HERBERT D. LADBE ((flrttf U mam Btl^xml ffiibrarg ^ttbtvt ®. ffiauhe QJollMtiott 1948 memonal Oflift of tl|C ^ttt&enta of tift ClJornBU ffiatn School 3 1924 017 788 740 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017788740 LEGAL DOCTRINE AND SOCIAL PROGRESS LEGAL DOCTRINE AND SOCIAL PROGRESS BY PRANK ^RSONS, Ph.D. Member of the Massachusetts bar, author of " Parsons' Morse on Banks and Banking," and other legal works, lecturer for many years in the Boston University Law School, author of "The Railways, the Trusts and the People," " The Heart of the Kailroad Problem," "The Story of New Zealand," "The World's BestBooks," "The Mastery of the Mind," "Great Movements of the Nineteenth Century," "The City for the People," "The New Political Economy," "Choosing a Vocation, "etc. NEW YORK B. W. HUEBSCH 19H Copyright, 1911, by B. W. HUEBSCH B/Z^Z^zyp riUNTBD IN U. S. A. TO MY REVERED AND HONORED FRIEND, JUSTICE OLIVER WENDELL HOLMES, WHOSE FREEDOM FROM OVER-DEVOTION TO TECHNI- CALITIES AND WORSHIP OF PRECEDENT IS DESERVING OF ALL PRAISE, AND WHOSE PROFOUND KNOWLEDGE, BREADTH OF VIEW AND LIBERAL USE OF COMMON SENSE IN APPLYING THE PRINCIPLES OF THE LAW TO ACCOMPLISH JUSTICE ON THE FACTS OF EACH CASE, ENTITLE HIS JUDGMENTS, AS A MEMBER OF THE SU- PREME COURT OF MASSACHUSETTS AND NOW OF THE UNITED STATES SUPREME COURT, TO THE RESPECT AND ADMIRATION OF THE BENCH, THE BAR AND THE PUBLIC, THIS BOOK IS AFFECTIONATELY AND RESPECTFULLY DEDICATED PEEFACE Thb stupendous social problems of this age force us to face the question — shall remedy be found by evolution or revolution? The answer to this question is of momentous importance. It determines one's attitude toward the prob- lems and marks the essential nature of his ac- tivities. If he believes that revolution is "the way out" he will very likely be unsympathetic with reforms, and impatient of "palliative measures." He wiU clothe his ideals with abundance of detail and refuse to pave the road or even blaze the trail by which they must be reached. He complacently postpones all process to that joyful day when his perfect ideal will be realized in one grand coup d'etat. The man on the other hand who believes iu re- forms and evolutionary methods of social prog- ress will do what he can each day to gain an inch toward things as they ought to be. A man is an evolutionist or a revolutionist in the matter of pursuing his ideal, according to the view he takes of the law, the constitution and chart of present civic institutions. If he 7 ^ 8 PEEPACB considers tlie law fimdamentally wrong and our present society utterly hopeless, lie will be a revolutionist. If he canonizes the law of the past, making it the guide and measure of all future law, and so enslaving society to the corpses of its dead, he will be a reactionary. If, however, he estimates the law on a utilita- rian basis, and without any bondage to prece- dent accepts it as a power for progress to be developed rather than cast aside, he wUl be a social evolutionist. It was to this school of thought that the writer of this book belonged. He was a re- former, cherishing the highest of ideals yet always demanding of himself a reason for his faith and a proof of its practicability. He felt that a better and truer conception of the law was one of the great needs of the day and that it would help the cause of social progress. His wide knowledge of the law, his work as a legal writer, and his experience as an educator, coupled with his national services in behalf of true democracy qualified him peculiarly to write upon this subject. For several years before his death Professor Parsons accumulated notes and developed plans for the present volume, but its actual writing was not begun until the days of his final illness. PEEFACB y To the reader wlio has noted the prevailing lack of any dynamic conception of the law, or any adequate understanding of it as an evolu- tionary force, or who sees wrongs and social barbarism entrenched behind the courts and constitutions that are inelastic, and that try to confine the State to police functions, this book should bring a hope of better things. It reaches fundamentals. The path of democratic prog- ress is not over a morass, but over rock. Ralph Aubbetsois-. Boston, February 1, 1911. CONTENTS PAGE I. THE LAW AS A FORM OP CONTROL ,. . .; 17 But one of various forma. — The object of law is happiness. — ^Leading means of control contrasted. — ^Law too costly to be used to enforce the whole moral law. — ^The law draws the line at the aver- age man. — The law waits for crystallized public opinion. — ^The law enters only where proof is possible. — ^The form of control depends on prac- ticability. — The law may go too far. n. THE LAW AS AN EXPRESSION OF THE IN- TERESTS OF THE GOVERNING AUTHOR- ITY 26 The real power not always indicated by the form of