are influenced by the surrounding clauses, just as the path of a body in motion is regulated, not only by the primary but also by the disturbing influences that act on its velocity and path. The rule excluding parol evidence does not neutralize disturbing influences, but merely confines them within limits set by the context. The context, however, can always modify a passage in a will both directly and also by affording a wider basis for the adduction of extrinsic evidence.

This modifying influence of the context may greatly alter the primary meaning of a particular passage. For, observe the contest is between two inconsistent primary constructions of two distinct clauses in the same document. Both of such primary meanings cannot prevail. The obvious alternative is a compromise. One written sentence is opposed to another if the grammatical sense if the terms used be alone regarded. Therefore, ut res magis valeat, instead of canceling either or both, one or both are cut down to denote ideas and objects different from their primary ones. Even technical words will be despoiled of their special force when "from other words it is very clear the testator meant otherwise." Lord Wensleydale in Roddy v. Fitzgerald, 6 H. L. C. 877; Doe v. Gallini, 6 B. and Ald. 640.

In construing a will, however, the legal relations of the context to a particular passage are different in many respects from the relations which the context would bear to a similar clause in a deed. Sometimes the context will control and cut down the meaning of a particular sentence in a deed, but frequently it will not have this effect, but will itself be wholly rejected as repugnant and void. It is not pertinent to the subject-matter of this essay, to point out the cases in which the premises of a deed will be controlled by the habendum or subsequent parts, and also those cases in which the premises remain inseparable. Suffice it to say on this point that, as regards wills, the context can almost always modify and even wholly destroy the meaning of a preceding passage. There is no exception whatever to this rule of testamentary interpretation; provided, that the context in question is not tainted with some inherent inability arising from a violation of a rule of public policy or else the testator has used technical phrases in a manner that indicate he was not inops consilii or unacquainted with the legal significance of the terms employed by him. In the latter case the context is sometimes not sufficiently strong to control the meaning of the technical terms. But had the testator wished to do so, there is no legal fetter on his discretion to declare his intention in any terms he pleases.

We may observe that, in construing a particular phrase in a statute, reference cannot be had to the context, if a certain inflexible meaning is given by the interpretation clause to the terms in question. Most interpretation clauses, therefore, provide that the terms therein defined are to be so understood

only where the nature of the subject-matter or the context does not imply any thing to the contrary.

Fearne, in his work on Contingent Remainders, devotes much space to discussing the effect that ought to be given by the court to an ignorant use of technical expressions by a testator. Now, surely, there ought never be a doubt that the function of the court, in such a case, is to ascertain, not what the technical meaning of the words is, but what was the sense in which they were used by the testator. He trifles with edged tools, but the court ought, by the benefits of its interpretation, to heal the wounds he otherwise would inflict on his inheritors. In short, as rules of law, as distinguished from rules of public policy, are at the mercy of a testator a fortiori, his intention ought not be defeated by any regard to his use of technical terms, where the context shows that he intended an untechnical and common use of them. As the grammatical meaning of a clause or term will be transmitted, by the context, into a secondary sense of the words used, so, pari ratione, even technical phrases ought to be understood or used only in a vulgar way, where there are reasonable indications that the testator so intended to use the terms of art. The authority of Fearne, however, seems to have bent the courts toward giving technical phrases, in a will at least, their full weight.

For instance, Lord Kingsdown in Towns v. Wentworth, 11 Moo. P. C. C. 526, expressed an opinion that "when a rule of law has affixed a certain determinate meaning to technical expressions, that meaning must be given to them, unless the testator has, by his will, excluded, beyond all doubt, such construction." His lordship here intimates an opinion that the use of a technical phrase, such as "heirs of the body," affords stronger evidence of a testator's intention, and can be less easily cut down in meaning, than if the phrase were one of less legal significance. See Brock v. Norton, 1 B. & P. 57; Thelusson v. Woodford, 4 Ves. 329; Jesson v. Wright, 2 Bligh, 1.

The courts, indeed, indicate a disposition to place the word "issue," in a will or a bond with the phrase "heirs of the body." Yet, the cases establish certain marked distinctions between the ordinary term "issue," and the more technical phrase, "heirs of the body."

