just powers from the consent of the governed.' . . . The distinctive features of the modern democracy are the widest personal freedom, by which man has the liberty and responsibility of shaping his own career; equality before the law; and political power in the form of universal suffrage exercised through the representative system."

The theory of Rousseau, the ideal of Jefferson, is the practical necessity of today. It has proved and established itself in America, without much aid from theory and ideal. It was recognized by Edmund Burke that, in their rapid strides toward prosperity and commercial success," the colonies owe little or nothing to any care of ours, that they are not squeezed into this happy form by the constraints of watchful and suspicious government, but that, through a wise and salutary neglect, a generous nature has been suffered to take her own way to protection. . . . I pardon something to the spirit of liberty." By this neglect, by the very fact that they had been enabled to throw off the inherited dependence on government, the colonies realized, as no other people ever had or could, the full power and glory of the individual. A new ideal was applied, an ideal not of rule, but of freedom, and a new power was found in that ideal, a power greater than any government had ever known, greater than any government can ever know. They recognized that, in the words of Winthrop, the first colonial governor of Massachusetts, the civil liberty of the individual is "the proper end and object of authority. Whatever crosseth this is not authority, but a distemper thereof."

The Revolution was a successful effort to secure that liberty against government. The next and crowning effort was to secure that liberty by government, a design accomplished in the federal union, which, as expressed by Washington in his Farewell Address, "is a main Pillar in the edifice of your real Independence; the support of your tranquillity at home; your place abroad; of your safety; of that very

Liberty which you so highly prize." This design has been developed and perfected in the federal Constitution, in the remarkable document by which the union and the force of all stand pledged to guarantee the liberty of each, by which the federal government, itself a government of delegated and limited powers, is vested with the supreme function of protecting the inalienable rights of the individual against the reserved sovereignty of the states. This function rests primarily with the federal courts. Its initial purpose was extended and completed, with almost superhuman excellence, by the words of the Fourteenth Amendment, adopted in the passion and turmoil of the reconstruction period: "nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

The principle of democracy exists today perfected as a supreme written law by the preservation of the states themselves and by the federal guarantee of the rights of life, liberty, and property, and of a republican form of government within the states. It exists in the separation and distribution of the powers of government; in the reservation to the states, as self-governing sovereignties, of general legislative power; in the effective distribution of that power where it can do the least harm to the individual, where it can have the greatest opportunity for good in meeting the needs, and least opportunity for harm in testing the theories, of widely differing communities. It exists preeminently in the happy fact that it is secured beyond the power of an impulse to destroy it, beyond the power of opportunism, of government of the day, by the day and for the day, to impair the foundations of a constitutional democracy. The greatest powers of the nation are not legislative or executive, but judicial, the power of the supreme law interpreted and enforced by the federal courts, to declare void, to prevent and restrain, the legislative or executive

acts that seek to violate its provisions.

Such is and has been the design of our federal union to secure the liberty of the individual; a design so perfect in its conception, so happy in its effects, and so permanent in its nature that we cannot but acclaim it as an act of Providence, an inspiration and a result beyond the conception of the great minds that have wrought it. Its practical benefits have been manifold and widespread. To what shall we attribute them? To the ever blundering but necessary government, or to the spirit and fact of liberty that has been secured against the powers of government to destroy it? Our greatness to-day is the greatness of a people who have been made great by the practical enjoyment of democracy, by the greatness of the liberty, of the incentive, and of the energy of the individual.

Our Revolution, according to Gladstone, was a vindication of liberties inherited and possessed." Our history is a vindication of the value of those liberties possessed and enjoyed. These liberties it is, of course, our duty and desire to maintain. We must first understand them. We must keep clearly before our minds the principle of individual rights, of freedom from unnecessary government, of free and equal opportunity and equal right. We must not confuse this idea with the idea of popular political power, with the natural desire at times to increase that power to reform abuses, with the misleading ideal of to-day that the greater the government the greater are the people whose votes control it. The "rule of the majority" justifies itself as a principle of revolution. As a principle of government, it is merely the right of the majority to act within established limits, to control the machin

We

are too apt to suppose, the whole gospel and synonym of democracy. Democracy is the practical, valuable, and essential thing; and each problem must be met and solved within its limitations. must not be deceived. We must not be led by degrees of corporate subversion into a kind of government or state of society where the individual ceases to be its dominant factor; where he ceases to enjoy the fullest freedom and opportunity compatible with the equal freedom and opportunity of all; where his inalienable rights are in fact destroyed, and in a sense exchanged for the empty bauble of equal suffrage in a topheavy socialistic experiment. Mr. Justice Brewer is quoted in a very recent speech as follows:" There are certain individual rights, the right to life, liberty, and the pursuit of happiness, and they are rights which belong to every individual in this broad land. There is no crowned head in this country who can say ‘I am the State. The only thing we have to fear is that majorities will get together and, for business, commercial, or industrial reasons, will crush off the independence of the individual. Nothing appeals to me more strongly as calling for the combined action of all true Americans than to preserve these inalienable rights.'

