied the property essential to the operation of the 
 road, yet if the classification extends to all the prop 
 erty of the railroad company, as well that which 
 is essential to the operation of the road as that 
 which is not, then the classification is vicious and 
 void. This claim is put forward on the strength 
 of the fact that this defendant owns certain lands, 
 which are said to be farming and grazing lands, not 
 connected. with the operation of its railroad. 
 
 I answer, that the Southern Pacific Railroad Com 
 pany was never organized to go into the business 
 of farming and grazing ; that the framers of the 
 Constitution cannot be supposed to have known 
 that that corporation had transcended the limits of 
 its charter to follow agricultural and pastoral pursuits. 
 The only legitimate business of the corporation was 
 and is to operate a railroad. To that all its prop 
 erty and all its actions must be made subservient. 
 If it owns an office in the city of San Francisco in 
 which its books are kept, its tickets sold, its funds 
 received or disbursed, its general business centered 
 and distributed, that office, though real property, 
 removed from any actual line of railroad, is yet in 
 every sense railroad property, as essential to the 
 proper conduct of the business of the company as 
 is the rail upon the roadbed, the signal upon the 
 switch, or the roundhouse at the station. 
 
 By the very act of its incorporation, the statute 
 of 1 86 1, the company has no power to hold real 
 property other than such as is " necessary for the 
 
 179 
 
ARGUMENT 
 
 construction, completion, and maintenance of such 
 railroad," and if it may take voluntary grants of 
 real estate, still these must be confined to such as 
 are made " to aid and encourage the construction, 
 maintenance, and accommodation of such railroad." 
 The whole of its property is thus made to subserve 
 the road. Its real estate is but an adjunct to the 
 road an aid which the corporation is allowed to 
 hold only because it is an aid to the road. It, like 
 the road, is dedicated to and subserves a public use. 
 In the Kentucky tax case, the special mode of 
 taxation applicable to railroad corporations was 
 justified and upheld by this Court upon the ground 
 of classification of property ; yet we find that the 
 classification was not confined to property actually 
 used in the operation of the road. The words of 
 classification, as with us, comprised the whole prop 
 erty of the corporation. Said the statute : 
 
 "The president or other chief officer of each rail 
 road company . . . shall . . . return . . . the 
 total length of such railroad, including the length 
 thereof beyond the limits of the State, and designat 
 ing its length within this State, and in each county, 
 city, and incorporate town therein, together with 
 the average value per mile thereof, . . . including 
 engines, and cars; and a list of the depot grounds 
 and improvements, and other real estate of the said 
 company, and the value thereof." 
 
 The action was brought to recover the taxes 
 assessed on " defendant s line of railroad lying in 
 
 180 
 
IN THE RAILROAD TAX CASES 
 
 this State, . . . together with the rolling stock, 
 engines, cars, depot grounds, improvements, and 
 other real estate." 
 
 But grant that the grazing and farming lands of 
 the company could not properly be classified as 
 strictly railroad property, what follows? Simply 
 this: that in classifying railroad property the Con 
 stitution uses descriptive words, which, being too 
 broad, include with property which is strictly classi 
 fiable some property which cannot properly be 
 classified with it. But does it follow, therefore, that 
 the classification must utterly fail? Does it follow 
 that the purpose of the framers of the Constitution 
 must be wholly frustrated because in doing what 
 they legitimately could do they coupled with it an 
 attempt to do what they legitimately could not do? 
 Must such a result follow when the bounds between 
 the exercise of legitimate power and illegitimate 
 assumption are as easily defined as they are here? 
 Let it be observed and remembered that the two 
 classes of property of railroad companies the 
 railroad proper, which it is admitted can be classified, 
 and these outside lands, which it is claimed can not 
 be classified are, by the Constitution, subjected to 
 two absolutely distinct systems of assessment. Each 
 is assessed separately, at different times, and by 
 different officials. The railroad proper is assessed 
 by the State Board of Equalization, and its descrip 
 tion and value are set down in its books. The 
 outside property is assessed by the local assessors, 
 
 181 
 
ARGUMENT 
 
 and its description and value are set down in their 
 books. Thus the two classes of property are always 
 kept separate. 
 
 Now, for the taxes upon these outside lands no 
 claim is made in this action. On the contrary, it is 
 found as a fact that upon these lands, whose pres 
 ence in the classification is, it is claimed, the only 
 element which renders the whole classification void, 
 the taxes have been fully paid.* The only tax 
 involved here is a tax upon the road property 
 which it is not denied is properly classified. 
 
 Why, then, shall not the classification as to the 
 road hold good? The part of the classification 
 which is claimed to be bad can be readily elimi 
 nated, nay, has already been eliminated by the 
 action of the defendant itself. Why, then, shall 
 not the classification stand as to the balance, 
 which is confessedly good? Why shall the defend 
 ant be permitted to escape taxation upon the good 
 part, when it has already taken the bad out of 
 the controversy by voluntarily paying the taxes 
 upon it ? 
 
 A striking and pertinent illustration and applica 
 tion of the proposition that I am now trying to 
 establish is found in the case of the State Freight 
 Tax. There the State of Pennsylvania had passed 
 a law imposing an indiscriminate tax upon all the 
 freight carried by railways in Pennsylvania. Now, 
 the State could constitutionally impose the tax upon 
 
 * Twenty-sixth Finding, Record, pp. 72, 73. 
 182 
 
IN THE RAILROAD TAX CASES 
 
 freight received for carriage wholly within the State, 
 but not upon freight received for carriage to or from 
 any part outside the State. Did it follow that the 
 whole tax was void ? No ; the good was separated 
 from the bad. 
 
 Permit me to read the epitome of the case from 
 this opinion of Mr. Justice Miller, in Stanley vs. 
 The Supervisors, because it sets forth clearly and 
 distinctly the point which I am now addressing 
 myself to. The Court said here : 
 
 "The case of the State Freight Tax, 15 Wallace, 
 232, arose out of a statute of Pennsylvania which 
 attempted to impose a tax on commerce forbidden 
 by the Constitution of the United States. The act 
 imposed a tax upon every ton of freight carried by 
 every railroad company, steamboat company, and 
 canal company doing business within the State. 
 The railroad companies who contested the tax pre 
 sented a statement, which separated the freight 
 transported by them between points solely within 
 the State, and limited to such destination, and 
 that which was received from or carried beyond 
 those limits. This Court held the latter to be void 
 as a tax on interstate commerce, and did not declare 
 the whole tax or the whole statute void. It said: 
 It is not the purpose of the law, but its effect, which we 
 are nozv considering, nor is it at all material that the 
 tax is levied upon all freight, as well that which is 
 wholly internal as that embarked in interstate com 
 merce. The conclusion of the whole is that, in our 
 opinion, the act of the Legislature of Pennsylvania 
 
 183 
 
ARGUMENT 
 
 of August 25, 1864, so far as it applies to articles 
 carried through the State, or articles taken up in the 
 State and carried out of it, or articles taken up with 
 out the State and brought into it, is unconstitutional 
 and void. The same language is repeated in Erie 
 Railway Company vs. Pennsylvania, decided at the 
 same time. Both cases were remanded to the State 
 Court for further proceedings, in conformity with 
 the opinion, which could only mean to enforce the 
 tax on transportation limited to the State, and not 
 on interstate commerce. This is a clear case of 
 distinguishing between the articles protected by the 
 Constitution of the United States and those which 
 were not, though nothing in the language of the statute 
 authorized any such distinction" * 
 
 I submit that this is a parallel case to the one at 
 bar. There the State imposed an indiscriminate 
 tax, part good, part bad. The taxpayer came into 
 court, and showed what part was good and what 
 bad what part the State could impose and what 
 not. The Supreme Court said that although the 
 tax was a unit, yet as the good could be readily 
 segregated from the bad, it would leave the good 
 to .stand, and simply eliminate the bad. So I say 
 here, if we grant that the inclusion of the farming 
 and grazing lands of the company in the class of 
 railroad property is not permissible, still, as the 
 strictly railroad property is properly classified, the 
 classification made by the law will stand as to 
 the latter, and the former alone will be excluded. 
 
 * 105 U. S. 
 
 184 
 
IN THE RAILROAD TAX CASES 
 
 But it is further urged that the Constitution 
 shows upon its face that the classification is of 
 persons and not of property, because the language 
 used does not in terms speak of railroad property, 
 but of property of railroad corporations. 
 
 The Constitutional Convention knew that at the 
 time it wrote there was no railroad property in 
 California which was not owned by a railroad cor 
 poration. It is true that certain statutes of the 
 State were given in evidence here, granting to 
 certain individuals railroad franchises ; but the case 
 shows that such roads have never been built, never 
 have had any existence as property. The phrase, 
 then, " the property of railroad corporations/ was 
 at the time it was used in California the equivalent 
 of "all railroad property." It is true that since 
 the Constitution was adopted an insignificant local 
 road of twenty-six and a half miles in length has, 
 under foreclosure proceedings, passed into the 
 hands of a private individual. But it is submitted 
 that this unusual, and no doubt merely temporary, 
 mode of ownership does not destroy a classification 
 which when made was made by words which then 
 aptly described, and in the ordinary course of 
 things are well calculated to describe, the property 
 intended to be classified. 
 
 I submit upon this question two propositions : 
 First, if in making a classification, the lawmaker 
 uses language sufficient, according to the ordinary 
 course of things, to describe the property intended, 
 
 185 
 
ARGUMENT 
 
 the classification does not fail from the fact that 
 some insignificant part of the property intended is 
 not covered by the descriptive words used ; and, 
 secondly, if in making a classification descriptive 
 words are used which are at the time sufficient to 
 include and cover the whole of the property clas 
 sified, the classification is not avoided and annulled 
 because subsequently some insignificant portion of 
 the property is, by an unusual and extraordinary 
 course of dealing, withdrawn from the scope of the 
 descriptive words. 
 
 In the Kentucky tax case, this Court, as already 
 stated, upheld the system of taxation on the ground 
 of classification of railroad property ; yet the de 
 scriptive words by which the classification was made 
 were not " railroad property," but " the property 
 of railroad companies"; and the whole tenor of the 
 statute shows that the system presented could only 
 be applied to the property of corporations owning 
 railroads. The very title of the statute is, "An 
 act to prescribe the mode of ascertaining the value 
 of the property of railroad companies for taxation, 
 and for taxing the same." The first section pro 
 vides for a report which can only be made by " the 
 president or chief officer of each railroad company 
 or other corporation owning a railroad," while the 
 fourth provides for a notice to be given to "each 
 railroad company of the amount of its assessment." 
 
 It is perfectly apparent that this Court under 
 stood the words "railroad property" and "property 
 
 186 
 
IN THE RAILROAD TAX CASES 
 
 of railroad companies" to mean one and the same 
 thing ; for it declares the act to have classified 
 railroad property, and says, " in the legislation of 
 Kentucky on the subject, railroad property is clas 
 sified by itself," though, as I have shown, the act 
 throughout speaks of the property of railroad 
 corporations, and never in terms of " railroad 
 property." 
 
 Now, I ask, would the Court have listened to 
 the argument that there was no classification 
 because the act did not speak of property, but 
 of particular owners of property ? Could it have 
 been successfully urged here that there was no 
 classification because private persons as well as 
 corporations might own a railroad ? Would the 
 Court have declared the classification void, though 
 it had been shown that after the passage of the 
 statute some private person had bought an insig 
 nificant portion of a Kentucky railroad? The 
 truth is that the words " railroad property " and 
 " property of railroad companies " are universally 
 understood to mean one and the same thing. 
 
 If these views are correct, they dispose of this 
 branch of the case, for if it is once admitted that 
 railroad property is classifiable, and that our Con 
 stitution has classified it, then any system of tax 
 ation applied to it, however discriminatory, does 
 not fall within the inhibition of the Fourteenth 
 Amendment, 
 
 There is another view of this subject of classifi- 
 
 187 
 
ARGUMENT 
 
 cation which, to my mind, is no less conclusive. 
 The same law which provides for the assessment 
 of mortgages may classify them according to their 
 distinctive characteristics, and may, according to the 
 wisdom of the legislators, exempt a certain class 
 altogether from taxation. This is what has been 
 done here. 
 
 The history of the Constitution of 1879 shows 
 that the provisions regarding the taxation of mort 
 gages arose from a public desire to subject the 
 lenders of money to the burdens of taxation. This 
 was accomplished by declaring that a mortgage 
 should be deemed and treated as an interest in the 
 property affected, and " assessed and taxed to the 
 owner thereof," and, in order to avoid double 
 taxation, that the residue only of the property 
 the value of the property less the value of the 
 security should be assessed to the mortgagor. 
 
 When the convention had reached this point, 
 it was reminded that there were mortgages made 
 by railroad and other quasi-public corporations 
 of the State to secure large amounts of bonds 
 owned in all parts of the world. The difficulty of 
 making the general provisions of the Constitution 
 applicable to the mortgages of these corporations 
 was at once apparent and insuperable. The mort 
 gages of the Central Pacific Company, for instance, 
 covered property in the State and outside of the 
 State. Those of the Southern Pacific Company, 
 besides the railways, depots, and grounds, covered 
 
 188 
 
IN THE RAILROAD TAX CASES 
 
 a large quantity of personal property, such as 
 " machinery, weighing-scales, and tools." It affected 
 a land-grant of eleven million acres, a grant partly 
 earned and partly unearned, partly patented and 
 partly unpatented, the title to a portion of which 
 only had vested in the company, the rest remaining 
 in the Government, a land-grant continually shift 
 ing in its proportions, increasing on one side by new 
 patents received from the Government, and decreas 
 ing on the other by sales made by the company. 
 
 When the convention came to face the problem 
 of apportioning the value of these mortgages 
 among the various counties of the State, how it 
 should be deducted from the various parcels of the 
 companies property, how much of it was to be 
 borne by the main trunk, how much by the branch 
 roads, how much by the depot grounds and yards, 
 how much by the outlying lands, how much by the 
 personal property, when it considered the fact 
 that the mortgages covered bonds that might issue 
 in the future, or might at any time be redeemed, 
 and that it was impossible for any assessor to ascer 
 tain how many bonds were actually outstanding, or 
 who or where were the owners of them, and the 
 further fact that the mortgages upon the Central 
 Pacific Railroad covered property partly in the State 
 and partly out of the State, and that it was extremely 
 difficult, if not impossible, to ascertain what relative 
 proportion of the security was in the State and 
 what out, when, I say, the framers of the Constitu- 
 
 189 
 
ARGUMENT 
 
 tion were brought face to face with these difficulties, 
 they readily perceived that the general scheme of 
 taxation could not apply to the mortgages of these 
 railroad companies. 
 
 In seeking a way out, in endeavoring to devise a 
 plan which would at once carry out the wishes of 
 the people as to taxing mortgages without producing 
 double taxation, and would still be applicable to 
 the immense property of these railroad corporations, 
 the convention had its attention called to the fact 
 a fact of public notoriety, spread upon the records 
 of every county in the State that the mortgages 
 given by these companies contained a covenant that 
 the mortgagors themselves should pay all taxes 
 imposed upon the property mortgaged, and dis 
 charge every lien or burden thereon that might have 
 priority of the mortgage. In this covenant was 
 found a ready solution of the difficulty. In the 
 light of its obligations, it was perfectly apparent 
 that the assessing of the mortgage separately to the 
 mortgagee and the residuary interest in the land 
 merely to the mortgagor would be an idle ceremony, 
 and would accomplish none of the objects which the 
 convention had in view. It would not have the 
 effect of imposing a tax upon the mortgagee, since 
 by virtue of the covenant he could always make the 
 mortgagor pay the tax. And as to the companies, 
 it could not, for the same reason, lighten their bur 
 den of taxation. Since they were under obligation 
 to pay the whole tax, as well that imposed upon 
 
 190 
 
IN THE RAILROAD TAX CASES 
 
 the interest represented by the mortgage as that 
 upon the residuary interest, it could be productive 
 of no conceivable benefit to them to have these two 
 interests assessed separately, and of no conceivable 
 injury to have them assessed in lump. The result, in 
 the end, upon the amount of taxes they should pay 
 would be the same. In both cases their burden of 
 taxation would be the same. The convention there 
 fore resolved that the mortgages of these companies 
 should not be assessed; that their property should 
 be assessed as a unit, while the property of other 
 persons was assessed in fractions part to the mort 
 gagor, part to the mortgagee. 
 
 Thus the Constitution classified mortgages for 
 purposes of taxation, subjecting one class to taxation 
 and exempting the other, subjecting to taxation 
 that class in which the mortgagee might be bound 
 to pay the tax, and exempting from taxation that in 
 which the mortgagee was, by the very terms of the 
 mortgage, placed beyond the reach of taxation. The 
 scope and object of its provisions will be at once 
 apparent if, according to ancient practice, we place 
 together in the shape of a preamble the law and the 
 reason of the law, thus: 
 
 " Whereas it is desirable that the lenders of money 
 upon mortgages should pay taxes upon the value of 
 their mortgages: therefore, be it enacted, that a mort 
 gage shall be deemed and treated, for purposes of 
 assessment, as an interest in the property affected 
 thereby, and the value thereof shall be assessed to 
 
 191 
 
ARGUMENT 
 
 the mortgagee, and the value of the residue only 
 shall be assessed to the owner of the property. But 
 whereas the mortgages of railroad and other quasi- 
 public corporations contain a covenant by which the 
 mortgagor is obligated to pay the tax upon the whole 
 property mortgaged; and whereas, in view of this 
 covenant, it would be idle to assess the mortgage 
 interest to the mortgagee, for that interest being an 
 interest in the property mortgaged, the mortgagor is 
 bound by the terms of the covenant to pay the taxes 
 thereon; and whereas, since the mortgagor is bound 
 to pay the taxes upon the whole property, nothing 
 would be accomplished in the end by assessing any 
 part of it to the mortgagee: therefore, be it enacted, 
 that in the case of mortgages of railroad and other 
 quasi-public corporations, the whole property shall 
 be assessed to the mortgagor, and the mortgagee 
 shall not be assessed at all." 
 
 Thus were railroad mortgages classified. For 
 these reasons they were withdrawn from the system 
 of taxation applicable to ordinary mortgages. It is 
 submitted that the reasons are proper and the classi 
 fication valid. 
 
 The answer given by the defendant to these views 
 is, that the covenant in the mortgage has not the 
 meaning which I ascribe to it. In other words, 
 it affirms that, under the Constitution and laws 
 of California, if a mortgage were assessed to the 
 mortgagee, the mortgagor would not be obligated to 
 pay the tax thereon, though the mortgage con 
 tained this covenant. 
 
 192 
 
IN THE RAILROAD TAX CASES 
 
 This is a question of the effect of the Constitu 
 tion and laws of California, and is expressly decided 
 against the contention of the defendant by the de 
 cision of the Supreme Court of that State, in Beck- 
 man vs. Skaggs.* That decision settles the law of 
 California precisely as I contend it to be. 
 
 Upon the ground of classification, then, whether 
 of railroad property or of mortgages, the system of 
 of taxation applied in California to railroads is, it is 
 submitted, entirely legitimate and constitutional. 
 
 The case of the plaintiff in error, so far as any 
 Federal question is concerned, might well rest 
 here. But it may not be amiss to say a few words 
 touching some further positions assumed by the 
 defendant. 
 
 The shield behind which it attacks the Consti 
 tution and laws of California is the Fourteenth 
 Amendment. It argues that that amendment 
 guarantees to every person within the jurisdiction 
 of the State the equal protection of the laws ; that 
 a corporation is a person ; that, therefore, it must 
 receive the same protection as that accorded to all 
 other persons in like circumstances. The special 
 argument advanced is, that if an individual owns 
 property, and a corporation owns precisely the same 
 kind of property, the law protects them both equally 
 in the use and enjoyment of that property ; and for 
 the protection it affords the corporation the Govern 
 ment can demand no greater or different return in 
 
 *59Cal. 
 193 
 
ARGUMENT 
 
 the shape of taxes than it demands from the indi 
 vidual. 
 
 That argument I beg leave to controvert. I 
 venture to affirm in broad terms that a State may 
 demand taxes from a corporation when, under the 
 same circumstances, it asks none from an individual. 
 To illustrate : The Constitution of California au 
 thorizes a tax on incomes. No one denies the 
 power to impose and collect such a tax. The rule 
 of equality contended for by the defendant would 
 compel the State, if it taxed the income of any 
 corporation, to tax as well the income of all indi 
 viduals similarly derived; for, if both the corpora 
 tion and the individual are entitled to the equal 
 protection of the law, the State cannot tax the cor 
 poration while exempting the individual as to things 
 which are essentially the same income from the 
 same source. 
 
 But the taxing system of many of the States 
 shows that the practice has been the other way. 
 Among these may be numbered Delaware, Mas 
 sachusetts, North Carolina, Pennsylvania, Rhode 
 Island, and Tennessee. * In all these States a tax 
 
 * In Delaware, it is provided, that all railroad and canal com 
 panies incorporated under the laws of the State," etc., shall pay 
 "a tax often per centum upon the net earnings or income received 
 . . . during the preceding year.* (Rev. Codes, 1874, p. 41.) 
 
 No provision is made for taxing incomes derived from railroads 
 or canals owned by private persons. 
 
 In Massachusetts, " the Tax Commissioner shall . . . ascer 
 tain and determine the net profits or gains of each corporation from 
 
 194 
 
IN THE RAILROAD TAX CASES 
 
 is imposed upon the income of corporations when, 
 under the same circumstances, none is imposed 
 upon that of individuals. 
 
 It may be contended here indeed, it was so 
 urged in the court below that in the matter of the 
 equal protection guaranteed to corporations by the 
 Fourteenth Amendment a distinction must be drawn 
 between property and income; that while no dis 
 criminating tax can be levied upon the property 
 of the corporation, it may be so levied upon its 
 income; that while you may discriminate between 
 the income of the corporation and that of the 
 individual, though it be derived from the same 
 property, yet the property itself must be taxed alike. 
 
 But I submit that if the State may legitimately 
 lay a tax upon the income of a corporation whilst it 
 lays none upon that of the individual derived from 
 the same property, so may it legitimately lay a tax 
 upon the property itself of the corporation whilst it 
 imposes none upon that of the individual. If the 
 rule of equality demands that the property be taxed 
 alike, it clearly cannot permit the income from the 
 property to be taxed differently. If the State may 
 
 which a report is required . . . and shall assess a tax of four per 
 cent, upon the amount thereof." (Pub. Stats. 1882, p. 140, 
 sec. 45.) 
 
 In North Carolina, express and telegraph companies pay two per 
 cent, on their gross earnings. (Battle s Revision, 1873, p. 783, 
 sec. 93.) 
 
 In Pennsylvania, each railroad, canal, and transportation com 
 pany "shall pay a tax of three fourths of one per cent, upon the 
 
 195 
 
ARGUMENT 
 
 make one kind of discrimination, it clearly can the 
 other. What a mockery would that law be which, 
 while pretending to discharge the duty of equal pro 
 tection to the farms of A and B, should lay a tax 
 of ten per cent, or fifty per cent, upon the income 
 which A derives from his farm and none upon that 
 which B derives from his! 
 
 To my mind, the fallacy, if I may be permitted 
 so to term it, of the argument lies in the assumption 
 that corporations are entitled to be governed by 
 the laws that are applicable to natural persons. 
 This, it is said, results from the fact that corpora 
 tions are persons, and that the last clause of the 
 Fourteenth Amendment refers to all persons with 
 out distinction. 
 
 The defendant has been at pains to show that 
 corporations are persons, and that being such they 
 are entitled to the protection of the Fourteenth 
 Amendment. There was scarcely need of the array 
 of learning and elaborate disquisition which has 
 
 gross receipts of said company." ( Brightly s Purdon s Dig., p. 
 1384, sec. 1 6 1.) 
 
 In Rhode Island, telegraph and telephone companies pay one 
 per cent, of their gross receipts, "which sum shall be in lieu of all 
 other taxes upon its lines and personal property." (Pub. Stats., 
 p. 84, sec. 10.) 
 
 In Tennessee, " each railroad company and every other incorpo 
 rated company except charitable and religious, doing business in 
 this State, shall pay into the treasury of the State six mills on the 
 dollar on the amount of the net earnings of such railroad company," 
 etc. (Stats. 1 87 1, sec. ^53, subd. 67.) 
 
 196 
 
IN THE RAILROAD TAX CASES 
 
 been displayed on this point. Of course, corpora 
 tions are persons, and, of course, they are protected 
 by the Fourteenth Amendment. No one, I presume, 
 has ever doubted it. The question is, Does that 
 amendment place corporations upon a footing of 
 equality with individuals? 
 
 Blackstone says : " Persons also are divided by the 
 law into either natural persons or artificial. Natural 
 persons are such as the God of nature formed us; 
 artificial are such as are created and devised by 
 human laws for the purposes of society and govern 
 ment, which are called corporations or bodies 
 politic."* This definition suggests at once what it 
 would seem unnecessary to dwell upon, that though 
 a corporation is a person, it is not the same kind of 
 person as a human being, and need not of necessity 
 nay, in the very nature of things, cannot enjoy 
 all the rights of such or be governed by the same 
 laws. When the law says, " Any person being of 
 sound mind and of the age of discretion may make 
 a will, or " any person having arrived at the age of 
 majority may marry/ I presume the most ardent 
 advocate of equality of protection would hardly 
 contend that corporations must enjoy the right of 
 testamentary disposition or of contracting matri 
 mony. 
 
 The equality between persons spoken of in the 
 Fourteenth Amendment obviously means equality 
 between persons of the same nature or class, and 
 
 * Book I., p. 123. 
 197 
 
ARGUMENT 
 
 not equality between persons whose very natures 
 are absolutely dissimilar, equality between human 
 beings, if the rights of natural persons are involved; 
 equality between corporations of the same class, if 
 the rights of artificial persons are involved. The 
 whole history of the Fourteenth Amendment 
 demonstrates beyond dispute that its whole scope 
 and object was to establish equality between men, 
 an attainable result, and not to establish equality 
 between natural and artificial beings an impossible 
 result. 
 
 The evolution of the Fourteenth Amendment 
 began with the first Civil Rights Bill, which provided 
 that 
 
 " All persons born in the United States . . . are 
 hereby declared to be citizens of the United States, 
 and such citizens of every race and color . . . shall 
 have the same right in every State and Territory in 
 the United States to make and enforce contracts, to 
 sue, be parties, and give evidence, to inherit, pur 
 chase, lease, sue, hold, and enjoy real and personal 
 property, and to the full and equal benefit of all laws 
 and proceedings for the security of person and prop 
 erty as is enjoyed by WHITE citizens." 
 
 That this law was intended to establish equality 
 between men in their individual capacity, and had 
 no reference to equality between men and corpora 
 tions, is too plain for argument. The law took the 
 rights of a white citizen as the standard of measure 
 ment, and simply commanded that the rights of all 
 
 198 
 
IN THE RAILROAD TAX CASES 
 
 other citizens, whatever their race or color, should 
 be equal to his. 
 
 After the adoption of the Fourteenth Amend 
 ment, Congress passed the second Civil Rights Bill, 
 which gave at once legislative interpretation and 
 enforcement to the amendment. It provides that 
 
 " All persons within the jurisdiction of the United 
 States shall have the same right in every State and 
 Territory in the United States to make and enforce 
 contracts, to sue, be parties, give evidence, and to 
 the full and equal benefit of all laws and proceedings 
 for the security of persons and property as is enjoyed 
 by white citizens, and shall be subject to like punish 
 ment, pains, penalties, taxes, licenses, and exactions 
 of every kind, and to none other." 
 
 That this again was intended to establish equality 
 between natural persons is, to my mind, equally 
 plain. The standard taken by the law is a white 
 citizen and his rights and obligations. To this 
 standard the law raises the rights, and by it meas 
 ures the obligations, of all persons within the State 
 or Territory. 
 
 Could Congress have by any possibility meant to 
 confer upon artificial persons the same rights in the 
 respects enumerated as were enjoyed by white citi 
 zens ? Could it, for instance, have meant that a 
 corporation should have the same right to "give 
 evidence " as a white citizen ? And as to contracts, 
 may not the State which creates corporations impose 
 certain limitations upon their right or power to make 
 
 199 
 
ARGUMENT 
 
 contracts ? Because the right of a white citizen to 
 make a contract extends to all things not forbidden 
 by law, must the right of a corporation be coexten 
 sive with it? Under this leveling statute was it 
 intended to abolish the right of a State to impose 
 terms and limits upon its own creatures ? 
 
