by loading railway properties with obligations and pocketing the money instead of spending it in improvements and in legitimate corporate purposes; and any man acting in such fashion should be held to a criminal accountability. It should be declared contrary to public policy henceforth to allow railroads to devote their capital to anything but the transportation business, certainly not to the hazards of speculation. For the very reason that we desire to favor the honest railroad manager, we should seek to discourage the activities of the man whose only concern with railroads is to manipulate their stocks. business of railroad organization and management should be kept entirely distinct from investment or brokerage business, especially of the speculative type, and the credit and property of the corporation should be devoted to the extension and betterment of its railroads, and to the development of the country naturally tributary to the lines. These principles are fundamental.”

The

by monopolies, preferential service, rebates and the like, destroy the normal operations of commerce and create the demand for Federal regulation to restore the rule of freedom and equality."

This applies to the private corporations, and the power of Congress over them, equally as forceful as to that of common carriers.

The recent case of Hale v. Henkel, decided at the October Term, 1905, by the Supreme Court of the United States1 involved the power of Congress to compel Hale to appear before the grand jury and give evidence in a Federal court against the American Tobacco Company and others. He denied the power so to do, and asserted immunity on behalf of the corporation, created by the State of New Jersey. The court said, by Mr. Justice Brown:

"It is true that the corporation in this case was chartered under the laws of New Jersey, and that it receives its franchise from the Legislature of that State; but such franchises, so far as they involve questions of interstate commerce, must also be exercised in subordination to the power of Congress to regulate such commerce and in respect to this the general government may also assert a sovereign authority to ascertain whether such franchises have been exercised in a lawful manner, with a due regard to its own laws. Being subject to this dual sovereignty, the general government possesses the same right to see that its own laws are respected as the State would have with respect to the special franchises vested in it by the laws of the State. The powers of the general government in this particular in the vindication of its own laws, are the same as if the corporation had been created by an act of Congress."

It is, therefore, apparent that this cry of unconstitutional centralization does not come from those who have read with unprejudiced minds the judicial history of their country.

As evidence that this power is being rapidly assumed as to common carriers, the proceedings of the Interstate Commerce Commission advise us that it has promulgated a uniform system of accounts which must be observed by railroads. It will go into effect July 1 and after that time monthly reports must be filed by the railroads. The system was prepared by Henry C. Adams, statistician for the commission, who has devoted many months to the work. Every carrier has been notified from time to time of the progress of the work, and no question has been decided without first requesting of every carrier its views. The significant feature is that the accounting officer of each railroad company is made personally responsible for the application of the rules of accounting promulgated by the commission. This is regarded by the commission as the most important step that the Federal government has ever undertaken in the development of administrative supervision over a quasi public business like that of railways. The care with which the work is done may be anticipated by the statement that the allowance of claims under the rule will be an accounting instead of a traffic matter, and it will rest with the chief accounting officer to see that no rebates are paid under the guise of claims, or himself become amenable to penalties. Under the new method of bookkeeping the investor and the shipper will be able to know exactly how the revenue of every railroad is earned and expended, and will be able to compare the methods and efficiency of the different rail-rights. Free and equal opportunity with their fellow roads. Confidence of the investor will be strengthened in the properly managed roads and those that are improperly managed will soon lose cast with the investing capitalist.

Senator Knox, in his address before the Yale law class, June 25, sounded a prophetic note upon this subject. He said:

"Abnormal conditions in commercial intercourse

Congress, by the adoption of such measure, would not assume a power that has not been delegated to it, but by its failure to adopt some proper measure for incorporating companies engaged in interstate commerce, it has permitted the States to wield this national power against their sister States, to their detriment and the detriment of honest commerce between States.

It seems, from the study of the commerce clause, that men have been more tenacious of their industrial and commercial rights than of their political

men to acquire, possess and hold property, is, I regret to say, prized above those rights which are purely political. If men possess these rights they will generally be peaceful, if not content, under any reasonable system or form of government. If these rights had been protected from usurpation the Revo

