speaking in national, aye world-wide, terms, preaching the attitude of unselfish cooperation and the spirit of patriotic service and teaching the meaning of this war. There is no nucleus of an organization around which the Civilian Forces may rally. But there are earnest, educated, well trained and enthusiastic officers awaiting but the authority and direction in order to spring into the vital campaign of preparing the Civilian Army that must fight the battles behind the trenches if the war shall be won. These men are America's lawyers. Concretely, what shall the lawyers do? The answer is to follow the example of the soldiers. Let there be organization of an army of civilians comprising every patriotic citizen. Let this be divided into units analogous to the different arms of the military service and officered in like manner, such officers to be designated as chairmen and vice-chairmen instead of generals and captains. Let the people be inspired by the realization of concert of action; that every endeavor, every sacrifice they are called upon to make is but one agency co-operating with others, surely achieving a designed. objective. This will enthuse, maintain confidence and insure participation. It is the atmosphere of team work that spells victory and dispels lost motion and friction. But, two things are conditions precedent to this enviable status. Each player must be taught his particular "bit" individually and each must be trained to perform it collectively in team work. Manifestly, this teaching and training of the citizen, with the assistance of intelligent laymen, is the work for the lawyer. He must captain the war behind the trenches and the sooner he starts the sooner the war will end. The Military Forces, both officer and private, are entitled to and deserve the moral support this mighty organized will power will give. A sorely tried President wholly deserves this concrete support. America needs it. But above and beyond all else, the diers in France. It will permeate every NOTES OF IMPORTANT DECISIONS. CORPORATION-DUTY OF PROMOTERS TO PROVIDE IMPARTIAL DIRECTORS.Goodman v.. White, 93 S. E. 906, decided by North Carolina Supreme Court, shows an action by the trustee of a bankrupt corporation against promoters, so called, but who seem to have been organizers of the corporation. Defendant was sued by the trustees upon a stock subscription for 82 shares of the corporation. It seems that to organize it the first step taken was to raise $4,000 on his note so as to buy This being ef out an existing corporation. fected the new corporation took up his note, as was intended. It does not appear how the other organizer acquired what was credited to him as 60 per cent of the stock in the new corporation. To the defendant giving the note for $4,000 there was issued $8,200 in stock. The trustee had judgment for this amount. Here was a case where the merchandise of the old company constituted the actual capThe real error ital of the new corporation. occurred therefore, in overvaluation of that merchandise. The proportion between the or ganizers of 40 and 60 per cent seems to have had no real basis other than in the chance taken to have to pay the note given to raise money for the purchase of the property of the Promoters could have existing company. turned this merchandise over at a proper valuation, but they went about the matter in a wrong way. But even to do that properly the court said that "in organizing the intended corporation the promoters are required to see that it is provided with a board of directors which in dealing with them will act independently for the corporation and not for them." Now, if the corporation took up note, as maker of the $4,000 note intended, that maker really paid nothing for the stock given to him, and in addition diverted $4,000 of its money to his personal debt. There was an appearance of finding to hand assets for a new corporation which really had been purchased for it. The stockholder further complicates the situation by making the $4,000 equivalent to $8,200 in stock. It seems to us, that the $8,200 stock was a fiction not to be enforced, unless some creditor was deceived into trusting the new corporation on an inflated capitalization. There is a presumpton even against such a stockholder. We doubt, however, very greatly whether defendant should have been held for more than $4,000. PUBLIC UTILITIES-STATE COMMISSION DECLINES ΤΟ ORDER IMPROVEMENT "NOT DIRECTLY PROMOTIVE OF THE CONDUCT OF THE WAR."-As an instance of the spirit that is actuating some of the public service commissions of the country in the present crisis, the following excerpt from a recent unanimous decision of the Public Service Commission of New Hampshire, denying an application of the City of Manchester for authority to construct Woodland Avenue at grade over the tracks of the Boston & Maine Railroad, is of interest: "But above and controlling all other considerations is the fact that this country is now in a state of war, and among the most important instrumentalities for the successfulconduct of the war is our railroad system. Every effort is being made to co-ordinate the railroads of the country into a single system, under a single head, in such wise as to make available for each, as needed, the resources of all. The strain laid upon the railroads by the demands made upon them for the transportation of men, materials, and supplies is stupendous. It has come upon them at a time when their facilities and equipment have already proved inadequate for the handling of existing business, and when all our producers of the needed equipment and facilities are straining every nerve to meet the requirements of the allied armies at the front. And with us the situation is aggravated by the fact that this unparalleled strain has fallen upon a bankrupt railroad. "We do not say that we will in no case order expenditure by our railroads not directly promotive of the conduct of the war. But it should be understood that so long as the public receives a service reasonably approximating that to which it was accustomed in times of peace and where the public safety is not manifestly and imminently endangered, we cannot be expected to order our railroads to expend large sums of money on improvements having no tendency, directly or indirectly, to enable them to better carry on what is now their supreme business-the business of the war-or to facilitate the distribution of food, fuel and other necessares of life. "Improvements desirable in times of peace, for the purposes of peace, will have to wait until peace comes." or FALSE PRETENSES-INDORSING AND DELIVERING CHECK KNOWING MAKER IS WITHOUT FUNDS IN BANK.