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ing the value of codification, these facts must be taken into the account. It is folly to ignore them, and to assume that human nature will be regenerated, that all the sources of war — the personal ambitions and passions, the long-matured plans for territorial aggrandizement, the deep-seated rivalries and hatreds -- will be abandoned by a mere change in the external form of that body of voluntary rules which is called the International Law. Conceding the power of an enlightened public opinion, admitting even that its controlling influence will steadily increase, still it is a moral sanction and may be disregarded, — disregarded with impunity and with triumphant success, if a nation possess a military force sufficient to accomplish its purposes. The correctness of these conclusions has been virtually conceded by the ablest advocates of a universal code. Professor Bluntschli admits that some form of international court, proceeding according to established methods, and adjudicating upon fixed and universal rules, is necessary to perfect the system and to reach the anticipated results. This is a surrender of the whole position. It says that a universal treaty would produce no substantial benefit, and requires that the very central element of the state, its sovereignty and independence, should be destroyed, and a power set up over all communities and peoples, before the expectations of the reformers can be realized. No greater political evil could be done to mankind, no heavier blow given to civil liberty and the free development of civilization, than this abolition of national autonomy.
The discussion of the other proposed alterations in the Public Law - those relating to arbitration and to the operations of warfare - would swell this article beyond all reasonable limits, and must be postponed to a future number of the Review. The reform which has for its object the introduction of arbitration as a compulsory mode of terminating controversies between nations is independent of all others, and is sustained by the plainest considerations of policy and of humanity. It involves as a necessary corollary the plan of a general disarmament, and its adoption even to a limited extent would tend to lessen the occasions and the possibilities of war. The contemplated changes in the methods of conducting actual hostilities stand, however, upon a very different footing. Disguised under a specious appearance of humanity, their inevitable effect would be to place the non-military.states of Europe at the mercy of the few powerful empires whose gov
ernments embody the very spirit of absolutism, and whose entire male populations are organized into vast standing armies. John Stuart Mill, whose authority ought to be weighty with the modern school of social reformers, summed up the whole case in one pithy sentence: “How war is to be humanized by shooting at men's bodies, instead of taking their goods, I confess, surprises me."
THE POTTER ACT AT WASHINGTON.
SINCE our last article on Wisconsin Railroad Acts was written, the Supreme Court of Wisconsin has decided the Railway Injunction suits, in which the Attorney-General of Wisconsin prayed for an injunction upon the railroad companies defendant, forbidding them to disobey the Potter Act. The court affirmed the constitutionality of that act, and ordered the injunction to issue.
Chief Justice Ryan pronounced the opinion, which is very diffuse, filling fifty pages of fine type in its pamphlet issue. It is too discursive for detailed criticism at this time, and we can state only its main points. The court holds that the reserved power in the Wisconsin Constitution — " All general or special laws enacted under the provisions of this section” [on Corporations, Article XI. 1] “ may be altered or repealed by the legislature, at any time after their passage” – enters into all charters formed under it; that although the rule in the Dartmouth College Case must be obeyed, that reservation excludes the rule from any application to corporate charters in Wisconsin, and restores to the state all its otherwise inherent authority over its own corporations, and gives it absolute power over the franchise.
“ By force of the constitutional power reserved, and of the uniform construction and application of it, the rule in the Dartmouth College Case, as applied to corporations, never had place in this state, never was the law here. The state emancipated itself from the thraldom of that decision in the act of becoming a state ; and corporations sinco created here have never been above the law of the land. Subject to this reserved right, and under the rule in the Dartmouth College Case, charters of private corporations are contracts, but contracts which the state may alter or determine at pleasure. . . . The material property and rights of corporations should be inviolate, as they are here ; but it comports with the dignity and safety of the state that the franchises of corporations should be subject to the power which grants them ; that corporations should exist as the subordinates of the state, which is their creator, durante bene placito.”
