THE TWENTIETH CENTURY: AN ADDRKSS DELIVERED BEFORE THE GRADUATING CLASSES SEVENTY-FIRST ANNIVERSARY OF LAW SCHOOL June 34th, 1895, HON. HENRY B. BROWN, LL.D. OF THE UNITED STATES SUPREME COURT. HOGGSON & ROBINSON, PRINTERS TO THE LAW DEPARTMENT OF YALE UNIVERSITY, NEW HAVKN, CONN. 1895. T 53414 1-n-n I !? i s ORATION. Mr, President and Gentlemen of the Graduating Classes : It would be mere affectation in me to deny the pleasure I feel in escaping for a day from the tiresome monotony of judicial labor, and standing once more, a student still, among students, within the precincts of this ancient university. In the wonted aspect of these shaded streets, in the familiar presence of these college buildings and in the comparative repose 9f this beautiful city, I seem to breathe again the air of the cloister, and to recall as if from yesterday a similar gathering of classmates met to- gether for that final parting which marks the beginning of professional life. In the almost two-score years which have elapsed since I last stood before a similar audience here, the thrifty college of less than 700 students has ex- panded into the great university of 2,400, the familiar row of brick, which represented so well the modest architec- tural taste of the eighteenth century, is giving way to the sumptuous structures needed to gratify the aspirations of the nineteenth changes which are only a reproduction upon a smaller scale of the more important changes, which have taken place throughout the world and given to the period which is now drawing to its close, its material and social importance. In our retrospective glance at this period let us picture to ourselves the probable subject of a similar address we may imagine to have been delivered a hundred years ago to the graduating class of the little Law School then recently established at Litchfield which was destined to play so important a part in the educa- tion of the American Bar. The first thought of the speaker would have been to congratulate his hearers upon the termination of the embroilments which had character- ized the short life of the old Confederacy, the adoption of the new Constitution, and the possibilities which a more perfect union of the thirteen original States must have suggested. His hopes would have led him to predict for the newly founded government a great future his appre- hensions would have led him to fear that the storms it had inherited from the original confederacy would wreck it before it was fairly launched, for the soul of John Mar- shall, the great Chief Justice, had not yet entered into the new constitution to give- it vigor, stability and complete- ness. He would probably have inflamed the imaginations of his hearers with the possibilities of the coming century, the redemption and peopling of the western wilderness, the rapid growth of population, the probable accession of new States, the conversion of the Indians (by means as well understood then as now) and the certain expansion of our territory to the Mississippi. Had his imagination been peculiarly fervid, he might even have anticipated the pur- chase or conquest of Louisiana and Florida and the pos- sible extension of our sovereignty to the shores of the Pacific. It might have cooled his ardor, could he have foreseen that the three republics then in existence Swit- zerland, France, then struggling to forget the awful agonies of the Reign of Terror, and his own, would be one hundred years from that day still the sole representa- tives of real republicanism, and that France, after having been twice a Kingdom and twice an Empire, was still in her experimental stage. But could he have foretold the history of Europe and of Spanish America for the coming century, he would have realized the fact that liberty is not inconsistent with monarchy, nor despotism with a re- public. But however brilliant his anticipations of the future might have beefn, he would have utterly failed to grasp the tremendous changes the nineteenth century was to produce, since there was nothing in his past experience to suggest the key-note to those changes in its inventions. Those were the days of the stage-coach, the sailing packet and the mail carrier. There was little in this particular to distinguish the eighteenth century from the five that had preceded it. Gunpowder -and the printing press had done a great work, but they had not affected materially the social life of the people ; and the latest of them was already over three hundred years old. True, the steam engine had been invented and put to the humble use of pumping water, and Franklin had drawn electricity from the clouds ; but the possibilities of steam and electricity as factors in civilization were yet undreamed of. People lived much as they had lived for centuries before, rarely traveling except from necessity, reading a weekly paper or an occasional pamphlet, if at all, and utterly oblivious of the fact that the cotton gin for which Eli Whitney had, three years before, obtained a patent, was but the fore- runner of a series of brilliant inventions which were destined to revolutionize the world, and in comparison witli which all the prior discoveries since the Christian era were of minor importance. Unquestionably the foremost of these inventions are the employment of steam for the purposes of transporta- tion, and of electricity for the transmission of intelligence. Both came into general use during the last decade of the first half of the century. Both have measurably changed the face of nature. Both have profoundly affected the inner life of the people. If we owe to steam the enormous increase in immigration, the rapid settlement of the West and the partial depopulation of the East, the building up of great cities at the expense of the rural districts, the magnitude of modern commerce, the introduction of foreign languages, habits and customs, and finally (let us not despise it too much) the annual vacation in Europe, we are indebted to electricity for all that was needed to supplement the triumph of the railway and the steamship, the instant communication with ever}' part of the world, the prodigious expansion of the daily press, and the rapid and general diffusion of intelligence. These, however, are but the primary effects effects which, though of great importance, it required but little of prophetic wis- dom to forecast. They