were present, yet the beauty as well as the chivalry | ton's secretary at Paris, and who is an acccomplished of our city were not unrepresented -(we were there) — and all went merry as a marriage bell, with nothing to mar the festivity, not even a call for the distinguished host to go out to mend a limb broken in bobbing contests on the neighboring hill. His professional services were not even needed in his own home, for the "gathering" broke of itself about midnight. To ourselves it was a much pleasanter occasion than that dinner of the society in the Catskills, a bill of fare of which we received after the entertainment had been digested some days. The eminent lawyers in whose honor this entertainment was given made many new friends and met many old ones, and if they come again we shall be glad to see them, and our bells shall again ring an orange peal. scholar in French and English law, declared his opinion that the New York Code is fully equal if not superior to the Code Napoleon. "The Railroad and Corporation Law Journal" is a new law journal issued in the city of New York, under the editorial charge of Mr. C. F. Beach, the author of the recent excellent work on Contributory Negligence. The opening numbers indicate a high degree of merit, and the journal will prove very helpful to the corporation lawyers whom Governor Hill so graphically describes. The publishers pay this journal the sincerest flattery of imitation. They could not do better. NOTES OF CASES. THE importance of stamping letters is shown in of letters is so we in Supreme Court, Dec. 17, 1886, there was an agreement between the agent of the insurance company and the insured that if he desired additional insurance after The hearing on the Civil Code before the Assembly judiciary committee on Tuesday last was not distinguished by any thing novel or particularly interesting. The opposition, engineered of course by a committee from the New York City Bar Association, were led by Mr. Carter, who made a long, passionate and adroit address, disfigured by undue sarcasm, personal abuse, and the attribution of un-night-time, he should post a letter to the agent askworthy motives to the proposer of the bill. Mr. Carter is a man of power and skill, but it is a pity that he does not leave a more agreeable impression. "He that hath no rule over his own spirit, is like a city that is broken down and without walls." Mr. Carter warned the committee against foisting on our people the "institutes of imperial Rome," as if anybody proposed to enact the civil law; and he glowed over our glorious heritage from England, the common law," as if the mother-country were not getting rid of it by statutes as fast as possible. Against the opinions of the greatest jurists of Europe and the late chief justice of California, he cited those of Prof. Amos, Prof. Pomeroy and Mr. Pollock, and had the hardihood to argue that these outweighed the former. When Mr. Carter asserted that the common law is reasonably well settled, easily accessible, harmonious and fixed, he fairly took our breath away. Every lawyer at the table knew that it is no such thing, but that it is obscure, contradictory, inconveniently scattered and fluctuating. Mr. Fox trotted out the spavined old argument that the framers of the Constitution were joking when they enjoined codification. It needs the seasoned skill of Mr. Matthew Hale to put any meat into that "chestnut." Needless to say that Mr. Field in reply fell on him with good-natured but fatal force. Mr. Field's reply was characterized by the best of temper, by candor and fairness, and by an easy mastery of the subject, with which he ought to be pretty familiar after thirty years' acquaintance. Every lawyer at the table knew that he spoke the truth when he said that there was not one of them who would dare give his client a written opinion on any common-law question, with an assurance that the Court of Appeals would thus lay down the law. Mr. Wm. Morton Grinnell, who was Minister Mor ing for such insurance, and that the insurance * * whom he contracted. Similar, and we may say identical, questions have arisen in other States, and been decided in accordance with the views we here express. Benedict v. Cowden, 49 N. Y. 396; S. C., 10 Am. Rep. 382, was an action by an indorsee against the maker. Defendant agreed to become the agent for a rake and a tedder, and to sign a note for $200 with a provision in it that it should be paid out of the proceeds of the machines when sold. A note was presented in accordance with this agreement, with the condition as to payment at the bottom. There not being room for signature below the condition, the maker was advised to sign the note above the condition, which he did, and delivered the note. Subsequently the condition was clipped from the note, without the knowledge or consent of the maker, and the note was sold to the plaintiff for value, and without notice of the alteration. After a review of effecting the insurance. One was to secure a delivery to himself of written evidence of appellant's application for insurance; the other, to get prompt notice of the transaction, so that he might protect himself from liability by reporting the insurance to Cotton & Brother, and thereby keeping it in force. The testimony shows that there was a delay of twenty-four hours at least