 Again, as to burdens : The statute says that the 
 taxes, licenses, and exactions of every kind, and 
 none other, which are demanded from white citizens 
 shall be demanded from all persons within the State 
 or Territory. Here the burden to which a white 
 citizen is subjected is the standard of measurement. 
 To justify a tax, license, or exaction, it must first be 
 shown that it is demanded from white citizens. If 
 it is not, it cannot be demanded from any other 
 person within the State. Was this meant to apply 
 to corporations ? Was it intended that corporations 
 should be subjected to no tax, license, or exaction 
 that was not imposed upon white citizens, " any law 
 or statute ... to the contrary notwithstanding " ? 
 
 It is certain that this law has never been so under 
 stood or interpreted by any State. And if it is now 
 so to be interpreted, what, I ask, is to become of 
 the vast mass of legislation in all the States by 
 which taxes, licenses, and exactions are demanded 
 from corporations where none whatever is demanded 
 from white citizens ? To take a single illustration : 
 By a statute of Massachusetts every savings-bank 
 incorporated under the laws of the commonwealth 
 pays a tax of one and one half per cent, on its 
 
 200 
 
IN THE RAILROAD TAX CASES 
 
 deposits. No such tax is imposed upon any indi 
 vidual or white citizen. This Court has held that 
 this was a tax on the corporation the person. It 
 said : " The subject-matter to be taxed is the cor 
 poration, and the average amount of deposits within 
 the period named furnishes the basis of computing 
 the amount." If the corporation is, under this 
 law, to be subjected to such taxes as are imposed 
 upon white citizens, and none other^ how could this 
 tax in Massachusetts be upheld ? 
 
 That the Fourteenth Amendment was intended 
 to secure eqality between persons which, in the 
 nature of things, were equal, and not between one 
 class of persons and another class entirely dissimi 
 lar, seems so plain that the defendant itself is at 
 times compelled to admit it. As good a definition 
 as I could desire of the meaning of the words 
 " equal protection of the law," I find in the argu 
 ments formerly delivered here in the San Mateo 
 case by the learned gentlemen opposite. 
 
 Mr. Sanderson there says : " I believe that the 
 clause in relation to equal protection means the same 
 thing as the plain and simple yet sublime words 
 found in our Declaration of Independence, c all 
 men are created equal/ Not equal in physical or 
 mental power, not equal in fortune or social posi 
 tion, but equal before the law." Mr. Edmunds, 
 speaking on the same occasion of this amendment, 
 said that it was a " broad and catholic provision for 
 universal security, resting upon citizenship as it 
 
 201 
 
 N 
 
ARGUMENT 
 
 regarded political rights, and resting upon human 
 ity as it regarded private rights." 
 
 To these lofty sentiments I beg leave to give my 
 humble concurrence. To these, as correct state 
 ments of the broad meaning and generous scope of 
 the Fourteenth Amendment, I yield my fullest 
 assent. Standing in this presence, I would not 
 attempt to dwarf the proportions of that historic 
 provision by seeking to restrict its beneficent opera 
 tion to a particular class or race. No. The law is 
 as broad as humanity itself. Wherever man is found 
 within the confines of this Union, whatever his 
 race, religion, or color, be he Caucasian, African, or 
 Mongolian, be he Christian, infidel, or idolater, be 
 he white, black, or copper-colored, he may take 
 shelter under this great law as under a shield against 
 individual oppression in any form, individual injus 
 tice in any shape. It is a protection to all men 
 because they are men, members of the same great 
 family, children of the same omnipotent Creator. 
 In its comprehensive words I find written by the 
 hand of a nation of sixty millions in the firmament 
 of imperishable law the sentiment uttered more 
 than a hundred years ago by the philosopher of 
 Geneva, and re-echoed in this country by the authors 
 of the Declaration of the Thirteen Colonies, pro 
 claiming to the world the equality of man. And 
 realizing the dream of the poet, the philosopher, 
 and the philanthropist, it may be that this great 
 statute is destined to usher in the dawn of that era 
 
 202 
 
IN THE RAILROAD TAX CASES 
 
 when national antipathies and animosities shall be 
 appeased, national boundaries and barriers obliter 
 ated, and, under a system of universal justice, man 
 shall be allowed to claim from man, in all climes 
 and in all countries, equal protection, equal security, 
 and equal rights. 
 
 What, then, must a State of this Union do in 
 order to bear its share in carrying out the behests 
 of this great commandment, that all men shall be 
 equal shall receive the equal protection of the 
 Jaws ? The State must see to it that no man, no 
 class, no order of men are granted privileges, immu 
 nities, distinctions which are denied upon the same 
 terms to others ; that no rank or superiority is 
 accessible to one which is not upon equal conditions 
 within the reach of all ; that no badge of invidious 
 discrimination or humiliating inferiority is affixed to 
 any, the humblest member of the commonwealth. 
 The State must see to it that the avenues leading to 
 happiness are left equally open to all ; that what 
 ever pursuit is lawful for one is lawful equally for 
 all ; that whatever hopes, aspirations, ambitions are 
 licit for the most exalted shall be equally licit for 
 the most humble ; that into whatever paths leading 
 to profit, place, or honor one man may venture to 
 tread, all may upon an equal footing venture. To 
 attain and accomplish all these ends in all the States 
 is, I conceive, in some degree, the object of the 
 Fourteenth Amendment. Its mission was to raise 
 the humble, the down-trodden, and the oppressed 
 
 203 
 
ARGUMENT 
 
 to the level of the most exalted upon the broad 
 plane of humanity, to make man the equal of man; 
 but not to make the creature of the State the bodi 
 less, soulless, and mystic being called a corporation 
 the equal of the creature of God. 
 
 It is said on the other side that a corporation is 
 composed of human beings ; that these do not cease 
 to be such by becoming members of the corporation ; 
 that they still continue, therefore, to be entitled as 
 before to the equal protection of the laws. 
 
 I answer that by the very act of incorporation 
 these human beings receive rights, immunities, privi 
 leges which form a part of the sovereign attributes 
 of the State, and which are not enjoyed by any 
 man in his individual capacity. By the very act of 
 incorporation the equality between the corporate 
 body the group of corporate members, if you 
 please and isolated individuals is effectually de 
 stroyed. To enumerate no other, the State may 
 grant to the corporation the right of eminent 
 domain a right which is possessed by no individ 
 ual in the State. They the corporation, or, if you 
 please, the group of corporate members take these 
 discriminating privileges in their corporate capacity, 
 asserting, and properly, that the equality between 
 men is not thereby destroyed because the privileges 
 are granted to the corporation and not to the indi 
 vidual ; and yet, when it comes to discriminating 
 burdens imposed upon the corporation, or, if you 
 please, the group of corporate members, they 
 
 204 
 
IN THE RAILROAD TAX CASES 
 
 claim that the burdens are imposed upon the indi 
 viduals, and not upon the corporation. I cannot 
 conceive the reasoning by which a corporation is 
 treated as a unit for the purpose of absorbing privi 
 leges which the sovereign grants, but must be looked 
 upon as disintegrated into its component parts for the 
 purpose of bearing burdens which the sovereign 
 imposes. 
 
 Therefore, I venture to repeat that the Four 
 teenth Amendment does not command equality 
 between human beings and corporations ; that the 
 State need not subject corporations to the same laws 
 which govern natural persons ; that it may, without 
 infringing the rule of equality, confer upon corpora 
 tions rights, privileges, and immunities which are 
 not enjoyed by natural persons ; that it may, for 
 the same reason, impose burdens upon a corporation, 
 in the shape of taxation or otherwise, which are not 
 imposed upon natural persons ; that taxes, whatever 
 shape they assume, whether in terms levied upon 
 property, business, or income, are always, essen 
 tially, a charge upon persons, a contribution 
 required by the State from those who receive the 
 benefits of its government ; that property, business, 
 income are mere standards to measure the liability 
 of the person taxed;* that the rule of equality 
 
 * "The tax," says Burroughs, "is a contribution required of its 
 citizens by the State, and when it is measured as to its amount, by 
 the value or the productiveness of the property, it is still a tax on 
 the person, and there is a personal liability of the person assessed 
 
 205 
 
ARGUMENT 
 
 requires only that equality shall be observed among 
 taxables of the same class ; that therefore a tax 
 of two per cent, on the value of its property, the 
 quantity of its business, or the amount of its income 
 might well be imposed upon a corporation, whilst a 
 tax of only one per cent, is imposed upon the prop 
 erty, business, or income of a natural person, even 
 though the nature and character of the property, 
 business, or income were the same. 
 
 That equal protection does not require that cor 
 porations should be governed by the same laws 
 as natural persons, and that burdens may be imposed 
 upon the former when under precisely similar cir 
 cumstances none are imposed upon the latter, is 
 fully illustrated by the recent decision of this Court 
 in Missouri Pacific Railroad Company vs. Humes. 
 The action arose under a statute of Missouri which 
 provides that " every railroad corporation . . . shall 
 
 with the tax. The individual, and not his property, pays the 
 tax. The property is resorted to for the purpose of ascertaining 
 the amount of the tax with which the owner must be charged. 
 The tax is imposed upon the person of the owner on account 
 of his ownership of the property." (Burroughs on Taxation, 
 sec. 9.) 
 
 "Reference to the average amount of deposits is made," says 
 the Supreme Court of the United States in Providence Institution 
 vs. Massachusetts (6 Wall., 623), "not as a description of the 
 subject to be assessed, but as furnishing a basis of computing the 
 amount of the tax to be paid by the corporation. The subject 
 matter to be taxed is the corporation, and the average amount of 
 the deposits within the period named furnishes the basis of comput 
 ing the amount." 
 
 206 
 
IN THE RAILROAD TAX CASES 
 
 erect and maintain lawful fences on the sides of the 
 road, . . . and until fences . . . shall be made 
 and maintained, such corporation shall be liable in 
 double the amount of all damages " done by it to 
 animals on the road. The plaintiff s mule having 
 been killed on defendant s road by reason of the 
 corporation s neglect to build fences, a judgment in 
 double the amount of its value was rendered in the 
 court below. The defendant was a railroad corpora 
 tion. On error it was urged that this statute de 
 prived the defendant of the equal protection of the 
 laws. 
 
 I have no access to the arguments, but I presume 
 the contention was identical with that of the defend 
 ant in the case at bar, namely, that a corporation 
 was a person, and entitled to immunity from all 
 burdens which were not under similar circumstances 
 imposed upon natural persons ; that the statute im 
 posed a penalty upon corporations where for the 
 same identical trespass it imposed none upon an 
 individual ; that if an individual owned a railroad, 
 and through his neglect to build fences an animal 
 was killed, he was not subjected to double damages, 
 but under identically the same circumstances a 
 corporation was so subjected ; that this, therefore, 
 was an injurious discrimination against corporations. 
 But this Court, speaking through Mr. Justice Field, 
 said: 
 
 "The objection that the statute of Missouri vio 
 lates the clause of the Fourteenth Amendment, 
 
 207 
 
ARGUMENT 
 
 which prohibits a State to deny to any person within 
 its jurisdiction the equal protection of the laws, is 
 as untenable as that which we have considered. The 
 statute makes no discrimination against any railroad 
 company in its requirements. Each company is 
 subject to the same liability, and from each the same 
 security, by the erection of fences, gates, and cattle- 
 guards, is exacted, when its road passes through, 
 along, or adjoining inclosed or cultivated fields 
 or uninclosed lands. There is no evasion of the 
 rule of equality where all companies are subjected 
 to the same duties and liabilities under similar 
 circumstances. See, on this point, Barbier vs. 
 Connolly, 113 U. S. 27, and Soon Hing vs. Crowley, 
 Id. 703." 
 
 I have hitherto argued this cause upon the 
 assumption that the State has the right to subject 
 railroad property or the property of a railroad 
 corporation to a system of taxation which may be 
 more burdensome than that applicable to private 
 property. I have endeavored to show that such a 
 discrimination would be entirely justifiable. I shall 
 now strive to demonstrate that under the Consti 
 tution and laws of California applicable to the 
 condition of the defendant here there is no such 
 discrimination. 
 
 It is assumed in the judgment rendered here that 
 the revenue system of California does make such a 
 discrimination, and thereby works great injustice 
 upon railroad corporations, from the asserted fact 
 that under it they are made to bear a heavier load 
 
 208 
 
XTNI V 
 
 IN THE RAILROAD TAX CASES 
 
 of the public burdens than they would if assessed as 
 individuals are. It is affirmed by counsel for 
 defendant that to injure these corporations was the 
 mainspring of these provisions. It is said in the 
 opinion rendered here : 
 
 " The railroad companies in California are taxed 
 yearly to an amount exceeding six hundred thou 
 sand dollars. Their property is heavily incumbered 
 with mortgages amounting to much more than its 
 value. Why should they not be allowed by law, if 
 they pay this sum, to credit it on their mortgages, as 
 any natural person paying it would be allowed? Why 
 should this unjust discrimination be made against 
 them? Why should they, by law, be denied a credit 
 for this more than six hundred thousand dollars a 
 year ? Is there any justice in this denial? . . . Why, 
 then, should not this system be pursued? The State 
 would then collect all the taxes which it ought to 
 collect ; the tax being a lien upon the property could 
 be enforced by a sale of the property, just as though 
 it was levied on the property, and not upon the 
 mortgages. If the companies should then pay the 
 tax, they could by law claim credit for it on their 
 mortgages, and it would be deducted in the payment of 
 the interest or principal of the bonds. Then justice 
 would be done to the corporations, as it is done to 
 individuals." * 
 
 The whole point of this asserted discrimination 
 and injustice lies in the assumption that if railroads 
 were assessed as other property is the mortgagees 
 
 * Record, pp. 112, 113. 
 
 209 
 
ARGUMENT 
 
 would be bound to pay the tax on the mortgage 
 interest ; and if, to protect itself, the company paid it, 
 it would be entitled to recover it from the mort 
 gagees, or to a credit for it upon the mortgage debt. 
 The injustice charged against the Constitution of Cal 
 ifornia " hath this extent, no more." If, therefore, 
 it shall be shown that if the property of this corpo 
 ration were assessed as that of private individuals is 
 assessed the corporation would still be compelled to 
 pay the tax on the mortgage interest, if it shall be 
 made manifest that in this case, were the mortgage 
 interest assessed to the mortgagees, the corporation 
 and not the mortgagees would have to pay the tax on 
 that interest, if it shall be demonstrated that, were 
 the mortgage interest assessed to the mortgagees 
 and the corporation paid the tax thereon, it never 
 could recover the amount of that tax back from 
 the mortgagees, nor get credit for it on its debt, 
 then will these charges of wrong fall to the ground, 
 these phantoms of injustice vanish. That this dem 
 onstration can be made is, to my mind, plain. 
 
 Upon the face of the mortgage in this case is the 
 covenant to which I have already alluded. Under 
 that covenant, as I have shown, the mortgagor is 
 bound under the laws of California to pay the 
 taxes levied upon the mortgage interest. Under 
 those laws, if the mortgage interest was assessed to 
 the mortgagee, and he paid the tax, he would be 
 entitled to recover from the mortgagor the amount 
 so paid. And this, as I have shown, is authorita- 
 
 210 
 
IN THE RAILROAD TAX CASES 
 
 tively settled by the decision of the Supreme Court 
 of California.* 
 
 The Circuit Court, however, in the case at bar, 
 without referring to this decision, held that under 
 the laws of California the covenant in question 
 would not have the operation given it by the 
 Supreme Court of that State. But it is submitted 
 that the decision of the highest judicial tribunal of 
 a State upon a question of the meaning or operation 
 of its own Constitution and laws, where no rights 
 arising under the Constitution, treaties, or laws of 
 the United States are involved, is binding upon the 
 Federal Courts. 
 
 I have now done. I am conscious of having 
 occupied no inconsiderable portion of the time 
 allotted by the Court for the argument, not longer, 
 I hope, however, than the importance of the ques 
 tions at issue warrants. In saying this I am not 
 unmindful of the propensity of counsel to magnify 
 their causes. Self-complacency is ever ready to 
 whisper exaggerated notions of the magnitude of 
 our undertakings. Yet I cannot but think that the 
 controversy now debated before your Honors is one 
 of no ordinary importance. It is important to the 
 people of California, not only on account of the very 
 large amount at stake, but more, for that it involves 
 the validity of their laws and Constitution. It is 
 important to the many States whose revenue systems, 
 similar to that of California, are menaced by the 
 * Beckman vs. Skaggs, 59 Cal. 541. 
 
 211 
 
ARGUMENT 
 
 same attack. It is important to every State of this 
 Union whose sovereign attribute of taxation is here 
 challenged. 
 
 That your Honors may now take the questions 
 discussed from the region of controversy in which 
 they have been agitated for the last six years and 
 place them in the realm of fixed law, these cases 
 are now submitted for decision. 
 
 212 
 
POLITICAL 
 
THE following speech was delivered in the city of Santa Cruz 
 on the evening of Monday, November 5, 1900, the day before 
 the Presidential election. 
 
SPEECH AT SANTA CRUZ 
 
 MR. CHAIRMAN, LADIES AND GENTLEMEN: No 
 one familiar with current events can fail to perceive 
 that the public mind throughout the United States 
 is undergoing to-day an unwonted agitation. The 
 mere fact that we are in the midst of a Presidential 
 campaign is inadequate to account for this condition. 
 The people realize that questions of far greater 
 magnitude than those usually discussed in such con 
 tests are presented for solution. The issue is not, 
 as of old, what particular lines of policy upon mat 
 ters of finance, commerce, or internal government 
 shall be pursued. It is, rather, whether the repub 
 lic itself shall continue to exist, whether the funda 
 mental principles upon which the Government was 
 originally established and the cardinal rules of policy 
 by which it has been successfully built up for more 
 than a century are now to be abandoned, whether 
 instead of continuing to be hereafter, as we hitherto 
 have been, the lofty ideal of the self-governing 
 peoples of the world, we shall turn our back upon 
 the teachings and achievements of the past, and 
 acknowledging that the government of the people, 
 
 215 
 
SPEECH 
 
 by the people, for the people is a failure, become 
 henceforth proselytes of the doctrines and imitators 
 of the policies of the monarchies of Europe. 
 
 The question is. Shall our Government be a gov 
 ernment of justice or of injustice, of liberty or of 
 tyranny, of equality or of despotism, in one 
 word, shall it be a republican government or an 
 imperial oligarchy? 
 
 Nearly two and a half years ago, on the 25th 
 of May, 1898, or when the sound of Dewey s vic 
 torious cannon in Manila Bay had scarce yet died 
 upon our ears, in a thoughtful address to the 
 graduating class of Stanford University, President 
 Jordan said: 
 
 " We have followed the spirit of Washington s 
 address for a hundred years, until the movement of 
 history has brought us to the parting of the ways. 
 Federalism or imperialism which shall it be ? Let 
 ours be sober, fearless, prayerful choice. The federal 
 republic the imperial republic which shall it be?" 
 
 About two years afterward, on the ijth of last 
 April, George F. Hoar, of Massachusetts, speak 
 ing from his place in the Senate in opposition to the 
 imperialistic policy to which the Republican party 
 had committed itself, said: 
 
 " I believe, Mr. President, that perseverance in 
 this policy will be the abandonment of the prin 
 ciples upon which our Government is founded; 
 that it will change our republic into an empire; 
 that our methods of legislation, of diplomacy, of 
 
 216 
 
AT SANTA CRUZ 
 
 administration must hereafter be those which be 
 long to empires, and not those which belong to 
 republics. 
 
 "Whether the inestimable and imperishable prin 
 ciples of human liberty are to be trampled down by 
 the American republic, and whether its great bul 
 wark and fortress, the American Constitution, im 
 pregnable from without, is to be betrayed from 
 within, is our question now." 
 
 The importance of this issue is best stated in the 
 language which Senator Hoar used in the same 
 speech, when he said: 
 
 "I do not underrate the importance of this issue: 
 it is greater than parties, greater than administra 
 tions, greater than the happiness or prosperity of a 
 single generation." 
 
 Whether put, then, in the words of President 
 Jordan or of Senator Hoar, the question presented 
 to the American people to-day is ever the same. 
 It is, "whether we will change our republic into an 
 empire," whether " our methods of legislation, of 
 diplomacy, of administration must hereafter be those 
 which belong to empires, and not those which belong 
 to republics," and, in fine, " whether the inestimable 
 and imperishable principles of human liberty are to 
 be trampled down by the American republic, and 
 whether its great bulwark and fortress, the Ameri 
 can Constitution, impregnable from without, is to 
 be betrayed from within." 
 
 This, then, is the question. And, to quote once 
 217 
 
SPEECH 
 
 more from Senator Hoar, it "is our question now." 
 It is at our door. It will brook no delay. It 
 must be answered, and answered now. All history 
 teaches that the course of tyranny once begun is 
 ever onward. It never takes a step backward. If 
 it pauses, it is only when it reaches the precipice or 
 is overwhelmed in the abyss of revolution. Four 
 years from now the supporters and beneficiaries of 
 imperialism will be intrenched behind such bul 
 warks of wealth, patronage, and power, and defended 
 by such retainers, as to laugh to scorn all consti 
 tutional efforts to dislodge or even disturb them. 
 They will be permanently enthroned. The out 
 ward form of a republic may still for a while be 
 maintained ; but the spirit of the Constitution will 
 be dead, and the sublime truth of the Declaration 
 of Independence, that all men are created equal, 
 will have become the butt of jesters, and the laughing 
 stock of buffoons. 
 
 Since, then, all wisdom and experience teach that 
 our choice must be made, and made now, let us, 
 like brave men, look our reponsibility calmly in the 
 face. In the language of President Jordan, " let 
 ours be sober, fearless, prayerful choice." Called 
 upon to abandon the old for the new, invited to 
 discard tried and approved principles and policies 
 of government for novel and untried experiments, 
 let us calculate the prospect of bettering our condi 
 tion by the change. To that end, let us first exam 
 ine how we have fared under the ancient system. 
 
 218 
 
AT SANTA CRUZ 
 
 Not so very many years ago, if time be meas 
 ured by national existence, the Fathers established 
 a government upon principles as yet untried in 
 political science principles whose operation was 
 looked upon with secret anxiety by friends and 
 open derision by enemies. One hundred and eleven 
 years have elapsed; and now the result of the 
 experiment is open to the contemplation of the 
 world. The republic, built upon those principles 
 and reared aloft in accordance with the maxims of 
 the policy to which they gave rise, still stands, 
 stands, silencing by its achievements the doubts of 
 the incredulous and exceeding the hopes of the 
 well-wishers, stands, eclipsing the most renowned 
 governments of ancient and of modern times, 
 stands in its unity, its grandeur, and its might, 
 crowned with the double diadem of liberty and 
 equality. 
 
 The world beholds what has been done in little 
 more than a century of national life. The territory 
 of the original thirteen States, stretched at first like 
 a slender rim along the Atlantic seaboard, having by 
 gradual and legitimate expansion reached the nat 
 ural limitations of the Gulf and the Rio Grande on 
 the south and the waters of the Pacific on the west, 
 comprises now within its confines a continuous and 
 unbroken area within the temperate zone, with 
 which the vast empire of Rome in the zenith of its 
 splendor is not to be compared. The population, 
 in little more than a century, has been multiplied 
 
 219 
 
SPEECH 
 
 over twenty-fold, until now its inhabitants surpass 
 the amazing figure of seventy-five millions. Civili 
 zation and the arts of peace have gone hand in 
 hand with increasing numbers and territorial expan 
 sion. In agriculture the nation stands easily in the 
 lead. Commerce, starting at first from slender 
 beginnings, but acquiring power with each revolving 
 year, distances to-day that of hitherto unrivaled 
 England herself. Manufactures, drawing their 
 materials from the cotton-fields of the South, the 
 deposits of coal, iron, and copper of the Middle 
 West and the Northwest, and the gold and silver 
 mines of the Pacific Slope, take the first place in the 
 world s contest for supremacy, supplying the globe 
 with the products of their looms, their furnaces, and 
 their mills, furnishing with equal facility and profu 
 sion textile fabrics to the inhabitants of the Orient, 
 ships of war to the Mikado, rails and locomotives 
 to the ironways of the Great White Czar. Educa 
 tion keeps pace with the march of territorial, agri 
 cultural, commercial, and manufacturing progress. 
 In every hamlet a schoolhouse, in every town a 
 college, and in the more favored centers of popula 
 tion those wonderful institutions of higher learning 
 which, though of recent growth, challenge compari 
 son with the famed universities of the Old World 
 with Bonn and Gottingen and Heidelberg, with 
 Cambridge* and with Oxford and place at the head 
 of the most advanced educational movement Yale 
 and Harvard, Cornell, Princeton, and Hopkins, 
 
 220 
 
AT SANTA CRUZ 
 
 aye, and the giant twin brothers of the West, our 
 own Berkeley and Palo Alto. But beyond and 
 above all, this nation of seventy-five millions of 
 people, after passing through the varied vicissitudes, 
 political strifes, and armed conflicts of the first 
 century of its existence, is still united, homoge 
 neous and free, speaking the same language, worship 
 ing the same God, pursuing the same ideals of 
 private and public excellence, governed in its 
 national concerns by a uniform legislation, enjoying 
 the blessings of a liberal Constitution, and dispens 
 ing justice under wise and impartial laws, so 
 strong, so resourceful withal, as to daunt the 
 thought of attack from without, and be secure 
 against all dangers from within all, save the perils 
 of degeneracy the decay which comes from the 
 abandonment of lofty ideals, from the pursuit of 
 groveling and low desires, from the desertion of 
 the shrine of Liberty to worship in the temple of 
 Mammon. 
 
 Why have I thus gone over the glorious achieve 
 ments of the past? Simply to lead to the question, 
 To what are these achievements due? and to 
 answer, To the principles upon which our Govern 
 ment was founded and to the rules of policy 
 according to which its edifice has been reared. 
 Before we yield, then, to the invitation to change, 
 let us make sure that we fully appreciate what we 
 are called upon to abandon, and know what were 
 those principles and what those rules of policy. 
 
 221 
 
SPEECH 
 
 The one basic principle upon which the Fathers 
 established our Government is found in the simple 
 but sublime utterance of the Declaration of In 
 dependence that " all men are created equal." 
 From this flow, as corollaries, these other princi 
 ples, that all men are created free; that the con 
 sent of the governed is the only lawful source of 
 the powers of government; that the State recognizes 
 equal rights in all and special privileges in none. 
 
 The essential and all-pervading idea of the policy 
 inculcated by the Fathers is found in that sentence 
 of Washington s Farewell Address in which he 
 inculcated upon the mind of the people that our 
 true prosperity must ever be built upon a basis of 
 exalted justice. Allied to this one idea are the 
 other truths of that immortal legacy, that the 
 maxim that honesty is the best policy is no less 
 applicable to public than to private affairs; that 
 the public faith must be sacredly preserved and 
 public engagements faithfully carried out; that our 
 commerce should be diffused and diversified by 
 gentle means, but never by force; that the Consti 
 tution should be sacredly maintained; that we 
 should avoid standing armies, as force is the vital 
 principle and immediate parent of despotism. 
 
 These are the fundamental principles of govern 
 ment, these the essential rules of internal and 
 external policy, which, since the days of Washington 
 and Jefferson, have been the pole-star under whose 
 guidance our prosperity and happiness at home have 
 
 222 
 
AT SANTA CRUZ 
 
 been secured, our commerce diversified and ex 
 tended, and our relations abroad safely and honor 
 ably maintained. These are the tenets common 
 alike to the Republican and the Democratic faith 
 tenets so unquestioningly assented to heretofore by 
 all as to have become interwoven with the very 
 fabric of our national existence, and to constitute 
 the truisms of our political science. By fidelity to 
 their teachings we have achieved the results which 
 the world beholds with amazement, and occupy 
 to-day the position of the most enlightened, the 
 wealthiest, and the mightiest nation of the globe. 
 Before we abandon them, before we abjure our 
 ancient creed to kneel at the altar of new divinities, 
 it behooves us to inquire what we are to receive in 
 exchange. 
 