have been dinned into our ears for half a century every school boy is familiar with them, and perhaps I may even owe you an apology for mention- ing them. But these the immediate effects, which are patent to every observer, and which began to manifest themselves as soon as the use of railways and telegraphs became general, are greatly inferior in their economic importance to certain secondary effects, which have become apparent within the past thirty years, and which threaten not only to affect the political future of every State, but to revolu- tionize the entire productive industry of the world. It is a change which began silently, has progressed furtively but relentlessly, and is yet only at the threshold of its tremendous possibilities. So unforeseen was it, that it may be said to have stolen upon us like a thief in the night. It may be summed up in the single word consoli- dation. Consolidation in politics, in business, in society. Its first manifestation upon a great scale was seen in the Franco-Italian war of 1859 when French railways en- abled Louis Napoleon to mass his troops in the valley of the Po, and with the aid of the Piedmontese to wrest Lombardy from the Austrians, and finally to consolidate the petty principalities of the Latin Peninsula into the new Kingdom of Italy. Steam and electricity were equally potent factors in the suppression of the Re- bellion of 1861, without the aid of which the war might have been indefinitely prolonged. And finally, it was the railways of Germany that enabled William of Prussia to concentrate his armies upon the frontiers of France, and to push to success that brilliant campaign which ended in the capture of Paris, and the founding of the German Empire. This influence is everywhere the same the ab- sorption of small states the creation of large ones the centralization of power in the hands of a few the unifi- cation of people of kindred race and similar language, and, in this country, a vast accession to the power of the Fed- eral Government. Wise men may differ as to whether the liberties of the people can better be preserved in large states or in small ones. History doubtless favors the lat- ter ; but the historical republics had neither steam nor electricity, nor the general diffusion of education and in- telligence they have brought in their train. In producing the evil, (if it be an evil) they have also furnished the 'an- tidote. The nineteenth century has given birth to large 8 states, but at the same time it has curtailed the privileges of the great, has expanded the area of freedom, and en- trenched the people in their natural rights. But these speculations are of little value. The large states are up- on us and overshadow us. They have come to stay, and for better or for worse, the world must adapt itself to their conditions. The consolidating influence of which I have spoken is not less manifest in matters of internal economy ; and is as potent in business as in politics. In fact it may be said to have revolutionized the whole system of production. Where transportation is slow and expensive, each state becomes a manufacturing community of its own; where it is cheap, local manufacturers and dealers are driven to the wall by the competition of the great producers, who manufacture only where it can be done to the best advan- tage. The results are large enterprises, only rendered possible by combinations of capital, great corporations monopolizing the production of all the comforts and many of the necessaries of life, immense farms and pastures flooding the markets of Europe with cheap meats and grain, curtailing the rents of the landlords and depressing the value of their lands, the crushing out of small produ- cers and the centralizing of production where labor and material can be obtained the cheapest. We may lament the disappearance of the small em- ployer the man who worked with his hands as well as his brains and was little more than the most skillful of a dozen workmen we may even become pathetic over the loss of the spinning wheel and the loom of our grand- mothers ; but we may find consolation in the thought that the cost of production has been steadily growing less, 9 that the comforts and even the luxuries of life are within the reach of people, who, a hundred years ago, knew not of them, and that the profits which formerly went to the small producer are now even more widely distributed in the form of dividends to stockholders little rivulets of wealth which trickle through all classes of society, and offer the rewards of thrift to the humblest households in the land. If the head of the great corporation takes to himself an apparently disproportionate share of the pro- fits, it is only in obedience to a universal law that the man who develops extraordinary capacity in any direction re- ceives an extraordinary reward. A lawyer who earns $5,000 a year may in nine cases out of ten, do his work as well as the one who earns $50,000, but in the tenth case, the latter may be worth to his .clients every dollar he costs them. A picture by Meisonnier worth $20,000 may to an unskilled observer be scarcely distinguishable from one worth $200, but there is an impalpable something which to an artistic eye stamps one as the work of a great artist and the other as that of an ordinary painter. While the manager of the corporation may be inferior to a thou- sand of his employees as a mere handler of tools, his talent for organization, oversight and direction, his knowledge of details, his anticipations of the market may make all the difference between success and failure. He is the general of the army, the master of the ship, the Speaker of the House, the Prime Minister of the Cabinet, and his talent for leadership is not to be measured by ordinary stand- ards. The refusal to recognize this ability has been fatal to nearly every scheme for co-operative production. I have spoken of the material changes of the nineteenth century as furnishing the key note to the progress of 10 civilization during that period. But, what is more strictly of personal interest to us, the law, conservative as it is, has not been at a standstill. While its fundamental rules have remained and must always remain the same because they are founded upon immutable principles of justice, legislation has abolished much of what was intended as a wholesome restraint upon