Lees v. Mosley, 1 Y. & C. 589, is a leading authority for this position, and shows that a less emphatic context will suffice to convert "issue" into a word of purchase than is necessary to change the meaning of the technical words "heirs of the body." For instance, words of instruction, such as "share and share alike as tenants in common,” added after a limitation to "heirs of the body," will not render the word "heirs" a term of purchase. But words of distribution and of limitation annexed to a devise to issue were held in Lees v. Mosley, ut sup., to constitute the issue purchasers. And latterly, words of distribution alone, such as occur in Jesson v. Wright, ut sup., will render the issue purchasers if the devise

to them be in fee. Huckley v. Maulley, 3 Bro. C. C. 82; Montgomery v. Montgomery, 3 Jo. & Lat. 47; Crozier v. Crozier, 3 D. and War. 373; Kavanaugh v. Morland, Kay 16; Roddy v. Fitzgerald, 6 H. L. C. 823. The case of Hicks v. Tallitt, 3 DeG. M. and G. 782; 18 Jur. 915, implies that the primary meaning of a word, whether it be technical or common, can never be relinquished for the secondary meaning unless all doubt is removed by the context that the testator used the term in its secondary sense. Lord St. Leonards, in Gray v. Pearson, 6 H. L. C. 61, thus expresses himself on this point: "Nobody is more disposed than I am to abide by clear words, and to give to them their natural and grammatical meaning. But I never did and I never can come to this conclusion, that the words of a will cannot admit of modification according to the real intention of the testator, as you find it from other expressions or from the whole context of the will.

"It is difficult to lay down any abstract rule upon the subject, but where I find the intention, and I find words pointing out the intention, and that, if I give to the words their simple meaning according to grammar and according to their plain prima facie import, I defeat the intention, I hold that I am bound by every rule, both of law and equity, to see whether I cannot give to them, by natural construction, an import which will effectuate and not defeat the intention." The intention, however, must be clearly indicated by the context. This is shown by the cases cited. But the intention when once clearly shown by the context will, as Lord St. Leonards observes, then overrule all particular phrases to the contrary.

Here, Lord St. Leonards does not distinguish between a technical phrase of law and technical phraseology of any other kind. It seems clear, indeed, that the intention of the testator, if proved by the context, will equally control the meaning of any technical terms. In a deed, no doubt, the construction might be very different and the magic phrase, "heirs of the body," might carry a fee-tail that would not be controlled by a subsequent limitation of the same land to the same donee for life only. But, in a will, all clauses have only the same weight. The last sentence may be read as if first, and the first as last, if necessary to carry out the testator's intention; nor can the use of technical words wholly impede this reconstruction of the phraseology and arrangement of the various parts of the will. The technical words will prevail unless there is an inconsistency between a technical construction of them and the grammatical meaning of another passage in the will. But this is what happens upon every conflict of testamentary sentences, other parts must then be read and a balance struck one way or the other to deprive technical words of their strict sense will thus be in some cases very difficult, and in others very easy. But, on the whole, they will, as Lord Kingsdown suggests, be more troublesome than ordinary phrases. But there is no

ground for asserting that the significance of technical terms in a will is so extreme as that their strict meaning must prevail against strong degrees of collateral evidence, although these must be, indeed, more cogent than would be sufficient to neutralize the force of an ordinary expression.

FEES AND CONSTABLES.

The most stupid contrivance for making public offcers negligent in the discharge of their duty, which inexperience ever suggested, is found in those laws allowing compensation to be determined wholly or in part by the number or character of prosecutions for violation of the laws, with whose enforcement the official is charged. This compensation is sometimes by way of fees, and at others by way of a share in fines imposed upon the guilty parties. But, in either case, the influence and result is the same. The official knows that it is for his interest, pecuniarily at least, to have a large business done in prosecuting, which, of course, involves a large amount of violation of law. The result is, that he cares very much about punishing, and very little about preventing, unlawful acts. Yet, legislative wisdom, when establishing the police system which prevails outside of great towns, in this and most other States, provided that the conservators of the public peace should receive no compensation, whatever, if they preserved the peace. It was only when the peace was broken that their pay commenced. The law, however, has one merit-it is consistent. If, by careful diligence, the rural police, known as constables, prevent crime, they get nothing. If there is a small offense committed, they receive a small amount of fees for the services consequent therefrom; if a great offense, a considerable amount, the magnitude of the crime usually determining the magnitude of the sum to which they will be entitled. Thus, the constable, if he is a mercenary man, will not hope, and, probably, not labor, for a decrease of misdemeanors or felonies during his term, although he may do all he can to bring the guilty parties to justice after a crime has really been committed.