government. — The law in a real democracy. — Collective ability must be employed. — ^The bene- fits of a true democracy. in. FIXED LAW IS BUT THE CRYSTALLIZATIONS OF ANCIENT GROWTHS 33 International law. — ^Domestic law. — ^The common law. — Equity. — The common law too rigid. — Equity requires flexibility. IV. THE LAW IS A LIVE, CHANGING AND AD- JUSTABLE INSTRUMENT 39 The law "in the breast of the judge" is flexible. — Over a vast field the effect of the law is deter- mined absolutely by the attitude of the judge. — Different principles of common law lead to en- xi XU CONTENTS FAOB actment of contradictory statutes. — ^"Principles of construction" affect application of written law. — Judges disagree. — Final and most far- reaching decisions are disputed. — ^Different courts apply the law with directly opposite re- sults. — The reason and letter of the law may be contradictory. — ^A still greater chance for flexi- bility. — Courts sometimes annul the reason and purpose of the law. — Courts may declare law void on certain grounds. — Court prevents legis- lature from permitting cities to sell coal. — Jus- tice Holmes's dissenting opinion. — 'Personal at- titude of judges has great significance. — Courts more powerful than legislatures. — ^Two views of judicial control over legislation. — ^A precedent for almost anything and a way to set aside al- most any precedent. V. FUNDAMENTAL RIGHTS AND KESPONSIBIL- ITIES AS DEFINED BY THE LAW ABE BASED UPON REASON AND THE NATURE OF THINGS 68 Primary general rights of persons. — ^The princi- ple of proportionality. — Secondary rights of per- eons. — Special rights of persons. — Rights of arti- ficial persons. — ^Rights of things. — ^Public and private wrongs. — Civil and criminal law. — ^Re- dress of private wrongs. — Contributory negli- gence. — Plaintiff must have "clean hands." — ^The groimds of liability. — Expressed contracts. — Im- plied contracts. — Control. — A defined realm of responsibility. — The fellow servant doctrine. — Legal and moral responsibility not coterminous. — ^Aet may be morally right yet criminal. — The basis of criminal liability. — A free act. — ^A sound mind. — Foresight not essential to liability. — Omissions are indictable. — The basis of liability CONTENTS XIU PAGE for tort.— The key to legal liability. — ^The formal liabilities have changed. — ^And may change again. — Only proximate consequences considered in recovering damages. VI. THE FUNCTIONS AND OBJECTS OP THE LAW CONTEMPLATE A MUCH LARGER SCOPE OP USBPULNESS THAN GOVERN- MENTS AS YET PERFORM 95 Service. — Development. — Regulation. — ^Methods of relief. — Restraint. — ^The emphasis changes. — Restraint becomes gradually less important. — The law changes in its very fundamentals. — These changes follow and obey industrial de- velopment. — Industrial changes of to-day. — Co- operation superseding competition. — ^The law responds to this movement. — Public ownership increasing. — Basic causes for public ownership. — Growth of industrial coSperation. — Govern- ment already performs many lines of coSperative service. — The trusts are a great cooperation. — The law should adapt itself quickly to modem industry. — ^Trusts are here to stay. — They are of great economic value. — But they must be strictly regulated by law. — CoSperation will make great changes in the law. — ^The law and society act and react on each other.— The law has grown' and must grow. — Changes must promote the happiness of this generation. — ^The object of the law demands certain changes now. TIL CURRENT REFORM MOVEMENTS DEMAND AND ARE MAKING CHANGES IN THE LAW 120 Direct legislation. — Popular nominations. — ^Pro- portional representation. — Voting preferences. — Civil service reform. — Home rule for cities. — Non-partisan city elections, — Public ownership.— XIV CONTENTS « FAQi: Dififusion of wealth. — ^A form of "single tax." — Control of corporations. — Public ownership of monopolies.-^Government insurance, loajis and banking. — Direct election of U. S. Senators. — Curb the Speaker. — ^Work for the unemployed. — The right to be born well. — The rights of motherhood. — ^Rights of childhood. — A better criminology coming. — The old methods of pun- ishment ineflfeetive. — Reformation the goal. — ^Bet- ter opportunities for immigrants.-^Govemment should clean up the slums. — ^Take the profit out of the saloon. — The Gothenburg system. — Train the children for the work of life. — Do not specialize too young. — But learn to do something. — ^Part time schools are practical. — Expert vo- cational advice should be provided. — ^Civic train- ing in the public schools. — Still more emphatic is the duty of improving our general system of education. — The state should prepare every child for a useful life. VIII. CERTAIN CHANGES ARE NEEDED NOW EN OUR SYSTEM OF LEGAL PRACTICE . . 