individual liberty, and has almost revolutionized the practical administration of the law. It has done away with the ancient tenures of real estate that grew out of the feudal system, and made the transfer of land almost as simple as that of personal property ; it has emancipated the married woman from the chains of coverture, and has not only secured to her, by statute, rights once grudgingly conceded by Courts of Equity, but has made of her a distinct entity from her husband, and armed her with all the weapons necessary for the protection of her natural rights : it has put an end to imprisonment for debt and created a homestead ex- emption : it has swept away in most of the States the ancient forms of actions and approximated pleadings to the models of the civil law : it has opened the door of the witness box to parties and interested witnesses, abolished grand juries in several of the States, simplified indict- ments for murder and restricted the number of capital crimes. The character of litigation has changed as much as the law itself. The lawyer of the last century looked askant at a Court of Equity brought his action at com- mon law and demanded a jury of his peers. He had imbibed the prejudicies of Lord Coke against tribunals proceeding according to the course of the civil law, and thought his chances of success there were measured by the length of the Chancellor's foot. But we have changed 11 all that. The multiplicity of corporations, the enormous growth of the patent system and of the internal commerce of the country have given rise to questions with which juries are incompetent to deal. The result is that the great litigation of the country is now carried on in Courts of Equity and Admiralty. In some States juries have almost disappeared except in criminal cases and actions for torts, where their well known generosity still finds ample scope in nearly all there is a large proportionate decrease. Forensic eloquence has declined, and the man who can state clearly a complicated series of facts has taken the place of the typical lawyer of the last genera- tion, who could move a jury to tears. Where there is a choice of remedies, the resort is usually to a Court of Equity ; and large interests are treated as safer in the hands of a single, upright, passionless judge, or bench of judges, than in those of the average jury. It is certainly a tribute to the purity of the American judiciary that this confidence is so rarely misplaced, and that their decisions are so seldom the result of fear, favor, affection or the hope of reward. I have thus briefly spoken of the changes of the past century to emphasize the point I desire to urge upon your attention, that you are entering the arena of pro- fessional life at a more than usually critically period. Old things are rapidly passing away, and the question presses itself upon us, what will the Twentieth Century furnish to take their place ? The problem whether the Constitution of the United States embodied a feasible plan of government is already settled. Weak spots have undoubtedly been developed some changes seem almost imperative ; but it still remains the most marvellous work 12 of constructive genius that was ever created. It has grown with each decade in the affection of the people : the danger is, not that it will be changed, but that it will be regarded as too sacred to be changed a product of superhuman wisdom a mere fetish. If the power of the Federal Government has been strengthened, that of the States has not been materially impaired. The country has survived the shock of a great war. The loyalty of the South is unquestioned, and there has never been a time when strife between different sections seemed less probable than at present. The man who should assume to prophecy what the Twentieth Century will bring forth is likely to be as far astray as the hypothetical speaker I mentioned, who failed to take account of the inventions of the nineteenth. At the same time, speculations based upon an existing state of things are not wholly useless. If they fail to anticipate every contingency they may at least provide for some. If they are an uncertain guide for our future action they may serve to point out to us our immediate duty. There are certain rules of human conduct which are obligatory at all times and under all circumstances. Of these are integrity, morality and industry. Let us hope the time may never come when they will fail to receive their reward. It is one of the ancient maxims of the law that a state of things once proven to exist is presumed to continue. So we may safely assume that the tendencies, which the last half of the nineteenth century has developed, will be prolonged into the twentieth, that the great powers of Europe, which have already parcelled out among them- selves almost the entire continent of Africa, will look for 13 new fields of conquest in the extreme East; that the process of absorption will go on with the usual indiffer- ence to the wishes of the native populations, and that another hundred years may see the entire Eastern hemisphere under their control. It will be your duty to see that their rapacity does not extend to the Western. The lust of conquest, like that of acquisition, knows no bounds. In the domain proper of the law, the reforms have already been so sweeping- that the future seems to promise more of conservation than of change. Justice is the same at all times, and if laws are framed upon principles of exact justice and equal rights to all, and are conformable to the habits and traditions of the people, changes will be limited to the meeting of new exigencies as they arise. I look, however, to a greatly increased efficiency in the administration of the law which, in many of the States, is most unsatisfactory. The very fact that lynchings out- number the legal executions is strong evidence of a feeble enforcement of the criminal statutes. The fact that such lynchings are most frequent in States where the accused is most perfectly protected by statutory guaranties, indicates a popular opinion that such guaranties are made use of to defeat justice and not to secure it. Let the people, who are, in the main, law abiding, or at least determined that others shall be so, once become satisfied that the law is being used to set the guilty free, and irregular methods of wreaking vengeance are