 What is offered as a substitute? Imperialism. 
 What is imperialism ? The term is new in our 
 political discussions. It has a strange sound to 
 American ears. I venture to give you the idea 
 which it conveys to me. By imperialism I under 
 stand, broadly, a government so constituted and 
 administered that the people are governed for the 
 benefit of a privileged class ; a government in which 
 a few individuals, having possession and control of 
 the government machinery, work it for their own 
 exclusive advantage; a government in which the 
 mass of the people are made to bear the burdens of 
 the state, and a select aristocracy of rank or plu 
 tocracy of wealth reap the benefits, honors, and 
 
 223 
 
SPEECH 
 
 advantages. It matters not what external form 
 this government may assume. I care not whether 
 it presents itself in the garb of a polite and refined 
 monarchy, as it did in France during the epoch 
 which preceded the great Revolution, in the days 
 when the nobility, while owning all the land, filling 
 all the offices, and endowed with all the honors of 
 the realm, enjoyed immunity from taxation, and 
 threw all the burdens of government upon a 
 wretched, famished, and despairing peasantry. I care 
 not whether it assumes the brutal mien of an undis 
 guised, avowed, and forthright despotism, as it did 
 under the dominion of the Romanoffs, when the 
 ukase of the Czar was the sole law of Russia. I 
 care not whether, while abridging the rights of the 
 people at home and extending the privileges of a 
 favored class by accessions abroad, it observes the 
 external ceremonials of a republic and masquerades 
 with decorous mien in the robes of liberty. Of 
 these non-essentials I take no note. If the govern 
 ment is so devised and operated as to work the 
 oppression of the people for the benefit of a class, 
 it is imperialism, disguise it as you may. 
 
 And now I ask, Does the Government, as ad 
 ministered by the Republican party, judged by its 
 actions in the past and its declared purposes for the 
 future, fairly fall within this definition of imperialism? 
 
 Neither my strength nor your patience would 
 permit my dwelling upon all the indicia by which 
 this gangrene of imperialism is manifested in the 
 
 224 
 
AT SANTA CRUZ 
 
 Republican party to-day. I must of necessity 
 confine myself for the present to one only of the 
 most palpable, decisive, and fatal. I allude, of 
 course, to the attitude which that party has assumed, 
 and which it declares it is its purpose to continue 
 to assume, toward the territory affected by our late 
 treaty with Spain. 
 
 Let us at the outset settle one question: Does 
 the Republican party intend to retain the Philip 
 pines as a colony outside the pale of the Constitu 
 tion, without the rights of a Territory or the hope 
 of future statehood, to be governed at will by the 
 President or the Congress ? 
 
 Upon this there is no room for doubt. In his 
 last annual message, discussing this question, Presi 
 dent McKinley said: 
 
 " The islands lie under the shelter of our flag. 
 They are ours by every title of law and equity." 
 
 The attitude of the Republican party toward 
 these islands is very frankly avowed, and boldly set 
 forth in an article published in the September num 
 ber of the North American Review, in which it is 
 said : 
 
 " The statesmanship of our land might well de 
 velop its ripest fruits in the solution of our colonial 
 problems. We must remember the temptations 
 which may from time to time lure American states 
 men, in search of votes in the United States Senate, 
 to advocating the creation of alien states. A per 
 petual constitutional barrier must be erected against 
 
 225 
 
SPEECH 
 
 the statehood of all non-contiguous possessions. We 
 must constitute an American colonial system/ 
 
 It may, then, be considered thoroughly settled 
 indeed, no one denies it to-day that it is the pur 
 pose of the Republican party to retain the Philip 
 pine Islands subject to the perpetual dominion of 
 the United States, to be governed as a colony at 
 the will of the President or the Congress. 
 
 The same, of course, is confessedly true of Porto 
 Rico, since, by imposing a tariff upon both its 
 exports and imports, a Republican Congress and a 
 Republican President deal with it as a subject pos 
 session outside the Constitution, and entitled to 
 no rights of a Territory of the United States. 
 
 And, now, let me address a question to the 
 Republican party: What are your intentions 
 toward Cuba? You have pledged the honor of 
 the American people to give that much-vexed 
 island its independence. Do you intend to redeem 
 that pledge? I never have believed that you did, 
 and do not now. I believe that when you declared 
 war against Spain your pretense of outraged 
 humanity and sympathy for a people striving for 
 independence was mere cant. I believe you cared 
 as little then for the sufferings of the reconcentrados 
 under Weyler as you do to-day for the fate of the 
 starving millions of India. I believe that you 
 looked with as much contemptuous derision upon 
 the warfare of Garcia s bands of insurgents to 
 achieve their independence as you have since 
 
 226 
 
AT SANTA CRUZ 
 
 beheld with indifference the pathetic struggle of 
 the heroic soldiers of Joubert and Oom Paul to 
 retain theirs. I believe that throughout this bad 
 business you have had from the start two objects in 
 view, the first to gain political capital by declaring 
 and carrying on the war, and the second to obtain 
 and keep possession of Cuba. I believe that all 
 your past efforts and present maneuverings are 
 directed to execute there a scheme of annexation 
 similiar to that by which Texas was lost to Mexico 
 and the Hawaiian Islands have been filched from 
 the descendants of the Kamehamehas. I believe 
 that, under one plea or another, of military ne 
 cessity, or of alleged incapacity for self-government, 
 or of pretexted incompetency to enjoy the blessings 
 of independence, you will, if permitted, prolong 
 your stay until that object is accomplished. This 
 has been my belief from the beginning. It is my 
 belief now. That belief is based upon my estimate 
 of the present Administration, and of the character, 
 interests, and purposes of the men who shape its 
 ends. Do I wrong them? 
 
 In the Senate of the United States, as late as the 
 23d of May of this year, Senator Hale, of Maine, 
 a Republican of undisputed prominence and long 
 service, answering Senator Spooner, of Wisconsin, 
 one of the acknowledged supporters of President 
 McKinley, said : 
 
 " Now, let me say to the Senator I think there are 
 very powerful influences in this country; I think they 
 
 227 
 
SPEECH 
 
 are largely located in New York City; I think they 
 are largely speculative and connected with money- 
 making enterprises, that are determined that we shall 
 never give up Cuba. I think there is a dangerous 
 cloud in the sky; I think the time will never come, 
 unless something earnest and drastic is done by Con 
 gress, when the last soldier of the United States will 
 be withdrawn from Cuban soil. 
 
 " I discover very powerful influences commer 
 cial, mercantile, money influences, and political influ 
 ences that are opposed to our ever withdrawing 
 from Cuba." 
 
 In a speech lately delivered in Chicago, the junior 
 Senator from Indiana, Albert A. Beveridge, made 
 the following significant declaration : 
 
 "I am speaking for myself alone; but speaking 
 thus, I say that separate government over Cuba, 
 uncontrolled by the American republic, never should 
 have been promised. The resolution, hastily passed 
 by all parties in Congress, at an excited hour, was 
 an error. I speak for myself alone; but speaking 
 thus, I say that it will be an evil day for Cuba when 
 the Stars and Stripes come down from Moro Castle." 
 
 It may, therefore, be set down for a certainty that, 
 as it is the avowed intention of the Republican 
 party to keep the Philippines forever, so it is their 
 but half-disguised purpose to impose the same fate 
 upon Cuba. 
 
 And now the question may fairly be asked : What 
 is there in all this that indicates an abandonment of 
 
 228 
 
AT SANTA CRUZ 
 
 the principles and policy of the Fathers ? What 
 evidence of imperialism is involved in the retention 
 of these former Spanish possessions as colonies of 
 the United States ? How would that be an act 
 of government for the benefit of a class to the detri 
 ment of the people ? To that question I shall 
 endeavor to give a categorical, though the limita 
 tions of the hour do not allow a complete, answer. 
 
 Before doing so, however, it may be well to dis 
 pose of one argument by which a certain class of 
 Republican orators fancy they silence all further 
 discussion. They appeal to the deep-seated rever 
 ence for the flag. They argue and, of course, 
 truly that to maintain the honor of our national 
 emblem is a matter which concerns the whole peo 
 ple. They then declare with clamorous fervor that 
 wherever that flag has been raised by the valor and 
 blood of our sons, there it must remain forever. 
 The latest utterance upon this subject was that of 
 an orator in San Francisco, who, some nights ago, 
 said : 
 
 " McKinley enlarged this nation and maintained 
 its flag in distant lands, where fate and valor planted 
 it, and boldly and confidently asks, Who will haul 
 it down ? 
 
 This sounds well. And yet it takes no great 
 reflection to realize that it is a mere trick of speech 
 a transparent jugglery of words. If it is meant 
 that wherever the victorious arms of American 
 soldiers have planted their country s flag, there they 
 
 229 
 
SPEECH 
 
 will defend it against hostile assault, and that every 
 citizen is concerned in having it so defended, the 
 sentiment is legitimate and proper. But, in that 
 sense, the sentiment itself finds no room for appli 
 cation. What these perfervid orators mean to be 
 understood to say is, that wherever, in time of war, 
 the flag has been unfurled, it involves national dis 
 honor for the people, in time of peace, voluntarily 
 to haul it down. In this sense the sentiment is 
 obviously false and childish. It finds a most fitting 
 rebuke in the speech of the venerable Senator from 
 Massachusetts already quoted from, where he says : 
 
 " Is there any man so bold as to utter in serious 
 ness the assertion that where the American flag has 
 once been raised it shall never be hauled down ? I 
 have heard it said that to haul down or to propose 
 to haul down this national emblem where it has once 
 floated is poltroonery. If every territory over which 
 the flag of a country has once floated must be held, 
 and never shall be yielded again to the nation to 
 w r hich it belonged, every war between great and 
 powerful nations must be a war of extermination or 
 a war of dishonor alike to the victor and to the van 
 quished. This talk that the American flag is never 
 to be removed where it has once floated is the silliest 
 and wildest rhetorical flourish ever uttered in the 
 ears of an excited populace. No baby ever said 
 anything to another baby more foolish." 
 
 The sentiment is proven false by our history. 
 Two years and a half ago, being in the capital of 
 our sister republic across the Rio Grande, I stood 
 
 230 
 
AT SANTA CRUZ 
 
 on a spot where, on my right hand, the gray walls 
 and red roof of Molino del Rey, still bearing the 
 dents made by the shells of Worth s battery, were 
 outlined against the glowing sky of the tropical 
 sunset, while on my left, from amid a grove of trees 
 whose hoary heads had looked down upon the sol 
 diers of Cortez and witnessed the heathen rites of 
 Aztec priests in the days of Montezuma, rose the 
 rocky and precipitous heights of Chapultepec. 
 Memory brought me back to that September 
 morning, fifty years before, when, at the head of a 
 storming party, the intrepid Howard had scaled the 
 parapet and had planted the victorious standard of 
 his country upon the walls of the ancient Spanish 
 vice-regal castle. But that flag was there no more. 
 In its place, streaming in the deepening twilight, 
 was the emblem of another republic a republic 
 which, though conquered by us, had yet learned to 
 copy our Constitution, to pattern its government 
 upon ours, and to respect and venerate our institu 
 tions. Did our national honor suffer any impair 
 ment, or were the achievements of our troops 
 tarnished, because, in accordance with the treaty of 
 Guadalupe Hidalgo, we had afterward hauled down 
 our flag and given back to Mexico the territory 
 which Scott s gallant soldiers had conquered and 
 occupied ? Did it involve dishonor voluntarily to 
 surrender in peace what in war we had won and 
 defended against every attack ? 
 
 Let us take a more modern illustration. In the 
 231 
 
SPEECH 
 
 late war with Spain, was not our flag raised upon 
 other soil and raised by the valor of our soldiers ? 
 The world beheld with wonder and admiration the 
 deeds of that unmatchable band of warriors each 
 man hero, each in himself at once soldier and com 
 mander who, under the scorching rays of a torrid 
 sun, through the growth of a tropical jungle, and 
 amid the hail of Spanish musketry, climbed the 
 sides, and planted their banner upon the heights, of 
 El Caney. If ever flag was raised by the blood 
 and valor of our sons, that surely was. If ever dis 
 honor comes to that flag, it will come on that day 
 when, in violation of the plighted faith of the 
 American people, we shall refuse to haul it down. 
 
 There are other high-sounding platitudes which 
 form the common verbiage of a certain class of 
 Republicans. Among these may be numbered the 
 talk about the finger of Providence, and about our 
 manifest destiny, and about the sacred trust confided 
 to us, and about our duty to humanity, and about 
 the spreading of the Gospel, and the like. I will 
 pass by this sort of talk in silence. It does not 
 call for serious consideration. 
 
 Brushing aside all these flourishes of a meretri 
 cious rhetoric, let us approach the question at issue: 
 Is the retention of the Philippines an imperialistic 
 measure ? Does it involve an abandonment of the 
 fundamental principles upon which our Govern 
 ment is founded, and the subversion of the essen 
 tial ideas of policy according to which it has been 
 
 232 
 
AT SANTA CRUZ 
 
 reared aloft ? Does it entail the surrender of the 
 great truth that all men are created equal, and the 
 violation of the principle that our true prosperity 
 must ever be built upon a basis of exalted justice ? 
 
 The first sacrifice involved in the retention of the 
 Philippines will be our national honor. That reten 
 tion will constitute the first instance of the violation 
 of the plighted faith of this republic. It will be 
 the first blot upon our escutcheon. 
 
 Let me recall the circumstances under which we 
 acquired possession of those islands lest we forget. 
 Nearly two and a half years ago, we declared war 
 against Spain. The once glorious empire of Charles 
 V. had in time become so decayed that nothing but 
 the loftiest and purest motives could have warranted 
 a generous nation in challenging to combat so weak 
 an adversary. We proclaimed to the world, there 
 fore, that we were actuated by no other motive than 
 disinterested humanity and unselfish sympathy for 
 a neighboring people struggling for independence ; 
 that nothing was further from our thought than the 
 forcible acquisition of the territory of our foe ; and 
 that we would look upon such acquisition as crimi 
 nal. Our utterances were explicit. The Congress 
 declared that " the people of the island of Cuba 
 are, and of right ought to be, free and independent"; 
 it spurned all imputation of a " disposition or inten 
 tion to exercise sovereignty, jurisdiction, or control 
 over said island, except for the pacification thereof"; 
 and asserted " its determination, when that was 
 
 233 
 
SPEECH 
 
 accomplished, to leave the government of the island 
 to its people/ At the same time, our Chief Magis 
 trate, in words now memorable, announced that the 
 forcible annexation of Spanish territory would, in 
 our code of morality, be a criminal aggression not 
 to be thought of. 
 
 " These," says President Jordan, " were noble 
 words, and a noble nation must live up to them. 
 The plea that they were intended for Cuba only, 
 and do not pledge us to a like action elsewhere, is 
 too cowardly to permit of discussion/ 
 
 If, then, after these explicit and solemn decla 
 rations, we forcibly or fraudulently retain these 
 Spanish possessions, or either of them, we stand, 
 by the judgment of our own Chief Magistrate, 
 convicted of perfidy. 
 
 Is this the conduct that befits our republic? If 
 it is, then was Washington wrong when he said in 
 his Farewell Address that the maxim that honesty 
 is the best policy is no less applicable to public 
 than to private affairs ; then was the solemn warn 
 ing of his first inaugural, " that the propitious 
 smiles of heaven can never be expected on a nation 
 that disregards the eternal rules of order and right 
 which Heaven itself has ordained," an empty sound. 
 No, let this policy seek its justification among the 
 tortuous maxims of kingcraft inculcated by a Ma- 
 chiavelli or a Talleyrand, it can find none in those 
 of a republic. 
 
 The next price that we must pay for the reten- 
 
 234 
 
AT SANTA CRUZ 
 
 tion of the Philippines will be the sacrifice of the 
 principles of our Government. 
 
 That the Constitution bars our way to the acqui 
 sition of colonial possessions and to the government 
 of human beings as subjects, is a proposition so 
 clearly established by the provisions of that instru 
 ment and the history of the conditions under which 
 it saw the light as to admit of no debate. The 
 framers of the Constitution had themselves been 
 subjects of Great Britain. They had tasted of the 
 bitterness of colonial government. For years they 
 had suffered from the tyranny which treated them 
 as mere chattels, governed not with a view to their 
 own welfare, but for the aggrandizement of the 
 mother country. In eloquent and passionate ap 
 peals they had repeatedly set forth their grievances 
 and remonstrated against this oppression. Denied 
 redress, they had at length resolved upon the 
 dangerous and doubtful experiment of war. They 
 had just emerged from the struggle which emanci 
 pated them from their colonial position and gave 
 them independence, when they sat down to devise a 
 scheme of government best suited to their con 
 dition. That in establishing the fundamental prin 
 ciples of that government it was their purpose to 
 provide that their country should itself become the 
 owner of colonies, and should impose upon others 
 that tyranny to be relieved from which they had 
 themselves paid such fearful cost of treasure, of 
 suffering, and of blood, nobody has yet had the 
 
 235 
 
SPEECH 
 
 boldness to assert. They contemplated, no doubt, 
 that the country would in the course of time ex 
 pand. They knew that its territorial extent would 
 increase and its population be multiplied. But the 
 only permanent territorial additions they had in 
 view were to come through the admission of 
 States, not colonies; the only increase of popula 
 tion in the shape of citizens, not subjects. 
 
 This whole matter was long ago disposed of by 
 the Supreme Court of the United States, when it 
 said : 
 
 "There is certainly no power given by the Constitu 
 tion of the Federal Government to establish or main 
 tain colonies bordering on the United States or at a 
 distance, to be ruled or governed at its own pleasure; 
 nor to enlarge its territorial limits in any way, except 
 by the admission of new States. No power is given 
 to acquire a territory to be held and governed per 
 manently in that character. It is acquired to become 
 a State, and not to be held as a colony and governed 
 by Congress with absolute authority. A power, 
 therefore, in the General Government to obtain and 
 hold colonies and dependent territories over which 
 they might legislate without restriction, would be 
 inconsistent with its own existence in its present 
 form." 
 
 The price to be paid, therefore, for the acquisition 
 of the colonies is the Constitution itself. That 
 price the imperialists are willing to pay. As the 
 Constitution stands in their way, they are ready to 
 
 236 
 
AT SANTA CRUZ 
 
 get rid of the Constitution. This disposition is 
 best manifested in the language of one of them, 
 who, some time ago, said: 
 
 " The Constitution or national policy adopted by 
 thirteen half-consolidated, weak, rescued colonies, 
 glad to be able to call their lives their own, cannot 
 be expected to hamper the greatest nation in the 
 world." 
 
 The Declaration of Independence itself which 
 has been very aptly called the spirit, while the Con 
 stitution is the letter, of our Government has 
 been characterized in this same quarter as " but a 
 bit of sublimated demagogism." We may next 
 expect to hear these gentry declare that the Ten 
 Commandments are but a piece of hypocritical cant. 
 
 The next price that we must pay for the retention 
 of the Philippines will be the danger and the cost 
 of militarism. 
 
 It is obvious that the retention of these islands 
 will involve the necessity of maintaining a vast 
 army and navy. To police them we must do what 
 England has always been compelled to do in India 
 keep there a large body of troops. To defend 
 them against aggressions, which the jealousy or 
 wars of foreign nations may at any time force 
 upon us, we must have at our command an adequate 
 fleet. Being resolved to use the phrase of the 
 day to become a world power and to adopt the 
 gait of other powers, our pride will prompt us, and 
 the exigencies of our position may compel us, to 
 
 237 
 
SPEECH 
 
 take the lead. We have already made a very 
 significant step in that direction. After the war 
 with Spain had been brought to an end, Congress, 
 in conformity with the request contained in the 
 President s message of December, 1898, authorized 
 the increase of our army from twenty-five thousand 
 to one hundred thousand men. We will never 
 rest until we have an army and navy larger and 
 more powerful than those of any other nation of 
 the globe. 
 
 But the expense of keeping up this armament is 
 appalling. Do you know what the cost of Con 
 tinental armies is? It is, in round numbers, one 
 fourth of the whole revenue of the nations of the 
 Old World. How is it with us? We have only 
 begun. Our army and navy are yet comparatively 
 small. But we have already shown what we can 
 do for the present, and given some idea of what we 
 may accomplish in the future. For the fiscal years 
 1897 and 1898 before the war with Spain our 
 average yearly appropriation was, in round num 
 bers, four hundred and seventy-five million dollars. 
 For the three years following 1899, 1900, 1901 
 our average yearly appropriation, actual and esti 
 mated, has been and is, in round numbers, seven 
 hundred and seventy-five million dollars. The 
 excess for each year since the war is, in round num 
 bers, three hundred million dollars. The luxury of 
 our army and navy, then, has already cost us, in 
 round numbers, the enormous sum of six hundred 
 
 238 
 
AT SANTA CRUZ 
 
 million dollars. There is every prospect that, as 
 time rolls on and our armaments increase, these 
 figures, instead of becoming smaller, will become 
 larger. 
 
 Take the expenditures for the army alone, with 
 out regard to the navy. From dispatches dated at 
 Washington the 8th of last month, and published 
 in the San Francisco papers on the following day, it 
 is made manifest that, although the Administration 
 is strenuous in its insistence that the war in the 
 Philippines is over and that peace has been restored, 
 there is no intention of diminishing our present 
 standing army. On the contrary, the Administration 
 is determined to maintain that army permanently, 
 upon its present footing at least. These dispatches 
 say: 
 
 " Secretary Root has planned to ask Congress to 
 increase the army by seventy-five thousand men, so 
 as to place the regular establishment on an enlisted 
 footing of one hundred thousand men permanently. 
 Secretary Root, it is said, deems the larger army 
 necessary to a maintenance of American rule in the 
 new possessions. Moreover, if the United States is 
 to mix in foreign affairs, a larger army is an absolute 
 necessity." 
 
 What is the estimated cost of the army? In the 
 same dispatches it is said: 
 
 " Chiefs of bureaus of the War Department are 
 estimating for expenses on the basis of an army of 
 one hundred thousand men." 
 
 239 
 
SPEECH 
 
 After giving in detail the cost ot the various 
 departments of this army, the dispatches conclude: 
 
 * The War Department estimates figure up nearly 
 two hundred million dollars." 
 
 These estimates do not, of course, include the 
 expenses of the navy. They are a verification of 
 a prediction made by Senator Hoar in his speech 
 already quoted from, when he said: 
 
 " Assuming that the War Department has asked 
 for a sum sufficient to assume the occupation of the 
 islands and a proper establishment for police pur 
 poses, it will be seen that there are other larger and 
 uncertain items of cost uprovided for, and the annual 
 appropriation will in future be nearer two hundred 
 million dollars in excess of those of 1898 than 
 $155,712,751, an annual increased expenditure of 
 two hundred million dollars." 
 
 The next price that we must pay for the reten 
 tion of the Philippines will be the race problem 
 presented by the introduction into our body politic 
 often or twelve millions of men, strangers in blood, 
 color, language, moral habits, and modes of life 
 fierce and warlike men who, as long as they exist, 
 will look upon us with the aversion, the hatred, 
 and the desire for revenge with which an alien race 
 ever looks upon its conqueror. Whether they 
 come to us as citizens or as subjects, the question 
 will always arise, What shall we do with them ? 
 The thought of amalgamation is as revolting to our 
 nature as it would be debasing to our race. Of all 
 
 240 
 
AT SANTA CRUZ 
 
 the utterances of the President upon this bad busi 
 ness, the most unbearable is that wherein he told 
 these people that " The mission of this nation 
 is one of benevolent assimilation." Assimilation ! 
 Assimilation with the native of the Malayan archi 
 pelago ! Assimilation with the heathen slave-driver 
 and the Mohammedan pirate ! 
 
 Upon this subject it is to Southern men espe 
 cially that I wish to address my remarks. To them 
 I speak, for they best know. If, then, there be 
 within the sound of my voice a Southern man 
 who has already listened to the siren strains of 
 imperialism, who has allowed his imagination to be 
 dazzled by visions of wealth and aggrandizement, 
 whose natural fealty has been disturbed by the 
 delusions of commercialism, to him I appeal. If he 
 contemplates the bringing among us of the black, 
 brown, or copper-colored inhabitants of Cuba, of 
 Porto Rico, and of the Philippines, under a process 
 of " benevolent assimilation," to him I say : Pause 
 before you take this fatal step. Are you ignorant 
 of the condition of that land in which you first 
 opened your eyes, and upon which it was the pride 
 of your forefathers to center their affections ? Do 
 not you know what the presence of an inferior race 
 has done to your people ? Do not you know how 
 it has hindered their prosperity and crushed their 
 hope ? Have you forgotten that radiant child of 
 genius who lit up for a moment the splendor of 
 the Southern sky, and then, meteor-like, sank into 
 
 241 
 
SPEECH 
 
 the premature gloom of darkness and of death, the 
 ever-to-be-lamented Henry W. Grady of Georgia? 
 Have you forgotten the eloquence and the pathos 
 with which he pleaded the cause of his people to 
 the men of New England? Have you forgotten 
 how he told them of their domain, where was cen 
 tered all that could please or prosper mankind, 
 blighted by the presence of an alien and inassimil- 
 able race ? Have you forgotten how he told them 
 that nothing but this race problem closed to the 
 world the fairest half of the republic, hardened the 
 hearts of brothers for thirty years estranged, and 
 stood between them and such love as had bound 
 Georgia and Massachusetts at Valley Forge and 
 Yorktown? Have you forgotten how he told them 
 that the resolute, clear-headed, broad-minded men 
 of the South, men who had plucked courage from 
 despair amid the ashes of their war-wasted homes, 
 wore this problem in their hearts and their brains 
 by day and by night, and shuddered as they gazed 
 into its awful depth with its lurid abysses and its 
 crimson stains ? No, you cannot have forgotten the 
 strains of that eloquence, the sublimest and most 
 touching heard by mortal ears since the days when 
 the voice of Patrick Henry awoke to resistance 
 against tyranny the slumbering energies of Virginia. 
 And will you now intensify the darkness of this 
 melancholy picture ? Will you add to the distrac 
 tion and sorrow of that land which you once loved 
 to call mother ? You may. But did I stand where 
 
 242 
 
AT SANTA CRUZ 
 
 you stand, I would rather have my arm fall palsied 
 by my side than have her turn her reproachful eyes 
 on me and exclaim, " Thou, too, my son ! " 
 
 The final price that we must pay is the price of 
 blood. 
 
 We must walk in the footsteps of England. We 
 must follow the example set by her in the Trans 
 vaal. Like her, we must enforce commercialism 
 at the point of the bayonet. Like her, we must, 
 upon a frivolous pretext, invade a country whose 
 people have never wronged us, and over their 
 ruined homes and fields, crimsoned with the blood 
 of their sons and ours, hoist the flag of trade. We 
 have already shown ourselves zealous imitators of 
 her policy. Already have we tasted of its bitter 
 fruit. Up to the present time, we have sent to the 
 Philippines over eighty-one thousand soldiers. Of 
 these nearly six thousand have been killed, and 
 over four thousand are now in hospitals. That the 
 conflict is not abated is proved by continued reports 
 of battles. And that the hour of withdrawing, or 
 even diminishing the number, of our troops has not 
 arrived is evidenced by the declaration lately made 
 that it was not wise to weaken ourselves there by 
 sending soldiers to China. Our blood and the 
 blood of a people guilty of no other crime than 
 that of aspiring to independence must continue to 
 be shed in order that the Moloch of trade may be 
 appeased. And yet we talk of our humanity, and 
 boast of our civilization ! 
 
 243 
 
SPEECH 
 
 This, then, is the price that we must pay for the 
 retention of these islands: The loss of national 
 honor; the violation of our Constitution; the bur 
 den and the dangers of a standing army; the intro 
 duction of an alien and inassimilable race; the blood 
 of our people. 
 
 What is offered in return? The cold, hard, 
 practical aspect of the subject, viewed from the true 
 Republican standpoint, has been frankly and cor 
 rectly outlined by Mr. Denby, a member of the 
 first commission sent out by President McKinley. 
 Upon his return, he said : 
 
 " Will the possession of these islands the Philip 
 pines benefit us as a nation ? If it will not, set them 
 free to-morrow, and let their people, if they wish, cut 
 each other s throats or play what pranks they please. 
 To this complexion we must come at last, that, unless 
 it is beneficial for us to hold these islands, we should 
 turn them loose." 
 
 The question, then, viewed from this standpoint, 
 is whether it will benefit us as a nation to retain 
 these islands. The source from which national 
 benefits are to flow is, according to all Republican 
 authority, the expansion of trade. " We make no 
 hypocritical pretenses of being interested in the 
 Philippines solely on account of others. We believe 
 in trade expansion. We mean to stimulate the ex 
 pansion of our trade, and open new markets." Thus 
 spoke the temporary chairman of the late Republi 
 can Convention in his address at Philadelphia. 
 