1 Vol. 201, U. S. Rep. 43.

The Constitutionality of Larceny from the poiled or deprived of his property, immunities, or

who never saw him: 66 Hello, Vic. At your old they don't tell me what I think they ought to.' Degame again? I knew you when I rapped to you." fendant, unless demented, understood that the stateThen there are undetected crimes on the calendar, ment wanted was confession, and that this meant and a victim must be found, so as to cover up police release from this black hole of Calcutta.'" inefficiency. Pockets picked a year ago, breaks two If this were an isolated case it would deserve only or three years old, and instead of the punishment contempt. It is not an isolated case. It is a specifitting the crime, the police fix crimes, and fasten men of a system. We recall the case of Jones in them upon unfortunates who never committed them, the Patrick case in New York city. No one outside and in this way the public are fooled, the real cul- the police station knows how near to insanity he prits escape, and the prisons are filled with unfor- was driven by the "third degree." In the city where tunates who ought to be in asylums instead of jails the words are written it has been repeatedly stated and penitentiaries. by the daily press, and never officially denied, that Let us now consider the constitutionality of "lar- the "sweat box," or "third degree" has been receny from the person of an unknown person." The duced to a science, and that the police rarely fail to United States Constitution demands that a man get from a suspected man what they want. Those shall be confronted with the witnesses against him, who are familiar with the history of torture know and that must mean the complainant. Then, again, what countless men and women have "confessed" to the Massachusetts Bill of Rights demands that a crimes which they never committed, under the awman shall meet his witnesses face to face. Who ful strain to which they were subjected. Prince Krodoes this mean, if it does not mean the complainant, potkin, in his " Memoirs," tells of his tremendous the person who is robbed? And again, how can any battle of reason in a Russian dungeon. The story man or judge say that any property was taken sends a chill through the nerves of the reader. The against the will of an unknown person," when that sweat box victims are not Kropotkins in will or is a fact peculiarly within the knowledge of such un- mind. They are usually defectives, weak in mind or known man, and to which he alone can testify. Then will. Under the horrible treatment to which they again, how can any one say that an unknown person are subjected it is doubtful if many of them could has any property in anything? And, for another rea- hold out long even if innocent. It is a terrible sysson, the corpus delicti of the crime is never proven tem which involves the possibility of "confession," in any case of any larceny from the person of an or insanity, for an innocent man. We are aware of unknown person. the difficulties of convictions in many cases. Also of the necessity of confession, sometimes. But the bribed witness is no witness, and a tortured witness is worse than a bribed witness. Whatever the alternative it is a return to savagery to convict any man on testimony which is the product of sweat box methods. It is a growing evil. Every vestige of it should be banished by law. Use of it should be sufficient cause for removal from office. It involves the possibility of the gravest miscarriage of justice. It educates its victims, innocent or guilty, to hatred of society. It breeds the crimes it seeks to prevent. It has no place or function in the economy of a civilized society. It should be retired to museums along with rack and thumbscrews. Out with it! Let us begin to reform criminals by ending this crime against them and against justice. For humanity's sake let us set evil doers at least a decent example of the rights of others, and cease to practice upon those not yet convicted of crime, modified forms of the physical torture but intensified forms of the mental torture which thugs and burglars use to extort from their victims the key to the safe, or the combination of the vault where the loot is locked.

Our object is to call attention to an abuse which is growing in our treatment of those only suspected of crime. I reversing the conviction of a young man, Judge CALHOUN of the Mississippi Supreme Court describes the miserable thing that demands our attention in the following words:

"The chief of police testified that the accused made him a 'free and voluntary' statement. The circumstances under which he made it were these: There was what was known as a 'sweat box' in the place of confinement. This was an apartment about five or six feet one way and about eight feet another. It was kept entirely dark. For fear some stray ray of light or breath of air might enter without special invitation, the small cracks were carefully blanketed. The prisoner was allowed no communication whatever with human beings. Occasionally the officer who had put him there would appear and interrogate him about the crime charged against him. To the credit of our advanced civilization and humanity, it must be said that neither the thumbscrew nor the wooden boot was used to extort a confession. The efficacy of the sweat box was the sole reliance. This, with the hot weather of summer, and the fact that the prisoner was not provided with sole-leather lungs, finally, after 'several days' of absolute denial, accomplished the purpose of eliciting a 'free and voluntary' confession. The officer says, 'We put them in there [the sweat box] when

Identification of unfortunates by having an individual look over pictures in a rogue's gallery, and then go on the witness stand and identify, positively, an unfortunate individual, and subject him to a long term of imprisonment, is an abuse which

The Constitution and Obscenity Postal Laws. suggested by one that is transmitted, bears no con

1. Because not within any expressed or implied exceeded its power in this that in effect it has aspower of Congress to enact. sumed to delegate to the court or jury, or both, as

the case may be, not merely whether or not the defendant has committed the acts prohibited by the letter of the statute and as charged in the indictment, but also its legislative power to declare by standards of judgment not made certain by statute or science, whether or not such an undisputed act shall or shall not constitute a crime under the laws of the land, and Congress has not the power, either directly, or indirectly through the uncertainty of its enactment, to delegate to courts or juries its legislative discretion to determine what shall and what shall not be criminal, nor by what tests it is to be judged.