inevitable. A rigorous enforcement of the law is therefore as neces- sary for the protection of the innocent as to the punish- ment of the guilty. I look for the time when the techni- calities which hedge about the administration of criminal 14 law and seem as precious to the lawyers of the present century as the rules of special pleading did to those of the last, will be swept away and every case be squarely settled upon its merits. I look for the spread of codifica- tion, for the abolition of grand juries, and of the rule of unanimity, at least in civil cases, for a reduction in the time consumed, and the enormous expense to taxpayers of jury trials, and for a greatly simplified system of regis- tration of deeds. If we had more independent judges who would conduct trials instead of listening to them, and more intelligent juries, there would be less complaint of the mal-administration of justice. The important changes of the Twentieth Century, how- ever, promise to be social rather than legal or political, and as I have entire confidence that in a free country the lawyers will always be leaders of public opinion, and that the American Bar especially will maintain its supremacy in the halls of legislation, it is to you as a component part of social state of the future, that I address myself. While the signs of the material development and prosperity of the country were never more auspicious than at present, it is not to be denied that the tendencies of the past thirty years, to which I have already called attention, have pro- duced a state of social unrest which augurs ill for its fu- ture tranquility. The processes of combination have resulted not only in putting practically the entire manu- facturing industry of the country into the hands of cor- porations, but have enabled the latter to put an end to competition among themselves by the creation of trusts, to monopolize the production of a particular article. It is doubtful if, even during the reign of Elizabeth and James, when grants of monopolies by the Crown, became the ob- 15 ject of such public outcry that a statute was passed to suppress them, monopolies have ever fastened themselves upon the necessaries of life to the extent they have done within the past twenty years and that, too, in a country where manufactures and trade are absolutely free and un- restricted. Upon the other hand, labor, taking its cue from capital, though more slowly, because less intelligent and alert to its own interests, is gradually consolidating its various Trade Unions with the avowed object of dictating the terms upon which the productive and transportation in- dustry of the country shall be carried on. The ancient war between capital and labor which has been waged with more or less bitterness since the day when capitalists and laborers began to constitute distinct classes, bids fair to array their respective armies in two hostile camps to do battle for the command of the productive forces of the country. The reconciliation of this strife, if reconciliation be possible, is the great social problem which will con- front you, as you enter upon the stage of professional life. That the solution of this does not lie in the destruction of private property is as certain as that the civilized world will not return to barbarism. National socialism has never been found except among primitive types of people, and the history of civilization for the past four thousand years has been largely the history of individuals who have sought to acquire property for themselves, and to protect it from the rapacity of their neighbors. The fruits of this long struggle are not going to be abandoned at the behest of a few theorists, however honest, who imagine they see in the abolition of property a panacea for all the evils 16 which the acquisition ot such property entails. Under our present social system, with all its faults, the civilized world is constantly growing richer, freer, more prosper- ous the richer, less ostentatious in the display of their wealth the poorer, better housed, better clad and better fed than ever before. Certainly, the burden is upon them who contend that this civilization is a failure. Nothing can demonstrate the soundness of their principles so well as a practical test of socialism upon a large scale. If a successful experiment of that kind could be offered to the world, they might have some title to contend that civili- zation should be reorganized upon that model. It must be confessed, however, that the efforts heretofore made in that direction have rarely met the expectations of their founders. The truth is that distinctions in wealth within reason- able limits, so far from being objectionable, are a positive blessing, even to the poor, in the opportunity they afford for a diversity of labor and of talents. The census of 1890 shows that if the entire property of the country were equally divided, each inhabitant would have $1,036. Imagine such division to be made, and by some legal magic to become permanent, every one with the ne- cessaries of life, but with few of its comforts, and none of its luxuries. With no reward for industry and no punish- ment for idleness, what would be the proportion of the industrious to the idle? Where would be the incentive to labor? What would become of the hundreds of thou- sands who are engaged in providing luxuries for the rich, and in ministering to their pleasures? What of the archi- tects, the painters, the sculptors, the manufacturers of car- riages, pianos, jewelry, and the thousand and one articles of this description, were the demands for them suddenly 17 to cease? The truth is, the whole fabric of civilization is built upon the sanctity of private property. Were this foundation to be taken away, the structure would crumble into ruins. While it is entirely true that the business methods of the past thirty years have tended to increase enormously the fortunes of a few, and thus to widen the gulf between the very rich and the very poor, it is wholly untrue that the poor as a class are either absolutely or relatively poorer than before. Indeed the number of small but com- fortable homes in every part of the country as well as the reports of savings banks, building associations and insur- ance companies prove incontestably that the poor have shared in the prosperity of the rich, and that the average standard of