“ This is a question of state law, not of federal law. We give full scope to the Federal Constitution as interpreted by the federal courts,
| Attorney-General v. The Chicago f North-western Railway Co.; Same v. The Chie cago, Milwaukee, & St. Paul Railway Co.
but we stand clearly. outside of both. This question could be brought within the Dartmouth College rule, not by interpretation of the Federal Constitution, but by interpretation of the state constitution only. That is our function. We accept the construction of the Federal Constitution as the federal courts give it ; but we give construction to our own cunstitution for ourselves. And there we might well rest.”
The court remark incidentally that it is unnecessary to discuss the question whether the defendants have, as an attribute of ownership, a right to take toll, as intimated by Mr. Justice Strong in State Freight Tax Case, 15 Wallace, 232, 278, independent of
any franchise to take it. “ They certainly could not have a right to exact what they might please. But the question is not here, because these corporations accepted a franchise to take toll, and must be held to take it under the franchise. It was said that chapter 273 [the Potter Act] violates the rights of property of these defendants. We cannot perceive that it does. Whether it will lessen the income of their property we cannot foresee; we only know that it does lessen their rates of toll. But it does not wrongfully touch their property. As far as the franchise is to be considered property, it was subject to this very limitation; and the limitation is the exercise of a right over it which does not violate it. The right of limitation entered into the property and qualified it. And the act does not at all meddle with the material property, distinct from the franchise. It acts only on the franchise, not at all upon the material property. And it is sufficient to say that they acquired the material property as distinct from the franchise, subject to the alteration of the franchise under the reserved power. That was a condition under which they chose to hold their property; and they have no right to complain when the condition is enforced. Their rights in their material property are inviolate, and shall never be violated with the sanction of this court. But they are no more violated by this act and its enforcement than by the foreclosure of a mortgage or ejectment by paramount title. It is a right over property which is enforced, not a wrong to right in property."
Upon this principle, the court would doubtless hold that an act which forbade a corporation, owning a cotton-mill, to make cloth with their machinery except for sale at half cost, under penalty, upon their employees, of fine and imprisonment, would be constitutional, if the act only preserved their title to the land and buildings unimpaired. No private property would be taken without compensation. Their ownership of the factory and machinery
would be sacredly guarded by the court. The act would only touch“ a right over property” reserved in their franchise. No wrong would be done to any “ right in property ;” for the court would uphold them in maintaining trespass quare clausum against anybody who trod down their grass. The act would merely regulate their mode of using their property ; and it is very proper for the state to do this, since it allowed them to exercise the power of eminent domain in flowing the adjoining meadows to make their water-power. It is true the farmer received from the company all that a jury of his neighbors thought the meadows were worth ; but that is wholly immaterial, of course, as to the right of “the creator over its creature.”
The court are surprised that anybody should think real rights of property affected by this statute.
“ It was repeated with a singular confusion of ideas, and a singular perversion of terms, that the provisions of this chapter amount to an act of confiscation; a well-defined term in the law, signifying the appropriation by the state to itself for its own use, as upon forfeiture, of the whole thing confiscated. It was denounced as an act of communism. We thank God that communism is a foreigu abomination without recognition or sympathy here. The people of Wisconsin are too intelligent, too staid, too just, too busy, too prosperous, for any such horror of doctrine, for any leaning toward confiscation or communism. And these wild terms are as applicable to a statute limiting the rates of toll on railroads, as the term “murder' is to the surgeon's wholesome use of the knife to save life, not to take it. Such objections do not rise to the dignity of argument. They belong to that order of grumbling against legal duty and legal liability which would rail the seal from off the bond. They were not worthy of the able and learned counsel who repeated them, and are hardly worthy even of this notice in a judicial opinion.”
The ideas of the court appear somewhat mixed in this dignified reproof of the grumblers. The learned judge apparently overlooks the fact that the patient, in this instance, sings out “murder” under the surgeon's knife because, not being at the best very vigorous, he does not want his own legs cut off in order to fatten his neighbor's pigs with them. The surgery is practised, in this case, to save some other than the patient's life, and the patient naturally objects to the operation.
In disposing of the argument that the Potter Act is not uniform throughout the state, “ as required of general laws under the con