before the letter was delivered, and that this was caused by the fact that no stamp had been placed upon it. Now, let us suppose that the fire had occurred before the delivery of the latter, and after a lapse of twenty-four hours from the time Cochran made the memorandum in his office, and that in the meantime he had received no notice that the letter had been mailed, or of its contents. In such a case could appellee be held responsible, when by the terms of the contract made by its agents, the insurance was to expire if not reported in twenty-four hours? On the other hand, could Cochran be held liable for not reporting the insurance, when by reason of appellant's neglect, he had failed to get notice of their application? We do not ask these questions for the purpose of answering them. That is unnecessary for the decision of this case. We propound them merely to show that it was a matter of the greatest importance to Cochran that the letters of appellants, notifying him of their desire or application, should have been promptly mailed, and their delivery without delay and without additional expense to him thereby insured. It follows from what we have said, that in our opinion, if the let-tion of the memorandum written under a promissory ter of appellants was not stamped when it was deposited in the post-office, the terms of the agreement in regard to notice by a mailed letter were not complied with." As to contract by letter, see note, 32 Am. Rep. 40. In Stephens v. Davis, Tennessee Supreme Court, Dec. 9, 1886, where a condition affecting a promissory note was contemporaneously written on a stub to which the note was attached, in a book of blank notes, and the payee afterward tore the note off, and negotiated it in that form, before maturity, to a purchaser for value, without notice of the condition, held, that the latter could not recover on the note irrespective of the condition. The court said: "By agreement of the parties before the signing of the note it was a substantive part of the note, and restricted its negotiability the same as if the condition had been indorsed upon the face of the note. The severance of the condition without the consent or knowledge of the maker was a material alteration of the original contract to his prejudice, and therefore the act was forgery. The instrument sued upon is but a part of the contract between the parties, and could not be acquired and held as a negotiable note by any one. That the stub could be easily separated from the note can make no difference, as no rule of law required the maker to anticipate that the payee would commit a felony by the alteration. He could not be required to protect himself, in advance, against such an act on the part of the person with many authorities. the court held: 'It follows, then, the memorandum at the foot of the note in suit was an essential part of the note, and the severance of it from the note, without consent of the defendant, was the alteration of the note in a material point, and destroyed the note, even in the hands of an innocent indorsee. In another case, under the signature of a note, these words were indorsed: 'If the machine should not be delivered, this note not to be paid.' The machine was not delivered, but the condition was detached, and the note transferred to an innocent holder. The court said: 'The only question raised in this case is whether the destruc note, and qualifying it, vitiates the note in the hands of a bona fide holder having no knowledge of the alteration. We think it quite clear, upon the authorities, that the note and memorandum constituted but one contract, and were in law a single instrument. * * * If it formed a part of the original contract, it was a material alteration to detach the memorandum, and leave the note as it had been absolute; and it is a principle well settled that such an alteration avoids the entire obligation. Wait v. Pomeroy, 20 Mich. 425; S. C., 4 Am. Rep. 395. It is further said, in the same case: There seems, at first, a plausibility in the argument that a party, by signing a note with a separate memorandum beneath, puts it in the power of the holder to gain easier credit for the note than it would likely gain if altered in the body. But as was well suggested in the argument, no one is bound to guard against every possibility of felony; and practically it is a matter of every day occurrence to feloniously alter negotiable paper as successfully by changes on the face as in any other way. * * * If a party was the fraudulent detachment of a material written condition from a promissory note, the condition having been written upon the same paper and contemporaneously with the note, The conviction was sustained in the Supreme Court of that State, in an opinion delivered by Judge Dillon. State v. Stratton, 27 Iowa, 420; S. C., 1 Am. Rep. 282." See Palmer v. Sargent, 5 Neb. 223; S. C., 25 Am. Rep. 479; Cowee v. Cornell, 75 N. Y. 91; S. C., 31(Am. Rep. 428; note, 10 Am. Rep. 389. THE NEEDS OF LEGISLATION. ADDRESS OF DAVID DUDLEY FIELD BEFORE THE STATE BAR ASSOCIATION AT ALBANY, JANUARY 18, 1887. NE EW York is sometimes called the Empire State, which I suppose means that it is the foremost State of the Union in population, wealth and influence, Every loyal citizen must wish to verify and maintain this distinction, which redounds to