moralizing effect upon the community. It tends to destroy the faith of the people in the power of the arm of justice, in the efficiency of the safeguards provided for the security of the citizens, in the certainty and swiftness of criminal justice. It tends to embolden the criminal classes, it breeds contempt for the law, it provides food for the disciples of anarchy.

Just observe the inconsistency of our system. We exact unanimity of juries. But suppose the judgment of a nisi prius court is removed to an appellate tribunal, by appeal or writ of error, that court not only passes on the rulings of the lower court on matters of law, but likewise upon controverted questions of fact. Suppose that in the Supreme Court of our State, four of the seven judges, a bare majority, affirm a conviction of the lower court, and the other three dissent for the avowed reason that the evidence fails to convince them of the guilt of the defendant, still the judgment of the bare majority rule. And justly so. Or would you provide that the justices of the Supreme Court should be locked up in their conference room, and deprived even of those conveniences of life which a country hotel affords, until they unanimously agree upon a dicision of the case in hand? But what must strike you as rediculous, when applied to a tribunal of judges, is the very method adopted to compel juries to agree.

Legislative measures affecting the welfare and happiness of the people at large, the adoption or the rejection of the most vital constitutional amendments, peace and war, affecting the lives of thousands, nay, millions of people, are decided upon by bare majorities.

No unanimity is required in grand juries, though upon their decision depends whether a man's life should be put in jeopardy. No unanimity is required to impeach the President of the United States. On a trial before the English House of Peers, a bare majority is sufficient, provided it consists of at least twelve. A person tried by that tribunal may be sentenced to death by a House consisting of twenty-three Peers, twelve of whom declare him guilty on their honor, while the other eleven declare him not guilty under a like sanction.

In spite of all these analogies we continue to place it in the power of one corrupt man to pollute the fountain of justice, to defeat the ends for which courts are organized, to upset the judgment of eleven honest and intelligent men, and to make jury trials a mockery.

The rule of unanimity may have worked well enough in olden times, when competent jurors were easily obtainable; but in our age of a free and enterprising press, which daily supplies millions of people with intelligence on all the details of every important event, it is an obstruction to the administration of justice, it is fruitful of litigation, it retards justice and it shields crime.

The system may also be accompanied with less evil results in England, where the average material for jury service is of a higher standard, and where the judge's charge, discussing as it does, the evidence in all its bearings, is of so great signficance and influence, that on an average, 'the jury find their verdicts without leaving their seats in about 80 per cent of the cases.

But altered circumstances, resulting from the march of progress and the development of civilization, should result in appropriate change of legislation. You have abolished slavery and returned to manhood three millions of people, you have made important innovations in social laws, you have emancipated woman from

her former inferior position, and admitted her to the rights of individual proprietorship and the practice of learned professions. You are constantly concerning yourselves with the improvement of the condition of the laboring classes. You have succeeded in removing the school from the influence of the church. You have adopted compulsory education laws. You are at the head of all the people of the earth in devising useful inventions and putting them into practice. You are in the front rank of the nations in every matter of progress and civilization; only in the matter of the administration of the law, you stand with at least one foot in the slum of the middle ages. You have broken in practice with the barbarous treatment of subjecting jurors, while deliberating, to hunger, thirst and cold; why not break with another relic of barbarism, and give up the senseless rule of unanimity? The rule of decision we should adopt when we have once abolished the principle of unanimity, is a matter with which our Legislature will have to concern itself, after you have once paved the way by a constitutional amendment. I, for one, after having given the matter considerable thought, and influenced partly by the successful working of majority rules in European countries, am in favor of the adoption of a law giving the verdict of a two-thirds majority the effect of a valid verdict. At the same time, for the purpose of securing proper deliberation by the jury, some such safeguard as that suggested by ex-Governor Koerner might be adopted. In criminal cases, unless at least two-thirds of the jury agree upon a verdict of guilty, the defendant should be acquitted; and in capital cases I would favor a proviso that the death penalty should not be inflicted unless the jury unanimously agree upon a verdict of guilty.