162 One action for all rights. — ^Technicalities should be minimized. — ^Simplify the law. — Revise law of evidence to facilitate justice. — Provide for intel- ligence in jurors. — Give better treatment to wit- nesses. — Redress for false accusation. — ^Expense and delays in securing justice should be abol- ished. IX. ESSENTIAL PRINCIPLES TO WHICH THE LAW SHOULD ALWAYS CONFORM . ,. . 160 The fundamental problem of law and government. — ^An ideal not yet reached. — ^The way to reach the ideal state. — ^Individuals must progress in advance of institutions. — Good and evil mixed CONTENTS XV PAGE in every man. — The need of selective intelligence. — The principle of proportionality. — Is essential to justice, — Permeates the whole law. — ^Limits the taxing power, and even the legislature. — Proportionality essential to development. — Diffu- sion of burdens and benefits. — Distributing the effects of accidents. — Govemment should equalize losses through insurance. — Equal pay for equal work. — ^Di;prusion calls for many reforms. — The principle of intelligent selection. — Advantages of intelligence. — ^Nature's methods not a pattern for human law. — ^The law must discern between good and evil. — We still rely too far on natural selection. — Intelligent selection should be applied to human propagation. — ^The law should deal with good and evil at their sources. — Summary. •X. THE GREAT FUNCTION OF THE LAW IS SERVICE— THE PROMOTION OF GOOD AND THE DIFFUSION OP BENEFIT . . . ,. 185 Standards of good and evil change. — ^What is bene- ficial! — ^What is detrimental? — ^The law is be- ginning to compel cooperation. — ^Equality aa known by the law. — ^Legal meaning of liberty. — The law makes for stability. — Some branches of the law are antiquated. — The law is inade- quate as yet in securing economy. — The law has done much for education. — The law of patents not yet equitable. — The law must do more for industrial development. — The whole empire be- hind every citizen. — But the government is not yet awake to its whole duty to its citizens. — The law is a great factor in all development.^ The highest function of law may yet become the dominant one. KI. INTERNATIONAL LAW ALSO AIMS AT MOLD- XVI CONTENTS PAGE ING MEN Am) INSTITUTIONS TO HIGHER TYPES 202 'First principle. — Equality of nations and of indi- viduals. — Applies to nations only. — Second prin- ple. — Restrictions upon warfare. — Position of other nations. — ^Duties and rights of neutrals. — ^The need for international organization to enforce international law. — The coming of uni- versal peace. XII. THE LAW IS A RESERVOIR OP SOCIAL PROGRESS ' 209 The law as a reservoir. — Progress leads; law fol- lows. — Individuals in advance. — ^Law naturally conservative. — ^Radicalism must advance. — ^No government radical. — Progress secured at cost. — Law not necessarily reactionary. — Law holds germs of progress. — ^Law's elasticity. — Recogni- tion of the law's social service. — Change in law's ideals. — Social consciousness. — Social oon- ecience. LEGAL DOCTRINE AND SOCIAL PROGRESS THE LAW AS A POEM OP CONTEOL The law is a means of molding and controlling men — one means by which the controlling power iu a community bends individuals and institutions to its will. It consists of rulgs and regulations prescribed by the governing author- ity and requires obedience from the governed. The law supports its requirements by estab- lishing various safeguards and means of pro- tection, such as police, health boards, inspect- ors, etc.; it provides for redress to those who are injured by its violation and for public pros- ecution of persons guilty of the serious of- fenses classed as crimes; it then punishes by fine, imprisonment, removal from office, civic disqualification, or by other physical, financial or political penalty. The law is but one of various means of con- trol. There are other means of control, such as religion, superstition, ethical teaching, public 17 18 LEGAL DOCTEINE AND SOCIAL PBOGEBSS opinion, etc. Men use physical force, persua/- sion, education, social ostracism, boycott, black- list, all sorts of economic, political and social pressure — court, legislature, school, press, pul- pit, platform, market, bank, factory, etc., etc., in the effort to make other men do as they wish. Every man and every group of men is con- stantly striving consciously or unconsciously, effectively or ineffectively to control the world in Ms or its interest. The object of law is happiness. Happiness is the object of all human endeavor. Misery is not sufficiently attractive to make men cultivate it intentionally for its own sake. They may culti- vate it through ignorance or weakness which leads them to prefer a present gratification to a future good. Or they may cultivate cer- tain forms of it intentionally as the means of securing greater