the credit of the State and the well-being of its people. We have a right to cherish the pride of leadership, if we but have the wisdom to use it well, not only for our own advantage, but for the welfare of those who may be affected by our example. We boast that we are the heirs of all the ages, and So we are. We have inherited the literature and philosophy of the Greeks, the laws of the Romans, the religion of the Hebrews and the Christians, the enthusiasm of the Crusaders, the thrift and tolerance of Holland and the sturdiness of England. The battles for freedom, wherever fought, were our battles; Marathon and Chalons as truly as Saratoga and Gettysburg. All heroic acts, the self-sacrifice of martyrs, the daring of explorers, resistance to the insolence of tyrants, are our possessions. We have not always however, it must be admitted, taken that care of our heritage which wise and prudent heirship should impose. We have not, in all things, profited by the example of our predecessors, either to follow or to turn aside. This, after all, is natural. What child has ever learned as much as it might have learned from the success or failure of its parents, or which one of us has taken seriously to heart the lessons which history has stored for us in its ample treasury? Read as we may whatever the past has written for warning or encouragement, we confront the present with more reliance upon our own own skill and foresight than upon the accumulated experience of all our predeces sors. That we boast of our heritage does not imply that we are bound to cultivate it after the manner of our ancestors. We do not so deal with other ancestral estates. For them new implements have been invented, new machinery introduced, new products of the soil discovered. So should it be with that greater heritage which this generation has received from many lands and peoples. The conditions of modern life are so changed from the old, and especially is American life so unlike the life of our fathers in their ancient homes, that we are in a manner constrained to think and act for ourselves, although we have done it with such seeming reluctance that every departure from the old ways, every disuse of the old methods, is viewed with disfavor, as if we were afraid to strike out for ourselves into the free and open air. One would have supposed that in the two centuries and a half since the first emigration hither we should have developed more that was indigenous and original. We discourse bravely enough, and resent, as we should, the reproach of being still a community of imitators. With each incoming year we chant the refrain, "Ring out the old, ring in the new," or that other more sentimental, "Ring out the false, ring in the true;" while we should have chanted in mingled melody, "Ring out of the old whatever is false, ring in of the new whatever is true." The wisest method of treating the magni ficent inheritance derived from successive generations is to use it according to our condition and our intelligence, employing all the means that God has placed at our service to make the world better than we found it, and to leave the heritage to our children, not only unimpaired, but with large increase. Each generation has its own evils to contend with, as it has its own problems to solve, and these evils and problems change with the changing circumstances of the times. A 80ciety of immovable social and political conditions exists nowhere among the Western nations. Times change and we change with them, is a maxim as old as Rome. Our fathers had their difficulties to overcome, their fathers still others, and so on in differing forms and gradations from age to age. Our lot is to grapple with the social and political problems arising out of the vast increase of material wealth and the discontent with its unequal distribution which distinguish our half of the nineteenth century. And I am persuaded that these problems are to be solved only by a republic. As conditions vary, so governments are varied. In one epoch the State is ruled by a monarch, in a later one by an aristocracy, still later by the people. But neither the name nor the form determines the condition of the individual subjects. Any irresponsible ruler may be a tyrant whether the one, the few or the many, and all tyranny is abominable. Every human being has rights which no other man or any number of men can take away or rightfully infringe. We have studied history to no purpose if we have not learned that wherever power is lodged there is need of restraint, or else the possessor of the power becomes a tyrant, great or small, according to the measure of power. Never is it safe to intrust any man or set of men with the absolute government of other men. Hence the necessity of balances, checks and safeguards, which must be adapted to the exigencies of the occasion. We have reached a period in the history of the race when privileges and privileged classes are leaving the world, and the protection of the individual, that protection which every person needs, must be obtained from the collective force and the collective will of the whole body. The great right to be let alone, that right of rights, which properly limited and defined is essential to the greatest happiness of the greatest number, must hereafter depend not upon the antagonism of