The law is further consistent in this. If a constable, or deputy sheriff, arrests an offender in his own neighborhood, he receives only a small sum for making such arrest, but if travel is required, a mileage fee, considerably in excess of the usual charges for passenger carriage, is allowed. So it is profitable to the officer, if a warrant is put into his hands, that the person to be apprehended should be discovered at a great distance from the county seat. The officer is thereby encouraged to allow his about-to-be prisoner, if he intends so to do, to escape very far before he lays violent hands upon him. Then besides having the sport and the reward of traveling, the officer usually gains reputation for energy and vigilance in pursuing the accused into distant parts, and thus baffling all his attempts to evade justice, which he would fail to gain if

the arrest was made promptly and before the accused had time to leave town. We were once told by a police magistrate, who had occupied his position some years, during a portion of which time arrests in his district were made by officers receiving fees and mileage therefor, and during another portion by officers paid a fixed salary and no mileage, that, under the former system, it was ordinarily several days after the issue of a warrant before the prisoner was brought before him, while under the latter, the warrant was hardly out of his hands before an officer appeared with the person named, in custody. In the one case the arrest was delayed in the hope of an attempt to run away, which would give a chance for mileage, in the other prompt action was taken to prevent such an attempt. This practical result, we have no doubt, has followed in every instance where salaried officers have been substituted for those deriving their pay from fees.

The consequence naturally is, that so far as preserving public order and preventing crime is concerned, our country police officers are absolutely worthless. Neither are they of any use to ferret out crime, having no special knowledge or ability in that direction. Whenever, therefore an offense of unusual character has come to light in any part of the country, the police of some neighboring city are called upon for help. They are also usually relied on to preserve order at large country gatherings, not for their number and discipline, but merely on account of the greater knowledge, skill and readiness they display in preventing disturb

ance on such occasions.

It is said that the percentage of crime in England is twice as great in the rural districts as in the metropolis. We have never seen comparative statistics of city and country crime in the United States, but from observations made in criminal courts, in both city and country, we are convinced that the country is no more virtuous, proportionally, here, than on the other side of the water. Indeed, considering the fact that nearly all crimes are made public in thickly-settled districts, while in those sparsely settled many never come to light, we are not sure that our cities are not considerably more than twice as virtuous as the country portions of our land. This we do not believe is because the people dwelling in towns are less prone to evil than the others, but because police officials in the town strive to prevent crime, while in the country they only try to punish it.

THE RAILWAY PROBLEM.

One of the greatest politico-commercial problems of the age and country is the settlement of the precise relations which the government sustains to railway corporations.

The problem, in its governmental aspect, involves some of the weightiest considerations of constitutional law; in its commercial aspect it involves some of the weightiest considerations of public welfare

The

and the development of trade and commerce. magnitude and importance of the railway interests of this country, alone, cannot well be estimated; and their influence, not only upon the business and social interests, but upon the political affairs of the republic, are evident and decided. One of the most potent agencies in the propagation of civilization — the right arm of material development-is rapidly becoming too powerful for the safety of republicanism and the integrity of law. The ever-increasing wealth and extent of single railway corporations, the everincreasing inducement which single corporations find to unite with others, thus forming gigantic combinations, and aggregating, substantially, under one management, immense values and instruments of commercial power, are not unaccompanied with a corresponding oppression of inferior organizations and a corresponding influence upon legislative action. The aggregation of all power, whether physical, psychical, governmental or commercial, goes on under invariable laws; and one of the first laws of this development of power is, that the desire is directly proportional to the amount already acquired, and that the ability to augment and appropriate is also directly proportioned to the amount already possessed. In addition to natural and purely commercial causes, very great in themselves, railway corporations have thrived and multiplied under legislative favoritism. A large part of the extraordinary powers of railroads has been solicited and obtained from that body in our government which represents the people more nearly and directly than any other. It is true, that it is the characteristic province of generous, liberal and popular government, and quite in conformity with the spirit of our institutions, to give full scope to the growth of all kinds of useful enterprise, to encourage all beneficial industries, to foster all great and noble improvements, and to invite competition in furtherance of the commercial, industrial and social aggrandizement of the realm. This is one of the legitimate and long-exercised prerogatives of governments in general. But there is obviously a limit to the encouragement (both in nature and degree) which shall flow from public sources into private channels; and especially in a government like ours is it desirable that the distance between government and people should be as great as possible. The individual citizen should be left as much as possible to his natural and unaided genius, enterprise and ability to develop and control the immense resources of this conspicuously rich and fertile country. It is, therefore, expedient to inquire seriously into the difficulties and possible dangers which are apprehended from railway monopolies. It is prudent to inquire whether the ominous situation is due entirely to the native enterprise, business capacity and intelligence of private citizens and corporations, or to the injudicious and unwarranted exercise of governmental aid - whether the fact that the Central railroad (New York) controls nearly a

thousand miles of railway, and owns capital to the amount of more than $100,000,000 within this State alone, with organized connections which make a continuous line practically under one management, from New York city to Omaha, is due entirely and primarily to the exigencies of trade, and the genius of Vanderbilt-whether the fact that the Pennsylvania Central has swelled its capital from $20,000,000 to $65,000,000 in sixteen years, with its grasp irresistibly fixed upon $40,000,000 more in New Jersey, and with lines of immense value and importance ramifying the west, practically and prospectively under its management, is the result, altogether and originally, of the needs of commerce and the tact of the managers of this opulent corporation.