bliss in other directions, as when an ascetic persecutes the flesh for the sake of his spiritual ideals and the happiness he be- lieves will come to him in a future life. But however much the matter may be obscured by ignorance or the conflict of mind and body, the underlying motive of human effort is always the pursuit of happiness. The law is a means to this end, used with more or less success ac- cording to the enlightenment and power of those who enact and enforce it. THB LAW AS A FOEM OF CONTROL 19 Leading means of control contrasted. Law, religion, public opinion, etc., are bom of social life and develop with, that life. In a state of isolation none of the molding forces exists ex- cept in the embryonic form appropriate to family life. Religion acts upon conduct through the con- science and the moral emotions, through the love of good and the hate of evil, or what is supposed to be good and evil. It is an internal, intangible compulsion aided externally by as- sociation and sympathy. Public opinion acts upon us through the favor and disfavor, association and ostracism, ap- probation and disapprobation of our fellow- men. It is a massive, external, intangible con- trol. The law molds human conduct by means of the organized application of physical compul- sions to the persons or property of the people. It is a massive, external, tangible control. Law too costly to be used to enforce the whole moral law. Which forms of control should be used in any particular case or class of cases depends on the nature and training of the per- sons to be controlled and the peculiar circum- stances, especially in relation to cost, certainty, directness, definiteness and practicability. It costs a great deal in time, money and frictioui 20 LEGAL DOCTEINE AND SOCIAL PBOGBESS to set the cumbrous machinery of the law in motion and to carry it through to judgment and execution; to use that method of control for small offenses agaiust the moral law, such as ordinary lying, explosions of Ul-temper, com- mon breaches of courtesy, etc., would be to in- cur far greater evils than those intended to be repressed. Such offenses should be dealt with by public opinion and the inner ethical control which work with the minimum cost and the maximum of effectiveness. The law draws the line at the average man. It would be folly to attempt to use the law to pimish the ordinary shortcomings of the average man. Any system of law that would make the mass of human conduct subject to suit or prosecution, or bring the mass of men into court or make them liable to be brought into court, would be simply intolerable. The law may be used to punish the sins of our savage blood, to press the defective classes into shape and bring the lagging minority up to the average standard. But the common sins of the average man should be left to education, public opinion and the complex mass of family and social influences that are gradually molding human nature to higher and higher types. The law draws a broad line at the average level civilization has attained — ^it requires only good THE LAW AS A FOBM OP CONTROL 21 faith, and due care, that is, the degree of honesty, care and skUl which an ordinary man would exercise under similar circumstances. It does not require the honesty, skill and care exhibited by the best (a rule which would sub- ject the bulk of mankind to legal liability and prosecution) but only demands the virtue of the man of ordinary character, intelligence and care. The moral law requires of all the con- duct of the best and more; but the civil law demands only the goodness of the average type. The average man^ the man of ordinary character, the man of ordinary providence and intelligence, is the fimdamental standard ia the civil law. If you come up to that standard you are secure from legal liability, or should be if the law conforms to its theory; but if you fall below that standard you may be liable both to society and to those individuals injured by your defective conduct. The law waits for crystallized public opinion. So again uncertainty as to the character of the act, or the proof of it, may bar the law as a remedy. Society is not yet agreed that the use of intoxicants (I am not referring to the organized liquor traffic), narcotics or drugs, stock speculation, sensational journalism, or useless duplication of industries, stores, fac- tories, etc., is immoral; the le^l presumption 22 LEGAL DOCTEINB AND SOCIAL PEOGEESS is always witli liberty till experience makes it clear, beyond a reasonable doubt, that the conduct in question is against the interests of society. Till then the matter should be left to ethical discussion, to the pressure of public opinion and its allies. Gradually experience works such questions out and brings the com- munity to substantial unity of judgment. Two notable examples