by a large expenditure of private capital. Every one understands that he cannot erect a toll-gate on a highway without legislative authority, and yet the Government often grants the right to exact toll on a public road. Now, although it is sometimes difficult to determine whether there has been a dedication, yet, in the case of the railroad, there can be no controversy; every fact necessary to establish the dedication is admitted; the single circumstance that the land was acquired by eminent domain is, of itself, conclusive. Hence we have this question: If the legislature grants the right to erect a gate across the Hudson River and take toll from all who pass, and the grantee, at his private expense, erect such gate, whether the schedule of rates mentioned in the statute may be modified by subsequent legislation? It must be remembered such a statute would consist of two clauses: (1) the gift of the franchise and (2) a legislative declaration of the amount of toll to be considered reasonable. Concentrating, then, our attention on this second clause, the discussion is narrowed. The purpose of the clause being to protect the community against excessive tolls, different forms of expression have been employed, and the question is presented whether, in respect to the right of the sovereign to alter the rates at the (supposed) gate across the Hudson, there is a difference between the legal effect of these several forms of expression: "The tolls shall be reasonable"; "The tolls shall not exceed such rates as may be prescribed by the county court"; "The tolls shall not exceed ten cents for a man and five cents for a horse." This question must be answered with reference to the gate on the river; and, if the change of expression does not alter the legal effect,-if the same legislative intent is exhibited in each instance,-then we present the question whether the language, "the tolls shall be reasonable," makes a contract between the state and the grantee that the rates, which happen to be reasonable to-day, shall never be modified?

*

This point has never been decided. In the present state of the decisions, it is perfectly consistent for the court to hold that the gift of the right to demand toll is a contract, but the schedule is a rule of evidence, and, being such, subject to the discretion of the Government, acting not as a corporation but as

The language of a grant in 1318, Pim v. Curell, 6 Mee. and Wels.; and a similar grant in 1629, Juxton v. Thornhill, Cro. Chas. See old cases collected, Stamford v. Pawlett, 1 Cromp. and J.; Free Fishers v. Gann, 20 C. B. N. S.

a sovereign. Again, the question whether one legislature may tie the hands of another is not involved, because, having determined the limitations which hedge about the estate while held by the Government, we are bound to recognize the same limitations when it is given to a citizen. A controversy about the boundaries of a farm does not involve the question whether the ancestor may bind his heir by a warranty of title.

Then, to bring this inquiry home to the vital issue that now confronts the people of this country, has the sovereign the right (legal and moral) to regulate railroad charges? It is usual for the charter to declare: "It shall be lawful for said railroad company to erect toll-gates every ten miles, and to demand not exceeding ten cents per ton per mile for transporting commodities." This inquiry must be conducted under the influence of the principle that "grants by the Government are to be construed strictly against the grantee and in ease of the public."+ It must be conducted in the light of the historic fact that this power has always been freely exercised over the rates at bridges, ferries, turnpikes, etc., and it must also be conducted in full view of the fact that the same reason, law, and practical necessity apply to the charges of railroads as to those of a common carrier. But there is another consideration which, when the court comes to pass upon this question, will receive particular and special weight: though the grant of the franchise itself be a contract, yet when a railroad charter is construed by the general intent of that legislation which runs back "beyond memory," and by principles aptly called "the fundamentals of the common law," there is nothing of the essence of contract imported by the schedule of rates.

Having reached the conclusion that it is competent for the Government to control the charges of railroads, perhaps it may stimulate intelligent action to suggest, very briefly, the practical application of the views here advanced. The sooner our railroad managers learn to take a correct view of this subject, the better it will be for those interested in the securities of these corporations. As the amount of toll is within the discretion of the sovereign, the aim should be to make that discretion as wise,

* Petersburg R. R. Va. Acts 1830. B. & O. R. R. Va. Acts 1839. + This maxim is as old as the common law. Charles R. Br. v. Warren Br. xi. Pet. & 7 Pick. Perrine v. Chespk. C. 9 How. Briggs v. Camden, 22 N. J. L.