comfort was never higher than at present. The average working-man of to-day lives better, and pos- sesses more of the comforts of life than the average noble of six hundred years ago. The sins of wealth, though many and grievous, have not generally been aimed directly at the oppression of the poor. While I feel assured that the social disquietude of which I have spoken does not point to the destruction of private property, it is not improbable that it will result in the gradual enlargement of the functions of government, and the ultimate control of natural monopolies. If the government may be safely entrusted with the transmis- sion of our letters and papers, I see no reason why it may not also of our telegrams and parcels, as is almost uni- versally the case in Europe, or of our passengers and freight, through a State ownership of railways, as in Ger- many, France, Austria and Norway ? If the State owns its highways, why may it not also own its railways? If a 18 municipality owns its streets, and keeps them paved, sew- ered and cleansed, why may it not also light them, water them and transport its citizens over them so far as such transportation involves a monoply of their use? Indeed wherever the proposed business is of a public or semi- public character, and requires special privileges of the State or a partial delegation of governmental powers, such for instance as the condemnation of land, or a special use or disturbance of the public streets for the laying of rails, pipes or wires, there would seem to be no sound reason why such franchises, which are for the supposed benefit of the public, should not be exercised directly by the pub- lic. Such, at least, is the tendency in modern legislation in nearly every highly civilized state but our own, where great corporate interests by putting forward the dangers of paternalism and socialism, have succeeded in securing franchises which properly belong to the public. The fear, too, that these monopolies may be used for political pur- poses has hitherto proved an insuperable objection to their exercise by the State ; but the development of Civil Service Reform has of late been so rapid and satisfactory that its introduction into this new field of usefulness would follow as a matter of course, and would obviate the most formidable difficulty in the way of the proposed change. Should the assumption of these natural monopo- lies by foreign States and municipalities prove as success- ful as they now promise, the question which will confront the legislatures of the Twentieth Century will be, not whether these extensions of governmental functions are socialistic in their tendencies, but how long this country can afford to lag behind others which we have been taught to look upon as conservative and inert. Progress in this 19 direction should undoubtedly be made with great caution, and each step should be taken in the assurance that the last one has already been vindicated by the result. While I have no doubt of the ultimate settlement of our social problems upon a reasonable and judicious basis, there are undoubtedly certain perils which menace the immediate future of the country, and even threaten the stability of its institutions. The most prominent of the,se are municipal misgovernment, corporate greed and the tyranny of labor. The dangers which, a hundred years ago, threat- ened the very existence of the new constitution have all happily passed away ; but these, which were then unsus- pected, have risen to take their place. Municipal misgovernment has come upon us with uni- versal suffrage and the growth of large cities and in general seems to flourish in a ratio proportioned to the size of the city. Why a system of government which, upon the whole, works well in small towns, and even in States of considerable size, should break down so completely when applied to large cities may seem strange at first, but after all it is not difficult of solution. The activities of urban life are so intense, the pursuit of wealth or pleasure so absorbing, as, upon the one hand, to breed an indifference to public affairs ; and upon the other, the expenditures are so large, the value of the franchises at the disposal of the cities so great, and the opportunities for illicit gain so manifold, that the muni- cipal legislators, whose standard of honesty is rarely higher than the average of those who elect them, fall an easy prey to the designing and unscrupulous. Franchises which ought to net the Treasury a large sum are bartered away for a song, privileges which ought to be freely 20 granted in the interest of the public are withheld, till those who are supposed to be immediately benefited will consent to pay for them, gross favoritism is shown in the assessment of property for taxation, great corpora- tions are permitted to encumber the streets and endanger the lives of citizens, while every form of vice which can be made to pay for the privilege, is secretly tolerated. The consequences of all this is thus depicted by a recent English writer who has made a study of our municipal institutions: "I have watched the rapid evolution of Social Democracy in England. I have studied Autocracy in Russia and Theocracy in Rome, and I must say that no where, not even in Russia, in the first years of the reaction occasioned by the murder of the late Czar, have I struck more abject submission to a more soulless despotism than that which prevails among the masses of the so-called free American citizens, when they are face to face with the omnipotent power of the corporations." Granting this to be overdrawn, for I am unwilling to believe that corporations are solely responsible for our municipal misgovernment, the fact remains that bribery and corruption are so general as to threaten the very structure of society. Indeed, we are being slowly driven to the conclusion that the best governed city in the country, I had almost said the only well governed large city, is administered upon principles which amount to a complete negation of the whole democratic system. Universal suffrage, which it was confidently supposed would enure to the benefit of the poor man, is so skillfully manipulated as to rivet his chains, and to secure to the rich one a predominance in politics he had never enjoyed under a restricted system. Probably in no country in the 21 world is the influence of wealth