 244 
 
AT SANTA CRUZ 
 
 Nobody questions, of course, that the nation at 
 large is benefited by a legitimate and proper expan 
 sion of trade. The Republican party starts out, 
 however, by assuming as a postulate that colonial 
 possessions are necessary or, at least, conducive 
 to such expansion. But this assumption is wholly 
 unwarranted. The possession of colonies is not 
 essential to expansion of trade. Such expansion is 
 determined by entirely different causes. It depends 
 upon quality of product, cheapness of price, and 
 commercial efficiency. In the race for commercial 
 supremacy between us and England, the older 
 nation started out, more than a century ago, greatly 
 in the lead of the newly established republic upon 
 the Atlantic. Great Britain was at that time easily 
 the foremost commercial nation of the globe. If 
 colonial possessions are an essential advantage in a 
 contest for trade, she has always possessed it. India, 
 Australia, New Zealand, Canada, and British North 
 America were then already hers. By additions since 
 in Africa and Asia, her dependencies to-day throw 
 those of all other nations combined in the shade. 
 Her colonies, protectorates, and spheres of influence 
 cover now nearly one third of the inhabited portion 
 of the globe. During all this time, the United States 
 have had no colonies. If colonial possessions, then, 
 could insure commercial supremacy, England ought 
 easily to have kept the lead she originally held, and 
 in this race of a century to have distanced her rival. 
 But such has not been the case. The nation which 
 
 245 
 
SPEECH 
 
 started out without colonies, and has carried on her 
 trade without them, has, nevertheless, outstripped 
 her competitor. To-day England resigns the scepter 
 of supremacy into the hands of her younger rival. 
 To-day America sits enthroned the crowned mis 
 tress of the commerce of the world. 
 
 But were this otherwise, the question would still 
 remain, whether trade, extended and maintained by 
 the methods we have used, and must needs continue 
 to use, in the Philippines, will be a benefit to the 
 nation. Even if we should look at the subject from 
 a merely financial standpoint, this would depend 
 upon a comparison of cost and results. It is doubtful 
 whether any pecuniary profit we might hope to reap 
 from the trade of the Philippines would offset the 
 enormous expense of maintaining it. Says President 
 Jordan: 
 
 "Allowing a net profit of ten per cent, on all 
 transactions, a complete monopoly of Philippine 
 trade would leave the people a debt of seven million 
 dollars for every three million dollars our trading 
 companies might gain. In time, perhaps, the out 
 look would be less unequal. Trade might increase, 
 expenses grow less, but in no conceivable event 
 would the people get their money back." 
 
 Some benefits will undoubtedly be reaped. But 
 by whom ? There are unquestionably those who 
 will profit by the retention of these islands as col 
 onies of the United States, to be governed as they 
 are now governed at the will of the President, 
 
 246 
 
AT SANTA CRUZ 
 
 with unlimited power of appointing such govern 
 mental commissions, courts, and administrative 
 officers as he may see fit, and of granting such 
 franchises, concessions, and privileges as he may 
 desire. Trusts, organized here to exploit the agri 
 cultural and mineral resources of the islands, would, 
 doubtless, make money. Trading corporations, 
 carrying on their operations with practically servile 
 labor, and importing the products of that labor here 
 free of duty, would, doubtless, make money. Ship 
 ping companies, engaged in the transportation of 
 troops, would, doubtless, make money. The ever- 
 increasing swarm of office-holders would, doubtless, 
 make money. 
 
 All this may be readily admitted. But all these 
 classes combined fall far short of constituting the 
 nation. When they are disposed of, the question 
 still remains, Will the possession of these islands 
 benefit us as a nation ? And I submit it to your 
 candid judgment whether, upon a dispassionate view 
 of the subject, that question must not be answered 
 in the negative. 
 
 Consider first upon whom the price of the acquisi 
 tion and retention of these islands will fall ; consider 
 whose the sacrifices to be made. The answer is 
 unavoidable: Upon that great mass of humanity 
 the tillers of the soil, the wage-earners, the men of 
 moderate means who constitute the plain people. 
 
 For the protection of these the declaration was 
 made that all men are created equal, and that the 
 
 247 
 
SPEECH 
 
 consent of the governed is the only legitimate 
 source of government. And it is upon them that 
 the fatal consequences of the subversion of those 
 great principles must most grievously fall. 
 
 These also are the ones who have a most abiding 
 interest in preserving the Constitution inviolate. It 
 was Washington s last exhortation to his country 
 men that it should be sacredly maintained, unques- 
 tioningly accepted as obligatory upon all, and 
 protected from every innovation upon its principles. 
 It has been the one object to which the American 
 people have ever clung with unswerving devotion. 
 Nor is this a matter of mere sentiment. The Decla 
 ration of Independence and the Constitution are the 
 charters by which the equality of all men is vouch 
 safed, the bulwarks by w r hich they are protected 
 against the exercise of arbitrary or despotic govern 
 ment. To abandon them is to give up everything 
 that distinguishes our republic from a monarchy, 
 everything that differentiates an American citizen 
 from a subject of the Czar. 
 
 Upon the shoulders of the plain people must 
 also fall the enormous burden of taxation incident 
 to the support of the standing army needed to 
 maintain our possession of these distant colonies. 
 Arrange them as you may, it is upon that class that 
 all taxes ultimately fall. 
 
 In an interview published in the San Francisco 
 Examiner, on the i6th of last month, Mr. John J. 
 Valentine, speaking of this campaign, truly said: 
 
 248 
 
AT SANTA CRUZ 
 
 4 It is a campaign that has many strange features, 
 and none is more strange than the desire of the 
 working-people to pay the enormous cost of the war 
 in the Philippines. The cost of that war must fall 
 on them. It is a political truism that taxes always 
 fall sift down on the working-classes. They will 
 never benefit a nickel by the acquisition of the 
 islands, but they must pay its cost. The Spanish 
 and Philippine wars will have cost the American 
 people six hundred million dollars by the end of the 
 present fiscal year, next June. It is the nature and 
 law of taxation to fall heaviest on the great consum 
 ing classes." 
 
 But graver consequences than those which arise 
 from mere expenditure of money must inevitably 
 attend the introduction of militarism as an institu 
 tion in our midst. All history proves that the 
 advent of a standing army is a menace to liberty. 
 It is the substitute of might for right. It is the 
 enthronement of arbitrary will in the seat of law. It 
 is the vampire which feeds to-day upon the life- 
 blood of the nations of Continental Europe. As 
 has been truly and graphically said, if we adopt it, 
 " The American child hereafter must be born with 
 a mortgage round its neck; the American laborer 
 hereafter must stagger through life with a soldier on 
 his back." And the children who will be drafted 
 to fill up the ranks of the standing army, and whose 
 blood must be shed in battle, are the children of the 
 plain people. 
 
 249 
 Q 
 
SPEECH 
 
 As it is evident, therefore, that all the burden 
 incident to the retention of the Philippines will be 
 cast upon the shoulders of the great mass of the 
 people, it may now be asked, How will they profit 
 by that retention ? How will the laboring and the 
 farming classes, which constitute the great bulk of 
 the population, be benefited ? 
 
 The climate and condition of the islands are such 
 as to exclude from them all white persons who have 
 to earn their livelihood by toil. Neither the jour 
 neyman nor the tiller of the soil can find a home in 
 a country already swarming with a population 
 denser than that of the oldest of the United States. 
 They cannot labor under the scorching rays of a 
 tropical sun. They cannot compete with the 
 swarming millions of natives who work for a daily 
 wage which would here hardly be the price of a 
 pound of meat or a loaf of bread. They cannot 
 remain in lands where all experience that of Java 
 and the Hawaiian Islands, for instance shows that 
 no successful enterprise can be carried on except by 
 labor avowedly or practically servile. 
 
 But this is not all. Not only can no benefit 
 accrue to this class, but an unavoidable disadvantage 
 must ensue. Who shall prevent the inhabitants of 
 these islands from coming here to compete with 
 labor in our own midst ? Will we go the length of 
 enacting laws preventing free movement of one part 
 of our population from one place of our territory 
 to another ? The Chinese coolie may not enter 
 
 250 
 
AT SANTA CRUZ 
 
 here to-day, because of a treaty stipulation with his 
 nation. But what of his half-brother, the Malay 
 of the archipelago ? How will you exclude him ? 
 If an inhabitant of the Philippines wishes to come 
 here, may he not do so? Nay, more, if having 
 come, he desires to enjoy the rights of a citizen, 
 who will prevent him ? By the treaty of Paris, the 
 sovereignty of Spain over these islands was extin 
 guished. Ours took its place. If their inhabitants, 
 having ceased to be citizens of Spain, are not citi 
 zens of the United States, of what country are 
 they citizens ? If their allegiance is not due to our 
 Government, to what Government do they owe it ? 
 If this is not their country, where is their country? 
 But even if the inhabitants of these islands were 
 not permitted to land upon our shores, the labor of 
 the United States cannot avoid being brought into 
 competition with theirs. The products of that labor 
 will necessarily be imported here. This could be 
 prevented only by a discriminating tariff, similar to 
 that now imposed upon Porto Rico. But, in the 
 first place, that tariff was not devised for the benefit 
 of American labor, but of American monopolies. 
 It was imposed at the dictation of the sugar and 
 tobacco trusts, which, as they did not then own or 
 control the sugar and tobacco plantations of the 
 islands, did not wish to permit their products to 
 enter here to compete with theirs. But by and by, 
 when these monopolies shall have extended the 
 sphere of their operations to these new fields 
 
 251 
 
SPEECH 
 
 when they shall own or control the sugar and tobacco 
 plantations what will happen? Just what has 
 happened in the Hawaiian Islands. The tariff will 
 be taken off, and the cheap labor of those countries 
 will invade us in the shape of their cheaply-produced 
 products. Will the great mass of the people the 
 consumers reap a benefit from this in the shape 
 of cheaper sugar or tobacco ? Not at all. Having 
 stifled competition and secured full control, the 
 monopolies will continue to dictate the price, just 
 as they do now. 
 
 Sum up, therefore, the whole question of the 
 retention of the Philippines as colonies of the 
 United States, and it amounts to this : Those isl 
 ands are to be retained at the expense of the people 
 for the benefit of a class. This is imperialism. 
 
 And, now, I close as I began. A momentous, 
 a paramount question confronts us to-day. Two 
 potent banners are flung to the breeze. Under the 
 folds of one stands arrayed the new army of impe 
 rialism. Under the other are enlisted those who 
 still cling to the principles of the Declaration of 
 Independence ; who still look upon the Constitu 
 tion as the great bulwark of their liberties ; who 
 still revere the teachings of the sages of old, and 
 would have their country shape its policy in accord 
 ance with the precepts of Washington and of Jeffer 
 son ; who would not exchange the republic in which 
 they and their children were born for all the mon 
 archies and empires of Europe ; who look with pride 
 
 252 
 
AT SANTA CRUZ 
 
 upon the flag, and would protect it from the stain 
 of perfidy or national dishonor. 
 
 Upon which banner shall victory perch ? " The 
 federal republic the imperial republic, which shall 
 it be ? " Before to-morrow s sun shall have sunk 
 beneath the waves of yonder ocean, the American 
 people will have answered that question and 
 answered it forever. 
 
 253 
 
LITERARY 
 
THIS address was delivered on Thursday, December 29, 1892, 
 before the State Teachers Association of California, at their annual 
 meeting, held in the city of Fresno. 
 
 It was repeated, at the request of the faculties, at the State 
 Normal Schools in San Jose and Chico. 
 
EDUCATION 
 
 MR. PRESIDENT, MEMBERS OF THE CALIFORNIA 
 TEACHERS ASSOCIATION, LADIES AND GENTLEMEN: 
 Though gratified and honored by the invitation 
 extended to me to address your Association on this 
 occasion, yet when brought to face the task, I can 
 not fail to recognize the difficulties which surround 
 it. To speak fittingly upon any subject to an assem 
 blage composed of persons whose whole life has 
 been devoted to intellectual pursuits were no easy 
 task. To speak upon education a subject to the 
 study and comprehension of which their energies 
 have been daily employed for years is still more 
 arduous. And yet, perhaps, some good may result 
 from contemplating, from a layman s standpoint, 
 some features of a topic with which you are all, 
 from a professional standpoint, familiar. Light is 
 often emitted by the attrition of minds of opposite 
 tendencies, diversified habits, and varied pursuits. 
 Truths are not seldom brought out and made to 
 stand in relief by oral discussion which solitary 
 meditation either fails to reveal, or reveals but 
 dimly. 
 
 257 
 
ADDRESS 
 
 Your Association represents a power which, meas 
 ured by its influence in the State and its capacity 
 for good, stands foremost among the great agencies 
 of civilization. Political rulers, magistrates, legisla 
 tors, all who assume the government of states or 
 empires, deal in the main with man when his mental 
 and moral characteristics are already fully developed 
 or rigidly set. They may coerce, restrain, or 
 destroy the individuals subjected to their control, 
 but their power of altering their nature, or modify 
 ing the sources from which their conduct flows, if it 
 exists at all, is restricted within narrow bounds. 
 You, the teachers of the State, deal with human 
 nature in its plastic condition. It is yours to mold it 
 to your will. From your hands it issues, bearing 
 largely the shape which you have impressed upon 
 it, and which it will retain in after life. You are 
 placed at the fountainhead of society, where the 
 slender stream may be easily diverted into any 
 channel which you may choose to trace. Political 
 rulers stand below, where the broadened waters flow 
 between fixed banks, which human power is impo 
 tent to change. 
 
 I deem it, therefore, a high privilege to be invited 
 to counsel with you upon your mission. And if any 
 words of mine shall result in giving you any assist 
 ance, however slight, in the discharge of your task, I 
 shall feel that my efforts have not been wholly vain. 
 
 It is not my purpose, of course, to attempt any 
 thing even approaching a comprehensive disquisition 
 
 258 
 
ON EDUCATION 
 
 upon the subject of education. My aim must 
 simply be to give expression to a few ideas con 
 nected with the subject which, in the course of life, 
 have occurred to me. 
 
 It is a very common error to confound education 
 with learning. The phrase, " a well-educated man " 
 or a " highly educated man " is not infrequently 
 applied to one who has gone through a college or 
 university course with success, or has achieved emi 
 nence in some special branch of learning perhaps, 
 especially, in classical attainments. But in the sense 
 in which the word education is more properly used, 
 a man may be a very learned, and at the same time 
 a very ill -educated person. To read understand 
 ing^ the ancient classics, to be versed in the nice 
 distinctions between the various Greek dialects, to 
 write Latin prose with Ciceronian elegance, or verse 
 with the terseness of Horace and the elegance of 
 Catullus, is not necessarily to be well educated. 
 The same is true of scientific attainments. A man 
 is not necessarily well educated because he com 
 mands the whole range of mathematics from algebra 
 to conic sections or differential calculus, nor because 
 he has fathomed the depths of biology, sociology, 
 and all other allied sciences. He may know all 
 these, and yet be very poorly educated. He may 
 know all these, and yet be very ill-fitted for the 
 discharge of the functions and duties of life. 
 
 What, then, it may be asked, is education ? As 
 understood by the teachers of to-day, it is, I venture 
 
 259 
 
ADDRESS 
 
 to think, a proper development and training of all 
 the faculties of man, physical, moral, and intellec 
 tual. A perfect education, were it attainable, would 
 be the development and training of these faculties 
 to the highest degree of which they are capable, so 
 as to enable man to live the most ample and com 
 plete life permissible in his surroundings. 
 
 Life comes to us unsought. We are brought 
 into the world without any act or choice of ours. 
 From the operation of causes yet beyond our ken, 
 we are made to form a part of the universe. The 
 discussion of the question much agitated of late, 
 whether the existence conferred upon us is a boon or 
 a curse, -whether life is worth living, seems abso 
 lutely idle. We live ; and if, in the spirit of proper 
 humility or candid philosophy, we look around us 
 upon the various orders of created beings, we will 
 see that the law which governs us governs them all 
 the law of life. The struggle everywhere is to 
 exist, to live, and to continue, either individually or 
 by reproduction, to perpetuate life. Man forms 
 no exception to the operation of this universal law. 
 He lives, and from the moment that, as a babe, he 
 instinctively turns for sustenance to his mother s 
 breast until his eyes close in death all his actions, 
 whether consciously or unconsciously, are directed 
 toward the accomplishment of two single objects, 
 to preserve, prolong, and broaden his own exist 
 ence, and to perpetuate that existence by transmis 
 sion to his offspring. 
 
 260 
 
ON EDUCATION 
 
 Education, then, is the science of life. It is the 
 learning how to live well. In fine, stated more 
 broadly, at the risk of repetition, it is the develop 
 ment and training of all the faculties which enable 
 man to attain the broadest and most complete life 
 in himself, and transmit it to those who are to come 
 after him. 
 
 Such an education as is here endeavored to be 
 defined is, as the definition implies, naturally divided 
 into physical, moral, and intellectual. It may be 
 treated of under each subdivision, though, of course, 
 there is no sharp line of demarcation between them, 
 each blending to a greater or less extent with both 
 the others. 
 
 Physical education has been named first, because, 
 obviously, both in the order of nature and in that 
 of importance, it occupies the first place. They 
 deserve little sympathy and should be heard with 
 little patience who, affecting to despise the body as 
 a tenement of clay, fix their attention wholly upon 
 intellectual or spiritual objects, aiming at a sort of 
 ethereal existence, which seeks to free the spirit from 
 the prison-house in which it is confined in utter dis 
 regard or wanton violation of the laws of physical 
 life. To mortify the body by any species of torture, 
 by confinement, emaciation, flagellation, or the 
 like, with a view of purifying or elevating the soul, 
 would seem about as rational as to deprive a loco 
 motive of its due supply of water, to stave in its 
 boiler or distort its piston-rod, with a view to make 
 
 261 
 
ADDRESS 
 
 it more effectually generate steam or move over the 
 rails. There is about as much merit in a self-imposed 
 denial of the natural amount of food by fasting as 
 there would be in depriving one s self of the due 
 proportion of atmospheric air for respiration, or in 
 ceasing to breathe altogether. True education must 
 begin, not with degrading, but with elevating and 
 ennobling, the body ; not with thwarting its natural 
 functions, but with perfecting their operation. 
 
 Let those who may look upon this as a very 
 materialistic view reflect that, as man comes into the 
 world, the only way in which his existence is made 
 manifest to himself and to others is by his physical 
 being; that life itself is but the performance by the 
 organs of the body of their proper functions; that 
 the essential activities of individual existence are 
 limited almost entirely to ministering to the wants 
 of the body, and protecting it from injury or 
 destruction; that the happiness another word for 
 well living which we all strive for, is dependent 
 upon bodily condition, and they may perhaps 
 modify their views and come to acknowledge a 
 due appreciation of the importance of physical edu 
 cation. 
 
 Physical education is not confined to mere bodily 
 exercise, however scientifically systematized or pur 
 sued. It has a far broader scope. The gymnasium 
 is, after all, but an expedient rendered necessary by 
 certain unnatural conditions which civilization im 
 poses. In a state of nature, man needs no artificial 
 
 262 
 
ON EDUCATION 
 
 training. The use and employment of his faculties 
 in the essential activities of life, in defending him 
 self against danger, in seeking and procuring food 
 and shelter, in rearing and protecting offspring, give 
 to the organs of his body the play which is natural 
 to them, and which is conducive to their most per 
 fect development and healthful operation. The 
 condition of man is, then, similar to that of other 
 animals. The eagle whose flight is among the 
 clouds and whose pinions are daily spread in bat 
 tling with the storm, the lion roaming over the 
 desert in search of prey, the capture of which de 
 pends upon tireless activity, need no artificial exer 
 cise. Civilization, with its diversified pursuits, the 
 drains which it makes upon bodily vigor by occupa 
 tions often the reverse of natural, its overtaxing of 
 the mental as compared with the physical energies, 
 demands artificial means of restoration or invigora- 
 tion. Without denying the value of these, it 
 would be a narrow conception of the subject to 
 assume that this is all that is meant by physical 
 education. 
 
 If physical education be the acquisition of that 
 training and knowledge which enables man to pre 
 serve physical health and vigor, so that life may be 
 protected, enjoyed, prolonged, and perpetuated, it is 
 obvious that it must begin with a knowledge of the 
 body, its various organs, their functions and modes 
 of action. In other words, it must begin with 
 physiology. That is to say, it must begin with 
 
 263 
 
ADDRESS 
 
 physiology when the learner enters upon the acqui 
 sition of that artificial education which civilization 
 imposes ; for during the period of infancy the child, 
 if properly protected and not unwisely interfered 
 with, will enjoy sufficient bodily activity to insure 
 perfect health. The maxim of the ancient Greek 
 philosopher, " Know thyself," is the foundation of 
 physical as well as of moral or intellectual education. 
 That this obvious truth is always duly recognized 
 no one familiar with the systems of education even 
 of the present day would contend. Who has not 
 often wondered, in looking over the course of study 
 prescribed in schools, colleges, and universities, to 
 note the absolute silence maintained upon this all- 
 essential subject? Ample provision is there often 
 found for cramming the student with all sorts of 
 knowledge except that most essential to his own 
 well-being. In these institutions he might be 
 taught all that relates to the formation of the outer 
 universe, geography, geology, chemistry, astron 
 omy; he might learn to load his memory with a 
 vast mass of rubbish under the name of history, 
 and win applause by reciting without a skip the 
 barbaric names of the sovereigns of the English 
 Heptarchy, or the no less uncouth ones of the 
 French monarchs from the days of Clovis to those 
 of Charlemagne; he might command the highest 
 honors by writing a Greek ode or a Latin oration ; 
 and yet, after all, be graduated and leave the school 
 to enter upon the active duties of life with the most 
 
 264 
 
ON EDUCATION 
 
 meager and imperfect idea of the constitution of his 
 own body. 
 
 Why should this be so? Why should not the 
 study of the laws of health, so essential to happiness, 
 so indispensable to success in all vocations of life, 
 be included in a collegiate or university course ? 
 Why should not the student be taught what are the 
 normal, proper, and healthy functions of the body, 
 so that he may know how to avoid injuring them by 
 neglect, or straining them by improper or abnormal 
 exercise ? Why should it not be demonstrated to 
 him, until it becomes fixed in his mind as an axio 
 matic truth, that excess is invariably followed by 
 exhaustion and consequent impairment? Why should 
 he not learn the laws of dietetics, so that he may 
 know what food to select and what to reject, which 
 is wholesome and which injurious? A time will 
 come it has no doubt already, to a certain extent, 
 come when these studies, instead of being thrust 
 aside as quite unworthy the attention of grave pro 
 fessors, will be placed in the very front of the cur 
 riculum of education. 
 
 We have only to look at ourselves to perceive 
 how much, not only of our happiness, but of our 
 capacity to perform the functions and discharge the 
 duties of life, depends upon health, physical vigor, 
 and animal spirits; to know that depression of 
 mind, melancholy, and discouragement are the at 
 tendants of a low degree of vitality ; that the 
 intellect itself is the slave of the body ; and that 
 
 265 
 
 R 
 
ADDRESS 
 
 fancy soars upon golden pinions or droops with 
 leaden wings, according to physical condition. 
 
 It is not proposed, nor would time permit, to fol 
 low the development of this subject to its legitimate 
 conclusions. Before dismissing it, however, one 
 closing remark may perhaps be made. No greater 
 crime against education can be imagined than that 
 which is committed by those who, having the train 
 ing of the young committed to their care, allow the 
 cultivation of the mind to be pursued at the ex 
 pense of the body. Long experience has demon 
 strated that a certain number of hours of the day 
 can be profitably devoted to study. The effort to 
 go beyond the prescribed limit is productive of 
 disastrous results : weariness, exhaustion, and con 
 sequent impairment of both body and mind. If 
 teachers, proud to see their classes make a good 
 showing, and, therefore, prone to stimulate them to 
 high exertions, could realize the incalculable mis 
 chief their childish vanity begets, when they not 
 only permit but encourage a bright pupil to study 
 beyond the prescribed time and forego the hours of 
 healthy exercise and recreation, in order to prepare 
 himself for a brilliant examination, or to win some 
 coveted prize and reflect credit upon the institution, 
 they would soon desist from their unpardonable 
 violation of the laws of sound education. If they 
 would only reflect, they would see that domestic 
 animals are treated with more sense and more con 
 sideration. Far better that the pupil should be 
 
 266 
 
ON EDUCATION 
 
 looked upon as a dull scholar, and lag at the foot 
 of his class, than that he should break down his 
 health in an unnatural effort to accomplish intel 
 lectual feats beyond his normal strength. In the 
 race of life, in the contest for that which the world 
 looks upon as success, and for the attainment of 
 which the advantages of education are most com 
 monly sought, the possession of wealth, or the 
 enjoyment of position, office, or rank, the dull 
 scholar, leaving school with health and animal 
 energy unimpaired, is very apt to have more than 
 an even chance of distancing the one whose consti 
 tution has been undermined by overstudy; whilst in 
 the enjoyment of life health, peace, happiness 
 he will be sure to outstrip him. That which is true 
 of the individual is also true of the mass or aggre 
 gation of individuals composing the community 
 or State. The strongest and most vigorous race will 
 always be the dominant race, not only in war, but 
 in commerce and other pursuits. 
 
 The second division of our subject concerns the 
 moral side of our being. While physical education 
 begins and ends with the individual, moral educa 
 tion, the next in the order of nature as well as of 
 mportance, deals with him not as an isolated entity, 
 but as a member of a group or species. The aim 
 and scope of this education are to inculcate upon 
 the individual the proper principles and rules of 
 conduct to be adopted by him toward others, in 
 relation to the family, to society, and to the State. 
 
 267 
 
ADDRESS 
 
 Recognizing that I am speaking to the teachers of 
 secular and not religious schools, I do not include 
 in this definition man s relation to the Deity. 
 Addressing a body created and supported by the 
 State, it is proper that my remarks should be 
 restricted to a view of education from the stand 
 point of the State, and not from that of any creed 
 or dogma ; from the standpoint of reason alone, 
 and not reason guided by faith. 
 
 It has been objected in some quarters that moral 
 education is unattainable without religion, and that 
 schools where religious teaching does not constitute 
 a part of the course are pernicious and baneful. 
 These objections assume that there is a conflict 
 between the moral education which reason indicates, 
 and that which religion inculcates. But why this 
 assumption? To reconcile religion with science, to 
 show that the accents of revelation are in unison 
 with the voice of reason, has occupied the labors of 
 not a few of the brightest intellects which the world 
 has produced. These enlightened men have failed 
 to see any menace to faith in the teachings of 
 science. Why should such a menace be assumed 
 to exist upon the subject of morality? It would 
 be strange indeed if, upon a broad and comprehen 
 sive view of the subject, it were not found that the 
 moral education which pure reason leads us to adopt 
 is the same as that which pure religion inculcates, 
 in other words, that the conclusion reached by one 
 is the same as that arrived at by the other. 
 
 268 
 
ON EDUCATION 
 
 It should be noted, however, that the word 
 " religion " is used in this connection to express an 
 idea wholly distinct from theology, if we accept 
 religion as the work of God, theology must still 
 forever remain the work of man. Stripped of all 
 its non-essential or conventional adjuncts, of all the 
 refinements which casuistry has weaved around it, 
 is religion aught more than morality divinely taught, 
 a code of ethics believed and accepted by man as 
 promulgated and sanctioned by the Deity ? When 
 the historian describes the Jewish lawgiver descend 
 ing from Sinai, bearing in his hands the tables of the 
 Commandments, and shows us the tribes of Israel 
 accepting these as the rules traced by the finger of 
 Jehovah for their guidance, he describes the laying 
 of the foundation of the Jewish religion. And yet 
 what were those Commandments but a compendious 
 code of moral conduct ? When the same historian 
 records or collects the teachings of Christ, what 
 else does he present to our mind but rules of 
 conduct, laws governing man in his relation to his 
 fellow men, precepts for guidance in his actions as a 
 member of the family, of society, of the State? 
 To proclaim these rules, and to teach man the way 
 to observe them, was, from the standpoint of history, 
 the beginning and the end of the mission of Christ 
 upon earth. Theology came afterward. Councils 
 and synods, with their disputations upon points of 
 doctrine, followed later. Schisms, sects, and bloody 
 wars, born of the spirit of controversy, were subse- 
 
 269 
 
ADDRESS 
 
 quently ushered in by time. The imagination of 
 man wove a subtle fabric around the simple words 
 of the Master. But religion religion essentially 
 considered is to-day as it was when Christ pro 
 nounced the Sermon on the Mount or Paul preached 
 to the Athenians, conduct conformable to the rules 
 accepted as God-given. 
 
 The consonance of reason with religion upon this 
 subject may be stated in one word. There is not 
 contained in the books of religion one single essen 
 tial precept or rule of conduct, one single essential 
 commandment to do or to refrain from doing, which 
 is not conformable to pure reason, unaided by reve 
 lation. 
 