as intelligent, and as enlightened as possible. The people of this country will never abandon the time-honored doctrine of the common law, that toll must be reasonable, and the true danger is that the legislature, not being properly advised, will err in the wrong direction, and, by making the rates unreasonably low, paralyze this important branch of industry. Railroads have far more to fear from honest ignorance than from that enlightened statesmanship which proceeds on the principle that corporate emolument is subordinate to the public welfare; they have far more to fear from demagogues than from statesmen. It is an error to suppose that the millions invested in these works were so invested upon the untenable and mischievous hypothesis that a foolish contract has subjected all the vast industries of this great country to the unrestrained and uncontrollable cupidity of irresponsible monopoly. On the contrary, capital, in this as in other cases, is trusted to the discretion of the sovereign; and unless that discretion is debauched, unless integrity and intelligence are excluded from the public service, the confidence will not be deceived. Hence, railroads should discontinue their efforts to mislead the public mind and to corrupt the ballot-box. The politicians whom they are now using do not deserve, and will never obtain, public confidence, because such men are not actuated by principle, or stimulated by the courage of conviction. But, acting on the theory that the public welfare is the first consideration, they should publish in good faith full and reliable information as to their earnings and expenses, to the end that the people may come to a right understanding of what tolls are reasonable and what are not. There is in this country an undercurrent of conservative reason which is brimful of honesty and good faith, and railroad men must learn to trust it.

J. M. MASON.

PREHISTORIC MAN IN AMERICA.

NO SUBJECT in recent times has developed a larger or more active class of workers, or can lay claim to a more voluminous series of publications, than that pertaining to prehistoric man. Every nation working in science has added its contributors, and these contributors have generally been drawn from a class already trained in methods of scientific research.

So rapid has been the growth of the study of prehistoric man, that every student recalls its infancy, and its advance to a vigorous science. He remembers the dread experienced at the thought of impeaching the clearly defined record of Genesis, and he recalls with impatience how long it was before the evidence which had been gathering for a century could command a hearing. Collections had been slowly accumulating, though lying dormant and dusty on museum shelves, and their records, unpublished, suddenly came into notice, and with a prodigality of material and data in numberless hands, the elements were ready out of which rose the new science of archæology.

So fully imbued were men's minds with the idea of the recent and historical origin of the human race, that no possible interest could be excited in what purported to be the evidences of a preadamite people. In vain did archæologists offer their evidences of the high antiquity of man. Their discoveries were treated with incredulity, and their arguments rejected as worthless. A memoir read by Mr. Vivian before the Geological Society of London was considered too improbable for publication. The massive authority of Cuvier, who denied the possibility of man's existence anterior to those animals which live to-day, prevented the acceptance of Dr. Schmerling's remarkable discoveries in the Belgium caves.

Unquestioned acceptance of the Mosaic cosmogony has not only prevented the earlier development of this science, but it has caused the loss of a mass of evidence which can never be restored. Discoveries have been suppressed, false interpretations have been put upon others, valuable material has been ignored or lost, and in one way and another the study of man's early existence has been thwarted up to very recent years.

The sudden and wonderful growth of the study of man's high antiquity has been wholly due, not to the evidences,-for these had been despairingly thrust before the learned societies to be again and again rejected,-but to the rapid acceptance of those rational views which recognize man's origin from the animals below him.

Once it came to be fully believed that man was not only a mammal in the sense that systematists had recognized him to be, but a species of mammal among hundreds of other mammals, who, with them, had some common ancestry, and the study of archæology assumed the rank of an inductive science. A short time has seen the formation of imposing societies, many of them highly endowed; of magnificent museums, devoted exclusively to the preservation and exhibition of objects pertaining to this science; the publication of anthropological journals and transactions, and, above all, the production of a large number of popular illustrated works, which bring the science to the comprehension of the general reader.

It is quite necessary to understand all this to comprehend the amazing growth of a study which should have interested the race centuries ago. At the outset, the term prehistoric man was looked upon as applying to a people who lived before the dawn of recorded history-a people who lived, not in any hypothetical Eden, but, among other places, in the valleys of France and the caves of Belgium and England.

So limited was his area, and so apparently similar were all his rude characteristics, that for a time no further subdivision was necessary. A few years ago, comparatively speaking, his high antiquity and wide distribution over the face of the earth was not dreamed of. No account was taken of any possible geological changes having occurred since his appearance.

enough to assert, with more or less positiveness, that his remains were synchronous with those of a few extinct species of mammals. That the contours of the land and ocean boundaries were