These, of course, are simply suggestions.

My main purpose was to point out the evil. The discovery of the proper remedy is a task well worth the exertions of the best minds of the people. What I desire to impress upon you, what I beg of you, one and all, to help agitate and bring home to the understanding of the people at large, is the fact that the requirement of unanimity tends to make jury trial a reproach to free government, and an impediment to the due administration of justice; and that, without a change, the entire institution, which we all cherish as one of the noblest birthrights of an American citizen, as one of the arch-pillars of our liberty and security, may eventually fall into disrepute, and possibly into desuetude.

INTER-STATE COMMERCE LAW.-SOME OF ITS PRACTICAL WORKINGS.

JOHN MCNULTA, OF BLOOMINGTON.

READ BEFORE THE ILLINOIS STATE BAR ASSOCIATION, JANUARY 15, 1890.

The Inter-State Commerce Law went into effect April 5, 1887. It was the first substantial exercise of the power delegated to Congress by the constitution. "To regulate commerce among the several States," and the beginning of a new era in the management of the railroads of the country, and the transportation of all commodities thereon.

Until the passage of the Act of 1869, there was no statutory law in this State to limit, control or direct railroads in the transaction of their business as common carriers. The common law obligations and duties imposed upon them were rarely enforced, mainly owing to the inadequacy of the remedy or the insufficiency of the results compared with the costs and trouble that would be involved.

Even after the passage of the several acts in this State, and after nearly all of the States had enacted laws for the correction of the many abuses that had grown up in the management of the roads, no efficient remedy was found.

The Supreme Court of the United States in its earlier decisions, intimated, if it did not directly decide, that the power of control lay in the States, until the Federal government should act. In effect, that there was a concurrent State and Federal jurisdiction and that the former was potent on all questions until it appeared that there was a conflict, when the act of the latter should prevail as law. Under this ruling the field for legislation was left open to the several State Legislatures, without uniformity of action on any point unless it be in an apparent purpose on the part of each to gain some advantage for itself over the others, and no satisfactory solution was reached. Later, that Court, in Wabash Railroad Co., vs. Illinois, 113 U. S. 557, modified its former ruling, and held in effect that the grant gave to Congress exclusive power, and until exercised by Congress, in the form of the passage of an act, it lay dormant, and that a State had no power beyond purely State commerce.

With the existence of this condition of affairs the law went into effect, and by reason of its practical workings, forced upon many managements a decision as to whether their respective roads would adopt through or local rates, or in practical effect, whether they would become Inter-State or State carriers.

If local rates were adhered to all through, traffic would necessarily be lost. If through rates were adopted, local rates must be brought down to a level with the through rates, resulting in a serious loss of revenue, unless this deficit could be made up by a relative increase in the volume of business gained by the reduction of the rate.

The law at once caused material changes in the currents of traffic. Although a period of prosperity followed, with large crops for movement to the seaboard, and an immense tonnage to the west for developement of the country, several roads were forced into, and many to the verge of, bankruptcy, while others, mainly the stronger ones or Trunk lines, harvested immense profits. During the year 1888, the losses of the roads entering at or tributary to Chicago, were estimated at forty millions of dollars, caused principally, if not wholly, by the operation of the law.

As a rule, the strong railway lines of the country have reaped a large profit, and the weak ones have suffered heavy losses by it. Seaboard ports and some large manufacturing cities, and cities forming the main gateways of commerce, have been benefitted. Interior and small jobbing and manufacturing centers have been injured, and under the strict construction at first given, and a rigid enforcement of the law, would, as such, have soon ceased to exist.

On all low priced commodities, such as coal, iron, grain, etc., a slight variation in the rates will determine the question of profit or loss to the shipper. One cent per hundred pounds on a haul of 1000 miles put on, will often operate as an absolute prohibition, while one-half of one cent per one hundred pounds taken off will open the blockade, and allow the shippers not only to compete in the market, but to do so at a fair profit.