 Moral education, as already stated, has for its 
 object the regulation of conduct toward others. In 
 what ideas and what necessities it is founded may 
 perhaps be expressed by an illustration. Were a 
 man living alone upon an island, it would be diffi 
 cult to consider him subject to any moral laws. His 
 round of actions would all center in himself. His 
 whole time would be spent in ministering to his 
 own wants, protecting himself against dangers that 
 menaced his life or health, procuring the means of 
 sustenance or shelter. But the moment that another, 
 recognized as an equal, was introduced to share his 
 solitude a certain limitation would of necessity be 
 imposed upon him. His freedom would perforce 
 be, to a certain extent, restricted. Another hav 
 ing, like himself, the right of occupation and of 
 
 270 
 
ON EDUCATION 
 
 sustenance, in order to render the existence of 
 both possible, he would unavoidably be compelled 
 to yield something of the unbounded freedom of 
 action which he otherwise had enjoyed. Each recog 
 nizing the other as an equal, the concessions on both 
 sides would necessarily be equal. When in the little 
 community thus composed each respected the equal 
 rights of the other, for instance, if, when one had 
 taken possession of a particular spot for his habita 
 tion, the other forebore to trespass upon it ; or if he 
 had obtained something as the result of his individ 
 ual exertions, such as a fruit of the forest, a bird of 
 the air, or a beast of the field, the other abstained 
 from any attempt to deprive him of it, this ele 
 mental society would so far be governed by the laws 
 of natural justice. And this means nothing more 
 than that each member of the community would 
 follow such line of action as the necessities of his 
 situation would impose laws springing spontane 
 ously from his condition and surroundings, and the 
 violation of which unaided reason would teach must 
 necessarily lead to the disturbance, if not the de 
 struction, of the community, and the consequent 
 annihilation of the advantages which flow from liv 
 ing in a state of society. If we suppose the popu 
 lation of the island to be increased by the addition 
 of new inhabitants, the elements of the problem 
 would become more complicated, but the problem 
 itself would remain essentially the same. With 
 the advent of each new-comer, the freedom of the 
 
 271 
 
ADDRESS 
 
 former occupants would become more and more 
 restricted, and the adjustment of the rights of each, 
 so as to permit to all equality of enjoyment, would 
 become more complex and difficult. It would 
 require greater enlightenment and keener powers of 
 perception to adjust the balance ; but the end to be 
 attained would remain the same to secure to each 
 inhabitant the greatest completeness of life attain 
 able under existing conditions. That done, the 
 community would be ruled by the principles of 
 justice. The gradual and progressive training of 
 the first inhabitant, by which he learned to perceive 
 the necessity of the successive limitations imposed 
 upon his freedom of action by changing circum 
 stances and surroundings, and voluntarily to submit 
 to such limitations, would constitute his moral 
 education. 
 
 It may, then, be said broadly that moral education 
 is that which fits men for the conduct they should 
 observe toward others, so that each may live the 
 most complete life attainable in a state of society, 
 each enjoying, in their highest degree, all the advan 
 tages which accrue from social intercourse and co 
 operation, and yielding in return as little of his 
 natural freedom or individual rights as possible. In 
 other words, the great object of moral education, to 
 express it in a single sentence, is to teach men to be 
 just. 
 
 It may at first blush be said that if this be so, as 
 the sense of justice is innate in man, this education 
 
 272 
 
ON EDUCATION 
 
 must necessarily be very simple. But a little re 
 flection will soon show that the task is not so 
 easy. Civilization brings with it certain artificial 
 conditions, which give rise to problems whose solu 
 tion tasks the highest powers of human intelligence. 
 
 Each age presents its own complications. We 
 live in times probably not more troublous than 
 those that are past or those that are to come ; and 
 yet they are times when upon questions which 
 lie at the very foundation of social existence the 
 most divergent and antagonistic views are enter 
 tained. 
 
 Take a few illustrations : What is or should be 
 the legal and political condition of woman in mod 
 ern society? What is the condition which justice 
 demands should be secured to her? Have we not 
 here a problem of the the gravest difficulty? The 
 advent of Christianity found woman occupying in 
 the most polished and enlightened community in 
 the world a position of absolute inferiority. She 
 was the companion of man, but hardly occupied the 
 place of wife, as we have come to understand the 
 term. In the Middle Ages in those days which 
 we are so fond of looking back to as the cradle of 
 the common law the wife was bound by a sacra 
 mental tie, it is true; but still her inferior position 
 was so marked that her legal identity was absorbed 
 in that of her husband, and she had of herself no 
 separate legal existence in the eye of the law. And 
 such continued to be her legal condition in one of 
 
 273 
 
ADDRESS 
 
 the most enlightened nations of Europe down to a 
 very recent period. The steps toward her emanci 
 pation have, in the present century, been very great, 
 no doubt; but as an evidence of the tardiness with 
 which they have been taken, we have but to look 
 at the statute-book of our own State. Even here, 
 upon this Western coast, the fetters have been 
 struck off slowly and one by one. Gradually the 
 laws which prohibited a woman from conveying her 
 property without the consent of her husband, from 
 making any contract for the payment of money, 
 have been repealed; and yet it was not until the 
 recent session of the Legislature that the last relic 
 of barbarism, which prevented a married woman 
 from being appointed executrix or administratrix, or 
 from acting as the guardian of her own child, was 
 wiped out. And what is the position which woman 
 is to occupy legally and politically in the future ? 
 This is a grave question. Nor let it be said that it 
 belongs to the sphere of politics alone. It is a 
 question of morals a question of justice. 
 
 Again, property has, by universal consent, been 
 considered hitherto as one of the rights which lie 
 at the very base of society. That a man owns 
 what he has acquired, that he may do with it what 
 he pleases, have been accepted almost as axiomatic 
 truths since the existence of organized government. 
 And yet it would betray a purposed ignorance of 
 what is going on around us to deny that there is a 
 spirit abroad which threatens this very foundation 
 
 274 
 
ON EDUCATION 
 
 of the social fabric. From the day when a French 
 socialistic writer proclaimed that property was theft 
 to that in which Henry George issued his last 
 pamphlet, denying the right of individual owner 
 ship of land, there has been a gradually growing 
 agitation upon the subject of property rights. Nor 
 is this agitation to be put down by the pooh-pooh 
 ing of those whom it most nearly affects. The 
 titled nobleman, sitting in the ancestral hall which 
 has come down to him entailed since the days of 
 William the First, or the new-made millionaire, 
 reposing in the palatial mansion built but yesterday 
 with the proceeds of speculation or stock-jobbing, 
 may smile in fancied security and deride the mutter- 
 ings of the threatened storm; but as long as poverty 
 begets hunger, and hunger unchains the demons 
 which lurk in human breasts, it will behoove those 
 who have to acquire a just appreciation of the 
 rights of those who have not. Nor, again, let it be 
 said that this is purely a political question. It is a 
 question of morals a question of justice. 
 
 These are but illustrations of the problems which 
 surround us in the moral world. Many more are 
 at hand, and, did time permit, could be adduced. 
 Why should the education of the youth of the 
 country leave them uninstructed upon these and 
 similar subjects ? These are questions with which, 
 in the course of life, in their capacity of citizens, as 
 voters, legislators, or magistrates, they will in some 
 form have to deal. 
 
 275 
 
ADDRESS 
 
 Time admonishes me to hasten to say a few 
 words upon the third and last division of the sub 
 ject before I close. 
 
 Intellectual education is enumerated last, because 
 it is in reality subordinate and subsidiary to both 
 physical and moral education. The object of all 
 study is knowledge, and the value of the study is in 
 the direct ratio of the usefulness of the knowledge 
 acquired. Obviously, that knowledge alone is use 
 ful which enables or aids us properly to regulate 
 our actions, either as individuals or as members of 
 society. 
 
 While it is impossible to indicate the studies 
 which are to be adopted, I may perhaps be permitted 
 to make a few observations upon the limitations 
 with which certain studies should be pursued. 
 
 Take, as an illustration, the study of grammar. 
 I have looked at times into treatises on grammar 
 placed in the hands of very young boys and girls, 
 and confess that I have been amazed. The 
 grammar of to-day, even that which is intended for 
 children of immature minds, is too often a book in 
 which the author seems to be intent rather upon 
 the display of his own metaphysical subtlety and 
 hair-splitting ingenuity than the imparting of useful 
 knowledge. Instead of simplifying, the purpose 
 seems to be to make the subject complex and diffi 
 cult. I can imagine few severer tasks that could 
 be set to a man ot mature years in active life 
 lawyer, physician, or merchant than to be com- 
 
 276 
 
ON EDUCATION 
 
 pelled to master and stand a creditable examination 
 upon some grammars that I have seen put into the 
 hands of young lads at school. The waste of time 
 entailed by the immature attempt to master these 
 absurd books is enormous and irretrievable. 
 
 The truth would seem to be that it is contrary to 
 all rules of orderly education to put a grammar into 
 a child s hands, especially an English-speaking child. 
 The English is probably the simplest of the gram 
 mars of the languages of Europe, ancient or modern. 
 Compared with those of the Greek, German, or 
 French, it is simplicity itself. The child, if kept 
 away from contact with rude or vulgar associates, 
 will, without effort, learn to speak and write with 
 substantially grammatical accuracy. When this is 
 attained, when the student has reached the point 
 where he can speak and write with both correctness 
 and ease, he can then learn the few essential rules 
 and they are very few of English grammar. He 
 will thus be taught in a few weeks what the imma 
 ture mind of the child is coerced into vain efforts to 
 acquire through years of wearisome and repulsive 
 labor. 
 
 Another subject upon which I might, with your 
 indulgence, wish to say a word, is that of the study 
 of the classics. During the period of the revival 
 of learning which followed after the long night of 
 the Middle Ages, it was natural, if not unavoidable, 
 that the energies of men intent upon the acquisition 
 of knowledge, or inclined to cultivate the graces of 
 
 277 
 
ADDRESS 
 
 belles-lettres ^ should be devoted to the study of the 
 treasures which had survived the wreck of Greece 
 and of Rome. The works of the master spirits of 
 antiquity had come down through the centuries as 
 the most faultless productions of periods in which 
 the human mind had attained to a degree of 
 perfection in art, literature, and science, with which 
 nothing since then created had been fit to bear com 
 parison. The consummate beauties of the tongue 
 in which Homer sung to the princes of Attica, or 
 of that in which Cicero addressed the multitude in 
 the Forum, were revealed to the student of the 
 court of the Medicis or of Francis the First, when, 
 with perhaps one single exception, the languages of 
 modern Europe were still in a state of formation. 
 Classic literature had already long since covered the 
 broad fields of history, eloquence, and poetry, when, 
 by the light of the dawn of the revival of learning, 
 little more could be found in these departments 
 than the dry chronicles of monasteries, the songs 
 of troubadours, or the pedantic disputations of 
 schoolmen. The growing appetite for learning 
 had to seek gratification in the productions of an 
 tiquity or go unappeased. 
 
 It was of course, therefore, that in the acade 
 mies, the colleges, the universities, which the 
 enthusiasm of the period founded and endowed, 
 the study of Latin and of Greek should constitute 
 the main, if not the entire, pursuit of both the 
 teacher and the taught ; that excellence should be 
 
 278 
 
ON EDUCATION 
 
 measured by reference to these old standards; and 
 that to imitate the masterpieces of the ancients 
 should be the ambition of every learned man. 
 Honors and rewards waited upon those who had 
 attained such excellence. Princes and potentates 
 vied with each other in drawing to their courts 
 and numbering among their retainers the renowned 
 scholars of the day. It comported with the con 
 servative spirit of the times, too, that institutions 
 of learning founded upon these principles and aim 
 ing at the accomplishment of these objects, should 
 for a long period have followed in the path which 
 was originally traced for them, and that for genera 
 tions thereafter scholarship should have been the 
 synonym of proficiency in the ancient languages, 
 and a liberal education the education of a gentle 
 man should have represented the capacity to 
 understand the excellences and imitate the beauties 
 of their great masters. 
 
 It would have been strange, however, if in the 
 course of time a reaction had not taken place. 
 With the march of civilization, the discoveries of 
 science, the development of the human mind, the 
 nations of Europe came, each in turn, to have a 
 language as fixed, as copious, as capable of express 
 ing the most powerful or most subtle thoughts of 
 the mind or emotions of the heart as the tongue 
 of Plato or of Sophocles, of Cicero or of Horace. 
 In turn, each people came to have its own litera 
 ture, the natural outgrowth of the genius which 
 
 279 
 
ADDRESS 
 
 sprung from its own race characteristics and sur 
 roundings. Time gave birth to poets, historians, 
 orators who might well claim a place alongside 
 of even the most illustrious names of antiquity. 
 Whatever predilection might have been transmitted 
 from generation to generation for the great things 
 accomplished in the past, it would have been a 
 matter of wonder if the student had not at times 
 paused to institute comparisons between the pro 
 ductions of his living mother tongue and those 
 of languages which had been dead for centuries. 
 The youth who, reading the speeches of Burke or 
 Webster, had become imbued with the grandeur of 
 the philosophical statesmanship of the one, or the 
 broad, lofty, and magnanimous patriotism of the 
 other, who as a schoolboy had recited with glow 
 ing cheek and beating heart the stately peroration 
 of the British orator upon the impeachment of 
 Hastings, or the still grander and sublimer one 
 of the American in his reply to Hayne, could not 
 but pause to ask if in anything that Greek or 
 Roman had ever uttered a loftier height of thought 
 or expression had been reached. He who had seen 
 unfolded upon the stage the creations of the genius 
 of Shakespeare could not but ask whether even 
 the Athenian dramatists whether Sophocles or 
 ^Eschylus had ever depicted the emotions or 
 passions of men in truer or more striking colors. 
 
 That the reaction should have taken place, and 
 should now continue to take place, was inevitable. 
 
 280 
 
ON EDUCATION 
 
 However much the spirit of conservatism may con 
 tend to the contrary, it is obvious to any one at all 
 familiar with the march of the human intellect that 
 classical studies do not hold to-day in the scheme of 
 education the place which they did one hundred or 
 fifty, or even twenty-five, years ago. They are not 
 wholly abandoned, it is true, nor is it desirable that 
 they should be ; but they are no longer permitted 
 to constitute the whole or even the most essential 
 part of the curriculum. 
 
 It may be asked if it is intended to deny the 
 value of the study of the classics as a mental disci 
 pline. By no means. The discipline acquired by 
 such study is, if not the best, still, beyond dispute, 
 excellent. The intelligent mastery of the ancient 
 languages will still lead undoubtedly, to the forma 
 tion of correct taste in literature, and aid in the 
 attainment of perfection in style, even in the verna 
 cular. Such study has its just value, no doubt, and 
 in certain branches of education will still long con 
 tinue to be pursued. The objection is to making 
 it the staple of collegiate education under all circum 
 stances. The question is, Can it be pronounced to 
 be the best for all men who seek to obtain an 
 education ? If the student is to become a soldier, 
 and is destined to devote his life to the science of 
 war, it must be evident that his ability to read 
 Pindar s odes or Virgil s bucolics in the original is 
 for him an attainment of little value, and that the 
 length of time spent in reaching that attainment has 
 
 281 
 s 
 
ADDRESS 
 
 been, if not wasted, at least not most profitably 
 applied. If he is to spend his life in a counting- 
 house, and his success depends upon his acquaint 
 ance with the intricacies of modern commerce, it 
 will benefit him little to know in detail the political 
 condition of the Grecian states during the war of 
 the Peloponnesus, even if he should acquire that 
 knowledge from the luminous pages of Thucydides. 
 The point is not to abolish the study of the classics 
 altogether ; it is to restrict it to those who may by 
 that study best fit themselves for the activities of 
 that life which they are destined to live among 
 whom might be classed the theologian, the lawyer, 
 the orator, the historian, and all who make of litera 
 ture a pursuit. 
 
 This leads to the consideration of the chief 
 truth, which may deserve a more attentive con 
 sideration. Every study must be calculated to 
 impart discipline or knowledge. A study properly 
 selected should impart both; and that study is, in 
 each individual instance, the best and most eligible 
 which simultaneously imparts both in the greatest 
 possible degree. If the student is destined for the 
 law, a thorough course of mathematics will, no doubt, 
 give his mind some useful discipline; whilst it must 
 be admitted that the amount of knowledge imparted, 
 viewed from the standpoint of usefulness in his pro 
 fession, is comparatively trifling. If, on the other 
 hand, his purpose is to become a civil engineer, 
 the study of the pandects of Justinian, the treatises 
 
 282 
 
ON EDUCATION 
 
 of Puffendorf, or the commentaries of Blackstone, 
 while affording, no doubt, healthy mental exercise, 
 would hardly assist him in building the loop over 
 the Tehachapi or running a tunnel on the Corn- 
 stock. Were it not the better scheme of education 
 that the engineer should leave law-books to the 
 man of law, and the lawyer should abandon the 
 mysteries of Napier s logarithms or Newton s 
 Principia to the man of science? Would not 
 both thereby reap the advantages of an education 
 which affords discipline and information at the same 
 time? 
 
 The brief duration of human life forbids even 
 an attempt at the acquisition of universal knowl 
 edge. The still briefer time which may properly 
 be devoted to education, covering in all seldom 
 more than a third the average length of life, makes 
 it folly to attempt all the studies which it might be, 
 in some degree, useful or agreeable to pursue. If 
 the period of education be one of preparation for 
 subsequent activities, it would seem as if the best 
 possible use that can be made of it is to devote it 
 to that preparation which will best enable the stu 
 dent to discharge the duties of his own individual 
 life. To attain success or eminence in any business 
 or pursuit demands nowadays special aptitude and 
 undivided devotion. The days of universal geniuses, 
 if they ever existed, are past. The men of to-day 
 are compelled to confine themselves not only to 
 particular professions or occupations, but each pro- 
 
 383 
 
ADDRESS 
 
 fession is itself, in turn, subdivided into branches. 
 The age is essentially one of specialists. 
 
 The lesson to be derived from these undoubted 
 truths would seem to be, that intellectual education 
 should, from as early a period as possible, be directed 
 to the attainment of that special knowledge and 
 discipline which is best adapted to the business or 
 pursuit which the student is destined to follow. As 
 soon as those branches are mastered which are com 
 mon to all education, reading, writing, and the 
 rudiments of arithmetic, the whole subsequent 
 intellectual training should be governed by keeping 
 steadily in view the end to be attained. Why 
 should not a youth destined to be a lawyer be trained, 
 as soon as his vocation is ascertained, in those studies 
 which are specially connected with the legal profes 
 sion ? Why should not the same be true of the 
 physician, the soldier, the merchant, or the man of 
 science ? Each of these, by pursuing the studies 
 which are peculiar to the other, may undoubtedly 
 gain some mental discipline, but by devoting him 
 self to the studies which are peculiar to his own 
 selected pursuit, he acquires both the knowledge 
 and the discipline at the same time. 
 
 In conclusion, it may be asked, is there any limit 
 to education ? Is the human race susceptible of 
 indefinite perfectibility ? Is perfection itself attain 
 able ? If the object of education is to fit men for 
 complete living, both from an individual and from 
 a social standpoint, will there ever come a time when 
 
 284 
 
ON EDUCATION 
 
 this object will be attained? These questions it 
 would be presumptuous to undertake to answer. 
 This much at least we know : If perfection is not 
 within the reach of man, improvement certainly is. 
 
 You, the teachers of the State, need not despair, 
 then, if the full proportions of the ideal which you 
 have placed before your mind cannot be attained. 
 The good which you can accomplish is still suffi 
 cient to gratify any rational aspirations. With faith 
 in your mission, and courage in the discharge of 
 your duties, persevere in your noble task. And 
 behold, not only in the approval of the present and 
 the anticipated gratitude of the future, but in the 
 amelioration of the human race, the reward of your 
 labors. 
 
 285 
 
ADDRESSES ON VARIOUS OCCASIONS 
 
STEPHEN M. WHITE 
 
 THE following eulogy was delivered in San Francisco at the 
 banquet of the Iroquois Club, given in commemoration of Wash 
 ington s Birthday, on the 26th day of February, 1901. The 
 banquet had been postponed from the zzd on account of the death 
 of Senator White, which occurred on the zoth of the month. 
 
 MR. PRESIDENT, AND GENTLEMEN: In the olden 
 time, it was the pious custom of some Catholic 
 countries to erect along the public highways shrines 
 where the wayfarer might not only pause for rest, 
 but might find in the contemplation of higher 
 things solace in his fatigue and renewed courage to 
 pursue his journey. Like these ancient places of 
 worship, national festivals are strewn along the 
 course of our life. At their dawn, the people lay 
 aside for a day their accustomed pursuits to meditate 
 upon the lessons taught by events marking epochs 
 in their history, or to do honor to some exalted 
 character whose example shines like a beacon-light 
 along their pathway. The purification of soul and 
 elevation of purpose which the devotee drew from 
 the consecrated shrine the nation derives from these 
 days of commemoration. Like him, it suspends 
 
 289 
 
EULOGY 
 
 at intervals its onward march, pauses to survey 
 what has already been accomplished, the laurels 
 reaped upon the battle-field, the securer triumphs 
 gathered from the realms of peace, and abandons 
 itself to the contemplation of its true destiny 
 and the means by which that destiny may best be 
 achieved. 
 
 The day set apart and dedicated to the commem 
 oration of the birth of Washington has been for 
 now more than a century a day of praise and rejoi 
 cing throughout the land. Yet, as we observe it at 
 this moment, at an hour deferred, we cannot be 
 unmindful of the fact that the day itself was spent 
 by the Democracy of the State in mourning and 
 in tears. On that day the most illustrious of her 
 champions had been stricken down in the meridian 
 of his career, and all of him that was mortal was 
 fast vanishing into the shadow of the dark house 
 and the long sleep which await all the sons of men. 
 In the presence of a death so mournful, a loss so 
 irreparable, it would be doing violence to our own 
 feelings not to turn a while from the special ob 
 servances appropriate to this occasion, to give some 
 expression, however inadequate, to our sorrow, and 
 to voice, however feebly, our sense of bereavement. 
 
 It is eminently appropriate that this mournful 
 tribute should be paid here and now; for though 
 in a broad sense our dead leader belonged to the 
 whole State, yet, by a nearer and more especial 
 title, may the Democracy of California claim him as 
 
 290 
 
OF STEPHEN M. WHITE 
 
 her own. By origin, instinct, and lifelong devotion 
 he was hers, hers by ties as close and indissoluble 
 as those which bind the mother to her child, hers 
 by the reciprocal bond of affection, finding outward 
 and visible manifestation in the great rewards, the 
 ample honors, and the exalted offices which it had 
 been her delight and her pride with prodigal hand 
 to shower upon him. If Democracy means to-day 
 what it meant in the days of its great founder, if 
 it still represents the equality of men; if it still 
 stands the opponent of all class distinctions ; if it 
 still clings to the doctrine of equal rights to all 
 and special privileges to none ; if it still holds as 
 a fundamental truth the right and the duty of the 
 people to govern themselves, then, well may the 
 country be challenged to show a purer embodiment 
 of Democracy than that which in him God had 
 vouchsafed to our eyes. 
 
 Sprung from the people, his life, true to its origin, 
 was devoted to one continuous service of the people. 
 To promote their cause were all his aspirations 
 cherished ; and his dearest ambition sought no other 
 gratification than such as it was in the people s 
 power to bestow. In this age of gold, when wealth 
 is in the estimation of so many the synonym of 
 worth, he never bent the knee before the power 
 of money. At a time when capital has by aggrega 
 tion and concentration acquired such an ascendency 
 as not only to dwarf the individual man, but to 
 overshadow the government of the republic itself, 
 
 291 
 
EULOGY 
 
 he courted not its favor, and never sought its sup 
 port. Others might bend their necks to the yoke, 
 and seek political honors at the sacrifice of indepen 
 dence. His were loftier aims. From that hour in 
 his boyhood when the first glimmer of a seat in the 
 highest house of the nation s councils dawned upon 
 him, he resolved that his ambition should be satisfied 
 without the sacrifice of manhood, without the taint 
 of corruption, without the loss of individual and 
 absolute freedom of thought and action. The 
 annals of our State contain no brighter page than 
 that which records the fulfillment of that pledge. 
 Laws may decay and constitutions may perish, but 
 as long as a vestige of the true spirit of Democracy 
 is left his example will remain to inspire, elevate, and 
 purify the aspirations of the youth of the State. 
 The future historian will write his name as that of 
 one who, without compromise with wrong, attained 
 the highest honors which the State could confer; 
 one whose lofty purpose and sublime declaration 
 let the chronicler blazon the sentence in letters of 
 gold it was that he intended "to make it possible 
 for a man to aspire to the Senatorship on his merits 
 alone." 
 
 Entering the Senate of the United States while 
 still a young man, he took his place the peer in 
 character, attainments, eloquence, and statesmanship 
 of the oldest and most honored of those with whom 
 in official station he stood upon an equal plane. If 
 it be true that that once august body has degen- 
 
 292 
 
OF STEPHEN M. WHITE 
 
 crated into an assemblage of representatives and 
 servants of money, if, to use the current phrase, it 
 has become a mere millionaires club, the con 
 tamination of his surroundings never touched the 
 Senator from California. Others might fall with 
 servile idolatry before false idols; his faith remained 
 uncorrupted. Others might abdicate their lofty 
 mandate to become the tools of capital; he served 
 but one master the people, and the whole people. 
 Others might degenerate into mere pawns upon 
 the chessboard which the spirit of commercialism 
 manipulates at will in the sordid game of money- 
 making; he surrendered to no one his independence 
 or his conscience. The blandishments of wealth 
 were powerless to allure him ; and the hired audacity 
 of corruption stood awed and abashed in the pre 
 sence of his integrity. Poor in purse, he possessed 
 a treasure beyond the might of gold to buy he 
 owned himself. 
 
 By those who did not know him it might be 
 imagined that a character so exalted, a fidelity to 
 duty so unswerving were accompanied with an 
 austerity of temperament and a repellency of man 
 ner calculated to isolate him from his fellow men. 
 But we who knew him know that it was not so. 
 His nature was so broad and catholic, his charity 
 toward all so unaffected and generous, his con- 
 siderateness for the feelings of others so tender and 
 unfailing, that in the breasts of those who were 
 brought in contact with him admiration and respect 
 
 293 
 
EULOGY 
 
 ever shaded off into personal affection. His com 
 manding ability engendered no envy. His assump 
 tion of leadership excited no jealousy. It seemed 
 to all a pleasure to further his cause and a privilege 
 to do him honor. 
 
 And what shall be said of those intellectual gifts 
 now buried in the darkness of the tomb ? What 
 of that eloquence, now silenced forever, to which 
 popular assemblies, courts, and senates, entranced 
 by the combined spell of splendid imagery, convin 
 cing logic, and resistless conviction, have so often 
 listened ? Not this the occasion fitly to describe or 
 estimate them. This much, however, it may be 
 permitted to say : The imagination of the orator 
 never hurried him beyond the limits of good taste 
 or good sense. His powers of reasoning were never 
 employed in furtherance of a dishonest or an unjust 
 cause. The intensity of his convictions and the 
 consciousness of his own rectitude never carried 
 him to the length of impugning the sincerity or 
 assailing the motives of an antagonist. The current 
 of his speech flowed like a placid stream in whose 
 waters his soul was mirrored ; and if at times, under 
 the sway of deep emotions aroused by enterprises 
 of great weight and moment, its tide rose and swept 
 onward like a torrent swollen by the storms of win 
 ter, it never overflowed its banks, spreading ruin 
 and desolation in its path. 
 
 One trait of his character we recall to-day with 
 an especial fondness. He was a Californian in 
 
 294 
 
OF STEPHEN M. WHITE 
 
 the highest and best sense of the word, intensely a 
 Californian. Born here, he had never crossed be 
 yond the boundaries of the State until after he had 
 passed the thirty-second year of his life. And the 
 California of his affection was not the State that 
 recent agitators have schemed for, not a Cali 
 fornia rent in twain, halved between the north and 
 the south, shattering into fragments the broad alle 
 giance of her sons, but the California of to-day, 
 and of the days of the Argonauts, California 
 dowered with the integrity and grandeur of her 
 original domain, extending the majestic sweep of 
 her imperial boundaries from Oregon to Mexico, 
 and from the Sierra to the Pacific, gathering within 
 her ample lap all the varied productions of her soil 
 and clime, from the gold of the placers washed by 
 the melting snows of Shasta to the orange and cit 
 ron which perfume the fragrant groves of San Diego, 
 California, the land, one and indivisible, which 
 her sons wandering in foreign climes dream of in 
 slumbers, and, waking, long for, yearning for the 
 hour of return. 
 