classes, but upon bulwarks stronger than armies or ranks of privileged men. The great end of government is to secure to the individual his natural rights, and the problem of modern society is how to do this with most effect. In the ancient States, whether they were monarchical or republican, the State was every thing, the individual nothing. Christianity has reversed the theory and made the individual every thing, the State nothing but the protector of the individual. Legislation is one only of the functions of government, though it be the one first in dignity and power, and the one on which the rest depend. To enforce obedience is the correlative function, subdivided into two departments, one to judge and the other to execute. That the offices created for the exercise of these two should be more sought than those created for the first is explained partly by the fact that the number is less and the tenure greater, and partly by the history of government. The original theory of the English Constitution, the germ of our own, was that the monarch was lawgiver, judge and executive, all in one. By degrees the practice encroached upon the theory, and the exercise of the functions came to be divided into three departments, legislative, executive and judicial. The forms however are still kept up in the old country; acts of Parliament begin with the formula, that they are enacted by the Queen's majesty, by and with the advice and consent of the lords spiritual and temporal and commons in Parliament assembled. The judges are representatives of the Queen, and are supposed to be sitting in her seat, and every executive act is mediately or immediately the act of the Queen. Such indeed is the theory of all monarchical governments. In a republican State the theory is the very opposite, though the tendency to imitate retains many of the old forms. We hold that the people are sovereign, that all government proceeds from them, that they administer it in their own names and by their sole authority, by whatever agency exerted, separating its functions into different departments defined by written Constitutions. These observations are an introduction to the topic of this address, which is the action of that department of the government to which the Constitution has committed the making of the laws. It is not my purpose to discuss the moral duties of legislators. I could say nothing that has not been said already, and better than I could say it. Every person of sense knows that it is against the laws of God and man to betray a public trust, and that he who perverts public functions to private ends is false to his Maker, false to his own conscience, and false to the community which he affects to serve. My purpose is to contribute so far as I may be able to that public sentiment which in the long run makes and unmakes public men, which is ever watchful and exacting, watchful of those who take office and exacting obedience not only to the letter but to the spirit of the fundamental law. First of all, let us fix in our minds and define the province of legislation-that is to say, of the legislative body. Behind this is another question, what are the just limitations of government itself? There are two currents or drifts observable in modern society, one toward lessening the power of government so long as it rests in the hands of a chief or a class, the other toward increasing it when it has reverted to the hands of the people. The intermediate theory, that is to say the theory of the American government, is first to lessen the power of the State over the individual, and then to set stringent limitations upon delegated power. A dictator was possible in the turbulent days of Rome; it is impossible in modern society, and if attempted would break the whole fabric in pieces. The greater part of our actions are beyond the scope of rightful government. We believe in the sacredness of life, in the sacredness of liberty-liberty to act as God has given to each his proper gifts. And so we narrow the scope of human government; and when in constructing a Constitution we make and define the different departments of delegated power, we narrow, or should narrow, the scope of that power. The idea of self-government is inherent in our nature. No sooner has a child reached full age and grown to the dimensions of a man, than his aspiration is to strike out for himself. He feels that he is his own master and that no one has a right to say to him, I am your lord. The instinct implanted by nature in his soul is that he is a free man, and has the right to govern himself, because he knows more about himself than any other man knows about him, cares more for himself than any other man cares for him, and is more likely to obtain the happiness of which his nature is capable, if he pursues it in his own way, than if another man pursues it for him. What is true of the individual and good for him, is true and good also in respect of local communities having interests separate from the common interests of all. Local government, home rule, is self-government expanded beyond the individual, embracing all in the like circumstan ces. There are thus two questions quite distinct; one, what are the just limits of government itself, and the other, what should be the limitations of a delegated Legislature? The American idea of