Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

eignty of the United States was complete from the time they declared themselves "free, sovereign, and independent States," on the 4th of July, 1776. The same principle was recognized in the treaty with Great Britain and the United States, in 1872. (See Wheaton, Part 1st, Chapter 2nd, Section 6th.)

"5th. That he, Maximilian, was Emperor and Sovereign head of Mexico for a long time, and as such Sovereign head exercised jurisdiction and control over the greater part of the territory of Mexico.

"6th. That he, Maximilian, being the Sovereign head of Mexico, and so recognized by nearly all the nations of the world, was not and is not subject to any laws or decrees made by the President of the Liberal or any other party, although said President was recognized by the United States as President of Mexico, because said Liberal party was not the government de facto of Mexico, and therefore he ought not to be adjudged by any such laws or decrees.

"7th. That, according to the rules and principles of International Law, the sovereign head of a government de facto cannot be tried or punished for making or issuing any decree or law; and while within his own government, is not amenable to tne municipal laws of any other government or party. Therefore, Maximilian, upon legal principles, cannot be tried or condemned for issuing the decree known as the "Decree of October 3d," whatever may be the character of said. decree. Every State has certain absolute sovereign rights; one of the most important is the right of self-preservation. This right necessarily involves all the incidental rights which are essential as means to give effect to the principal end. (See Wheaton, Part 2d, Chapter 1st, Sections 1, 2, 3.)

"8th. The law of President Juarez of 1862, January 25th, is unconstitutional. Ist. Because it was made by the President alone, who has no authority to legislate. See Mexican Constitution, Title 3d, Art. 50, under

the "Division of Powers," which says that the supreme power of the federation is divided into legislative, executive, and judicial powers; that no two of said powers can ever be united in one person; and that legislative power shall never be deposited in one individual. Therefore any law not made by the legislative power is unconstitutional. 2d. Said law is unconstitutional, because it punishes a man with death for political crimes, contrary to Art. 23d, Title 1st, Section 1st.

"9th. The powers given to the President. in Art. 29, Title Ist, Section 1st, Mexican. Constitution, to suspend certain guarantees mentioned in said Constitution, do not extend to those guarantees that secure the life of man.

"Ioth. That word 'guarantees' in the Constitution means individual guarantees or rights, and the power to suspend them does. not give the power to the President to make laws. If the President can make laws, he can destroy the form of the government, and it would become monarchical rather than constitutional. If the President can exercise legislative power, he can likewise exercise judicial power, and he would then be an

autocrat.

"IIth. That the Congress of Mexicohave no power to declare that the President can make laws. Congress cannot delegate its power to any one. If it can delegate its powers to the President, then it can do so to any other individual. Neither Congress nor the President can destroy the form of government by giving each other a part of their respective constitutional powers. All the powers of Congress are mentioned in Title 3d, Section 1st, Paragraph 3d, Art. 117: and there is no authority given to delegate the powers of Congress to the President. According to Title 6th, Art. 117, the powers which are not expressly conceded in the Constitution to the federal functionaries are understood to be reserved to the States. Art 126th, Title 6th, says that 'This Consti

tution, the laws of the Congress of the Union which emanate from it, and all treaties made, or which may be made by the President of the Republic with the approbation of Congress, shall be the supreme law of the Union.' And, further, under the head 'Of the Inviolability of the Constitution,' Title 8th. Art. 128th, it says, "This Constitution shall not lose its force and vigor even in time of rebellion.'

"12th. That the late or present war being a civil war, the punishment of death cannot be awarded for political crimes, according to the said Art. 23d.

"13th. That there is a distinction between an executive regulation and a law. The executive can only provide for the execution of the law; consequently a regulation or decree of the President conflicting with any existing iaw, or the Constitution, is void. Lares, in his Derecho Administrativo, page 19,says:'Neither the judicial nor administrative tribunals are under any obligation to obey illegal reglamentos' (regulations). Such is the opinion of the writers on the Civil law which is in force in Mexico.

"14th. That if the said war is a foreign. one, then Maximilian is not guilty of treason, as he is an Austrian.

"15th. That whilst a civil war, involving the contest for the government, continues, other States may remain indifferent spectators of the controversy, or may espouse the cause of either. The positive law of nations makes no distinction between a just and an unjust war in this respect; and the interven ing State becomes entitled to all the rights of war against the opposite party. And the fact that foreign States in Europe furnished him, Maximilian, troops and munitions of war, or whether such troops rendered him aid voluntarily, does not, according to the law of nations, change his rights as a contestant in the struggle for the supremacy of government.

"16th. That the general usage of nations

regards a civil war as entitling both the contending parties to all the rights of war against each other, and even as respects neutral nations. And therefore, if the decree of Juarez, of January 25th, 1862 was legally made, which punished with death prisoners of war, then Maximilian was justified in issuing the decree of October 3d, 1865, in retaliation, it being only equal in severity.

