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If the decline continues and a receivership ensues, the passing of the property into the hands of the court is an acknowledg ment of facts regarding impairment of income which are true though not before generally known. Hence the issue of receivers' certificates commercially represents the impairment of income just referred to, but which at the time was not enforced against the bondholders. Railway mortgages are not sacred because of the strong legal terms in which they are drawn, but are dependent upon success in the business of transportation, differing in this respect from real estate mortgages which rely more upon the prosperity of the whole community. The legal doctrine of certificates is in a state of evolution, with a tendency to approximate its working to the business circumstances. English debentures are not foreclosable, being mortgages upon the railway income only, and thus more truly than American mortgages, represent the real situation. Our practice of railway receiverships is thus a development of our own circumstances and a sort of compromise between the too-strong language of our mortgages and the actual conditions of the business of transportation.
A receiver may decline to pay the rentals due to leased lines or the interest owing on guaranteed bonds if these lines are at the time of the receivership unprofitable, no matter how necessary to the parent company these branches may once have been. But the old contracts are still legally in force against the company, and can be thrown off only by a sale of the franchise and property to a new corporation. Such a sale sometimes would involve a forfeiture of valuable charter rights; and in such reorganizations committees usually try to formulate some plan which shall bring the fixed charges below the minimum profits by allotting the necessary losses among all classes of securities in proportion to their respective values to the system as a whole; a process which does not regard the liens of the mortgages so much as the worth of the lines they cover. But with plans of reorganization, the receiver properly should have nothing to do.
BY CHESTER N. FARR, JR.
It is the tenth of June, 1788. We are standing in the gallery of the old Richmond Theatre on Shockoe Hill. The heart of a nation newly born is throbbing feebly, as if struggling for life, in the gathering on the floor below; for it is the ninth day of the session of the Virginia Convention called to ratify or reject our present Constitution of the United States. Around us in the galleries are clustered the fashion, beauty, wealth and intellect of Richmond; nay, from every walk of life, people have left their employments or their pleasures that they may appear at this stirring crisis. Outside through the windows we look at the city stretched out before us, and tinted in the rays of the summer sun of the South. And as the hushed crowd in the auditorium lean forward to catch the speaker's words, with a stillness so profound that the flutter of fans has ceased, the very airs outside have paused in their sportive whirls, and not a twig or leaf rustles. A single beam of the noontide sun, piercing the atmosphere, throws a glittering halo about the head of a figure standing in the rostrum, upon whom all eyes are fixed. A tall, slender, ungainly figure, dressed plainly in a somewhat ill-fitting surtout of bluc, is speaking from this place. The clear-cut, impressive features, not handsome, but striking and bronzed with the sun, are upturned to meet the light as if he welcomed this heaven-sent omen of success to the cause for which he is contending.
The black eyes flash with a singular lustre, and the dry, hard voice, drawling and hesitating somewhat at first now speaks with a force as resistless as the thought it conveys, while a single, awkward gesture, a perpendicular sweep of the right arm, cuts the air at intervals.
"John Marshall, the young delegate from Henrico county,"
is whispered near us, and we hear the speaker's voice as he gives utterance to his closing passage.
"The honorable gentleman has told you that your Continental Government will call forth the virtue and talents of America. This being the case, will they encroach upon the power of the State governments? Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly? I differ in opinion from the worthy gentleman. I think the virtue and talents of the members of the general government will tend to the security instead of the destruction of our liberty. I think that the power of direct taxation is essential to the existence of the general government, and that it is safe to grant it. If this power be not necessary, and as free from abuse as any delegated power can possibly be, then I say that the plan before you is unnecessary, since it imports not what system we have, unless it have the power of protecting us in time of peace and war."
A hush, a burst of applause, and the orator has taken his
These are the first public statements of John Marshall on the Constitution of the United States. They but foreshadow the great labors which he afterwards performed upon it. As a soldier he had borne arms in defence of the country of its adoption; as a legislator he had contended for its ratification; as a diplomat he was to fling back with dignified scorn the insults levelled at it by the Empire of France, and finally, at the summit of his professional glory, as Chief Justice of the Supreme Court of the United States for thirty-four years, he built up, perfected and expounded this same Constitution through a series of decisions unparalleled in the annals of jurisprudence.
