dustrial system, and are therefore tacitly understood to have been directed merely against the combinations which happen at the time to be unpopular. 5 We thunder against Mr. Rockefeller, but every day we have conventions in our cities which we encourage but whose only purpose is the bringing about of "gentlemen's agreements." When the courts fail to enforce these laws because they are unintelligible, or try to construe them so as to make them enforceable, we condem them either for a lack of democracy or because they have dared to judicially legislate. No better illustration of this point can be given than the Standard Oil and the Tobacco cases. In them the Standard Oil Company and the so-cald Tobacco Trust, were indicted for violating the provisions of the Sherman Act, and were charged with being combinations in restraint of interstate trade and commerce. Congress, in the Sherman Act, forbade and sought to punish combinations which were in restraint of interstate trade and commerce alone. This was all it could do. It had no powers under the federal constitution to punish combinations generally, even tho they might be in restraint of competition. The interstate field was its only field of jurisdiction. The Sherman Act, however, neglected to give any explanation as to what constituted a combination which was in restraint of interstate trade, or to define the offense which it created in any way. It left it to the court, therefore, to decide when a combination, which as a combination alone Congress could not touch, came so to interfere with interstate commerce as to come within the terms of the act. This, the Supreme Court in the Standard Oil and the Tobacco Cases sought to do and in them it drew a clear and helpful line between those combinations which were organized and conducted for the economy of production and distribution merely, and those combinations which sought to injure the interstate trade of others and which could be punisht under the law. For doing this, the court was widely criticised and was charged with judicial legislation and with seeking to tie the hands of congress, when as a matter of fact if the strict rules of criminal construction had been applied, the act would have been declared void for uncertainty. 6

5. For years, for instance, the statutes of Illinois have required all foren corporations as a prerequisit to doing business in the state of Illinois to file an affidavit with the secretary of state denying their connection with any pool or trust or unlawful trade agreement. This statute properly enforced would have vacated whole business streets in the city of Chicago and the result was that for many years the parties concernd were told that the statute was merely aimd at the great corporations like the Standard Oil Company, and affidavits were either not required or the falsity of those which were filed was ignored.

6. So also, the act said nothing in regard to the confiscation of the property of offending corporations, and the Supreme Court also no dout realized that the public needed oil no matter how culpable the Standard Oil Company

In our criticism of our courts, indeed, we have not stopt to consider our own uncertainties and our own shortcomings but have chosen to make our judges our public scapegoats. When we criticize the law and its administration it is always the courts and the judge-made law that we criticize, it is never ourselvs, and seldom our legislativ bodies, with the one exception of the Senate of the United States which is now one of our popular scapegoats. Our criticism, if logically applied, would lead to but one of two resultsa code Napoleon or a pure democracy and a law of momentary popular prejudis. I speak of the popular criticism. There are those who desire to strengthen rather than to weaken the judiciary, but these are so few in number at the present time that their words are hardly heard, and much less considerd. The critics, indeed, of our present legal system and of our American courts can be roughly divided into two classes, the populistic and the scholastic. Both join in condeming our judge-made law and the conduct of our judicial tribunals. The one however, sees a certain salvation in a government by a referendum-controld-legislature and by recall-intimidatedcourts, and the other a salvation which will be as equally sure in a Code Justinian or a Code Napoleon and the superimposed law of the law professor and of the legal essayist. There is as we have before said, yet a third class which believes in a state as well as national life term and appointiv judiciary, and in an almost absolute government by the courts, but this class tho rich in pocket, is lacking in numbers and in votes. The one of the first two classes believes, in short, that the cure for the evils of democracy is still more democracy and in the ultimate wisdom and omniscience of the masses. The other believes that in an enlightened paternalism alone can salvation be found. To this latter class especially, the individualism of the common law and its foundation of precedent makes appeal, and its members believe that no real advance can be made until like wandering sheep we return once more to the fold of the civil law. "To Rome, Athens and Israel," says Judge M. F. Morris, in his Introduction to Development of Law, "we owe all that is best in our institutions. It is they that have developed our law for us. To the barbarians from whom we are descended we owe nothing but our descent. We do not owe them even the spirit of liberty with which they have often most erroneously been credited. Their liberty was lawlessness; it was the

might have been. The court, therefore, gave to the defendant six months in which to sell its plants and pipe lines and refineries or in which to reorganize its business in some legitimate manner which would keep the plants and lines open as producing agencies but not as agencies to suppress or to interfere with interstate trade. For doing this ,however, the tribunal was also loudly condemned.

liberty of the nomad, the wild Indian and the Arab. True liberty is law; or, as it has otherwise been stated, it is freedom regulated by law. The barbarians sought to perpetuate their lawlessness and to strangle civilization by the institution of the Feudal System; but civilization was saved by the incessant efforts of Christianity and the Roman law. To Christianity and the Roman law we, the descendants of the barbarians, are indebted for the blessings of freedom and for the happy failure of our ancestors to arrest indefinitely the development of law." 7

Our law, in short, is criticised as unscientific and inadequate and the merits of the Roman law and of the Code Napoleon are held up before us, yet at the same time there is a clamor for more democracy and for a larger share of the public both in the making and in the construction of our laws. Both classes of critics seem, however to forget that the civil law and the Code Napoleon were essentially aristocratic in their origin and that the common law with all of its defects has been essentially democratic. The latter has crystallized the ideals and the customs of our evolving democracy. The former has reflected the ideas of the scholar and of the statesman, and tho scientific, has reflected the opinions and the ideas of the few rather than of the many. It has been the law of the beneficent despot. It has been a law for the many made by the few, from above, codified, and inelastic. The latter, the common law, is the law of custom and of precedent. It has been democratic and elastic, tho it may not have been scientific. The codes of the civil law were written largely from the standpoint of a superimposed state and of society as a whole, and apart from its individual citizens. The common law is individualistic and has had its origin in struggling units and in struggling men, and has only been unsocial because the individual has been slow to appreciate the solidarity of all mankind.