-Siegel V. Com., 197 S. W. 467, decided by Kentucky Court of Appeals, held that a statute denouncing the offense of drawing or uttering a check, etc., knowing at the time that the maker or drawer has not sufficient funds in bank on which it is drawn to pay it on presentment, embraces not only maker or drawer, but an indorser or other person making use of such check with knowledge that the maker drawer has no funds in bank to pay same. The court said: "Its (statute's) meaning clearly is that one who with intent to defraud shall make, or draw, or utter, or deliver the check, draft or order for the payment of money upon any bank or other depository, though it be not forged, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has not sufficient funds therein for the payment of such check, draft or order in full upon presentment, makes himself answerable to the punishment provided by the section. Neither the inhibition contained in the statute nor the punishment provided for its violation is confined to the maker or drawer of the check, draft or order." a The court then distinguishes between maker and indorser, in that the venue as to the former is where the maker executed the paper and that as to the latter it is the county where he delivers same. It seems to us, that strict construction may be violated in this ruling. Of course by statute there might be different places of venue, if expressly so stated, but it stretches a statute's terms aimed certainly at checks drawn by one who has no funds to pay them. There is a presumption of lawful currency of a paper when made to the order of another, especially when by general law the obtaining of goods by fraudulent pretenses would apply to an indorser with guilty knowledge. It might be thought that the statute is aimed only at one who fraudulently puts out a paper with all the earmarks of negotiability. Furthermore, a payee indorsing same in another state could by no means come under the prohibition of the statute, though he might be amenable to a statute of his state in obtaining. money by false pretenses. If the statute cannot embrace one indorser as well as another, it ought not to be construed to embrace any indorser using the check to obtain money or property through fraud. all government, especially if highly centralized, as a species of evil. *** "Jefferson put the doctrine in concrete form when he declared that he favored newspapers without government to government without newspapers. The Declaration of Independence, the first state Constitutions, and the Articles of Confederation bore the impress of this philosophy." Beard's declaration that the war of 1776 and allied acts represented the democratic thought of the country is supported by J. Allan Smith, who maintains that the conservative classes "prior to the Revolution had largely shaped and molded public opin THE "SIGNERS" AND THE CONSTI- ion; but their opposition to the movement TUTION. Some of the more progressive political scientists of recent years have asserted that the American Constitution is an undemocratic document, framed by reactionaries, and entirely out of touch with the spirit of the men who had fathered and fostered our war for freedom. As to whether the Constitution is a reactionary document will depend on one's interpretation of history; as to the second proposition, we have more definite information. which they were powerless to prevent, destroyed their influence, for the time being, in American politics. *** This gave to the revolutionary movement a distinctly democratic character." The Convention of 1787 once more saw the conservatives in power. "The radicals, however, like Patrick Henry, Jefferson and Samuel Adams, were conspicuous by their absence from the convention. *** They were not convened to write a Declaration of Independence, but to frame a government which would meet the practical issues that had arisen under the Articles of Confederation." "With the return of peace these classes, which so largely represented the wealth and culture of the colonies, regained in a measure the influence which they had lost. This tended strongly to bring about a conservative reaction." The writings of J. Allan Smith and C. A. Beard are typical. The latter in his book, "The Supreme Court and the Constitution," states:1 "Quite naturally the men who led in stirring up the revolt against Great Britain and in keeping the fighting temper of the Revolutionists at the proper heat were the boldest and most radical thinkers-men like Samuel Adams, Thom- | (1) the Revolution is regarded as an ex Enough has been quoted to show that pression of democratic thought, and (2) that the Federal Constitution represents a return to power of "the solid, conservative, commercial and financial interests of the country." Indeed, "conservatism and thorough distrust of popular government char acterized throughout the proceedings" of the convention which adopted the Constitution. I think we may safely assert that the Declaration of Independence fully represented the war for freedom and that its signers represented the spirit of the boldest, most progressive men of the age. "To this new and popular view of