more potent than in this, and in no period of our history has it been more master- ful than now. So far as such influence is based upon superior intelligence, and is exerted for the public good, it is doubtless legitimate so far as it is used to secure to wealth exceptional privileges, to trample upon the rights of the public, to stifle free discussion or to purchase public opinion by a subsidy of the press, it invites meas- ures of retaliation which can scarcely fail to be disastrous. Mobs are never logical, and are prone to seize upon pretexts rather than upon reasons, to wreak their ven- geance upon whole classes of society. There was probably never a flimsier excuse for a great riot than the sympa- thetic strike of last summer, but back of it were substantial grievances to which the conscience of the city seems to have finally awakened. If wealth will not respect the rules of common honesty in the use of its power, it will have no reason to expect moderation or discretion on the part of those who resist its encroachments. The misgovernment of which I have spoken is so noto- rious and so nearly universal, that it is useless to attempt to ignore it, or expect that it will cure itself. Whether the blame lies chiefly upon him who gives, or upon him who receives a bribe, it is evident the temptation must be removed, either by destroying the inducement, or by ele- vating the character of those who are charged with the administration of the government. The fault is not that of one class alone. If the higher classes evade their just responsibilities, the lower will not fail to profit by their example. If the rich are seen to escape taxation by bribing assessors or by fraudulent removals from the city, the poor will not hesitate to avenge themselves in the 22 coarser way of accepting bribes. Whether the remedy for all this lies in raising the character of the electorate, by limiting municipal suffrage to property holders, or in government by commissions, is a question which will not fail to demand your attentive consideration. The great, the unanswerable argument in favor of universal suffrage is, not that it ensures a better or purer government, but that all must be contented with a government in which all have an equal voice. If it be deficient in this particular, if it fail to secure the poor against the oppression of the rich, or the rich against a destruction of their property by the poor, in short, if the representatives of the people betray their trusts, it is pro tanto a failure, and another method of representation should be adopted. If we can- not have government by the whole people, let us have government by the better classes and not by the worst. I have spoken of corporate greed as another source of peril to the State. Corporations are a necessity in every civilized state. Great enterprises cannot be carried on without the aggregation of capital and the limitation of liability, which distinguish them from ordinary partner- ships. They have a practical monopoly of land transpor- tation, of mining, manufacturing, banking and insurance ; and within their proper sphere they are a blessing to the community. On the other hand, the ease with which charters are procured has produced great abuses. Cor- porations are formed for trading or other analogous pur- poses, with the design of crushing out rival dealers often with a view, not of collecting together capital, but of avoiding personal liability, and under a name suggest- ing an individual rather than a corporate enterprise. Thus Mr. John Smith, who has made and laid away a 23 comfortable fortune in a corner grocery, seeing disaster ahead, procures himself to be incorporated with a small capital under the name of John Smith, and when called upon by his creditors, assures them that their contracts were not made with Smith as an individual, but with Smith as a corporation, and that his liability is limited by his stock in trade. Corporations are formed under the laws of one State for the sole purpose of doing business in another, and railways are built in California under chart- ers granted by States east of the Mississippi, for the pur- pose of removing their litigation to Federal Courts. The grossest frauds are perpetrated in the construction of such roads, which are built not by the corporation own- ing them, for the best price that can be obtained, but by the directors themselves under guise of a construction company, another corporation, to which is turned over all the bonds, mortgages and other securities, regardless of the actual cost of the road. The road is equipped in the same way by another corporation, formed of the di- rectors, which buys the rolling stock and leases it to the road so that when the inevitable foreclosure comes, the stockholders are found to have been defrauded for the benefit of the mortgagees, and the mortgagees defrauded for the benefit of the directors. Indeed the process of re- organizing, or as it is popularly and often properly known as " wrecking " corporations in the interest of the directors, has become an exceedingly profitable, if not a very repu- table, industry. Property thus acquired in defiance of honesty and morality does not stand in a favorable posi- tion to invoke the aid of the law for its protection. Worse than this, however, is the combination of corpo- rations in so-called trusts, to limit production, stifle com- 24 petition and monopolize the necessaries of life. The ex- tent to which this has already been carried is alarming, the extent to which it may hereafter be carried is revolu- tionary. Indeed the evils of aggregated wealth are no where seen in more odious form. If no student can light his lamp without paying tribute to one company, if no house-keeper can buy a pound of meat or sugar without swelling the receipts of two or three all-pervading trusts, what is to prevent the entire productive industry of the country becoming ultimately absorbed by a hundred gi- gantic corporations? If a railway company originally organized to build a hundred miles of road, has by fifty years of consolidations and leases, become the undisputed master of ten thousand miles of transportation, what is to prevent it, in another fifty years, from monopolizing half the traffic of the continent? Upon the other hand, railways themselves are not with- out their grievances. In more than one State they have