added, making the artificial person a creation of law; but the franchise is all that has been added. Here we have these bodies, that are in their capital exempt, and in their franchise exempt. What is there about them that can be taxed? This left nothing that constitutes an element of value or of possession or of property to be taxed. If the franchise had come from the state, if the franchise were taxable by the state, as the creature of the state, you might find something in the constitution of the corporation (although its capital be exempted if invested in United. States securities) that would endure state taxation. They might tax the franchise inordinately, or moderately; they made the franchise, and they may tax it; and the investment of the capital in United States securities does not exempt the taxation of the franchise from the power of the state; and that was the distinction which was made by some observations of Mr. Justice Nelson in the first bank tax case, in 2 Black, referring to the state of the law in New York. Franchise may bear a tax, he said. The legislature changed their law, but did not come up to the point of taxing the franchise, which was taxing for the right to be, and with reference to nothing else. The right to be a bank, the right to continue from year to year to be a bank, may be taxed. That was all that 'was open under the observation of this court. They did not put the tax on franchise, but they put the tax on capital, on the valuation that did not make it necessary to find what it was really worth, but took a nominal value for it, and thought they had avoided the judgment of this court by that contrivance. They had not taxed the right of the corporation to be,-they had taxed its capital upon a nominal, instead of a real, value. The court said: "You may have any form of valuation you choose; but, whatever your form of valuation, you must exempt United States securities from it." That is the case in 2 Wallace. Now, the contrivance here is that of having a bank, with its franchise from the federal government, with its property protected under federal law, with its operations and its capital protected as agents and instruments of the government, incapable of taxation, withdrawn from the taxable property of the state, and they pursue all these into the divided shares, and exact the tax upon them distributively.

What is a stockholder in a corporation? He is nothing, and has nothing, in a corporation, except by his proportion in the capital stock, and his participation in the franchise. It is to the stockholders by name that the franchise is given, they being

natural persons, that they should have the franchise to be an artificial person. Is not that a form in which the natural persons are, in the purpose and apparatus of the law, used as one? There is neither fragment nor figment for a tax to rest upon when there is that extent of exemption.

Now, if the court please, on the general question, as something has been said, so inconsiderately, about the comparative magni tude or connections of the interest with the government of the old United States Bank, and of this many-headed institution, distributed all through the country, let me call your honor's attention to the importance of the relations of these banks, even in the single subject of the distribution of the public debt. There was issued in one year the whole bulk, in three series, of the seven-thirty currency notes, eight hundred and thirty millions in twelve months; and, of that issue of the federal debt, these national banks took and distributed seven hundred and thirtysix millions, leaving to the government, in its official organizations of treasury, sub-treasury, and special agencies, only sixtysix millions out of eight hundred and thirty millions to be so disposed of,-illustrating thus what I have ventured to suggest was the genius of this institution. Now, to say of these two great governments, federal and state, standing against one another, under the constitution, with their relations adjudicated by this court, that all these relations are suddenly changed by the intervention of this corporate form of a national bank, and that the state becomes the master of the two governments by taking away from the federal government what it had reserved to itself, by giving back to the state governments what they had lost under the legislation of the country,-this is to make the corporation the mere form, the master of the substance, and controller of those political and public relations. It is like the genie of the bottle,-when the seal is up, he becomes the master of servants. This contrivance of the national banks instituted for other and additional public purposes and serving the great public needs, immediately takes in its hands hundreds of millions of federal stocks, with which to serve the government, and in its hands, and in the hands of nobody else in this country, they can be taxed through the medium of shareholders! At this moment these banks hold six hundred and twenty-two millions of dollars of the federal securities of the United States,-a third of the debt that is out in any other shape than that of mere currency; perhaps more than a third, for I have not the statistics in

my mind; and yet that mass of public debt, free by impression on its face from taxation by the states, free in the hands of every individual, of every corporation, of every association, must contribute such taxes as the states may choose to impose, discriminating or destructive or otherwise, simply because one agency of the government is helping it in the advancement of its interests in another public matter, to-wit, the debt.