government in a Commonwealth is a government by all for whatever concerns all, local government for localities, a word I use to designate districts which have separate interests, and self.government for the individual. The theory is as simple as the reason is ample. Inasmuch as all cannot meet to decide for all, delegates must be chosen to act for them. These delegates form a Legislature. So that the inquiry as to the proper functions of a Legislature resolves itself into the inquiry, first, what is the proper authority of the whole political body, if all its members were convened; and next, what is the extent to which it is best for all to delegate their power to a few, chosen at short intervals, and acting under strict limitations? First, what are the just limitations of government? This is a preliminary question to be answered before discussing the just limits of delegated power. As I have said already, it is not every action of the individual that should be held subject to the control of other men. Indeed most of the concerns of our daily lives are solely our own concerns, with which others have no right to intermeddle. Nature dictates liberty of action. Take one instance among many: There are in the city of New York a million and a half of souls, and in the surrounding districts, within a radius of ten miles, a million more; two million and a half of men, women and children to be fed, clothed and housed. If the State were to undertake the task, it would be badly done, or not done at all. The details of administration for such a work would be infinite. One of the hardest problems of war is how to provision an army of a hundred thousand men. So now, whatever may have been the theory of government in other times, it is certainly not our theory that legislation may he extended to every concern of men. If I would go from Albany to Buffalo I do not ask some official to give me leave, written in a passport. That person would be thought insane who would seriously propose to declare by law in what manner and by what road one of us should travel from New York to Niagara. We all agree that the complex organism which we call the State has no rightful authority to prescribe to the citizen where he shall live or in what calling engage. Most of the actions of our daily lives are in fact beyond the scope which the habits and the opinions of our age allow to the laws of the land. And the tendency of events is to narrow the scope of government more and more, and then to narrow the limits of a delegated Legislature, so that as often as a Constitution is revised, so often the limitations upon legislative authority are drawn closer and closer. We began with the immense subject of religion, and excluded that absolutely from interference by the State. From that beginning we have advanced to other limitations. For instance, the national and the State governments are one and all forbidden to abridge the freedom of speech or of the press, to grant patents of nobility or pass bills of attainder. According to our ideal of republican legislation, it should be first of all intelligible. next equal, then effective to protect every person in the enjoyment of his natural rights, and that done, should leave him alone, except only so far as his co-operation may be neces sary in public undertakings needed for the whole body, but impossible to individual enterprise. In short, we would have the government powerful for protection, powerless for oppression. Let us compare the actual with the ideal. Are our laws intelligible-intelligible, I mean, to the great body of the people? We know of a truth that they are not. This truth is as well known as if it were self-evident. The laws of this great Commonwealth are not intelligible to the great body of the people; they are not intelligible to the great body of our lawyers and judges, who grope their way through them, with uncertain tread, at the risk and expense of suitors. Do not say that this is an exaggerated picture. An English judge of the last century declared that "no cause ought ever to be given up as desperate." If this was true then, much more is it true now, when the mountain of precedents has risen into the clouds. The legislation of a republican State is imperfect if it does not cover the whole ground of general law. You exact of the citizen obedience; then in the name of reason tell him what to obey. One of the anomalies of our system, anomaly caused by the effort to engraft with the least possible change the monarchical customs of the old world upon the republican practices of the new, would make of a government of the people a government of judges and lawyers, deriving their inspiration and taking their rules of decision not so much from the legislation of their own capitals as from the customs of mediæval ages, the enactments of long-forgotten Parliaments, and the rules, conflicting often and uncertain, which the judges of England made at the beginning, and which the judges of England and America continue to make from time to time to this day. This is not consistent with the true attitude of an American State. Such a State should write its law as it builds its capitol in the sight of all men, that he who is to obey may know where to find the commandments. "Omne ignotum pro magnifico is an old maxim which can alone explain the awe