The manager may arbitrarily put on the cent and block the traffic, but contrary to the general belief, which is here a common error, he never does so, as to do it would be to wantonly cause a loss to his road.

Neither can he always arbitrarily or even in the exercise of a sound judgment take off the half cent, for should he do so at one point, the law would compel him to make a like deduction on all commodities of the same class, regardless of the existence of any necessity for it, at all intervening points on his line, thereby incurring a heavy loss, probably in the aggregate greater than the gross earnings derived from traffic moved by the reduced rates. In this way the law often operates to stop shipments and prevents the development of feeble industries at points distant from markets or places of consumption.

The interests of a railroad, and the interests of the people along its line, are one and the same,-what helps one will help the other. What hurts one will hurt the other. Every thrifty manager understands and acts upon this principle; a few only are disposed to grasp for temporary gain, disregarding the permanent injury that may be done. Their actions have caused great wrongs to individuals and communities, and create a necessity for a restrictive law.

It was supposed by the railroad restrictionists that the most potent principle would be found in what is known as the "Long and Short Haul Clause." Indeed, until practical experiments made me a skeptic, I had great faith in its fairness and efficiency. It is found in our Illinois act of 1869, and all subsequent acts, but more elaborately set out in the Inter-State Commerce Act, by the fourth section, by which it is made " * to charge or receive any greater

compensation

*

*

unlawful

for the transportation of passengers, or like kinds of prop

erty under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance."

*

*

Apparently intending, when coupled with the clause against discrimination, to compel every one to pay in proportion to the service performed. Does this do so? As the cost of transportation (to the seaboard) is intended by the law to be practically in proportion to the distance, the value of the grain would decrease as we recede inland from the port of the ocean shipment; and assuming all the land of equal productiveness, for like reasons, it will, for grain raising purposes, recede or rise in relative value as we leave or approach the seaboard. Such at least seems to have been, in a measure, the effect, and such would be the result, if the principle was literally carried out.

Inquire into the establishment of any large manufacturing industry in the interior, where the raw material was shipped in by rail, and it will be found that it was done by some one or more railroads carrying this material in on a special low rate, and by the making of an out rate that would sustain competition in a given territory against all outside competitors. The road doing it got a low rate going in, a fair rate coming out, an increase in volume done at the cost of train service alone, resulting in a profit and a development of the country tributary to it. This the law now prohibits. The further development of such industries is stopped. In many cases the old ones are closed up with this result, the roads lose traffic, and the distant or large centers manufacture the commodity for a larger scope of country, and only such portion of it goes to any section as may be needed for consumption. The interior districts become buyers instead of being sellers, as before.

The community that gave the right of way, paid heavy taxes in liquidation of large subsidies to secure a number of competing lines of road, and the community that took the road that was forced upon it, and all the compensation and damages they could collect, have their business transacted on equal terms. The competi

tion paid for by the cross-roaders is now prohibited by law, and the people who, by their money and their energy, secured competing roads, cannot be given the benefit of competition.

The people in the interior are secured the advantages of the low rates of the river, and given the benefits that were supposed to belong only to those whose homes were along the great waterways, viz.: Cheap water transportation, in consideration of which higher prices were paid by them for their lands. But the man away from the water who got his land cheap because there was no cheap water transportation, is secured all the benefits that could be derived from water transportation by the law, which in effect makes the river follow the rail. Such at least is the construction quite generally given to the law, and such, in a great measure, is its practical effect. Yet I must say I cannot concur in this view of it. I do not think the language of the act warrants such an interpretation, nor do I think that the power delegated to Congress would authorize such a provision. The unsettled condition and uncertainty as to the law on this point, and also on the question of an indirect line taking traffic from a competitive direct line at the low rate of the latter through the higher rate district of the former, without its lowering its intermediate rates, has resulted in diversity of action.