"17th. That, as a fact, the French forces under Marshal Bazaine were not subject to the control of Maximilian in regard to their military regulations, orders, and movements, as will appear by the treaty of Miramar; but only so in regard to their political government while in the Empire of Mexico.

"18th. That the said decree of October 3d, 1865, was drawn by instructions, and according to the direction of Marshal Bazaine; and that he, Maximilian, was informed that the said Marshal Bazaine enforced a part of said decree before it was signed by said Maximilian.

"19th. That at the time said Maximilian. signed said decree Marshal Bazaine stated. to him, Maximilian, that ex-President Juarez had positively left the territorial jurisdiction of Mexico, and that he was then in the State of Texas, in the United States of North America.

"20th. That the said Maximilian, after he left the city of Mexico for Orizaba, at the Hacienda Zoquiapam, on the 21st of October, 1866, annulled said decree; but that said. annulment thereof was secreted by the said Marshal Bazaine for three weeks before the same was published, although he, the said Maximilian, sent three despatches to the city of Mexico, ordering the annulment to be published forthwith. Therefore, upon principles of natural justice and the usage of nations, the said decree of January 25th, 1862, if ever legal, should not have been enforced after the annulment of the said decree of Maximilian of October 3, 1865.

"21st. And the said Maximilian hereby declares, as a fact, that in no single instance did he ever issue an order to take the life of any particular prisoner or prisoners; but that, on the contrary, whenever he was informed that prisoners of war were in the possession of his forces, he immediately issued orders not to take the life of any of them.

"22d. And further, as one of the charges preferred against him, Maximilian, is, that of contumacy in objecting to the jurisdiction of the court ordered to try him, he avers that that is a question of law; and that in every court in civilized nations it is the legal right of a defendant to make such objections as he may be by counsel advised.

"FREDERIC HALL, of Counsel." This curious document is, perhaps, the only known instance in which the head of a State charged with treason, and on trial for his life, has through counsel filed pleas to the jurisdiction of the trial court, and submitted a brief of his case. Maximilian undoubtedly realized the uselessness in all human probability of submitting such a form of argument to his judges, but he strongly desired that the legal strength of his position should be made known to the outside world, and left orders that the above brief should be sent to certain eminent men. This was done, and to that end the paper served its purpose;

the trial of the ex-Emperor, however, proceeded undisturbed, and, as was foreseen from the beginning, Maximilian was found guilty and sentenced to be shot.

So far as I have been able to learn, Mr. Hall's brief has never been considered from the point of view of International or Civil law, nor have writers upon those subjects seen fit to deal largely with Maximilian's case. Yet it is only too evident that such cases must from time to time arise, and unless it be admitted that at all such times might alone makes right, we have no form of precedent to study. That in all such cases the party in power at the crucial moment should act as suits it best, whether it be by uncontrovertible experience, but to the student of jurisprudence such an answer must form of law or at its own sweet will, may be and without needful authorities as he was, always be of little satisfaction. Mr. Hall, drawing a form of defence, pressed for time. yet contributed much to our knowledge of his peculiar case, and the vagaries of the law in Mexico. The case deserves greater attention from the student of history, the efforts. of Maximilian's counsel, both Mexican and American, deserve to be resurrected from oblivion, and the charges brought and answers given to be read and re-read as a unique instance in the law of Nations.

I

THE ACTUAL DECISION IN THE MERGER CASE.

BY BRUCE WYMAN,

Of the faculty of Law in Harvard University.

T seldom happens that an entire change | For the present the most that can be at

in the law is worked by force of a single decision. At least this is true, that the consequences of a great case are never to be known at the outset. And certainly this is true of the United States v. The Northern Securities Company et. al., that no one can predict with any certainty its final scope.

tempted is an inquiry into the actual decision as it stands.

The original bill was filed by the United States to restrain the violation of the act of July 2, 1890, entitled "An act to protect trade and commerce against unlawful restraints and monopolies"-the Sherman

Anti-Trust Act, so-called; the defendants were: The Northern Securities Company, the Northern Pacific Railway Company, the Great Northern Railway Company, James J. Hill, William P. Clough, D. Willis James, John S. Kennedy, J. Pierpont Morgan, Robert Bacon, George F. Baker, and Daniel S. Lamont, all of whom were charged with entering into a combination against the provisions of the anti-trust act.