been treated as if they were the lawful prey of the legis- lature, and so borne down by oppressive and discriminat- ing taxation, and by suits for personal injuries, that they are fain to take refuge in that haven of distress for weari- ed corporations a receivership. The truth is that the entire corporate legislation of the country is sadly in need of overhauling, but the difficulty of procuring concurrent action on the part of forty -four States is apparently in- superable. They should never be formed except for ob- jects requiring large amounts of capital, and should be absolutely prohibited for farming or trading purposes, and particularly for traficking in the necessaries of life. Their capital should be no larger than required for the object to be attained, and their life should be strictly lim- 25 ited in point of time, that they may be wound up at stated periods. Most important of all, these laws should be rig- idly enforced, and not left to the hap-hazard of attorneys elected every two years by popular suffrage. From a wholly different quarter proceeds the third and most immediate peril to which I have called your atten- tion the tyranny of labor. It arises from the apparent inability of the laboring man to perceive that the rights he exacts, he must also concede. If, for instance, an em- ployer of labor should discharge an employee, or refuse to hire him because of a difference between them as to wages, and should then forbid him from obtaining em- ployment elsewhere, and should assault the person and burn the property of any one who proposed to give him work, he would naturally be considered a fit subject for mental treatment ; yet a year never passes that outrages of this description are not perpetrated under the name of the rights of labor. Men are harried, assaulted and stoned, simply because they are willing to work for less than their assailants, while property is burned, public travel arrest- ed and large cities reduced to hunger, that great corpora- tions may be compelled to employ workmen at wages fixed by themselves. This, too, in a nominally free coun- try. It needs no argument to show that such conditions are intolerable. The truth is that labor, like every other mar- ketable commodity, will command such wages as capital is able to pay, and if laborers themselves do not become capitalists by purchasing stock in their own corporations, and thus becoming profit-sharers, or laying aside their sur- plus earnings in savings banks or elsewhere, it is because they lack the qualities of industry and thrift out of which 26 capitalists are made. While certain enterprises do un- doubtedly return large profits, capital as a rule does not, or the country would not be strewn with the wrecks of so many enterprises. Laboring men may defy the laws of the land and pull down their own houses and those of their employers about their heads, but they are powerless to control the laws of nature that great law of supply and demand, in obedience to which industries rise, flourish for a season and decay, and both capital and labor receive their appropriate reward. The outlook for a permanent peace between capital and labor is certainly not an encouraging one. The conflict between them has been going on and increasing in bitter- ness for thousands of years, and a settlement seems farther off than ever. Strikes are rarely successful strikes ac- companied by violence almost never since violence en- genders exasperation which always redounds to the bene- fit of the stronger party. When the Israelites went off upon their grand national strike, the first strike recorded in history, they are said to have despoiled the Egyptians ; but the latter, so far from being won over by this argu- ment, sent an army to pursue them across the Red Sea. On the other hand, when the Roman Commons, driven to despair by the oppression of the patrician class, with- drew peaceably to the Sacred Hill, the latter were quickly brought to terms, and conceded practically all they demanded. Arbitration is thought by some to promise a solution of all these problems, and where a dispute turns simply upon the rate of wages, it may often be a convenient method of adjustment. Yet its function is after all merely advis- 27 cry. It cannot compel an employer to operate his estab- lishment at a loss it cannot compel employees to work for less wages than they may choose to demand. If it could, it would re-establish slavery under the name of an award. The whole theory of arbitration presupposes voluntary action a voluntary submission of something in dispute a voluntary performance of an award. Com- pulsory arbitration is a misnomer a contradiction in terms. One might as well speak of an amicable murder or a friendly war. There are certain things, too, which cannot be arbitrated. Suppose a Labor Union should as- sume to dictate who should be employed and upon what terms, of whom material should be purchased, and to whom sales should be made. This involves no more nor less than the control of one's business, the surrender of which could not be made without the certainty of ultimate bankruptcy. It is possible that a compromise may finally be effected upon the basis of co-operation or profit-sharing, under which every laborer shall become to a certain extent a capitalist. The difficulty of securing a competent man- ager at a salary which the workmen are willing to pay, and the necessities of the employees themselves, have heretofore proved an insuperable obstacle to co-operation in production. The faculty of accumulation is compara- tively a rare one, and without it, there will be no provi- sion for unprofitable seasons, in which the capitalist is forced to depend upon his accumulated store. In a few instances the necessities of a large family require the ex- penditure of all the earnings of a laboring man, but in a majority of cases the thrift that lies at the bottom of every large fortune is lacking, and men prefer the certainty of a 28 weekly stipend to the possibility of great profits. Per- haps with superior education, wider experience and larger intelligence, the laboring man of the Twentieth Century may attain the summit of his ambition in his ability to command the entire profits of his toil. I have spoken to you thus briefly but frankly upon the dangers which seem to me to environ the future of the country, not because I believe