We are burning now, in our peace, our happiness, our prosperity and our liberty, the stored sunshine of the intellects who nourished our republic in its inception. Their powers were at work, perfecting secret forces, to act not for a day, a decade, but for all posterity. Not to patch a piece of mechanism that it might deal a few stirring strokes and then impo
tently fail, nor to flash out a shower of the glittering sparks of political pyrotechnics leaving the surroundings in intenser darkness when their glow had expired. They worked slowly but they worked truly. They fashioned despite popular clamor and opprobrium. Doubtless they saw in the distance the Promised Lands which their work would develop and perfect, whose waters they might not taste and whose air they might not breathe, and yet they faltered not. And among these men to none do we owe a greater debt, and to none has less of that debt been paid than to John Marshall.
The mistaken notion that much of the value of Marshall's services is a merely technical value has led the popular mind to place him in that category of vague personalities whom we praise with the pleasing indefiniteness born of ignorance of the work which he has accomplished. And yet a theoretical exposition of a national government, crude of necessity, discussed under his hands, became a complete and rounded whole. Statements so general as those contained in the Constitution of the United States, are necessarily succeptible of a varied construction. To define all these, to limit their maximum and minimum effect, in practical application was the work performed by Marshall. The Constitution, a shadowy vision of political theories, grand, indeed, to behold, but intangible and clusive, became under his hands, a living breathing entity.
In the mentality which availed to perform this work, we have a mind that in its peculiar field has not been paralleled in the history of this country. "Aim," said Marshall, “exclusively at strength." He did not wish to obscure by rhetoric or retard by descensive bursts of cloquence the attainment of the object he had in view. He felt that the field in which he labored was one that could not be cultivated by a display of the mental graces, but only by the sturdier qualities of sincwy reasoning. Nor was the faculty which destroys but does not create, which uproots the weeds, mayhap, but leaves behind a barren and sterile field, a faculty which dominated the mind of Marshall. He would not attempt to raze an unsightly building to the ground, unless he was prepared to
remove the ruins or erect in its stead some worthier structure. The impassioned denunciations uttered by Henry against the Constitution that "squints horribly," that "squinted towards monarchy," and the attempts of the latter and the Jeffersonian anti-Federalists to fetter the Federal Government, and to clip its claws, Marshall met with the weapons of weighty logic so thoroughly at his command. Upon the power of these weapons his contemporaries looked with an admiration universally expressed, and admixed with fear when they faced them. Said Daniel Webster, "when the Chief Justice says, 'it is admitted,' I am prepared, for a bomb that will demolish all my points."
This close, remorseless logic was pitted against qualities which appeal to the passions and not the reason of men, and these qualities the best of their time, again and again, and it never failed. The fervid eloquence of Henry, the rich_imagination of Wirt, and the graceful and pleasing oratory of Campbell all fell before the overwhelming logic of Marshall. And we must remember that this logic had the incumbrances of an ungraceful delivery and an ungainly figure, and that the triumphs were achieved under circumstances in which the passions of men were most easily moved and their judgments most readily swayed by the tumult of their emotions. Strong, indeed, must have been that power of reasoning, which, under conditions so adverse, could have proved an invariable victor. And as we examine it we are struck with its exceptional clearness.
Indeed, the acts or thoughts of genius are essentially clear and simple. Complications may be readily devised by the baser ability of cold talent. But the formulæ conveying ideas which found empires or establish systems of social or economic polity, have no distortion or opacity. So simple are these thoughts that when revealed to us they startle us with their self-evident truth, and half incline us to believe that we have always been aware of their existence. No laws are so simple as those governing the apparently complex workings of nature, no formulæ so easy of comprehension as those which express them. A simple system, expressed in a single