have occurred in recent years. Pugilism and the lottery not many years ago were m the free field^utside the law, subject only to public opinion and ethical education. But as experience made it more and more clear that these things were contrary to the social well-being, public opinion became substantially a unit, and an increasingly vigorous unit against them, until this public opinion or ethi- cal judgment of the people was crystallized into law. Now it is difficult for pugilists to find a place in this country where they can fight with impunity, and lotteries are denied the use of the United States raails by Federal enact- ment. Prize fights and lotteries have been transferred from the doubtful or disputed class to that of clearly ascertained and legally re- pressed immoralities. The law enters only where proof is possible. [Where the facts are difficult of proof the law is THE lAW AS A POEM OP CONTROL 23 equally excluded. Neither is it adapted to deal iwith sias of envy, jealousy, overeating, vices* of secret character, etc.. In the field of evi- dence the law draws broad liaes. It will not deal with evils that ia their nature are gener- ally incapable of clear proof. It puts up the bars against hearsay evidence. It requires a witness to tell what he knows of his own knowl- edge, not what he infers from what he has heard others say. It requires the best evidence the nature and circumstances of the case per- mit. The law is peculiarly adapted to cases of direct, pecuniary loss where the damage can be definitely ascertained, but it is not so well adapted to cases of indirect, indefinite injury. If A shoots B's horse, the damage is direct and can be quite definitely estimated. But if A injures B by personal insults or hurts his feel- ings or his business, by crippling in person or property B's friend, partner, client or customer, the damage to B is so indirect and indefinite that the law will not attempt to deal with it. Here again broad lines are drawn on grounds of 'COst, simplicity and justice to the average man. The law will not look to the remote and indefinite results of human action; it looks rather to the direct and definite results, the 24 LEGAL DOCTEINE AND SOCIAL PBOGKESS natural and proximate consequences, which the ordinary man must be presumed to contemplate as the natural result of his conduct. Form of control depends on practicability. The question of practicability is very important in relation to the form of control that ought to be used. When the boodle aldermen of Phila- delphia and their allies had the machinery of the law, such as nominations, elections, count- ing of ballots, courts, etc., in their control and were about to pass the fraudulent gas ordinance of the United Gas Improvement Co., over the veto of the Mayor, it was clearly impracticable to reach them by way of the law, but public opinion attacked and conquered them with ease. They, their wives, and their children were os- tracized, hooted on the streets, reviled in public, boycotted, and socially outlawed. They soon found this treatment unendurable, and one by one gave up their boodle allegiance for the time at least and avowed their intention of voting against the ordinance. On the other hand a burglar or bank robber would probably care lit- tle for public opinion in any form. Some of the giant railway rebaters, such as Eockefeller and Armour, with millions to buy subservience and homage from those about them, seem prac- tically impervious to the adverse judgments of society. Nothing but imprisonment or total THB LAW AS A POEM OP CONTROL 25 forfeiture of property and industrial power, would seem to be adequate in such cases. The law may go too far. What form of con- trol will be used in any case depends in a large measure on the character, temper and motives of the governing authority. An underestimate of the value of liberty, and an over reliance on legal compulsion may lead to arbitrary and burdensome laws against Sxmday work, theater going, and efforts to regulate by statute the diet and dress and even the beliefs of the citizens. n THE LAW AS AN EXPRESSION OP THE INTERESTS OP THE GOVERNING AUTHORITY In a monarcliy the law expresses the will of one person and is used to mold the community to his purposes. In an aristocracy the law rep- resents the will of a class and is used to mold society to its interest. In a democracy the law represents the will of the people and is used to mold society in the interest of the masses. Any one of these governments may mistake its interest, but it will constantly seek it, and ia finding it will make the law conform to such iaterest in proportion to its experience and in- telligence. The real power not always indicated by form of government. AU three forms of govern- ment may be shams, appearances, masks for realities quite different from the