The informal investigation of the subject has been quite extensive of late, and the public mind, usually radiating in all directions, has been approximately concentrated upon the consideration of the relations of the government to railway corporations. Our newspapers, journals and reviews have frequently and earnestly demonstrated the existence of a great wrong, and the only question in the public mind now is, where is the wrong and how shall it be removed? It has been supposed by many to reside in the corporations themselves; in the avarice, selfishness and native energy of the corporators; and in the laws of commercial growth in a country like ours. If such is the case, then there is no remedy known to the law for the error complained of. There is no remedy in legislation; there is none in constitutional amendment. But if the wrong can be proved to exist radically and primarily in the unconstitutional and unfounded nature of the laws under which railway corporations have been formed, and by which they have been aided, then there is a remedy known to law for the evil. An anomaly in civil polity can be regulated and made to conform to the generic structure.

The history of legislation in aid of railways is an interesting revelation of the influences which operate in the procurement of legislative assistance in the accomplishment of private ends. Originally, the legislative discretion was sought to be made available, in aid of railways, under the argument of public use, public improvement, encouragement of trade and commerce and all justifiable public ends. Now, it is feared that the argument used by railway corporations is that the required measure is the will of the corporation. When we consider the spirit which animated the original advocates of State and municipal, and even national, aid to railways, it will be found that there were then apparently wise and undisputed grounds for the exercise of such aid. The vast territorial limits of the republic, the springing up of cities in remote parts, the distance apart and the extent of our agricultural production, all the exigencies of commerce seemed to demand the immediate construction of rapid modes of conveyance and communication, in order that the ends of the States and of the nation

might be brought together. To facilitate the construction of this great channel of communication, it was deemed expedient to extend governmental aid to the struggling elements of railway corporations. It was not regarded as the safe mode to make railroads a national or State institution, nor was it regarded the proper way to leave the development of the new enterprise entirely to native and unaided private resources. The right of eminent domain and the taxing power were both called into requisition in favor of the railroads, and the corporators went forth armed with the extraordinary power to take lands for a reasonable compensation, with or without the consent of the owner, and in many instances they were enriched from the public lands or public treasury. And now, having contemplated the spectacle of a gigantic commercial power arrayed in the face of a powerless or indifferent law, and having traced the evil to an anomaly in legislation, we propose to discuss the constitutionality of State aid to railways, and finally, to consider the solution of the railway problem in the light of our conclusions on constitutional law. The judicial decisions pertaining to the subject are somewhat contradictory and unsatisfactory. It was for a long time held, almost uniformly, that the taxing power might be exercised, and the right of eminent domain might be delegated, for a purpose such as railway corporations were designed to accomplish. Among the earlier cases supporting the doctrine, in whole or in part, may be found: Bloodgood v. M. & H. R. R. Co., 18 Wend. 48; Beekman v. Saratoga R. R. Co., 3 Paige, 73; Couch v. Ulster Turnpike Co., 4 Johns. Ch. 26; Turnpike Co. v. Bishop, 11 Vt. 198; Turnpike Co. v. Baker, 4 Humph. 415; Bridgeport v. Railway Co., 15 Conn. 475; Old Colony & Fall River R. R. Co. v. County of Plymouth, 14 Gray, 167; Commonwealth v. Fitchburg R. R. Co., 12 id. 188; Sharpless v. Mayor, etc., 21 Penn. 147. But more recently the judicial mind has assumed a different phase, and the decisions, especially with regard to the taxing power, have been against the exercise of the right in favor of railways. The principal cases are the following: West River Bridge Co. v. Dix, 6 How. (U. S.) 546; Railroad Co. v. Cappell, 1 Rice, 398; Jordan v. Bordward, 40 Me. 317; Eldridge v. Smith, 34 Vt. 484; Lance's Appeal, 55 Penn St. 16; Gordon v. Railway Co., 2 R. R. Cases, 808; Sweet v. Hulburt, 51 Barb. 316; Whitney v. The Sheboygan & Fond du Lac R. R. Co., 25 Wis. 167; Hansen v. Vernon, 27 Iowa, 28; The People ex rel. The Detroit & Howell R. R. Co. v. The Township Board of Salem, Mich. 1870. The judicial attention has been directed mainly to the construction and constitutionality of acts authorizing municipal aid to railways, and the question involved turns mainly about the point whether the functions and nature of railway corporations are "public" in the sense implied in the constitution. If they are "public," in the constitutional sense, then the right of eminent domain, and the power of taxation, can be made