government the Declaration of Independence gave expression." Beard, as before quoted, made practically the same statement. This being the case, can we not say that the opinions of the signers of the Declaration of Independence on the adoption of the new Constitution, would strongly indicate whether or not that document was really "reactionary ?" The writings of both Smith and Beard. would lead us to believe that a majority of the "signers" opposed the Constitution. "The Federal Convention assembled in Philadelphia only eleven years after the Declaration of Independence was signed, yet only six of the fifty-six men who signed that document were among its members."s A large majority of the "signers," as a matter of fact, favored the Constitution. Smith, indeed, leaves himself a loophole of escape by declaring that "many of those who had espoused democratic doctrines during the Revolution became conservatives after the war was over." This is given, however, as a qualifying statement and not as a statement that any large number had changed their views. It is made to show that the return to power of the pre-war conservatives was furthered by the change in sentiments of some of the radicals. Certainly, no one can claim that this would explain such a large preponderance in favor of the Constitution as existed among the signers of the Declaration of Independence. Of the fifty-six signers, thirteen had died before 1787, the list including Whip Six of these-Sherman of Connecticut, Franklin, Robert Morris and Clymer and Wilson, of Pennsylvania, and Read of Delaware-signed the Constitution as members of the Philadelphia convention. Two other members of the Convention who did not sign the Constitution favored it strongly. These are Wythe of Virginia, and Walton of Georgia. It is sometimes said that Wythe refused to sign the ConAt the time he stitution, which is untrue. was not in Philadelphia, having returned home early in June, because of serious illness in his family. Madison, on June 4, In a reported that he had gone home. withdrawal and says that the cause was letter of July 16, 1787, Wythe mentions his becoming graver.10 As a member of the Virginia ratifying convention Wythe voted for the Constitution's adoption."1 "No four men excited more influence in favor of the Constitution in Virginia than George Washington, Edmund Pendleton, George Wythe and James Madison."12 Walton was a member of the Convention, but did. not attend its meetings. He was a member of the State Convention from Burke County. The convention unanimously ratified the Federal Constitution, Walton being one of the signers.13 Elbridge Gerry, another member of the 1787 Convention, refused (10) Farrand, III, 59. (12) Grigsby, "Virginia Federal Convention of 1788," I, 42. (13) American Historical Association, 1901, II, 21. to sign the Constitution. Illness prevented the attendance at the Convention of Abraham Clark of New Jersey, who, however, opposed the new Constitution.14 Several others, as members of state ratifying conventions, expressed their opinion of the Constitution. Three opposed it; ten supported it. The opponents were Chase of Maryland,15 Paca of Maryland,10 and Harrison of Virginia." The supporters included Rush of Pennsylvania,18 John Hancock and Samuel Adams of Massachusetts,19 Bartlett Bartlett of New of New Hampshire,20 Huntingdon of Connecticut, then governor, Wolcott of Connecticut, then lieutenant-governor,22 Williams of Connecticut,23 M'Kean of Delaware,2* Rutledge of South Carolina, and Heyward of the same state.25 21 Most of the other members, not attending either the federal or state conventions, have had their views recorded. adelphia convention. B. C. Steiner quotes as follows from a letter of Washington to Madison, dated November 5, 1787: “So far as the sentiments of Maryland, with respect to the proposed Constitution, have come to my knowledge, they are strongly in favor of it. *** Mr. Carroll of Carrollton, and Mr. Thomas Johnson are declared friends of it."30 Carroll favored holding a convention for "assent and ratification" of the proposed Constitution.31 "In Anne Arundel County the powerful influence of the Carrolls and the Worthingtons was cast for ratification without amendment."32 Richard Henry Lee of Virginia, opposed the new instrument, as did Francis L. Lee.3 Thomas Jefferson was opposed to the Constitution. He was not, however, a vigorous opponent. "While heartily wishing its adoption, he desired, in addition to its specifications, a Bill of Rights." Jefferson was understood at the time to be op A letter of December 16, 1787, to Jay, shows John Adams to have strongly favor-posed to the adoption and for that reason, ed the Constitution, as did Robert Treat Paine of the same state of Massachusetts.2 Both President Witherspoon and Hopkinson28 of New Jersey, were friends of the new organic law. So was Hooper of North Carolina.29 therefore, I include him among the opponents. Thus, in the North Carolina Convention of 1788, Willie Jones, leader of the Republicans, quoted a letter from Jefferson expressing the hope that nine states would ratify, and thus secure union, and that four should reject and thus render certain the reception of proposed amendments. 35 There is no direct statement of William Ellery's views, but circumstantial evidence is so strong that he must be included among the friends of the Constitution. Immediately after the state of Rhode Island ratified the Constitution, Washington appointed Ellery collector of United States Customs at Newport. It is well-known that Washington took care to appoint only strong friends of the government to federal positions in Rhode Island. "In the Rhode Island appointments it would certainly have (30) American Historical Review, V, 22. (31) Ibid, p. 30. (32) Ibid, p. 38. (33) Grigsby, I, 49. See also articles in "Notable Americans." (34) Powell, Nullification and Secession, p. 7. Life of Iredell, II, 234. |