There is, of course, much in the argument that the need of today is to protect society rather than the individual, but that idea should by no means militate against the common law nor make us believe that all the ills of the English speaking world are due to the fact that it has faild to adopt the civil law or the Code Napoleon. All we need, indeed, is a sane conception of the real rights and real needs of the individual.

We cannot ignore the theoretical perfection of the civil law, of the Code Napoleon, and of all of the study and cloister made laws, yet we cannot shut our eyes to the fact that in America it was the English civilization and not the French that ultimately prevailed, and

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that the British Empire in extent and strength and prosperity and in all that makes life and civilization, has far surpast that of the Roman Caesars. In the individualistic common law idea, indeed, is to be found a constant source of rejuvenation. In it are the germs of self government. The continental European idea is bureaucratic, and that of the English speaking world individualistic, and it is for this reason that the English speaking people have not merely occupied but have colonized and have civilized the earth. France and Spain first occupied the New World, but they were unable to hold it. Their governmental structures fell to pieces because when once the bonds which bound them to the mother countries were cut, the local units were unable to govern themselves. In France the law is from the top and filters downwards. In England and in America its origin is at the bottom in custom and in precedent and it osmoses upwards. In France the localities are essentially agencies of the central government. In the development of both Great Britain and America and in the mastery of the American continent the principle of home rule has been the corner stone. The French idea has been essentially nationalistic and bureaucratic. The American and English ideal has been essentially individualistic and Calvinistic. It has been a home rule not necessarily of colonies or states but rather of the family, of the village, of the hamlet, of the church, of the township and of the hundred. The right to choose one's associates has always been insisted upon. Precedent and local custom

and the traditions of the fathers have been more highly honord than the dicta of any king or the arbitrary rules and theories of any legal essayist. It was for this reason that the English civilization outstript the French civilization in America and overcame it. The growth of the English speaking peoples in America was the result of the growth and migration and pushing forward into the wilderness of small local groups whose members made their own laws, chose their own associates and set up their own standards of public and of private morality. The West was not conquerd, the Indians were not subjugated by the troops of Great Britain nor of the United States. It was conquerd and occupied by the hardy, individualistic, often Calvinistic, pioneer, who without aid, except that derived from his own axe and his own rifle, cleard and settled the land, admitted his own associates, establisht his own social customs, framed his own government, provided for his own defense and fought for the home and the social institutions which he himself had created. The French colonists on the other hand, were always looking to their central government for their support, their ideals and their policies. There has indeed, been in Amer

ica a local home rule, a right of flocking as one chooses and a latent individualism which as an accomplisht fact has been more potent than the theory of state soverenty itself and has not been dependent upon it. It has been the home rule of the local unit, of the family, of the local church, of the village and of the township, and in the history of Anglo-Saxon and American development no government has ever been able to ignore it. No law has ever been strong enough to force the Anglo-Saxon to change his natural habits or to mate or mingle with those whom he does not desire. The Civil War may have destroyd to a large extent the doctrine of states rights. It did not destroy the doctrine of inherent social rights, nor the fact that that government is alone strong and virile which dignifies the individual and builds its jurisprudence upon the struggles and ideals of its peoples.

After all, the only criticism upon our individualistic theory is that it is concernd rather with individual rights than with social righteousness and that often the theory that no person should be deprived of life, liberty, or property without due process of law has been used to prevent legislation for the social betterment. All that is needed, however, is that there shall be among the people themselvs (for it is their ideals that the courts ultimately reflect and enforce) a saner and more Christian idea of wherein liberty really consists, what are and what are not our personal privileges and immunities and what are and what are not our inalienable rights.

It may be true as has often been stated that the fifth and fourteenth amendments to the federal consitution and their counterparts which are to be found in the constitutions of the several states grafted upon our jurisprudence the individualism of the common law, but neither the principles of the common law nor the guarantees of property and liberty and the due process of law in the constitutional provisions referd to have ever, in the history of English jurisprudence or in the opinion of the American courts themselvs-when these courts have been compeld fairly and squarely to face the issues-been construed to guarantee unrestricted individual liberty or unlimited contractual or property rights. The rights guaranteed have always been deemd to be subordinate to the doctrine that the public welfare is the highest law and the theory that even the rights to individual liberty and property must yield to the paramount demands of the public welfare and the public necessity. Not merely, indeed, is a due regard for the individual and for individual initiativ necessary to a public and social virility, but a certain mesure of paternalism and of collectivism is necessary in order that the weak may not be submerged and that