The testimony taken upon the hearing was voluminous, but perhaps the following summary will suffice. Two of the defendants, the Northern Pacific Railway and the Great Northern Railway, own lines running from the Great Lakes to the Pacific Ocean. A glance at a railroad map of the United States will show to how considerable

extent these systems are competitive. from the necessity of their situation. And until 1900 there had generally been competition between them, although there had been temporary cessation at various times. In 1901, it was disclosed by various movements that a few large stockholders had virtual control of both railroads and were directing them according to concerted plans. The joint purchase of the Chicago, Burlington and Quincy Railroad, was an avowed first step toward ultimate community of interest. There followed upon this deal one of the fiercest assaults to capture a railroad from its holders in the history of the stock market; Northern Pacific sold on one day for $1000 a share. It was a drawn battle; the treaty of peace that followed after negotiation was the formation of the Northern Securities Company.

In accordance with this plan it was arranged between the individual defendants and various others not defendants to form a holding corporation to take over the most of the stock of both the Great Northern and the Northern Pacific-and to issue in exchange stock of the new company. The individuals who conceived this plan, it was

proved, came to a preliminary agreement as to this general scheme. The Northern Securities Company was thereupon organized under the laws of New Jersey with a capacity to issue $400,000,000 of stock in exchange for stocks of other companies which its charter empowered it to hold. Soon after its organization this securities company acquired 96 per cent. of the capital stock of the Northern Pacific Company, at the rate of $115 per share, paying for this in its own capital stock at par; and 76 per cent. of the stock of the Great Northern Company was bought at $180 per share, payment as before being made in stock of the holding company. So much was this flotation to the mind of the market that Northern Securities was sold on the curb as high as 115.

But throughout the Northwest the merger was viewed with alarm as certain to lead to increase of rates in the end and consequently to repression of its trade. It was doubtless this widespread indignation on the part of the people most involved that led to the early beginning of the litigation and the active prosecution of the suit. The government, to be sure, was aided in advancing the suit by the act of February 11, 1903, which required the expediting of such cases upon a certificate that they are of general public importance. The Circuit Court judges decided unanimously for the government on April 10, 1903, after elaborate proceedings, Mr. Justice Thayer writing an able and comprehensive opinion.

The decision was an unpleasant surprise to many, but it was acclaimed by others. During the year that followed although contraversalists in the public prints discussed the problem with much heat as an open question, the generality of observers came to the conclusion that the Supreme Court would affirm the decree. On March 14, 1904, only the expected happened when the Supreme Court decided for the govern

ment; even the stock market had discounted the decision with such certainty that Northern Securities stock rose from 85 to 87 during the day.

The decree as rendered is in substance as follows: Adjudging that the stock of the Northern Pacific and Great Northern companies, now held by the Securities Company, was acquired in virtue of a combination among the defendants, in restraint of trade and commerce among the several States, such as the anti-trust act denounces as illegal; enjoining the Securities Company from acquiring or attempting to acquire further stock of either of said companies, also enjoining it from voting such stock at any meeting of the stockholders of either of said railroad companies, or exercising or attempting to exercise any control, direction. or supervision of influence over the acts of said companies, or either of them, by virtue of its holding such stock, enjoining the Northern Pacific and Great Northern companies, respectively, their officers, directors and agents from permitting such stock to be voted by the Northern Securities Company or any of its agents or attorneys on its behalf at any corporate election for directors, or of the case of either of said companies, and likewise enjoining them from paying any dividends to the Securities Company on account of said stock, or permitting or suffering the Securities Company to exercise any control whatsoever over the corporate acts of said companies or to direct the policy of either; and, finally, permitting the Securities Company to return and transfer to the stockholders of the Northern Pacific and Great Northern companies any and all shares of stock of those companies which it may have received from such stockholders in exchange for its own stock, or to make such transfer

and assignment to such person or persons as are now the holders and owners of its own stock originally issued in exchange for the stock of said companies.

This the Supreme Court now confirms with liberty to the Circuit Court to proceed to the execution of its decree as the circumstances may require. At the present moment, however, it seems improbable that any further judicial action will be required. Within a week after the decision the directorate of the Northern Securities Company have announced their intention to conform to the decree immediately. It is now proposed to return to the stockholders pro rata all of the holdings of the Northern Securities Company in the Northern Pacific Company and in the Great Northern Company. The capital stock of the Northern Securities Company will be thus reduced by 99 per cent.; and the episode will then be closed.

Thus the actual decision in the case of the United States v. Northern Securities Company et. al., is that this particular form of consolidation of interests,-a holding corpor ation uniting rival corporations in such a way as to suppress possible competition between them, is in violation of the Federal antitrust act in that it is a combination in the form of a trust or otherwise in restraint of interstate or foreign commerce. A lawyer may not permit himself to discuss a decision of such moment until the full opinions are at hand; unless, indeed, this general comment may be made, that no radical change in the fundamental principles of the law governing the industrial organization as a whole, can follow from an opinion like this upon a special issue decided by a court evenly divided by a radical opposition. of tendencies where the balance of power is held by a judge of such conservatism.

« ΠροηγούμενηΣυνέχεια »