The "rights" of democracy are " inalienable," because they are inherent in man as man; their enjoyment may be disturbed, but the title, the right, is inalienable. Civil liberty is the right retained by each man as a member of society, the liberty that each can enjoy without infringing upon the liberty of others, and includes the right to the protection of that liberty by the force of all,

a right not possessed in the natural state, - and an equal right in the civil benefits of law and common effort flowing from his assent to the social contract. A government is democratic in form when the political right of suffrage protects the civil right of liberty. It is democratic in substance if the individual is protected in the enjoyment of the fullest liberty

compatible with the equal liberty and equal protection of all. It ceases to be democratic in substance or in fact when a despot, an oligarchy, or a majority, takes from the individual a substantial portion of his civil liberty, when they force him against his will to part with his independence, with his right to labor for himself alone, to aspire to and realize his own ideals and ambitions of life, character, and power. That right is not alienable. It is not in any event surrendered voluntarily by all. Its surrender is not inherent in the social contract; it cannot be assumed.

Consequently, society at large, whether acting by a despot, an oligarchy, or a majority, can never acquire the right, though it may exercise the power, to establish any degree of paternalism, socialism, or communism, as such, within a state. The blessings of the earth are intended for all, the ownership of land should, it may be argued, be in common, but the abilities and efforts of one cannot be justly given to another without his consent. The just incentive of toil, the sacred title of production, the blessed virtue of charity, are the property of individual effort, the keystone of progress, character, and happiness. Democracy is the one principle inherent in and essential to every just government. "That people is best governed that is least governed," is its active principle. It is as much opposed to the unrestrained rule of the majority to socialism, to bureaucratic paternalism, to the unnecessary increase of governmental powers, to the impairment of individual freedom and opportunity, as it is to despotism, the unrestrained rule of one over all.

What is the danger to-day? We have been led to believe in the responsibility of government for the creation and distribution of wealth. We have enjoyed great prosperity; and now, generally speaking, we see its great accumulated wealth in the hands of a few whose methods we have investigated and found dishonest, yet who are in the main unpunished and unpunishable by existing laws. The

demagogue is the popular answer. The demand of the hour is for more law, and more power, to punish and destroy. The demagogue's conception of government is of the absolute power to punish and destroy. Fortunately there is too much strength in our institutions, and too much conservatism in our people, to permit this popular feeling to overturn directly and immediately all the principles and safeguards of democracy. But the tone and the tendency are destructive. They seek to increase the bureaucratic powers of government and to centralize those powers where they can be used most effectively and destructively; to make popular power supreme, individual rights subordinate; to destroy the corporate monopoly of to-day; to destroy the safeguards, and in time the rights, of the individual. Democracy's limitations on government protect only the essential rights. The forces of real reform that beat mistakenly against them will in time find the line of least resistance. They will remedy the abuses without destroying the safeguards of society. It is the problem of doing this that now and always confronts us. Those who contribute to its solution will be remembered and revered as statesmen. Those who oppose it with temporary success will not be entirely forgotten. The increase of federal power, the centralization of government, above all, the regulation and supervision by government of corporate monopoly, the popular preaching of the day, is radically opposed to the principle of democracy. Is there no other way to reform existing evils? The first step in any reform is to understand the evil, and our first step to-day should be to understand the corporation. We can no longer leave the exclusive knowledge of its evils to the much abused corporation lawyer, the exclusive use of this knowledge to the corrupt influences that too often employ him. One further suggestion, I think, is pertinent. Before increasing the powers of government, before departing forever from the principle of individual freedom from govern

ment, a due regard for that principle and a due regard for reason and precedent suggest the inquiry whether, by any chance, the evils to be reformed are caused, in whole or in part, by a prior departure from that principle, by some unwise or unnecessary act of government, impairing the freedom, the supremacy, or the equality of the individual. The answer to this inquiry is immediate.

What is a corporation, that it so seriously threatens the welfare of the individual? It is first, last, and all the time, an act of government; it is a privilege and a license to one or more persons, or to an aggregate of wealth controlled by one or more persons, known or unknown, to be for certain purposes and in certain respects a separate person, a “legal fiction," and as such to be and do things that the individual cannot be and do. It is an advantage to the incorporated individual, a disadvantage to the unincorporated individual; a resulting situation whose only perfect equality lies in incorporating each individual in each relation of life. This fact was plainly recognized when, in their inception, corporations were created only for public or quasi-public purposes, with innumerable safeguards to protect the state and the people against the abuse of the powers granted for the public good. Their development from this early stage was very gradual. Their power for good was recognized, but their power for evil was not at first overlooked. Corporations for private purposes and for profit were chartered by special laws, but with great precaution and ample restrictions against abuse. With legislative corruption and carelessness, these special laws became in time blanket charters, special privileges capable of great abuse. The proper demand for reform and for equality resulted in general corporation laws containing at first many safeguards and limitations. The difficulty has been that the legislative and public minds have never fully grasped the real dangers and possibilities of the corporation. The mistaken demand of