nominal form. A monarchy in name may be in fact an aristoc- racy, as in England; and an aristocracy ia name may be really a monarchy if the actual dominating power is in one man. So in a; re- public, so-caUed, if a military despot, civic boss, 26 GOVEBNMENT FOE THE GOVEENOES 27 political machine, or group of plutocrats, con- trols nominations and elections and gets the law made in whole or in part according to its will instead of in accord with the people's will, the government is to that extent a monarchy or aristocracy in fact, whatever it may be in name. Eome was a republic in name during ^j the whole of Julius Caesar's despotism. He is sovereign whose will is in control. If the agents through whom the people act make laws the people do not want, and refuse to make laws the people do want, they are to that extent the actual sovereigns. Under the forms of demo- cratic government the people may in reality have little or nothing more than the privilege of periodically electing a new set of masters from nominees selected by bosses, machines or domi- nating groups, plutocrats and politicians in whose interest the so-called "representatives" of the people really act. Under the New Eng- land town meeting system with an intelligent and public spirited citizenship, in Switzerland with the initiative and referendum and pro- portional representation, and in New Zealand with direct nominations by popular petition (completely eliminating the caucus and con- vention) and universal questioning and pledg- ing of candidates, the people's will is in sub- stantially complete and continuous control. 28 LEGAL DOCTEINB AND SOCIAL PEOGBESS With all these things together — direct nomina- tion by petition, the initiative and ref erendnm, proportional representation and an intelligent and public spirited citizenship — ^there will come the full realization of democracy, govern- ment by and for the people ia full bloom, free from any taint of individual or class legisla- tion. The law in a real democracy. In such a de- mocracy the law will be the embodiment of the principles of justice and common sense, and will encourage good and repress evil with im- partial hand and the minimum of cost and friction. Under any form of government this must be true in large degree, for no government could long exist on any other basis. A system of law that on the whole established injustice, repressed good and encouraged evil— dis- couraged order, industry and fair dealing, and encouraged disorder and aggression, theft, rob- bery, murder, arson, — could not long endure ; it would breed anarchy and work the dissolution of society and of itself. But while the law must conform to justice and the common good in a large degree under any lasting government, the deviations are likely to be much greater under monarchy or aristocracy than under democracy, if the people have reached a stage of civiliza- tion that makes the democracy a substantial GOVEENMBNT FOB THE GOVBBNOBS 29 fact and not a mere form. The best form of government is a question of the degree of civili- zation. With, a low grade of people a well con- ditioned monarchy or aristocracy may do far more for order and progress — far more to de- velop the habits of industry and cooperation on which a higher civilization must be founded — than a democracy which for lack of an intelli- gent citizenship would be only a cover for the worst forms of individual or class despotism. But when the people have advanced so far as to respond in reasonable degree to the stimulus of democratic institutions and move toward the realization of self-government, justice and the public good will have more chance with a de- mocracy, for justice and the public good are the real interest of the controlling power in a republic. It is true that an enlightened mon- arch may make justice and the public good lis interest and purpose, but such cases are very rare, and history shows that the selfish inter- ests of monarchs and aristocrats have almost al- ways caused intense and grievous deviations from justice and the public good; even if this were not so, no monarchy or aristocracy could have the educative, diffusive and stimulative values of self-government. A democracy is the only form of government in which the interest of the ruUng power coincides with the interest 30 LEGAL DOCTBINE AND SOCIAL PBOGEESS of the public. And as the ruling power tends to use the government to subserve its interest, a real democracy is the only government that can be relied upon to serve the public interest entirely and conform to justice and the public good along the whole line. Not only is the interest of democratic gov- ernment more in harmony with the public good, but the knowledge of what constitutes the public good is likely to be greater in a real re- public than in a monarchy or aristocracy. Collective