2. The postal laws against "obscene" literature are void under the constitutional prohibition against the abridgement of freedom of speech and press.

Syllabus of the argument: This constitutional provision is violated whenever there is an artificial legislative destruction or abridgement of the greatest liberty consistant with an equality of liberty, in the use of the printed page as a means of disseminating ideas of conflicting tendency. The use of printing is but an extended form of speech. Freedom of speech and press is abridged whenever natural opportunity is in any respect denied or when by legislative enactment there is created an artificial inequality of opportunity, by a discrimination according to the subject matter discussed, or a discrimination as between different tendencies in the different treatment of the same subject matter, or according to differences of literary style in expressing the same thought. All this is now accomplished under obscenity laws as at present administered.

3. The "obscenity" laws violate the constitutional guarantee of "due process of law."

fect of a given book, upon an undescribed hypothetical reader. Their verdict is, therefore, not according to the letter of any general law, but according to their whim, caprice and prejudices, or varying personal experiences and different degrees of sexual hyperaestheticism and varying kind and quality of intelligence upon the subject of sexual psychology. In consequence, every such verdict is according to a test of obscenity personal to the court or jury in such a case, and binding upon no other court or jury and not according to any general law or uniform rule. One of the reasons underlying this uncertainty is the fact that "obscenity" is not a quality inherent in a book or picture, but wholly and exclusively a contribution of the contemplating mind, and hence cannot be defined in terms of the qualities of a book or picture. (See Albany Law Journal, July, 1906. Also, Freedom of the Press and "Obscene" Literature, and Medico-Legal Journal, September, 1907.)

The first result of this uncertainty is that the statute of Congress herein involved creates no certain or general rule of conduct for the guidance of citizens, and does not enable them to know if their proposed act is in violation of law, and therefore every indictment and conviction under said statute is without due process of law.

Unless the statute so defined the crime that by the application of its letter alone every person of ordinary intelligence must always draw the same line of demarkation between the books or pictures which are prohibited and those which are not, then the statute is void for uncertainty under the old maxim, "Where the law is uncertain there is no law," and consequently there is no due process of law."

4. The statute in practical operation violates the constitutional guarantee against ex post facto laws.

Syllabus of the argument: The second result of this uncertainty of the statute is that every indictment under said statute is always according to an ex post facto law or standard of judgment, specially created by the court or jury for each particular case. The Congress of the United States has no power to authorize a jury to determine guilt of crime accord

Syllabus of the argument: The statute furnishes no standard or test by which to differentiate what book is obscene from that which is not, because of which fact the definition of the crime is uncertain. Furthermore, it is a demonstrable fact of science that obscenity and indecency are not sense-perceived qualities of a book, but are solely and exclusively a condition or effect in the reading mind. This is evidenced in the result that it has been, and always willing to varying personal standards, such as must be impossible to state a definition or test of obscenity in terms of the qualities of a book, or such a one that, solely by applying the test to any given book, accuracy and uniformity of result must follow, no matter who applies the test, nor such that, when there is no dispute about any physical fact of present or past existence any man may know in advance of a trial and verdict, solely from reading the statute, what the verdict must be as to the obscenity, and consequent criminality, of every given book. Neither the statute, nor the judicial test of obscenity or indecency, furnish any certain advance information as to what must be the verdict of a jury upon the speculative problem of the psychologic ef

control the opinion of a jury on the psychologic tendency of a book upon an undescribed hypothetical reader, and which standard, because it is personal to the juror, in the nature of things cannot be known at the time the alleged act was committed, nor be fore the rendition of a verdict thereon.

A conviction and punishment under such circum. stances is, by virtue of ex post facto legislation on the part of the jury, and is none the less unconstitu tional because the attempted delegation of power to enact it was made before the conduct to be punished.

ARE THE FOREGOING OPEN QUESTIONS?

Is the constitutionality of our moral censorship