general business interests, and in many cases the corrupt influence of special interests, have finally in very recent years made these general laws practically a blanket power of incorporation, an authority to any one to make a "legal entity" of any kind, a law for himself and for those who deal with him. The modern corporation is essentially a modern act of government, a modern extension of a power of government, proper in its inception, but so unwisely deprived of its initial safeguards that it has become in effect a charter of corruptive lawlessness, a license, so to speak, of irresponsible business methods, of wildcat promotion, of fraud on coöwners and creditors, of public corruption, of monopoly, and of subversion of established principles of law and equity.

Individual capacity for wrong is something we must always contend with and restrain, but the blanket powers of the modern corporation give to that capacity a scope and facility of fraud, of immoral profit and unpunished crime, that could not exist between individuals, that need not exist if intelligent limitations and safeguards existed to prevent the abuse of corporate powers. It has created one evil and one danger, that is perhaps peculiar to the facility it affords to secret combination, to the efficiency and corrupt profit it bestows on irresponsible and secret control of wealth. This is the evil and danger of monopoly, of farreaching aggregations of capital, greater in wealth and power than the "dummy states that create them. These monopolies control a large part of the business of the country; they place a whole people under a tribute that is neither just nor voluntary. They move with secrecy and corruption through all the channels of trade and government. They influence and in a measure control government, and give sense as well as humor to " Mr. Dooley's" suggestion that our federal government should be incorporated under the laws of New Jersey, so that it may have power to deal with them. They

threaten a day when, but for an escape to socialism, the vote of the share and of wealth shall be dominant, the vote of the man and of principle subservient; when the control of wealth and of government shall be entrenched by corporate entities and fictions in one man, the possible heritage of an imbecile son of an unscrupulous father.

This is an outline, not in all respects of existing conditions, but of the existing possibilities of existing laws; of the extent to which the power of government has been extended in the creation of irresponsible corporations, in creating and making possible the many evils that have resulted from such corporations.

These evil possibilities have in large part been realized. Every lawyer knows that the temptations and immoralities of corporate promotion and management are frequent, that so-called corporate efficiency is often attained at the expense of business integrity. Men, little and big, who would not think of taking a dishonest dollar directly, take them indirectly with a soothed conscience through the medium of a corporation. The control of a corporation gives to the man who controls it the power to deal with himself as an individual and fix his own profit; it enables him in innumerable ways to benefit himself at the expense of minority stockholders and creditors. With all the details and all the fictions of corporate management under his control, he can violate with impunity ordinary principles of honesty, can commit with impunity what in any other form would be crimes. This favors irresponsible promotion. The enthusiasm of Smith in a new enterprise becomes a corporation, half of whose stock is issued to him for a possibility costing nothing, and corruptly divided with Jones because he is a friend of Robinson, who has the money and the gullibility to buy the remaining stock at par. This money is spent in salary and experiments. The venture fails. Robinson loses, and the creditors are defrauded by a false appearance of wealth.

Again, Jones has a small business worth $4000 a year. It becomes "Jones & Co." The directors - his stenographer and office-boy-vote him a salary of $5000. A few years later he pays up his back salary, and in a very little over the four-months bankruptcy period the creditors are informed that the business is unsuccessful and the company insolvent.

A and B form a mining company, issue, say, $100,000 "preferred stock" to themselves for an option, and sell $10,000,000 common stock at attractive prices, to pay for the property and its development. They provide in the charter that the "preferred stock" shall elect all or a majority of the directors, creating what in any other form would be a legal trust. The business is successful, but its profits are absorbed by A and B in exorbitant salaries, graft contracts, etc. They may be called to account where the theft can be proved, but they cannot, on existing legal precedents, be dislodged from control.

The corporate charter, the homemade law, cannot be destroyed or the corporation dissolved, until our courts of equity are bold enough to break through the corporate fiction, recognize the trust created by it, and destroy or reform as they would do in any other case. These are a few of the every-day evils that are overshadowed in the public mind by the wholesale frauds of the great corporations.

The Equitable Life Assurance Society, owned by the holders of policies worth $400,000,000, who are its legal members, was, and for all intents and purposes is supposed to be to-day, controlled by a $100,000 stock ownership with exclusive voting power. The holders of this stock diverted millions of the trust funds committed to their care, and there was no legal precedent for canceling the violated trust.

The New York City Railway Company, a small existing corporation, was acquired by men in control of the Met