them to be insuperable, but because I desire to press upon your attention the fact that upon you, as representing the legal intelligence of the country, will be laid the burden of averting them, and of preserving intact the liberties of the people. One of these, that of municipal corruption, is peculiar to this country, the others are those in which the whole civilized world may be said to have its share. Some of them are the inevitable fruits of that process of consolidation upon which I have dwelt so largely ; some of them have come upon us from an indifference to political responsibilities, and a good natured endurance of evils which are not intol- erable. In fact, patience under affliction is a leading defect in the American character. I fear there is no counterpart in this country to the sturdy London butcher, who carried on for years a costly litigation against the British Crown, to secure the privilege of walking through Richmond Park. Instead of applying the rule " obsta principals" we are rather given to submitting with easy acquiescence to encroachments upon our natural rights, until further toleration becomes impossible, when we reverse the old maxim, and declare that what cannot be endured must be cured. Fifty years ago, it might have been said of this country, as a recent writer has said of the Dutch who represent 29 even more perfectly than the Swiss, the ideal of thrift with a Republican simplicity and contentment, " in Hol- land are to be found riches without ostentation, freedom without insolence, taxes without poverty. The country goes on its way without panics, without insurrections, preserving, with its fundamental good sense, in its tradi- tions, customs and freedom, the imprint of its noble origin." In the vigor of our youth, the rapidity of our growth and the exuberance of our wealth, we have already passed this stage, and are brought face to face with the problem, how far great inequalities of condition are consistent with the maintenance of a perfect equality of rights. There never has been a time in the history of the country when men of independent thought men who can neither be awed by the mastery of wealth nor seduced by the blandishments of popularity, were more urgently needed to guide the ship of State with a steady hand. Whatever the coming century may produce, I am satisfied its material prosperity will suffer no important check. Financial panics will doubtless recur every twentieth year with the regularity of a planetary revolu- tion, to be followed by a cry for cheap money as inevita- ble as fever follows a malarial chill a cry quite certain to be drowned in the first wave of returning prosperity ; but the country as a whole will grow richer, stronger, better. Progress will be made, but upon lines already drawn, for nothing is surer than that sudden or radical changes will not be permanent. In dealing with the evils which threaten our future tranquility you ought to find and doubtless will find an efficient coadjutor in a Free Press. Indeed the Bar and the Press are the great safeguards of liberty. When we 30 consider what the Press has shown itself capable of doing how, within the memory of the present generation, a trio of corrupt judges was driven from the bench by the relentless pursuit of a single daily paper, how, by another, the practical autocrat of a neighboring city was forced into exile and imprisonment, how, in a dozen instances, depraved creatures of political methods have been ousted from the control of great municipalities, we are able to appreciate the great power of the daily newspapers for good or evil. Their peculiarities may entertain us. We may smile at their claims to infallibility and omniscence, we may amuse ourselves at their smug satisfaction with their own greatness, we may even question their definition of enterprise so far as it consists in prying into domestic and official secrets, but of their influence upon public opinion, there is so little doubt, that we are led to regret that it is not oftener exerted in the right direction. Their utterances are so generally moulded in their own in- terests, or in those of their immediate patrons, that we are compelled to look upon them rather as arguments of astute counsel than as the deliverances of an unprejudiced Court. But even if they are not to be taken seriously, if they are too willing to sacrifice everything to a reputation for " smartness," if their opinions are too often unsafe guides, there is nothing better calculated to demonstrate the unsoundness of such opinions than the free publication of them. Liberty cannot exist where the Press is not free to comment upon public questions, nor can private character be safe, if the law cannot protect it against its assaults. But, with all their faults, newspapers are indispensable, and life would lose half its charm without our morning journal. Let it be said to their credit that, 31 in times of great popular outcry against abuses, their voice is generally upon the side of reform. It has been given to the Nineteenth Century to teach the world how a great republic can be founded upon prin- ciples of justice and equality : it will be the duty of the Twentieth to show how it can be preserved against the in- sidious encroachments of wealth, as well as the assaults of the mob. It will be your privilege to demonstrate that great States are as compatible with free institutions as small ones, and your duty to testify to your wish that this shall be the best as well as the greatest of governments, by taking an active interest in its administration, and bear- ing your share of its burdens. The progess of all civiliza- tion has 'been from the reign of will to the reign of law, and, as a rule, that government is freest whose Courts of Justice are purest. Freedom and injustice are ill-mated companions ; and at the basis of every free government is the ability of the citizen to apply to the courts for a re- dress of his grievances, and the assurance that he will there receive what justice demands. So long as we can preserve the purity of our courts we need never despair of the Republic. Of justice it was eloquently said by Sidney Smith : " Truth is its handmaid, freedom is its child, peace is its companion, safety walks in its steps, vic- tory follows in its train ; it is the brightest emanation from the gospel, it is the attribute of God."