If the court please, it will not avail anything to meet these propositions by the argument that the states, by their natural authority, have dominion for taxation over every subject of property and every person within their jurisdiction. This right and this power, as necessary parts of the state's sovereignty, are conceded; for it is idle to talk of taxation as being a special prerogative of sovereignty. It is sovereignty. It is the sovereign that taxes. It is as universal as the sovereign. "The decree went out that all the world should be taxed," because the Roman empire extended over what was then called the world. Taxation takes all you have. Put taxation and conscription together, and it is the sovereignty over the person and the property to the extent of the jurisdiction of the state. But taxation goes no further than sovereignty; and whatever impedes or qualifies or displaces the sovereignty of the states impedes, qualifies, displaces taxation by the states. What power there is in taxation to destroy is shown by the recent act of congress inimical to the continuance of the state banks, which taxes their circulation, after a certain prospective period, ten per cent. If a state has power to tax, there is no limit. That you have decided over and over again. It can tax these shares discriminately if it chooses; hostilely, destructively, fatally, if you concede the power. You say, with jealous preservation of the constitution, "There is no such power," and the state says, "True, but we will tax the shares or part hostilely, destructively, fatally;" and you are called upon to say that they can,-you are called upon to surrender, as I say, to this dominant fiction in law, the personality of a corporation. As by the decisions is expressly stated, whenever the government have called the property of the citizens into the service of the United States, in the performance of a public duty under the constitution as an instrument and an agency, that becomes an instrument of the United States, and exempted from state taxation, unless it be compatible with the public interests that the government of the United States should concede it. There are but two methods to deal with this subject. One is

that which the state of New York has always avowed, and, I believe, honestly intended to conform to. Looking at it from the side of the state, it may differ from the view that is taken on the side of the federal government, but still the principles laid down in 23 New York Reports by Chief Judge Denio are that, when there is a conflict, the adjudications of the supreme court of the United States are final as to the supremacy of the federal power, and that the only question for a state court, as new circumstances, one after another, present new cases, is to see whether there is a conflict, and to yield. There is but one other method, and that is the method of South Carolina, in the decisions that are cited on the briefs. The argument of Mr. Grimke for the United States, than which none abler was ever made on this question, was never answered by Mr. Legare, nor was it ever answered by the court. The decision was put upon the ground that, if there was a conflict, the state of South Carolina could not help it, but it governed what was within its own dominions. That was the proposition, that the reasoning of the supreme court, by the mouth of the great chief justice, was vicious, unsound, dangerous. Its only viciousness was that the supremacy of the Union over the states was asserted; its only unsoundness was that the supremacy of the Union over the states was asserted; its only danger was that the supremacy of the Union over the states was asserted; and this, the South Carolina, method of dealing with the conflict, as we all know at last, is war!

Veeder II.-73.

LORD BOWEN.

[Charles Synge Christopher Bowen was born in Wolaston, Gloucestershire, 1835. He was educated at Rugby, and afterwards at Balliol College. At Oxford he gained the Hertfort and Ireland scholarships. He was a university prizeman, a Fellow of Balliol, and subsequently received the honorary degree of Doctor of the Civil Law. He was called to the bar at Lincoln's Inn in 1861, and joined the Western circuit. In 1872, through the influence of Lord Coleridge, he was appointed recorder of Penzance, and junior standing counsel to the treasury. In the latter capacity he had charge of the pleadings in the famous Tichborne Case. In 1879 he was elevated to the bench in the place of Justice Mellor. In 1882 he became a lord justice of appeal, and was sworn of the privy council. In 1893 he was made a lord of appeal, with the title of Baron Bowen of Colwood. He was a frequent contributor to the Saturday Review, and his published writings include a translation of Virgil, an historical essay on Delphi, and a pamphlet on the Alabama question. A biographical sketch of Lord Bowen, by Sir Henry Cunningham, was published in 1897. A review of his judicial services may be found in the Harvard Law Review, February, 1897.]

Lord Bowen was a representative of the best culture of his time. Certainly no man ever came to the bar with a greater reputation for scholarship. Too academic in style and manner, perhaps, to distinguish himself in general practice, he found his true sphere on the bench. As lord justice of appeal, Bowen delivered a series of opinions, which, for legal learning and literary grace, are unsurpassed in the reports of English law. His subtle intellect, his cultured taste, his unique knowledge of legal history and mastery of the historical method as applied to the evolution of law, and his singular felicity in expounding legal principles, were the qualities which gave him pre-eminence among his contemporaries. To a mind capable at once of entertaining the broadest views and the most subtle distinctions, he added the habit of patient industry, without which intuitions are deceitful, and gifts of exposition vain.

The most obvious characteristic of Lord Bowen's opinions is the purity, ease, and accuracy of his style. Along with legal acquirements, which he shared with many of his contemporaries, he