 But this is not the occasion to pronounce the 
 eulogy of our dead friend. Our loss is too recent, 
 our sense of bereavement too poignant to permit 
 justice to his character, his accomplishments, and his 
 public services to be done now. At no distant day, 
 we fell assured, a fitter opportunity will come. When 
 time shall have assuaged our sorrow, and the light 
 of our reason shall no longer be dimmed with tears, 
 
 295 
 
EULOGY 
 
 as the monument which a grateful people have pro 
 jected to perpetuate his memory stands unveiled, 
 that hour will be at hand. I seem to see that monu 
 ment erected in some public place of the city which 
 has been the home of his youth and manhood, and 
 in which his ashes repose. I see it as loving hearts 
 would ordain it, as loving hands would mold and 
 fashion it. Let enduring bronze transmit to genera 
 tions yet unborn the lineaments of that face and the 
 proportions of that form which it was our privilege 
 to see in the flesh, but which in the flesh mortal 
 eye shall see nevermore. Upon each side of its 
 square and granite base let bas-reliefs typify the great 
 epochs of his career. In the first, let him be repre 
 sented as a boy upon his father s farm, holding the 
 plow paused in mid-furrow while his imagination is 
 dazzled by the visions which the veil of futurity, 
 rent by his young ambition, displays before his eyes ; 
 in the second, let him appear in the full maturity 
 of his manhood and in the meridian of his intellec 
 tual power arguing before the Supreme Court of the 
 United States the constitutionality of the Chinese 
 Exclusion Act ; in the third, let him be seen, his 
 face radiant and his frame dilated with the realiza 
 tion of his boyhood s aspirations, as he receives from 
 the Legislature of California in joint convention 
 assembled the announcement that he is the State s 
 chosen Senator ; in the fourth, let him be figured at 
 the chairman s desk, quelling with outstretched hand 
 the stormy waves of the National Democratic Presi- 
 
 296 
 
OF STEPHEN M. WHITE 
 
 dential Convention assembled at Chicago. Upon 
 such a pedestal let there be raised a commanding 
 statue, representing him as he stood in his place in 
 the Senate of the United States on that fateful day 
 of April, 1898, when, breasting misguided public 
 clamor, and with prophetic eye foreseeing the dan 
 gers with which the lust of empire menaced our 
 institutions, he uttered in words of inspired eloquence 
 his protest against the declaration of war with Spain. 
 Then, as the veil falls from the monument and the 
 glad acclaims of the assembled multitude die upon 
 the air, let some friend worthy to perform the task 
 recount the life, commemorate the triumphs, and 
 voice the praises of Stephen M. White, 
 
 297 
 
ADDRESS AT ELKS MEMORIAL 
 SERVICE 
 
 THIS address was delivered by Mr. Delmas at the Elks Memorial 
 Service, held in the Grand Opera House, under the auspices of 
 San Francisco Lodge, No. 3, on Sunday, December 2, 1900. 
 
 EXALTED RULER, LADIES AND GENTLEMEN: 
 When I accepted the courteous invitation extended 
 to me by your committee to participate in this 
 solemnization, I was informed that the rule and 
 custom of your order required that the subject of 
 my address should be the immortality of the soul. 
 
 One of the most distinguished living prelates of 
 the Catholic Church has said : " One Being alone 
 is absolutely immortal; One alone has no begin 
 ning and no end; and that Being is God." To 
 conceive, therefore, the relative immortality of 
 created man, we should first conceive the absolute 
 immortality of the uncreated God. An exhaustive 
 development of so vast a theme within the briefness 
 of time imposed by the unavoidable limitations of 
 this occasion were it even otherwise in my power 
 
 298 
 
AT ELKS MEMORIAL SERVICE 
 
 to accomplish it is manifestly hopeless. To 
 attempt it would be to endeavor to discuss at a 
 breath a subject which, whether considered in itself 
 or in connection with its necessary relations, tran 
 scends in interest and far-reaching importance any 
 which has ever engaged the attention of mankind. 
 I must, therefore, throw myself upon your indul 
 gence, if the few remarks which I am about to 
 make shall leave your expectations unrealized or 
 your minds unsatisfied. 
 
 In contemplating this subject, we meet at the 
 very threshold the indisputable fact that, explore it 
 in what epoch or in what region we may, whether 
 we follow it until it vanishes amid the mists of 
 fable or examine it to-day; whether we study it 
 among the foremost nations of the earth or pursue 
 it among tribes upon whom civilization has never 
 yet shed its light, the history of the human race 
 attests that, everywhere and at all times, with the 
 most exalted as with the humblest of mankind, 
 there has ever been found a hope of immortality. 
 Toward the light which the desire of eternal life 
 diffuses, man has ever turned his eyes with an im 
 pulse as spontaneous and irresistible as that which 
 lifts the flower toward the beams of the sun or 
 guides the infant to the mother s breast. The 
 yearning to prolong life beyond material existence 
 must needs, therefore, be considered to be an 
 instinct to call it by no higher name ineradica 
 ble from our nature. 
 
 299 
 
ADDRESS 
 
 Wherever human lips have moved in prayer 
 whether in the solitude of the hermit s cell or in 
 the multitudinous concourse which intones the 
 swelling anthem under the groined arches of stately 
 cathedrals, whether to voice the language of the 
 affluent ritual of civilized man or to chant the rude 
 incantation of the savage ; and wherever human 
 hands have erected an altar, whether of simple 
 boughs beneath the canopy of heaven or of marble 
 and gold and precious stones under the lofty dome 
 of some majestic minster; and wherever human 
 eyes, dimmed with the tears of anguish, have 
 turned in appeal to a hidden power for assuagement 
 in sorrow or courage in despair, there proofs 
 have been given of man s longing for immortality. 
 These are the outward evidences of the religious 
 feeling inherent in the human heart and inseparable 
 from human existence; and without the hope of 
 immortality were religion a delusion, worship a 
 mockery, and prayer as vain and empty as sound 
 ing brass and tinkling cymbal. 
 
 Nor may reason discard this hope as a mere fitful 
 and transitory gleam of our emotional nature. 
 Strive as he may to weed from out his breast all 
 sentiment or emotion, resolve he ever so firmly to 
 accept as truth nothing save what the cold precepts 
 of logic demonstrate, sear his heart as he will with 
 the drear study of skeptical metaphysicians, still 
 shall not man quench the fire of this inextinguish 
 able flame. Bulwark them as he may, the time will 
 
 30 
 
AT ELKS MEMORIAL SERVICE 
 
 come when the barriers of his factitious stoicism 
 will break asunder, and pent-up humanity will 
 resume her sway. In the unshunnable hour of 
 bereavement, when he shall stand amid the wreck 
 of earthly joys lying shattered about him, the star 
 of immortal hope alone shall remain in the firma 
 ment to guide his tottering footsteps through the 
 universal gloom; and, with blinding tears and 
 stifling sobs, even as did Ingersoll over his broth 
 er s bier, he will exclaim : " We cry aloud, and the 
 only answer is the echo of our wailing cry. From 
 the voiceless lips of the unreplying dead there 
 comes no word ; but in the night of death hope sees 
 a star, and listening love can hear the rustle of a 
 wing/ 
 
 I have read in the biography of Guizot, the great 
 French historian, statesman, and orator, that, at 
 the close of a life as full of honors as of good deeds, 
 when he felt that the end was come and the hand 
 of death was upon him, he took leave of his daugh 
 ter, kneeling by his bedside, as if setting out upon 
 a journey involving but a temporary separation, 
 saying, "Good-by, my daughter." "Till we meet 
 again, father," the child replied. And the dying 
 man, raising himself upon his pillow, answered, 
 "No one is more certain of our meeting than I." 
 And so he passed away. 
 
 What an agony of despair must death be without 
 this hope of meeting beyond the grave ! Truly has 
 a distinguished orator of our own, speaking in the 
 
 301 
 
ADDRESS 
 
 national council-hall over the ashes of a brother 
 Senator, said, " If immortality is a splendid but 
 delusive dream, if the incompleteness of every 
 career, even the longest and most fortunate, be not 
 supplemented and perfected after its termination 
 here, then he who dreads to die should fear to live, 
 for life is a tragedy more desolate and inexplicable 
 than death." 
 
 I know not how better to voice my own thoughts 
 here than by asking your forbearance to portray 
 the impressions of an episode within my own per 
 sonal experience. Rambling one Sunday morning 
 in springtime among the mountains near my home, 
 I came, at an abrupt turn of an unfrequented path, 
 upon a sight which for a moment riveted my atten 
 tion and arrested my footsteps. Upon the slope 
 of a gentle declivity, beneath the wide-spreading 
 boughs of a stately oak, a woman, clad in deep 
 mourning, knelt, her head bowed low and her face 
 buried in the sod of a new-made mound. The sim 
 ple cross and the half-withered flowers told in mute 
 but pathetic eloquence the story of the place. The 
 fear of intrusion upon a spot hallowed by death and 
 consecrated to sorrow made me pause and noise 
 lessly retrace my steps. But the emotions which the 
 sight had awakened accompanied me on my way. 
 " How vain," thought I, "and impotent appear all 
 the speculations of philosophy in the presence of 
 such a scene as this ! From the earliest dawn of 
 human intelligence until now, sages have striven to 
 
 302 
 
AT ELKS MEMORIAL SERVICE 
 
 unroll the scroll where the secrets of existence are 
 written, and to sound the depths of the mystery of 
 creation. With eager feet, never tiring, each pur 
 suing his separate path, they have climbed the steep 
 where the star of Science shines afar, importuning 
 the heavens above and the earth beneath to be 
 informed of the origin of the world and told the 
 ultimate destiny of man. Their anxious question 
 ings have died upon the empty air, unanswered and 
 unechoed. They have ever returned proclaiming 
 that the oracle was dumb and the mystery unsolved. 
 But how is it with this humble mourner? Her 
 tremulous lips have breathed a prayer over the 
 ashes of the dead. From the depths of her sor 
 rowing heart she has spoken, c I believe in God, 
 the Maker of heaven and earth; I believe in 
 the immortality of the soul and life everlasting/ 
 Before the eyes of her faith the nature of the 
 eternal and uncreated First Cause and the mystery 
 of Creation stand revealed; and to her ears the 
 eager doubt of the Prophet of Israel, c If a man 
 die shall he live again? has been answered by the 
 words of the Apostle of Galilee, As in Adam all 
 die, even so in Christ shall all be made alive/ The 
 God of her faith is not the metaphysical abstraction 
 of the schools of philosophy. He is the Creator, 
 of infinite power, whose hand hung the stars in the 
 firmament and made man in the likeness of His 
 own image. He is the Father, of infinite goodness 
 and love, whose providence guides the footsteps of 
 
 303 
 
ADDRESS 
 
 His children upon earth and receives them in the 
 regions of eternal bliss after death. The soul s 
 immortality of her belief is no vague conception of 
 shadowy existence. It is the continuance of indi 
 vidual life, purified from the grossness of the flesh, 
 perpetuating in heaven the associations, the joys, 
 and the happiness of this world. Soothed and 
 comforted by the consolation which this faith 
 affords, she will rise from her communion with the 
 dead to resume her way and calmly await the com 
 ing of the hour when both shall be united in the life 
 to come. Deny her this belief, strip her of this faith, 
 and her words of prayer to the Omnipotent would 
 turn into a wail of despair. And such is and always 
 has been the condition of sorrowing humanity. 
 In all ages and in all climes, unnumbered souls 
 have found in this heaven-given promise the source 
 of strength to bear the toil, the suffering, and the 
 injustice of this world. Skeptics have lived and 
 died and been forgotten; systems of metaphysics 
 have sprung up and have faded away; schools of 
 philosophy have flourished and have decayed; but 
 man s belief in immortality stands the beacon of 
 eternal hope, undimmed by the mists of doubt, un 
 shaken by the ravages of time. Now and hereafter, 
 as of old, sorrow will still be found kneeling, like 
 this humble mourner, by the side of the tomb, wait 
 ing to hear the accents of that voice which comes 
 from the regions where death has never trod, say 
 ing, c I am the Resurrection and the Life. He that 
 
 304 
 
AT ELKS MEMORIAL SERVICE 
 
 believeth in Me though he be dead, yet shall he 
 live; and whosoever liveth and believeth in Me 
 shall never die / " 
 
 305 
 
ADDRESS BEFORE THE SONS OF THE 
 REVOLUTION 
 
 THE following was the response of Mr. Delmas to the toast, 
 "The character of Washington and its influence upon the nation," 
 made at a banquet of the Sons of the Revolution, in San Francisco, 
 on the zzd day of February, 1899. 
 
 MR. PRESIDENT: If a student of the firmament, 
 whose vigils are consecrated " to trace the stars and 
 search the heavens for power," were asked to describe 
 in an after-dinner speech the nature and composition 
 of the sun, and to depict its influence upon the uni 
 verse, he would stand appalled at the immensity of 
 his task and confounded in the attempt to accomplish 
 it. No less embarrassment do I feel when, in obe 
 dience to your courteous summons, I rise on this 
 occasion to respond to the sentiment which you 
 have just proposed, " The character of Washington 
 and its influence upon the nation." 
 
 Where, indeed, could a theme be found more 
 vast in its proportions or more diversified in its 
 attributes to be compressed within such narrow 
 bounds ? A century has rolled by since Washing- 
 
 306 
 
BEFORE THE SONS OF THE REVOLUTION 
 
 ton was laid to rest beneath the sod of Mount Ver- 
 non. And yet wherever upon the face of the globe 
 the emblem under which he fought the great fight 
 of Independence is unfurled in every city, town 
 village, and hamlet within the confines of the re 
 public upon every craft flying the stars and stripes 
 which floats upon the waters, from the stately and 
 awe-inspiring battle-ship horrent with engines of de 
 struction to the humblest fishing-smack that ploughs 
 its peaceful way under the shadow of the lee-shore, 
 nay, in remote and strange lands, whether in the 
 frozen regions of the pole or under the burning sun 
 of the tropics, wherever a heart is found to beat in 
 an American breast, there, on this day, with pub 
 lic pomp or private ceremonial, the life of Wash 
 ington is commemorated for now the one hundredth 
 time since a nation, still clad in mourning for his 
 death, decreed that the day of his birth should be 
 so remembered and so hallowed. How, then, 
 shall I attempt adequately to conceive or describe 
 within this brief limit the character, the achieve 
 ments, and the influence of that man whose name 
 is thus enshrined in the hearts of his countrymen, 
 and whose spirit holds such a spell over the minds 
 of successive generations ? How measure the worth 
 of that life, whose fame, defying not only the power 
 of time, but reversing the laws of terrestrial things, 
 grows brighter with each revolving year, and keeps 
 pace with the march of civilization wherever its 
 standard is advanced over the inhabitable globe ? 
 
 307 
 
ADDRESS 
 
 But, Mr. President, if it be for these reasons im 
 possible to trace the influence of the character of 
 Washington upon the destinies of this country dur 
 ing the century that has just elapsed since his death, 
 a century in which the nation has gone through 
 such varied vicissitudes, we may, perhaps, be 
 empted to cast a glance upon events which imme 
 diately surround us, upon those changes in the 
 history of our country which have been and still 
 are taking place under our very eyes with such 
 amazing rapidity and completeness of transforma 
 tion that they appear like the phantasms of a dream 
 or the shifting panorama of the scenic stage. What 
 influence do the character, the example, the precepts 
 of Washington exert to-day upon the destiny of the 
 nation in the unprecedented and changed condi 
 tions which surround it ? In the solution of the 
 new problems which the arbitrament of a brief but 
 decisive war thrusts upon us, what aid is sought 
 from the recorded utterances of that tongue which 
 was hushed in death a hundred years ago? In 
 the heavings of the ship of state, tossed upon the 
 waves of an unknown and strange sea, what guid 
 ance does the helmsman invoke from the chart 
 traced by the hand of Washington before the cen 
 tury was born to indicate the course where national 
 safety and national honor lay ? 
 
 Mr. President, our national life during the last 
 ten months has been crowded with events which 
 a century ago would have filled a decade in the 
 
 308 
 
BEFORE THE SONS OF THE REVOLUTION 
 
 existence of even the most advanced nation. Devel 
 opments have been so rapid, episodes have pressed 
 upon each other so closely, vicissitudes have pre 
 sented features so startling and unlooked for, that 
 the wisdom of the representatives of the people has 
 been tasked in an almost superhuman degree to 
 meet the varying emergencies as became the dig 
 nity and the true interests of a great nation. From 
 that ill-starred hour, on the night of the I5th of 
 February, 1898, when the shattered Maine sank in 
 the waters of Havana, dragging down in the vortex 
 and burying beneath the waves the decrepit and 
 expiring form of one of the oldest monarchies of 
 Europe, to the moment, which is but of yesterday, 
 when the Senate ratified the treaty by which Spain 
 relaxed her feeble grasp upon the last outlying frag 
 ments of the vast empire of Charles V., and we 
 found ourselves of a sudden burthened with the 
 guardianship of ten or twelve millions of men, 
 strangers to our race, our language, our customs, 
 and our civilization, whose was the name invoked 
 in our council-halls, whose the utterances quoted, 
 whose the example cited, whose the wisdom and 
 statesmanship appealed to ? The student of politi 
 cal history, turning to the pages which record the 
 deliberations of the lawmakers of the nation, wiL 1 
 answer, The name, the example, the precepts, the 
 wisdom and statesmanship of Washington. When, 
 in the beginning of the struggle, our Chief Magis 
 trate announced to the world that the war was 
 
 309 
 
ADDRESS 
 
 undertaken solely to vindicate the outraged dignity 
 of the nation, and proclaimed that the idea of con 
 quest and aggrandizement was to be repudiated and 
 reprobated as a criminal aggression not to be thought 
 of, whose was the policy thus announced ? The 
 policy inculcated by Washington in that immortal 
 Address in which he exhorted his countrymen to 
 maintain their attitude of isolation and indepen 
 dence of foreign peoples. When the news of suc 
 cessive victories glorious for our arms, disastrous 
 for our enemy s flashed before our eyes ; when we 
 saw our foe its armies routed, captured, or dis 
 banded, its fleets annihilated lying prostrate and 
 helpless at our feet ; when opportunity kindled the 
 hunger for foreign acquisitions, and schemes of col 
 onial domains, of protectorates, of imperial policies 
 were at first secretly conceived, then voiced in 
 whispers, and at length openly and boldly pro 
 claimed, by what words did the wise and thoughtful 
 seek to recall our wanderings, and warn us not to 
 abandon the advantages of our singularly fortunate 
 position, nor to entangle our peace with European 
 ambitions or rivalries ? The recorded history of 
 the hour will answer, By the words of Wash 
 ington. And now, when, in the delirious joy of 
 our triumph, forgetful of the concerns clamor 
 ing for attention at home, we talk in swelling 
 phrase about our duty to humanity abroad ; when 
 we imagine ourselves the champions of Providence 
 fraught with the mission of emancipating and regen- 
 
 310 
 
BEFORE THE SONS OF THE REVOLUTION 
 
 crating mankind ; when we allow our imagination to 
 be dazzled and our vanity to be flattered by invitation 
 to an alliance with a monarchy, kindred, it is true, 
 but, for that, none the less proverbially egoistic in 
 its policy, what voice rings clear through the mists 
 of a century to warn us that " it is folly in one 
 nation to look for disinterested favors from another ; 
 that it is an illusion which experience must cure, 
 which a just pride ought to discard " ? What voice, 
 I ask, but the voice of Washington ? 
 
 Are we deaf to these utterances ? Do we hear 
 them unmoved ? Has the power which has been 
 our guide for a hundred years now ceased to have 
 force ? Have those precepts under which our na 
 tional greatness has developed, our commerce flour 
 ished and the happiness of the people been secured, 
 lost their efficacy? Is the influence of the exam 
 ple and the teachings of Washington henceforth to 
 be no more ? Believe it not, sir ; believe it not. The 
 day will come it never yet has failed to come to 
 the people of these United States when the tem 
 porary illusions of the hour shall be dispelled like 
 the mists of the morning, when reason shall resume 
 her sway, when this un-American and unrepublican 
 talk of imperialism this nascent proneness to 
 neglect our affairs at home in a fantastic attempt to 
 usurp the functions of the Omnipotent in the regu 
 lation of the world shall be looked upon as the 
 fitful and momentary aberrations of a fevered mind. 
 The day will come when we shall realize that our 
 
 311 
 
ADDRESS 
 
 true interests are here and concern our own people ; 
 that the principles by which we conquered and stil 
 maintain our independence demand that we allow 
 other nations to achieve or retain theirs, and that, if 
 expansion be our wish, we should remember that we 
 have still within our own borders, upon soil indis 
 putably ours, room enough for a ten times greater 
 number of freemen children of the temperate zone 
 than the fevered swamps of the Antilles or the 
 jungles of the Malayan archipelago could support. 
 The day will come when, with the accustomed rev 
 erence of old, we will return to the wisdom and 
 statesmanship of Washington, and in the future as 
 in the past will continue to rear the edifice of our 
 national greatness upon the broad and safe founda 
 tions which he has laid. 
 
 In that day, and until the waters of the ocean 
 shall have ingulfed the continent and this loved 
 land of ours shall be no more, Author of our inde 
 pendence, Founder of our government, primordial 
 Magistrate of the republic, Father and Sage, whose 
 ashes are inurned within the sepulcher of Mount 
 Vernon, but whose spirit can never die, be with us 
 yet and evermore. 
 
 312 
 
A POLITICAL BOSS 
 
 FROM Mr. Delmas s address to the jury in the case of J. P. 
 Jarman vs. James W. Rea, before the Superior Court of Santa 
 Clara County, on October 22, 1898. 
 
 GENTLEMEN, I cannot but express my astonish 
 ment at the colossal proportions which, in the eyes 
 of his admirers, this defendant would seem to have 
 attained. According to his counsel, he is a person 
 of strong individuality, and wonderful magnetism as 
 well ; one destined to be not only a benefactor of 
 his race, but also a leader among the leaders of men. 
 
 These sentiments have been voiced in your hear 
 ing, in a tone whose evident sincerity robs them 
 of all suspicion of irony or sarcasm. Upon the 
 amenities of personal friendship or the ties and 
 obligations of political association which may have 
 prompted these utterances it would ill become me 
 on this occasion to speak. But when I see this 
 individual held up as a model, whose example the 
 youth of this community are exhorted to imitate; 
 when I see him depicted as a man whom the State 
 should be proud to honor; when I see him com- 
 
 313 
 u 
 
DESCRIPTION 
 
 pared with Washington and Lincoln, and in words 
 of audacious, if not blasphemous, irreverence with 
 Christ himself, I should scant my rights as a citi 
 zen and do violence to my duty as an advocate 
 were I to remain silent. 
 
 It is not no, it is not in these exalted charac 
 ters that the prototype of the political boss of 
 to-day, be he of New York or of Chicago, come 
 he from San Francisco or from San Jose, is to be 
 sought. It is found, rather, in a personage who, 
 after figuring for a brief space upon the public 
 stage, died some thirty years ago bequeathing to 
 posterity a record of infamy under the name of 
 " Boss " Tweed. 
 
 Washington spent the years of his early as of 
 his ripe manhood conquering upon the battle-field 
 the independence of his country. With returning 
 peace, he consecrated his maturer days to the task 
 of laying broad and deep those foundations upon 
 which has been erected the government of a people 
 whose expanded sway, spurning now the watery 
 limitation of either ocean, extends its imperial 
 bounds until they embrace the Antilles in the East, 
 while in the region of the setting sun they rest 
 upon the islands of the Malayan archipelago. To 
 Lincoln Providence intrusted the duty of striking 
 off the shackles from the hands of four millions of 
 bondmen, of extinguishing the fires of a desolat 
 ing fratricidal war, of rewelding the sundered bonds 
 of sister States, of restoring that united republic 
 
OF A POLITICAL BOSS 
 
 of sovereigns which, standing to-day in all its pris 
 tine strength and more than its pristine grandeur, 
 is the pattern of all present and future govern 
 ments of freemen. The son of Mary the last 
 scion of the royal house of David, the Prince of 
 Peace, whose coming had been announced by the 
 seers of Israel, and foretold by prophets who in 
 the infancy of the world had held communion with 
 the Highest and gazed with unseared vision upon 
 the face of the great Jehovah even He, Messiah, 
 came into the world to preach the gospel of peace 
 and good will, to unite mankind in one universal 
 brotherhood of charity and of love, to alleviate the 
 sufferings of all who labor and are heavy laden, to 
 raise up the bent form of sorrow, and bid its tear- 
 dimmed eyes look up above in the consolatory 
 hope of a life hereafter. Tweed employed his days 
 in organizing a band of thieves, whose mission was 
 to rob the treasury of a State, to debauch her legis 
 lators and corrupt her judges, to prostitute the 
 manhood of her sons, and make her name a hissing 
 and a byword among the nations of the earth. 
 
 You have heard it said here that the names of 
 Washington, of Lincoln, and of Jesus of Nazareth 
 are inscribed upon the Book of Life in letters whose 
 splendor dims the luster of the evening star. The 
 name of Tweed, written side by side with that of 
 ruffians and malefactors, is catalogued in a turnkey s 
 nand upon the prison register of the Ludlow Street 
 jail. 
 
 315 
 
DESCRIPTION OF A POLITICAL BOSS 
 
 Washington closed his eyes in peace under tne 
 roof-tree of his noble mansion; and in all seasons 
 of the changing year, and from every region of the 
 world, come pilgrims to do homage to his enshrined 
 ashes, while his never-ceasing requiem is sounded 
 from the deck of every craft that floats beneath the 
 shadow of Mount Vernon. Lincoln s death was a 
 martyrdom to duty; and as the tidings that he was 
 no more spread through the land, the great heart 
 of the nation ceased a while to beat, the winds 
 seemed for a season to stand still, and the tempest s 
 breath to be hushed, amid the wailing and lamenta 
 tion of mourning humanity. Christ died upon 
 Calvary; and when his hour had come, darkness 
 overspread the face of nature, the rocks were rent, 
 and the earth shook, as if the universe, expiring 
 with its God, had blent its soul with his in its return 
 to the source of eternal life. Tweed perished in a 
 dungeon, amid the curses of a State which he had 
 plundered, of a nation which he had disgraced, of 
 mankind which he had dishonored. 
 
 Let him who walks in his footsteps take warning 
 from his fate. 
 
 316 
 
ADDRESS BEFORE THE CHIT-CHAT 
 
 CLUB 
 
 ANSWER to the toast "What has law done for civilization? " at 
 the annual dinner of the Chit-Chat Club, held in San Francisco on 
 November 9, 1896. 
 
 MR. PRESIDENT: The sentiment to which I am 
 called upon to respond the effect of law upon 
 civilization assumes, at a glance, such vast pro 
 portions that it seems difficult to attempt to give 
 even so much as a general outline of the thoughts 
 which its mention evokes. To describe the gradual 
 but ceaseless and resistless evolution of the human 
 race from the condition of rudeness in which history 
 and ethnology teach it was found, not so very many 
 centuries ago ; to descry the first faint glimmer of 
 the light of arts, sciences, and philosophy upon the 
 remote inhabitants of India; to discern its gradual 
 expansion beyond the confines of the empire watered 
 by the Indus and the Ganges ; to trace its dawn upon 
 the Grecian archipelago, and watch it lingering long 
 and lovingly upon .the shores of the Piraeus, vivifying 
 the arts, the literature, and the philosophy which for 
 
 317 
 
ADDRESS 
 
 over twenty centuries have left their impress upon 
 all succeeding Western civilizations ; to see it grad 
 ually tingeing with its rays the crest of the seven 
 hills of the city of Romulus, transforming them by 
 degrees into the abode of all that was exalted in 
 the realm of human achievements ; to gaze upon 
 its refraction from the imperial metropolis of the 
 Caesars along the Mediterranean, till on the one shore 
 it illumined its margin from the Delta of the Nile 
 to the Pillars of Hercules, and on the other dazzled 
 with its splendor the barbaric inhabitants of Gaul, 
 of Spain, and, at last, of Britain ; to behold it sta 
 tionary for a thousand years, its westward course 
 arrested, and then accompanying the daring caravels 
 of the Genoese navigator, shining upon their path 
 across the affronted perils of unexplored seas, and 
 kindling at last the altar-fires of a new race of men 
 upon a newly discovered continent ; to view it flam 
 ing across the Atlantic sky, undimmed amid the 
 storms of New England winters or the tropical 
 luxuriance of the Southern coast ; to notice it thence 
 gradually diffusing its radiance over the tops of the 
 Alleghanies, the banks of the Ohio, the waters of the 
 Mississippi, the boundless prairies, the heights of the 
 Rocky Mountains, the sands of the desert, the sum 
 mits of the Sierra, until it tinged the waves of the 
 Pacific; and then to us Californians a spectacle 
 and a transformation full of deepest interest and most 
 touching insruction to contemplate the mountains, 
 the hills, and the valleys of our own beloved State, 
 
 318 
 
BEFORE THE CHIT-CHAT CLUB 
 
 changed within our memory, under the power of 
 its benign influence, from the habitat of rude sav 
 ages into the homes of a new order of beings, who, 
 in the advancement of arts, literature, and science, 
 in the development of the resources and the natural 
 advantages which are the basis as well of indi 
 vidual happiness as of national prosperity, have in 
 less than a half-century reached a point where they 
 may well challenge the admiration and excite the 
 generous emulation of the most favored of the sons 
 of men in the most favored climes ; to do this, I 
 say, to undertake this task, and then to attempt to 
 measure and define the influence which law has had 
 upon this ever-expanding light of civilization, how 
 it has removed the obstacles in its path, and made 
 secure its gradual conquest over the empire of dark 
 ness, were a task vast as the history of the human 
 race, commensurate with the achievements of the 
 human mind, limitless as the aspirations of the 
 human heart. 
 