ability must be employed. One of the most vital factors in law and government is a system which permits free play to what may be called the collective ability of the peo- ple. When men follow their errors, prejudices, and self-interests, they go apart ; when they fol- low truth and the public good, they come to- gether. Men diverge by error and selfishness, and unite by truth and justice. Their unities are much more likely to be right than their dif- ferences. Divergence is an indication of er- ror, convergence is evidence of truth and com- mon good. What a million men vote for, acting freely and independently, is likely to be wiser and better and more reliable than the thought and intent of the average individual, or the unchecked thought and intent of any individual whatever. GOVEENMBNT FOE THE GOVEENOBS 31 Notice carefully the clause "acting freely and independently;" that is the key to the situation. If men do not vote freely and independently, but follow the dictates of some political boss or party machine, they forfeit the benefits of the great principles of convergence on, the truth, and the mutual cancellation of errors and prej- udices, resulting from the free and harmonious action of a multitude of intelligent persons. The boss or machine is as open to error and self-interest as any individual voter; in fact his dictates are apt to be the concentrated es- sence of selfishness and error. It is only when the citizens act freely and independently that the great law that men come together on truth and justice, can take effect. The benefits of a true democracy. True de- mocracy is the flower of the evolution of gov- ernment. Its benefits briefly stated are as fol- lows: (1) It means harmony of the ruling interest with justice and the public good. (2) It cancels private interests and errors against each other and gives effect to the col- lective wisdom. (3) It means the equalization or the dif- fusion of power, which carries with it (4) The equalization of opportunity; and 32 LEGAL DOCTRINE AND SOCIAL PBOGEESS (5) The diffusion of benefit— liberty, ■wealth, education, virtue, etc., also (6) The fairer diffusion or equalization of the burdens of society. (7) By placing power and responsibility with the people, democracy protects them from the injustice, oppression and debasement of individual and class rule. (8) The educative value of self-government is of the utmost importance. (9) Equality before the law and equality of opportunity stimulate the development of in- dustry, art, science, invention, literature, social progress, civilization. (10) In every element and relation of life democracy favors liberty, justice, equality, de- velopment and the public welfare. It aims at the good of all, not for the benefit or advan- tage of a few. in FIXED LAW IS BUT THE OBYSTALLIZATIONS OP ANCIENT GROWTHS It is to democracy therefore tliat we must look for the ideal law; it is to the nearest approaches to democracy that we must go for the highest developments of the law, the closest approxima- tions to and most advanced movements toward a true, well-balanced, thoroughly developed sys- tem. International law. Our law is divided into Internal or Domestic law and International law. International law consists of the rules and principles which through the express or tacit agreement of nations have come to govern their relations with each other. It is to be found in treaties, the usages of nations, opinions of jurists, precedents, and judgments of courts and boards of arbitration. Domestic law. Internal or Domestic law is that which is created or accepted by our govern- ing authorities to control within our own terri- tory. It is divided into the written and the unwritten law. The written law consists of 33 34 LEGAL DOCTEINE AND SOCIAL PBOGBBSS constitutions, statutes and ordinances. Tlie un- written law consists of the common law and equity. The common law. The common law con- sists of the principles and usages ascertained and established by the ancient English courts and their modem successors in English speak- ing countries, as just and proper to be enforced in the cases that have come before them, and are embodied in their decisions which are pre- served in the public records and the law reports, and digested by writers of approved authority. The principles of justice and the fair usages of business and society as ascertained by the courts, constitute the substance of the common law; and the recorded decisions are the evi- dence. Equity. Equity is the correction of that wherein the law, by reason of its universality or incomplete development, is deficient. Equity has jurisdiction wherever there is a right and no plain, adequate and complete remedy at law. For economy and simplicity the law draws broad liaes which do not afford full justice in all cases. Moreover, it