with which some of our profession regard the common law. One of the sophisms paraded for the defense of judgemade law is its supposed flexibility. What would you say of a flexible contract? There is a rumor that flexible contracts were made for the building of this capitol. How do you like them? What prudent person about to make him a habitation would say to his builder: "Let us have, not a precise contract which will bind us to terms that we both understand and on which we cannot disagree, but let us have a flexible one, which you can explain one way and I another, and so we shall get on harmoniously." What would not be good for two persons dealing with each other on equal terms would certainly not be good for the State and the citizen, one commanding obedience, the other bound to understand and obey at his peril. Then let us consider the equality of our legislation. Equality is equity according to another maxim of the law, however dishonored by non-observance. There can be no equality unless all are treated alike, and all are not so treated, so long as one law is made for this citizen and another for that, one for the Eighth District and another for the First. A conspicuous illustration of the evil'of State interference with local concerns was given the other day when the chief of the street cleaning department of our principal city informed its board of estimate and apportionment that it was impossible to keep the streets well paved so long as four or five different corporations were clothed with power to tear up the pavements. How far our legislation protects the citizen in the enjoyment of his natural rights is a question of too large import to be answered in a single address. Fail ure in one respect only will I mention, and that is the failure to protect reputation. Of all his rights, that which man in society most values is the right to his good name, and whatever be the country and its other advantages, if it does not protect that right it will finally cease to protect any. However nnpalatable may be the truth, it is the truth nevertheless, that adequate protection we do not give. We recognize the right in theory, but we do not enforce it in practice. We proclaim as fundamental truths that every man has an inherent right to life, to liberty, and to the pursuit of happiness, the last including, of course, the right to his lawful posessions, and of all possessions that of a good name is the dearest. We come now to the great right to be let alone, the right of individual freedom, which we have already in part considered. Reduced to the last analysis, this is the foundation of all our rights. A person comes into the world with inherent and inalienable rights. Every other person has the same rights, and the rights of all are to be enjoyed concurrently. There are, as I have already hinted, two opposite theories of human rights, as there are two opposite theories of government; one that the individual holds his rights subject to the will of all, and the other that he holds them superior to the will of any; one that the State may control all his actions; the other that it may control none of them, except so far as to protect the equal rights of every other person, and to employ the collective force of all for the welfare of all when individual effort is inadequate. Let us now consider our own State government, and especially our State Legislature. The Constitution of 1846, though it contains many wise provisions and some important safeguards, yet has failed of accomplishing all that was intended and expected, because it trusted too much in recommendations and dealt too little in commands. Take for example that clause which declares that "dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law;" an idle provision which really means nothing and accomplishes nothing. Take that other clause which declares that "corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes and in cases where, in the judgment of the Legislature, the object of the corporation cannot be attained under general laws." Observe how this precept, plain as language can make it, has been observed. For example, at the last session an act was passed to incorporate the American Mortgage Company. Why could not the object of this act be attained under general laws? Why not indeed have a general law for incorporating persons to engage in any lawful business, as has been done in England? It has sometimes happened that the principal outcome of a session of our Legislature has been the enactment of special acts or amendments of acts of incorporation. The vetoes of governors were interposed in vain, and the evil became at last so great that in 1872 an amendment of the Constitution was adopted, which though inartificially drawn, did yet put a partial check upon special legislation. The evil has been felt in other States and efforts made to stop it. In South Carolina a statute was passed at the last session, entitled "An act to prescribe and regulate the introduction in the General Assembly of measures relating to private interests, and the conduct of the same in the progress thereof." By this statute it was provided that no bill to create a corporation or change one, or to grant any privilege or other private benefit, should be introduced except by petition, accompanied by a draft bill; that the |