 But, Mr. President, if the general scope of the 
 subject is too vast, perhaps one example may serve 
 at least to illustrate it. Asked what has been the 
 influence of law upon civilization, I might answer : 
 Look around you. Recall and reflect upon what 
 has taken place within the last few days under your 
 own eyes, here where Western civilization has taken 
 its last stand. One week ago this very night, we 
 presented the spectacle of a nation of seventy mil 
 lions of people divided into two hostile camps, each 
 
 319 
 
ADDRESS 
 
 led by its own supreme commander, each composed 
 of nearly one half the population, each filling its ranks 
 with members eager, intent upon victory. For over 
 three months a struggle for rule and supremacy, 
 protracted and intense, had been waged, and the 
 contest had then reached its highest point of fierce 
 culmination. The principles contended for by both 
 parties seemed in direct antagonism each to the other. 
 From the lips of a thousand orators and in the 
 columns of a thousand papers were daily issuing 
 denunciations of opponents, predictions of dire ca 
 lamities to follow the defeat of a favored champion, 
 and auguries of unexampled blessings and prosper 
 ity to wait upon his success. Processions of sincere 
 and earnest men marched in serried ranks through 
 the streets of crowded cities, bearing aloft banners 
 with mottoes typifying their own faith or deriding 
 the tenets of their antagonists. Ensigns were defi 
 antly flung to the breeze ; and the emblem that 
 floats equally over the arts of peace and the smoke 
 of battle, the revered symbol of the nation, was 
 borne aloft by both the contending hosts as a chal 
 lenge to the world that it alone was worthy to be 
 the protector of the nation s honor and the defend 
 er of the nation s interests. 
 
 The excitement which ever attends the confronta 
 tion of large bodies of men actuated by different 
 aims, seeking different objects, and contending upon 
 different lines for mastery, had reached the zenith, 
 and seemed to threaten resort to the supreme 
 
 320 
 
BEFORE THE CHIT-CHAT CLUB 
 
 though dread arbiter of human contentions Force. 
 The next day had been designated as the day of 
 battle. And what happened then ? The adult 
 population of this nation, throughout the vast ex 
 panse of its imperial domain, marched to the scene 
 of conflict. The institutions of the country and 
 the time-honored traditions of the age had decreed 
 that the contest should be one of mind, and not 
 of matter, of principles, and not of arms, of 
 peace, and not of war. And peacefully did it take 
 place. Even there where the antagonism was most 
 strenuous not an incident occurred to dim the splen 
 dor or mar the perfection of the spectacle. The 
 sun went down; but not over a field of carnage. 
 Its expiring beams were not reflected by the grimed 
 visage of the victor, flushed with savage exultation; 
 nor did they fall upon the lifeless face of a defeated 
 foe. Instead a great people sat in calm majesty to 
 determine the result of a victory of peace. By the 
 light of bonfires, under the glare of electricity, 
 through the livelong night, throngs crowded the 
 streets of great cities, surging to and fro like the 
 waves of a mighty ocean in their eagerness to catch 
 the indications of triumph or defeat. 
 
 And in all this there was no commotion, no con 
 tention, no violence. Before another sun had risen 
 the decision had been announced ; each party knew 
 the decree that fate had had in store as the culmination 
 of its aspirations or death-knell of its hopes. And 
 when that sun rose next morn, it looked down upon 
 
 321 
 
ADDRESS 
 
 the nation s millions peacefully resuming their daily 
 toil, industrious, contented, and cheerful, mutual 
 expressions of good wishes interchanged between 
 the victorious and the defeated champions, couched 
 in terms of most perfect courtesy and unaffected 
 patriotism, the banners taken from their staves, 
 and all trace of contest swept away. One might 
 have thought a pebble had been dropped into the 
 smooth waters of a lake, a splash, a ripple, and in 
 a moment all again was still. 
 
 Therefore is it, Mr. President, that if asked what 
 influence law has had upon civilization, I would be 
 tempted to say : What but law law wisely framed 
 and wisely administered has made so sublime a 
 spectacle a possibility ? Who but a people in whom 
 obedience and submission to law is not so much the 
 result of reasoning and reflection as an impulse of 
 the heart and an instinct of the mind could exhibit 
 such moderation in victory, such acquiescence in 
 defeat ? 
 
 322 
 
ADDRESS ON INDEPENDENCE DAY 
 
 DELIVERED at Mountain View Mr. Delmas s home in Santa 
 Clara County on the 4th of July, 1893. 
 
 MR. PRESIDENT, LADIES AND GENTLEMEN: At 
 the time the Declaration of Independence was 
 written what was California? What knowledge of 
 it had the founders of our Government? A frag 
 ment of the vast empire which the daring genius 
 of Spanish navigators had brought under the sway 
 of the degenerate descendants of Charles V., it lay 
 an unexplored region peopled by the imagination 
 of poets and romancers with strange and fantastic 
 beings. When Jefferson wrote and Adams pro 
 claimed the principles of liberty and independence 
 but five years had elapsed since the day that Juni- 
 pero Serra had landed at Monterey, bearing in his 
 hand the first spark of civilization that had cast its 
 light upon these Western shores. Soon after, the 
 proselyting spirit of Franciscan monks founded 
 religious establishments in various parts of the 
 State. From San Diego to Sonoma the country 
 was dotted over at long intervals with churches and 
 
 323 
 
ADDRESS 
 
 missions, where the savage inhabitant was gradually 
 reclaimed from barbarism and instructed in the 
 mysteries of a higher faith. But the influence of 
 these institutions extended little beyond the walls 
 or immediate confines of the mission ; and of civili 
 zation, as the term was understood by the race that 
 had settled upon the Atlantic shore, there was 
 none. 
 
 In the course of time, and in the first quarter 
 of the century, Spanish rule was followed here by 
 Mexican domination. The new masters, however, 
 failed in turn to develop the resources which nature 
 had lavished upon California. No progress what 
 ever was made in agriculture. The soil was left 
 virgin, its inexhaustible fertility untouched. Sea 
 ports whose safety and capacity challenge the admi 
 ration of the world lay unruffled by the prow of 
 the merchantman. The beauty of scenery and of 
 clime remained a sealed book to the world. And, 
 save by the owners of a few scattered ranches, the 
 country was still uninhabited. 
 
 But in the middle of the century a new race of 
 men came pouring in through the Golden Gate, 
 streaming along the prairies, clambering over the 
 steeps of the Rocky Mountains and the summits 
 of the Sierra, bringing with them the ideas and the 
 principles formulated in the Declaration of Inde 
 pendence and promulgated in the Constitution of 
 the original Thirteen States. And, behold, a new 
 era unfolding, as if under the enchanter s wand ! 
 
 324 
 
ON INDEPENDENCE DAY 
 
 Compare the California of to-day with the Cali 
 fornia of the day when the first venturous Argonaut 
 came in sight of this promised land, and trace 
 the marvelous change wrought by the influence 
 of American civilization. As an illustration, look 
 around you upon this our own Valley of Santa 
 Clara. Consider what it was then and is now. 
 Could the venerable patriarch who crossed the 
 plains fifty years ago, and by the courtesy of whose 
 grandchildren and great-grandchildren we are per 
 mitted to hold these exercises under the shade of 
 these ancestral oaks, rise from his grave, his eyes 
 would rest upon a spectacle transcending far the 
 visions of his utmost hope. Here, where he found 
 the Indian roaming over the valley, untouched by 
 the beauty and unconscious of the wealth which 
 surrounded him, he would behold the population 
 which has superseded him, and see what industry, 
 orderly government, the broad spirit and the high 
 aspirations of American civilization have accom 
 plished. 
 
 I speak to friends and neighbors, among whom 
 there is none who does not cherish above all others 
 the spot which prodigal nature has destined for our 
 homes. For my own part, if you will permit the 
 indulgence of a personal sentiment, I never return, 
 even after the briefest absence, within the limits of 
 our valley without feeling my heart expand within 
 me. To my eyes she ever appears clad in garments 
 of beauty. In all seasons of the year whether 
 
 325 
 
ADDRESS 
 
 when spring covers her with a mantle of verdure 
 and decks the slopes of her hillsides with flowers, 
 or when the rays of the summer sun embrown her 
 mountains and tinge her wheat-fields with their own 
 golden hue, or when autumn s prodigal hand strews 
 the earth with the ripened fruit of her orchards, or 
 when the reviving rains of winter come sweeping 
 over the summit of yon Blue Ridge to refresh and 
 fertilize the soil she ever presents an aspect of 
 matchless beauty. I speak in no spirit of poetical 
 exaggeration, but with a conviction bred by years 
 of observation, when I say that there is not on the 
 face of the globe a spot more highly blessed with 
 all that contributes to the prosperity and happiness 
 of mankind than the one in which we are priv 
 ileged to live. I have seen the green meadows, 
 the manorial parks, and the baronial halls of Eng 
 land, have walked in the busy streets of her vast 
 cities and heard the ceaseless din of her manu 
 facturing centers; I have basked upon the sunny 
 slopes of the vineyards of France, have traversed 
 her valleys, where every rood blossoms like a gar 
 den, and have mingled with the joyous population 
 of her glorious capital; I have wandered amid the 
 groves of Italy, where the purple olive glistens in 
 the sun and the fragrance of the citron and the 
 orange perfume the air, have trodden the mosaic 
 pavements of her galleries, and beheld those treas 
 ures of her artistic genius which challenge the 
 admiration and despair of successive generations ; I 
 
 326 
 
ON INDEPENDENCE DAY 
 
 have gazed upon Switzerland s sublime panorama 
 of lake and mountain; I have floated upon the 
 Rhine s swift current as it flowed beneath the 
 shadow of historical castles and mediaeval ruins, 
 and, returning from all these, my eyes have filled 
 with tears of gratitude and joy when, with the dawn 
 of a summer morning, they rested once more upon 
 the oaks and the wheat-fields, the orchards, the 
 vineyards, the hills, and the mountains of Santa 
 Clara. 
 
 We may confidently challenge England or France 
 or Italy or Switzerland or Germany to point within 
 their borders to a spot where the elements which 
 make up the highest reach of civilization are com 
 bined in as ample and abundant a measure as they 
 are here; where human liberty is subject to fewer 
 .restrictions; where the average standard of intel 
 ligence is as high, or education equally diffused; 
 where the fruits of human labor are as fully secured 
 to their producer; where civil government is admin 
 istered with equal beneficence of results; where 
 there is less of human suffering, misery, or poverty; 
 where, in fine, there is an equal enjoyment of all 
 the blessings which can confer happiness this side 
 of the grave. 
 
 We bow our heads in grateful reverence before 
 the spirit of those great and illustrious men who 
 this day one hundred and seventeen years ago did 
 by their devotion and their labors make possible 
 the enjoyment of the gifts which we in so supreme 
 
 327 
 
ADDRESS 
 
 a degree enjoy. Their memory is enshrined in our 
 hearts. The achievements of their wisdom are in 
 scribed upon the pages of history, and there, high 
 above the titles of heroes and conquerors or fabled 
 demigods, the names of the founders of this Gov 
 ernment of Jefferson and Franklin and Adams 
 and Washington and Hancock and their compeers 
 will continue to shed their luster until the human 
 race shall have faded from the earth and time shall 
 be no more. 
 
 328 
 
WALTER SCOTT 
 
 THIS address was delivered before the St. Andrew s Society, at 
 their hall in San Francisco, on the occasion of the celebration of 
 the birth of Sir Walter Scott, on the I5th day of August, 1892. 
 
 MR. CHAIRMAN, LADIES AND GENTLEMEN : In 
 my youth it was my privilege to witness, in one of 
 the oldest of our American universities, a ceremony 
 the memory of which is now forcibly recalled to my 
 mind. In conformity with a time-honored custom, 
 the members of the graduating class came together 
 on the last day of the academic term to bid farewell 
 to each other and to the scenes amid which during 
 the four preceding years they had pursued their 
 studies. They met on the green in front of the 
 college buildings, there, under the shade of the 
 secular elms which had witnessed the going and 
 coming of successive generations of students, to 
 cast a last retrospect over the past and to prepare 
 for the solemn moment of parting. The class his 
 torian rehearsed the events of the academic course, 
 recalling its toils and its triumphs, its sorrows and 
 its joys, its days of gloom and its periods of sun- 
 
 329 
 
ADDRESS 
 
 shine. The student songs, with their alternating 
 pathos and mirth, their solemn warnings or glowing 
 sentiments of exuberant life, were sung once again. 
 The college pipe was lit for the last time, and then 
 broken, as a symbol of the end of youth and its 
 lightsome pleasure, and of the beginning of man 
 hood and its stern duties and unshunnable struggles. 
 Then a broad circle was formed, and each bade fare 
 well to his fellows, grasping the hands of those whom 
 years of association and mutual pursuits had endeared, 
 and whom, perchance, he might never meet again. 
 And when the last cloud of smoke had floated away, 
 the last note of melody had died upon the air, the 
 last accents of farewell had been uttered, they pro 
 ceeded in solemn procession to the library, and there, 
 in order to commemorate their career as students and 
 hand down to future generations a visible token of 
 their devotion to Alma Mater, they planted in 
 voking the propitious favor of Providence upon the 
 act in an angle of one of the buttresses of the old 
 Gothic edifice a scion of ivy. The class then sepa 
 rated, to meet as a class no more. 
 
 What, it may be asked, is there in common be 
 tween this students custom and the present celebra 
 tion ? This, perhaps : It had been the endeavor of 
 each successive class of this ancient university, in 
 order to add to the impressiveness of the ceremony, 
 to procure for these occasions a plant of ivy from 
 some place made famous in history or in song, from 
 the crumbling stones of some renowned ruin, the walls 
 
 330 
 
BEFORE THE ST. ANDREW S SOCIETY 
 
 of some hallowed shrine, the battlements of some 
 war-beaten fortress. And the ivy planted on this day 
 had been brought by loving hands from Abbotsford. 
 
 And there even now, clinging and spreading over 
 the walls of that ancient library, grows the plant 
 whose parent vine is still green upon the banks of 
 the Tweed, perpetuating at once the memory of the 
 class which planted it and that of Scotland s most 
 illustrious son. But the fame of him whose name 
 was thus linked with this act shall outlive the work 
 done on that day. Long after the last vestige 
 of these students labors shall have been effaced, 
 after the last leaf of that ivy shall have faded, and 
 the very walls which it embraces shall have crum 
 bled into dust, generations of Scotchmen in all 
 regions of the earth where the tongue of Britain is 
 spoken shall meet as you are met to-night, to com 
 memorate the birth of Walter Scott. 
 
 There is something as unique as it is affecting in 
 this meeting to do honor to the illustrious dead. 
 What writer has ever in the tide of time received 
 the homage of affection which is being paid to-day, 
 not only here, but wherever the adventurous feet 
 of Scotland s sons have wandered ? What poet has 
 left so deep an impress upon the minds and hearts 
 of his countrymen, that they have met for succes 
 sive generations to rejoice in his birth and bless his 
 memory? The Greeks held their great bards in 
 honored reverence. But not to Homer, nor Pin 
 dar, nor Sophocles was the tribute paid which is 
 
 331 
 
ADDRESS 
 
 being paid here to-night. The French have erected 
 monuments to Corneille, to Voltaire, to Hugo. The 
 Italians have inurned the consecrated ashes of Dante 
 in the splendid mausoleum of Santa Croce, and the 
 unwearied feet of pilgrims still press the tomb of 
 Petrarch in Arqua. Statues of Goethe and Schil 
 ler adorn the public places of Germany. But when 
 have Frenchmen or Italians or Germans ever culled 
 out a holiday and dedicated it to the memory of these 
 illustrious men ? Great as is the name of our own 
 Shakespeare, and exalted the fame of Milton and of 
 Byron, universal as is the admiration of their genius, 
 and constant the delight imparted by their creations, 
 the day of their birth was never yet observed by 
 their countrymen as a day of rejoicing. 
 
 What is there, then, in Walter Scott that dis 
 tinguishes him from these other great masters of 
 romance and of song, and makes his the singular 
 felicity of these marks of reverence and affection ? 
 The answer is, I think, to be sought not only in 
 his works, but in his life ; not only in the produc 
 tions of the writer and poet, but in the character of 
 the man. Scotland is but paying back his own 
 boundless affection. No son of hers was ever more 
 passionately, blindly devoted to her than was he. 
 He loved her with the unquestioning love of the 
 child whose partial eyes see naught but beauty and 
 perfection in the parent that gave him life. Sixty 
 years have passed since, weary and broken with age 
 and sorrow, he was laid upon her breast and 
 
 332 
 
BEFORE THE ST. ANDREW S SOCIETY 
 
 folded in her last embrace. But she still mourns 
 over his loss, and, mourning, repays the great love 
 he bore her. 
 
 The productions of Scott s genius were all, in a 
 greater or less degree, linked with Scotland. It is 
 no marvel ; for no country, no people, no history 
 could have afforded to a mind such as his vaster 
 or more attractive materials, and no fancy was better 
 fitted to illumine the theme. From earliest infancy, 
 his soul had been rilled with images of the romantic 
 and poetic features of his country and her people, 
 and the observations and studies of his maturer years 
 had but deepened the impressions then received. On 
 his nurse s knees he had listened to strange stories, 
 traditions, legends of feudal lords and high-born 
 ladies, of heroic devotion to fallen and dethroned 
 princes, of rescues and hairbreadth escapes, of bat 
 tles fought between lowlands and highlands, of 
 border raids and forays, of minstrels stringing their 
 harps in stately halls to sing the love of hapless 
 maidens or commemorate the exploits of belted 
 knight or mailed Crusader. In his boyhood he had 
 deserted his books to go forth and hear with his 
 own ears the strange tales which the shepherd and 
 the peasant told of times gone by. He had learned 
 the accents of their weird minstrelsy. Upon the 
 tablets of his mind he had painted their customs 
 and their manners. In the fullness of his manhood 
 he had made a minute and profound study of his 
 country s history, her antiquities, and her laws. 
 
 333 
 
ADDRESS 
 
 When in later years the portals of this vast store 
 house of impressions, information, knowledge, were 
 thrown open, and the world was permitted to gaze 
 upon the accumulated treasure, it is no wonder that 
 it seemed as if a magician s wand had brought 
 together such a mass and variety of rare and won 
 drous things. And if the marvelous richness of 
 his genius dazzled the eyes, it is certain that its 
 wealth was poured forth with the spontaneous and 
 unstinting prodigality of a child. To reproduce 
 images of Scotland in her visible forms of stream or 
 mountain, of lake or glen, to portray the types of 
 the beings which had peopled her in the past or 
 present, from the highest to the lowest, from the 
 monarch to the beggar, to exemplify the manners, 
 customs, and peculiarities of her population, re 
 quired of him no more labor than for the waters of 
 the pebbly stream to flow and babble as they run, 
 or for the lark to greet at morn the light of the 
 rising sun, or for the leaves of autumn to rustle as 
 they fall touched by the breath of the evening 
 wind. Adversity could not quench nor sickness 
 dim the glow of the divine fire ; and whether in the 
 gloom of his declining years, seeking in the hope 
 less battle against adversity to retrieve his fallen 
 fortunes, or in the hour of sickness and pain, unable 
 to write, but dictating to amanuenses, his genius 
 never lost its spring, and the pinions of his fancy 
 never drooped. 
 
 If the scenes of his creations were inspired by 
 334 
 
BEFORE THE ST. ANDREW S SOCIETY 
 
 Scotland and his ample page is peopled with her 
 sons, he embodied in himself many of the most 
 salient characteristics of the country and race which 
 he knew so well how to depict. 
 
 The firm and tenacious character of the Scotch 
 man inclines him to cling to established institutions 
 and customs. I see before me now the costume 
 which the chiefs of Caledonian clans wore centuries 
 ago, and which modern changes in dress have not 
 altered. The Highlander still marches into battle 
 to the shrill note of the bagpipe, which the clarion 
 of modern armies has been unable to replace. This 
 national tenacity of the past is one of Scott s most 
 striking characteristics. Other students of history, 
 as deep perhaps in their researches of ancient times 
 as he, may have looked upon the Middle Ages and 
 the institutions of feudal times with curiosity or 
 wonder or amusement. He contemplated them with 
 unquestioning admiration and devotion. Though 
 living in the nineteenth century, himself the fore 
 most Scotchman of his age, enjoying a position and 
 a fame for which, like another illustrious poet, he 
 might justly say he was indebted to no prince or 
 peer alive, he still looked up to the head of the clan 
 of Scotts with feelings akin to those with which an 
 inferior vassal might have turned toward his lord 
 paramount in the days of the Tudors or Planta- 
 genets. Indeed, this veneration for the antique 
 institutions of Scotland was not the mere indulgence 
 of a pleasant fancy. It strongly influenced the 
 
 335 
 
ADDRESS 
 
 whole course of his life. To become himself the 
 founder of a noble house which should perpetuate 
 his name through successive generations of accumu 
 lating and expanding titles was the chief and absorb 
 ing object of his labors. Abbotsford, with its 
 stately halls and towers, was founded in the vain 
 hope of realizing this dream of feudal greatness. 
 
 Another strong national characteristic of this 
 extraordinary man was his pride of character. 
 "Proud as a Highlander," the legend runs; and 
 proud as a Highlander was he. " If I have a strong 
 passion in the world," he said of himself, " it is 
 pride." To this pride of character is largely due 
 his lack of success at the bar. Though, doubtless, 
 far better equipped for the labors of the profession 
 than most of his contemporaries, yet unwilling to 
 stoop to court the good will of solicitors upon 
 whose favor success depended, inferiors outstripped 
 him in the race. Pride it was which made him look 
 down upon the brother who, by an act of pusilla 
 nimity, had brought disgrace upon his name, to 
 refuse to recognize him, or to follow him to the 
 grave, or to wear the customary mourning for his 
 loss, pride, which made him willing to meet upon 
 the field of honor the French General who had 
 taken offense at some strictures upon his conduct at 
 St. Helena, though his religious convictions con 
 demned the act, his reason demonstrated its absurd 
 ity, and his obligations to others made the possible 
 self-sacrifice little less than criminal, and it was 
 
 336 
 
BEFORE THE ST. ANDREW S SOCIETY 
 
 pride which inspired him to higher and nobler 
 efforts in the days of his adversity. 
 
 To an audience of Scotchmen I need but advert 
 to the great misfortune of Scott s later years, when, 
 through blind confidence in business associates, he 
 suddenly found himself in the midst of apparent 
 prosperity bankrupt. The blow would have crushed 
 a weaker nature. It only served to bring out 
 the truly heroic traits of his character. With the 
 wreck of his shattered hopes lying around him, the 
 aims and purposes of his life forever thwarted, he 
 might have welcomed death as a release from earthly 
 suffering. The world witnesses instead a struggle 
 which, in the elements of true moral grandeur, sur 
 passes any exploit of the battle-field the slow, 
 unremitting, and hopeless sacrifice of life to duty. 
 How he performed that duty with what calmness, 
 what cheerfulness, what devotion he labored on in a 
 task of which others and not he were to reap the 
 fruits, with what Titanic efforts he strove to lift the 
 load of obloquy which pressed upon his house, let 
 those who have read the story of his later years attest. 
 
 But human life has its limitations; human 
 strength and endurance theirs. Before the task 
 which he had set out to accomplish could be ended, 
 the great magician s wand was broken, and, like the 
 declining sun, his genius sank slowly amid ever- 
 deepening gloom. He was in Italy when he real 
 ized that his days were numbered, and that the 
 summons to eternity had come. True even then to 
 
 337 
 
ADDRESS 
 
 his love of Scotland, he could not bear the thought 
 of dying in a foreign land. He craved to be 
 brought back home. Who does not recall the 
 pathetic scene of his return? Who does not remem 
 ber how, when, with the hand of death upon him, 
 he saw the waters of the Tweed, and on coming in 
 sight of the towers of Abbotsford his dogs came 
 fawning around him and licking his hands, his great 
 heart seemed to burst, and the tears fell like winter 
 rain upon his breast ! 
 
 And so, sixty years ago, he expired among the 
 scenes he had loved so well. In Dry burgh Abbey 
 they laid his ashes to rest. But his genius is not dead. 
 Its beams still illumine the world. The weary mind 
 still finds rest, and the aching heart solace and peace 
 in the pages which his hand has traced. The objects 
 which he cherished and pursued in life have eluded 
 him. His dream of feudal greatness has been ruth 
 lessly dispelled by fate. The very foundations of 
 the noble house which he sought to create and per 
 petuate have been shattered by death. Abbotsford 
 may soon pass into the hands of strangers to his 
 name and blood. But as long as the heather grows 
 upon Scottish hills and the Tweed flows between 
 its banks, maidens will weep over the fate of Lucy 
 Ashton and the simple heroism of Jeanie Deans, 
 schoolboys will recite the parting of Douglas and 
 Marmion and the fight between Fitz-James and 
 Roderick Dhu, and Scotland will cherish the name 
 and hallow the memory of Walter Scott. 
 
 338 
 
ADDRESS ON THE INAUGURATION 
 OF THE HON. HORACE DAVIS AS 
 PRESIDENT OF THE UNIVER 
 SITY OF CALIFORNIA 
 
 ON the 23d of March, 1888, the Hon. Horace Davis was 
 inaugurated at Berkeley as President of the University of California. 
 On that occasion Mr. Delmas, who was then a Regent of the 
 University, and acted as President of the day, delivered this 
 address of welcome. 
 
 FELLOW REGENTS, PROFESSORS, STUDENTS, LADIES 
 AND GENTLEMEN: On this day twenty years ago, 
 the people of this State, represented by their Senate 
 and Assembly in the legislative halls of the Capitol, 
 enacted the law which gave birth to the University 
 of California. The object of that law was to secure 
 to the youth of the State the most complete instruc 
 tion in all branches of learning, science, literature, 
 art, industrial and professional pursuits, in a word, 
 the broadest and most liberal education. 
 
 Under this wise and beneficent statute, the Uni 
 versity commenced its course; and now, after an 
 existence of twenty years, it may with just pride 
 claim that it has not disappointed the high hopes 
 
 339 
 
ADDRESS 
 
 and generous aspirations of its founders. It is true 
 that at first its march was slow, and perhaps uncer 
 tain; that in its way many obstacles were thrown; 
 that it met with opposition from some who, having 
 themselves no just conception of the higher regions 
 of intellectual training and activity, deprecated the 
 use of public funds for any except the ordinary 
 common-school education; that its character was 
 sought at times to be degraded by intimations that 
 its management was made the vehicle of partisan 
 schemes or political intrigues ; that its security was 
 threatened by the precarious, uncertain, fluctuating 
 sources of its revenue ; that its stability was affected 
 by changes, unfortunately too frequent, in the in 
 cumbency of its official executive head. All this 
 is true. But it may confidently be asserted as 
 equally true that in time the feeble and uncertain 
 steps of the child have become the steady and sure 
 tread of the full-grown man; true that patience and 
 perseverance have removed the stumbling-blocks 
 strewn in its path; true that a wiser and more liberal 
 spirit has developed among all classes of our people, 
 and that, while none fail to appreciate to their full 
 value the advantages of our admirable common- 
 school system, few there are who would to-day deny 
 the incalculable benefit to the State derived from the 
 proper pursuit of the higher branches of learning 
 which it is the special function of the University to 
 foster; true that the just and impartial policy uni 
 formly adopted and steadfastly followed by the 
 
 340 
 
AT BERKELEY 
 
 governing body of the institution, which makes the 
 intrinsic merit of measures and men the only 
 criterion of adoption or selection, has removed from 
 the reach of even the most partisan demagogue the 
 possibility of any claim that political influences ever 
 cross the threshold of the chamber of the Board of 
 Regents ; true that the uncertain sources of revenue 
 have been dried up, and in their stead, under the 
 wise provision of the statute adopted by the last 
 Legislature, on the fourteenth day of February, 
 1887, a steady, perennial, and bountiful stream of 
 supply is provided by a direct tax levied throughout 
 the State for the support and permanent improve 
 ment of the University; and true it is also, we 
 confidently hope, and every friend of education 
 must hope, that the era of change and fluctuation 
 in the Presidency has passed away, and that, with 
 the advent of the new chief whom we welcome and 
 honor this day, the University has at last found 
 one who, assuming the duties of his exalted station 
 in the meridian of manhood, will continue to fill 
 them to the uttermost limits of life. 
 
 Neither the time nor the occasion calls for a 
 detailed history of the course of the University, nor 
 even an outline of its operations. The special pur 
 pose which calls us here to-day is the inauguration 
 and installment of our new President, the honorable 
 and honored Horace Davis. To him, in behalf of 
 the Board of Regents, it is my pleasant duty to 
 address words of welcome. But before doing so, it 
 
ADDRESS 
 
 is fitting that I should express the regret with which 
 the Board severs its connection with the learned 
 Professor, under whose care, as President, the Uni 
 versity has been successfully conducted for the last 
 two years. These feelings of regret are not un 
 mixed, however, with the consolatory thought that, 
 though the University may lose him, the State will 
 not be bereft of the benefit of his great scientific 
 attainments; that his sphere of activity will be 
 simply changed, not abolished; and that, from the 
 summit of that mountain which the generosity of a 
 friend of humanity has crowned with the most 
 complete and perfect of astronomical observatories, 
 the learned Professor, exploring the uttermost limits 
 of space and holding communion with the stars, 
 will continue to shed the light of his unrivaled 
 science upon mankind and link his name forever 
 with the fame of Mount Hamilton. 
 
 To you, sir, our incoming President, we extend 
 our warmest welcome. We receive you with high 
 hopes, and install you in your great office with 
 pride. With feelings of the deepest gratification 
 we place at the head of the University of California 
 a man who is truly and essentially a Californian; 
 one who, amid the absorbing cares of a full and 
 ripe business life, has ever fostered and cherished the 
 lessons of learning imbibed in earlier youth; one 
 who has taught our busy population that the labors 
 of the counting-house are not incompatible with the 
 pursuit of letters and the arts; one whose extensive 
 
 342 
 
AT BERKELEY 
 
 and daily contact with all classes has made him to 
 know the wants of our State; one who will take 
 pride and find ample reward in devoting to it the 
 experience and energy of his remaining years. Once 
 more, sir, we bid you welcome. Once more we 
 extend to you our best and most heartfelt wishes. 
 Once more, in behalf of the Regents of the Univer 
 sity and, may I not add, in behalf of the students 
 and the people of the whole State? we pledge you 
 our sincere co-operation and support in the dis 
 charge of your exalted office. 
 
 343 
 
ARGUMENT IN THE CASE OF COLTON 
 vs. STANFORD, ET ALS. 
 
 THE case of Ellen M. Colton v. Leland Stanford, Collis P. 
 Huntington, and Charles Crocker was perhaps the most important 
 cause of a purely private nature ever presented in the courts of 
 California. The trial, which took place in Santa Rosa before the 
 Hon. Jackson Temple, commenced in November, 1893, and lasted 
 a year and a half. Four counsel on each side participated in the 
 arguments, which covered a period of over four months. Mr. 
 Delmas s closing argument for the plaintiff ended May 5, 1895. 
 The length of the argument it forms a printed volume of 263 
 pages forbids its reproduction here. The beginning and close 
 alone are given. 
 
 MAY IT PLEASE YOUR HONOR: It is with no 
 little diffidence and embarrassment that I rise to 
 address a Court which has already listened to a four 
 months discussion of this cause. The learned and 
 exhaustive arguments which have been made, pre 
 senting not only in their broad and general outlines, 
 but also in their minutest details, every phase and 
 theory of this controversy, enforce the conviction 
 that little now remains to say. Even were it not 
 so, the extraordinary length of time already con- 
 
 344 
 
COLTON vs. STANFORD, ET AL*. 
 
 sumed in the hearing would warn me to abstain 
 from a much longer trespass upon the attention of 
 the Court. It is, therefore, I repeat, not without 
 hesitation that I invoke for a while longer the in 
 dulgence of that patience and courtesy which have 
 presided over and lightened our labors in this 
 place, and which will ever remain treasured up and 
 cherished among the most pleasing and grateful 
 memories of this protracted contest. 
 
 The magnitude of the issues involved would not 
 permit, however, their final submission without a 
 closing argument on behalf of the plaintiff. In 
 that argument I shall endeavor to be as brief as the 
 nature of the question will permit. I shall neither 
 attempt to review nor to answer in detail what has 
 been so well and ably said by our learned adversa 
 ries; much less shall I undertake to examine and 
 comment upon the hundreds of adjudicated cases 
 and precedents which they have cited in support of 
 their theories of the law. While such a course 
 might claim the merit of fullness, it would inevi 
 tably lead to diffuseness and detract from the order 
 and coherence which, I conceive, should be aimed 
 at, at least, in every discussion. I shall content 
 myself with a statement of those propositions of 
 law and fact which appear to me to be fundamental, 
 and upon which I have from the beginning thought 
 this controversy must ultimately rest propositions 
 in the soundness of which my confidence has in no 
 degree been shaken by anything which has fallen 
 
 345 
 
 w 
 
ARGUMENT 
 
 from the lips of the learned counsel on the other 
 side. 
 
 It must long since have become apparent to the 
 Court that the importance of this cause arises not 
 so much from the very large amount at stake as 
 from the prominence of the litigants and the nature 
 of the issues involved. The names of the defend 
 ants, Stanford, Huntington, and Crocker, have been 
 for the last twenty years familiar to every inhabitant 
 of this coast. During that period, these men have, 
 by their conjoint exertions, accumulated immense 
 wealth; they have assumed absolute control of the 
 carrying trade and commerce of the Pacific seaboard; 
 their influence, for good or for evil, has been supreme 
 in shaping the destinies of our State. Their power 
 has ever been found of late greater than that of the 
 government under which they live; and, like the 
 great barons of the Middle Ages, or the mayors of 
 the palace during the Merovingian dynasty, they 
 now yield but a nominal and supercilious allegiance 
 to the titular sovereign whom they at once rule and 
 contemn. At the feet of these formidable adversa 
 ries, the plaintiff has presumed to throw her gage, 
 and to challenge them to the wager of legal battle. 
 Were the lists held elsewhere than in a court of 
 justice the disparity between the contestants would 
 be painfully and oppressively apparent. Against 
 the wealth, the power, and the influence of these 
 defendants this lady has naught to oppose, save 
 the plain statement of the facts and the justice of 
 
 346 
 
COLTON vs. STANFORD, ET ALS. 
 
 her cause. She comes before your Honor the 
 champion of a double trust. She appears not as 
 the protector of her own rights only, but as the 
 defender of her dead husband, whose character has 
 been cruelly assailed, whose grave has been ruthlessly 
 desecrated. She is here to demand from the Court 
 the vindication of his memory, more precious to her 
 than any earthly treasure, and to claim the recogni 
 tion of her rights to those fruits of his labors which 
 he left as an inheritance to her and to her children. 
 
 Though the magnitude of the contest has led to 
 exhaustive and at times confusing elaboration, yet 
 it has ever appeared to me that the general charac 
 ter of the facts and the law upon which the plaintiff 
 bases her contention is sufficiently plain and simple. 
 In all essential particulars, the facts upon which this 
 controversy must ultimately turn are either admitted 
 by the defendants or established by their own wit 
 nesses. Before I enter into a discussion of those 
 facts, however, it may be proper to state briefly and 
 generally the position and the condition of these 
 parties at the time of the association of David D. 
 Colton with them, and at the time of the negotia 
 tions which led his widow to part with the interest 
 which she had inherited from him in that association 
 and to transfer it to them. 
 
 In the year 1861, the dream, long entertained, of 
 uniting the Pacific Coast with the East by means 
 of a transcontinental railway seemed at last to assume 
 a tangible form. The times were propitious. The 
 
 347 
 
ARGUMENT 
 
 public and the General Government were both dis 
 posed generously to aid in the enterprise. At that 
 period there were found, in an inland town of this 
 State, four men who had the sagacity to perceive 
 the opportunity and the boldness to seize upon and 
 turn it to their advantage. These four men com 
 bined in their union qualities and traits of character 
 which eminently fitted them for such an enterprise. 
 First came Huntington : cold, calculating, emotion 
 less, self-contained ; restless in energy ; immovable 
 in purpose ; unhesitating in the choice of means ; 
 gifted with a capacity for business which compre 
 hended at once the general outlines and grasped the 
 minutest details of the most colossal undertakings ; 
 swayed by an ambition which spurned all limits. In 
 him the others acknowledged the untiring chief, the 
 master spirit of the combination. Next appeared 
 Stanford : more refined ; more popular ; more hu 
 mane in his impulses ; better calculated to win pub 
 lic confidence and to obtain public support. Next, 
 Crocker : bold, aggressive, belligerent ; undaunted 
 by obstacles ; imbued with that sublime egoism 
 and unquestioning confidence in himself which in 
 men of finer temper is qualified by a keener appre 
 ciation of the difficulties in their path and a more 
 modest sense of their own deficiencies. Last, Hop 
 kins : the conservative spirit of the union ; the man 
 of details, who brought to the administration of 
 an enterprise in which hundreds of millions were 
 engaged the same inherited frugality, transmitted 
 
 348 
 
COLTON vs. STANFORD, ET ALS. 
 
 through New England ancestors, which in earlier 
 days he had exhibited in husbanding the scant earn 
 ings of an ironmonger s shop in the city of Sacra 
 mento. What measure of success these men, by 
 their combined efforts, achieved the history of the 
 State attests. They crossed the mountains ; they 
 traversed the desert ; they spanned a continent. 
 They won wealth and power. They might have 
 won more. They might have earned the confidence 
 and enjoyed the gratitude of the people. Theirs, 
 and theirs alone, the fault if the fresh recollection 
 of their later doings has effaced the memory of the 
 joy with which their first achievements were hailed. 
 The year 1874 beheld them rich and powerful. 
 Riches and power might have brought rest. But the 
 indomitable spirit of Huntington knew no such 
 thing as rest. He chafed at the inactivity and 
 luxurious indulgence of Stanford. He railed at the 
 sentimental journeys of Crocker through Europe 
 and the Orient. He sought upon this coast a man 
 like unto himself a fit companion in his policy. 
 He found such a man in David D. Colton. For 
 Colton united in himself many of the qualities 
 and traits of character which were individually 
 possessed by these other men, the breadth of 
 view of Huntington, the popularity of Stanford, 
 the boldness of Crocker, the prudent husbandry of 
 Hopkins. Negotiations set on foot finally resulted 
 in the now somewhat famous agreement of the 5th 
 of October, 1874. From that time, to use Hunt- 
 
 349 
 
ARGUMENT 
 
 ington s own language, Colton became " one of 
 them/ " one of the firm/ one of that band of rail 
 road-men who called themselves " associates." The 
 five formed a union which, whether it be denomi 
 nated a partnership or an association, necessitated 
 for its success mutual reliance, mutual agency, and 
 entire unity of purpose. 
 
 This union conceived and executed plans of 
 gigantic magnitude. It looked forward to spanning 
 a continent with its railroads; to stretching one arm 
 across the Atlantic Ocean to grasp at the trade of 
 Europe, the other across the Pacific to seize upon 
 that of China and Japan. Its means of operation 
 were as diversified as the events which it confronted. 
 Corporations, which absorb the individuality of 
 ordinary men, became the mere instruments of its 
 power, its agencies, its creatures, to be brought to 
 light or extinguished at will. Its general business 
 may be defined to have been the building of rail 
 roads, the taking of the bonds and stock of these 
 roads in payment for its labor, and the creating of a 
 market for these securities. Among the agencies 
 which it fashioned among these corporations 
 which were its tools and agents the chief was the 
 Western Development Company, the successor in 
 lineal descent of the now famous Contract and 
 Finance Company. 
 
 In the spring of 1878, Hopkins died, and, in the 
 fall of the same year, Colton was, in the prime of 
 life, also stricken down. Upon his decease, these 
 
 350 
 
COLTON vs. STANFORD, ET ALS. 
 
 defendants the sole survivors of this union, whose 
 policy it was to have no dormant members de 
 vised means either to extinguish or to obtain for 
 themselves the interests in their enterprises of the 
 widow and sole heir of David D. Colton. Negotia 
 tions to that effect resulted in the agreement of the 
 ijth of August, 1879, by which, in consideration of 
 the relatively insignificant sum of two hundred 
 thousand dollars, paid in Southern Pacific bonds, 
 Mrs. Colton transferred to these defendants all her 
 interests in these various corporations. 
 
 She is here to-day seeking the annulment of that 
 contract. 
 
 If these facts shall be found proven, the plaintiff 
 may, I trust, pray for the judgment of the Court, 
 without calling to her assistance any technical rule 
 of law born of casuistical refinement or strained 
 presumption, whose lost origin and uncertain cause 
 is looked for in vain through the mists of the past. 
 She may invoke that judgment by virtue of those 
 eternal and immutable principles which time cannot 
 obscure nor subtlety attenuate; principles which 
 existed as well when the Jewish Lawgiver brought 
 down the Tables of the Law to the wandering 
 tribes of Israel as when Roman praetors formulated 
 their edicts in the imperial dominions of Augustus 
 and Justinian, or when the great chancellors of Eng 
 land the Hardwickes, the Thurlows, the Eldons 
 laid broad and deep the foundations of the equity 
 
ARGUMENT 
 
 jurisprudence of Britain; principles which are part 
 of man s being, and inseparable from his nature; 
 principles which the finger of God himself has in 
 scribed in the breast of every virtuous man, to enable 
 him, in all ages, in all climes, and in all conditions, 
 to distinguish right from wrong, to seek truth and 
 to shun falsehood, to protect the weak from the 
 insolence of the strong, to love justice and abhor 
 injustice. Upon these principles, sir, the plaintiff 
 here demands judgment in her favor. And in the 
 full confidence that the decision of the Court, to 
 whichever side it incline, will be guided and directed 
 by these immutable rules of universal law, her cause 
 is now finally submitted to your Honor. 
 
 352 
 
ADDRESS BEFORE THE LEGISLATURE 
 
 DELIVERED in the Assembly Chamber at Sacramento on the i8th 
 of February, 1901.* 
 
 LEGISLATORS OF CALIFORNIA : Permit me, before 
 approaching the subject which brings me here, to 
 express my appreciation of the very great honor you 
 have done me by your invitation to address you, 
 and to assure you that your courtesy shall be treas 
 ured among the most grateful memories of my life. 
 Grant me leave to state, besides, in order to silence 
 certain rumors which have reached my ears, that 
 however inadequate my abilities may prove fitly to 
 discharge the task I have assumed, the motives 
 which have prompted my acceptance may at least 
 lay some claim to your indulgence. I am the 
 advocate of no private interest. I have been offered 
 no reward and shall receive none save that which 
 may be afforded by the gratification of aiding in 
 
 * Published by request of the Sempervirens Club. The measure 
 advocated in this address was soon after passed, and, upon approval 
 of the Governor, became a law on the 1 6th of March, 1 90 1 . 
 
 353 
 
ADDRESS 
 
 a noble cause, and, according to my measure, 
 discharging in some degree the debt of gratitude 
 I owe the State I love. 
 
 I appear before you under the favoring auspices 
 of the Sempervirens Club. That association, a.s 
 you are doubtless aware, is composed of some of 
 the foremost representatives of education, municipal 
 government, and public affairs, and many, too, of 
 the gentlest and most generous ladies of the land. 
 The object which it has in view is fairly indicated 
 by the name it has assumed. Its labors are devoted 
 to the preservation of a fragment, at least, of those 
 redwood forests which in the infancy of the State 
 extended in exuberant profusion along our seaboard 
 from the Oregon line to Monterey, but which, 
 invaded now by the demands of commerce, are 
 being so rapidly destroyed that unless the hand of 
 devastation is stayed soon no vestige of them will 
 remain. While the field of activity of these public- 
 spirited citizens is confined to no section of our 
 territory, yet I voice their sentiments when I state 
 that, for the present at least, they have centered their 
 attention upon one particular spot and the preserva 
 tion of one especial body of trees. And had you 
 visited this spot, as I lately did, had you felt, as I 
 felt, the emotions which it awakens, had you been 
 brought, as I was, under the influence of the spirit 
 of the place, you too must needs share in their 
 enthusiasm and justify their predilection. 
 
 In the heart of the Santa Cruz Range this chosen 
 354 
 
BEFORE THE LEGISLATURE 
 
 spot is found. It presents to the eye the aspect of a 
 vast amphitheater whose encircling walls are the dim 
 heights of mist-crowned mountains. Seen from the 
 crest of the ridge, it stretches toward the setting 
 sun, its distant outlines blending the purplish-blue 
 tints of the woods with the hazy vapors of the 
 ocean. From this point of view you catch a confused 
 suggestion of a great forest watered by intersecting 
 streams. Descend from your eminence and enter 
 within the limits of the forest. Your first feeling is 
 one of awe. Your very breath seems hushed by 
 the solemn stillness of the place. Here the winds 
 are mute. Their distant murmurings are unheard 
 within the depths of the shaded solitude. Your step 
 falls noiseless upon the thick carpet of marl the 
 cast-off vesture of countless seasons upon which 
 you tread. The crackling of a twig under your 
 foot or the startled cry of a frightened bird but in 
 tensifies the silence which enfolds you like a shroud. 
 Contemplate now the scene spread on every hand in 
 never-ending vistas. See the great moss-covered 
 oak, the light and graceful maple, the glossy laurel, 
 everywhere entwining their branches and blending 
 the varied hues of their foliage in tangled profusion, 
 while here and there the glistening trunks of clus 
 tered madronos stand out against the dark back 
 ground like streaks of yellow sunlight. As you lift 
 up your eyes, behold above the giant forms that 
 sentinel the place. These are California s own 
 hers, for in no other soil have they ever found root 
 
 355 
 
ADDRESS 
 
 and under no other breeze save that of the Pacific 
 have they ever swayed their boughs. 
 
 A sense of humility overwhelms you as you gaze 
 upon these massy pillars of Nature s temple, whose 
 tops, lost amid the clouds, seem to support the vault 
 of the blue empyrean. The spell which the mys 
 tic light of some venerable cathedral may at times 
 have thrown upon your soul is tame compared to 
 that which binds you here. That was man s place 
 of worship; this is God s. In the presence of these 
 Titanic offsprings of Nature, standing before you in 
 the hoar austerity of centuries, how dwarfed seems 
 your being, how fleeting your existence ! They 
 were here when you were born; and though you 
 allow your thoughts to go back on the wings of 
 imagination to your remotest ancestry, you realize 
 that they were here when your first forefather had 
 his being. All human work which you have seen or 
 conceived of is recent in comparison. Time has not 
 changed them since Columbus first erected an altar 
 upon this continent, nor since Titus builded the walls 
 of the Flavian amphitheater, nor since Solomon laid 
 the foundations of the temple at Jerusalem. They 
 were old when Moses led the children of Israel to 
 the promised land, or when Egyptian monarchs 
 piled up the pyramids and bade the Sphynx gaze 
 with eyes of perpetual sadness over the desert sands 
 of the Valley of the Nile. And if their great 
 mother, Nature, is permitted still to protect them, 
 here they will stand defying time when not a stone 
 
 356 
 
BEFORE THE LEGISLATURE 
 
 of this Capitol is left to mark the spot on which it 
 now stands, and its very existence may have faded 
 into the mists of tradition. 
 
 You experience a feeling of profound sadness 
 as you conjure up the picture of these venerable 
 trees falling hacked and shivered, to become the 
 commonplace materials of barter and trade. As you 
 behold their lofty foliage stirred by the ocean breeze, 
 you seem to hear them murmur a prayer to be saved 
 from such desecration. 
 
 That prayer finds a response in every generous 
 breast throughout the length and breadth of our 
 State. It is echoed by those whose affection for 
 California is the love of children for a mother 
 the Native Sons and Native Daughters whose 
 voice has been heard in every parlor of their 
 noble organization. It is echoed by the officials 
 of our great seats of learning the Universities 
 at Berkeley and Palo Alto, the venerable College at 
 Santa Clara, and the State Normal School at San 
 Jose. It is echoed by the Boards of Supervisors of 
 San Francisco, Santa Clara, and Santa Cruz. It is 
 echoed, in fine, by the people of the whole State, 
 regardless of party, speaking both in the Republican 
 and Democratic platforms adopted at the late con 
 ventions. In one universal accord the inhabitants 
 of California call upon you from her mountains and 
 her valleys, from her cities, her villages, and her 
 farms to second the labors of those who would 
 interpose to prevent the work of destruction. 
 
 357 
 
ADDRESS 
 
 Legislators of California, guardians of her material 
 interests, but custodians no less of her physical 
 beauty, will you turn a deaf ear to these appeals ? 
 Upon what ground would such a course stand justi 
 fied before your constituents? I have heard some 
 men intelligent and conscientious men, men anx 
 ious to do their duty, men interposing these obstacles 
 in the hope, I am sure, that they may be satisfac 
 torily swept away I have heard a few such men, 
 I say, formulate some objections. What are these 
 objections ? 
 
 It has been said that the present owners of this 
 forest are wealthy men who owe their fortune to 
 California, and who, therefore, could well afford to 
 make a gift of this natural park to the people. The 
 answer to this objection lies in the fact that they 
 have no intention of doing so. You surely cannot 
 force their bounty. Like that of mercy, the 
 quality of generosity is not strained. What then ? 
 Because they fail to be generous will you refuse 
 to be just ? Will you decline to provide means for 
 ministering to a public want because private indi 
 viduals will not gratuitously do so ? Would you, 
 if hungry, abstain from buying food because you 
 conceived it ought to be given you gratis? Would 
 you, with money in your hands, allow yourselves 
 to starve, because others forbore to treat you as 
 objects of charity? 
 
 It has been objected, also, that the price asked by 
 its owners exceeds the commercial value of this forest, 
 
 358 
 
BEFORE THE LEGISLATURE 
 
 that these trees, if cut down for lumber, would 
 not yield so large a profit. But the question is not, 
 What are these trees worth to them? but, What are 
 they worth to us ? Grant that their value to them 
 is measured by the quantity of lumber they will 
 yield, certain it is that we are not buying them for 
 lumber. A forest we propose to buy not shakes, 
 nor boards, nor scantling. Has the forest no value 
 beyond the number of thousand feet of lumber in 
 its trees ? In your library-hall the walls are adorned 
 with the portraits of the chief magistrates of Cali 
 fornia, from the days of the venerable Peter H. 
 Burnett to the present time ; and from the place 
 where I now stand I look upon the pictured forms 
 of their early predecessors, the governors here under 
 Spanish and Mexican sway. Admirable as works 
 of art though these canvases be, it is readily con 
 ceived that they would bring little if offered for 
 sale at the auctioneer s block. But would you, 
 therefore, part with them for that ? Are they worth 
 that only to the people of this State? Are there no 
 sentiments, memories, affections clustering around 
 them to invest them with a value beyond their 
 market price? 
 
 Besides, no value has yet been set upon this 
 forest. A commission named by the Governor is 
 to fix the price. Should the seller s demands be 
 too high, the commission may, as provided for in 
 the bill, proceed to acquire the property through 
 the State s right of eminent domain. 
 
 359 
 
ADDRESS 
 
 It is urged, in fine, that the burdens of taxation 
 laid upon the people by unavoidable appropriations 
 for governmental purposes are already heavy, and 
 that it would not be right to increase them by ex 
 penditures in the realm of mere taste or sentiment. 
 I readily admit that poverty must be content with 
 the necessaries of life, and should not waste its 
 frugal store in luxuries. But we are not poor. 
 Never has California been more prosperous. Never 
 have her harvests been more bounteous, her com 
 merce more diffused and lucrative, the value of 
 her properties higher. The sum yearly expended 
 and well and wisely expended for the support 
 of our State University far exceeds the amount 
 named in this bill. Yet higher education is, in a 
 certain sense, a luxury. Men may live and men 
 may thrive with the simple training of the common 
 school. 
 
 But, with great deference, I venture to suggest 
 to those who make this objection, whether they 
 do not take too narrow a view of the functions 
 of the State. In a community which has reached 
 the degree of civilization that California has attained, 
 do not the aesthetic sentiments tastes, if you please 
 of the people constitute a matter of legislative 
 concern as well as their material wants ? Else, why 
 this stately edifice, with its granite walls, its graceful 
 colonnade, and its majestic dome ? Why this palatial 
 assembly-hall with its lofty ceiling, its noble gallery, 
 and its costly furnishings ? Viewed from a purely 
 
 360 
 
BEFORE THE LEGISLATURE 
 
 utilitarian standpoint, your deliberations could as well 
 be held and your legislative work performed in a 
 plain brick structure aye, or a wooden one with 
 a bare floor and pine-wood desks. Was the sum 
 used then in erecting this Capitol ill-spent ? No 
 one would have the boldness to say so. 
 
 Furthermore, what, after all, will the money needed 
 to save this forest amount to ? Distributed per capita 
 among the inhabitants of the State, it will not equal 
 for each individual the value of the stationery which 
 each one of you consumes in twenty-four hours, 
 nor the cost of his daily carfare in coming to this 
 chamber. The states of Europe France and 
 Germany notably lay out yearly vast sums in 
 the preservation of such remnants of forests as 
 are left them. New York and Massachusetts do 
 the same. The city of San Francisco has expended 
 millions to convert the sand-dunes of her suburbs 
 into her Golden Gate Park. The liberal yearly 
 appropriation granted by the municipality to main 
 tain it attests the public estimation of its useful 
 ness. In the face of these examples shall California 
 hesitate to spend the modest figure named in this 
 bill to secure for all coming generations a park 
 planted and nurtured by the never-tiring hand of 
 Nature, compared with whose primeval grandeur 
 man s work is but a paltry imitation ? 
 
 But if you choose to look at the expenditure of 
 the appropriation asked for in this bill as a mere 
 financial investment, you will have little difficulty, 
 
 361 
 
ADDRESS 
 
 I think, in persuading yourselves that the invest 
 ment will be a judicious one. The natural beauties 
 with which our State is dowered form one of its 
 most potent attractions, not only to the traveler 
 who at all seasons of the year visits our shores and 
 adds to our wealth, but also to the vast numbers 
 of those who, having amassed fortune or competence 
 in less-favored regions, come here to establish per 
 manent homes. 
 
 Legislators of California, while deeply grateful for 
 the courteous attention you have accorded me, I 
 cannot but apologize for the trespass I have already 
 made upon your time. No one better knows the 
 importance of your labors here and the mass of 
 legislation pressing upon you. Yet, even so, turn 
 not away from this project. The people have it at 
 he-art. Attend to it attend to it, I pray you, now. 
 Do not leave it as unfinished business to your suc 
 cessors. When they shall come upon the scene it 
 will be too late. The slopes which surround this 
 forest are already denuded. The work of devastation 
 has reached the very edge of these woods. There, 
 even while I speak, the axman stands ready to strike. 
 If he pauses, it is only to await your decision. Two 
 years from now his work will be done, and the 
 last remaining fragment of the primeval trees which 
 clothe the mountains rising up at the very threshold 
 of our metropolis will have vanished. Vain, then, 
 will be our regrets, and all attempts to repair the evil 
 vain. Were a conflagration to consume this edifice, 
 
 362 
 
BEFORE THE LEGISLATURE 
 
 were an invading army to pull down the stately 
 walls of our National Capitol, were a convulsion of 
 nature to rend in twain and topple over the majestic 
 dome which the genius of Michael Angelo has 
 uplifted above the basilica of St. Peter, all these 
 intelligent labor and patience might in time restore. 
 But it is not so here. Man s work, if destroyed, 
 man may again replace. God s work God alone 
 can re-create. Accede, then, to the prayers of the 
 people. Save this forest. Save it now. The 
 present generation approves the act ; generations 
 yet unborn, in grateful appreciation of your labors, 
 will rise up to consecrate its consummation. 
 
 3^3 , 
 
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