presents a case of ar- rested development or loss of flexibility with age, brought about by the growth of reverence for precedent to a point that checked develop- ment and produced a rigidity wholly inconsist- COMMON LAW AND BQIHTT 35 ent with, the original nature and purpose of the common law. Equity is really a second and superior common law, a new growth from the same old root arising above, supplementing and dominating tlie original growth. It bears some- what the same relation to th.e common law that the cerebrum bears to the cerebellum and medulla. The common law too rigid. In early days in England the Kong was the source of all law, and the fountain head of judicial power. He appointed deputies or judges in the vari- ous divisions of his realm to hear and de- termine cases as his representatives. These judges heard the evidence, tried to decide according to what seemed just and fair under all the circumstances of each case. As the records of the judicial decisions multiplied subsequent judges recognized the importance of uniformity and stability of the law and finding it easier to follow an old decision than to reason out each case on its own merits, re- ferred to former decisions for light and aid in each new case; after a time they came to re- gard past decisions as their chief guides, for- getting partially or wholly their independent authority to decide according to the justice of the case. This growing reverence for prece- dent gave the common law a rigidity that hin- 36 LEGAL DOCTBINE AND SOCIAL PEOGEBSS dered it from adapting itself to the needs of changing times and circmnstances. The prac- tice of the Saxon judges crystallized about the two fundamental methods of the common law — the public prosecution of criminal offenses and civil suits for damages for private wrongs. The dominion of precedent held the judges to the beaten path, and complainants from time to time were refused the specific redress they demanded because there was no precedent in a case like theirs. For instance, A refused to fulfill his contract with B, or threatened to cut down an ancient tree most highly prized by B. The common law gave B the right to sue for damages after the tree was destroyed or the contract broken, but B might regard such dam- ages as whoUy inadequate relief. Money could not pay him for the loss of the tree that took a century to grow, nor for the breach of contract on the basis of which he had laid his plans for the future development of his business. So some of these complainants, who, through the rule of precedent could get no adequate relief at common law, went to the original source of justice and appealed directly to the King or to the high officials entitled to represent him in the exercise of his supreme judicial power. In 1067 WiUiam the Conqueror appointed the first Lord High Chancellor with special author- COMMON LAW AND EQUITY 37 ity to hear and determine such complaints and grant whatever relief he deemed best. Previ- ously the Chancellors of the Exchequer had had jurisdiction in such cases. The Chancellors dealt with the suits that came before them ia a broad and liberal spirit. They studied the Eoman Law and got new light from the pub- licists of the Netherlands. They did not con- fine themselves to the methods of the common law, but granted relief that seemed best calcu- lated to secure the maximum of justice under adequate protection and the special circum- stances of each case. For example, instead of leaving B to sue for damages for breach of contract or loss of his valued tree, the Chan- cellor, in a proper ease, would order A to per- form his contract and enjoiu him from cutting down the ancient tree under penalty of impris- onment if he disobeyed the order of the court. The principles and doctrines supported by the decisions of the Chancellor and his successors constitute Equity. Equity requires flexibility. In later times the Equity judges manifested the same tend- ency the law judges did, namely, to forget their high authority to administer justice freely and fully according to the circumstances of each case, and they often refused a remedy where they could not find a precedent in the 38 LEGAL DOCTEINE AND SOCIAL PBOGEESS past decisions of the Courts of Equity. Never- theless, there are Equity judges, both in Eng- land and America, who still recognize the true nature of the trust reposed in an Equity Court, and wUl grant relief in a new and proper case according to the principles of justice and com- mon sense, even though they cannot find a spe- cific precedent in the past reports of Equity decisions. THE LAW IS A LIVE, CHAIJ-GING, AND ADJITSTABLB INSTBUMENT The law "in the breast of the judge" is flex- ible. In spite of the fact, however, that both common law and Equity have lost the flexibility of youth, and in spite of the rigidity and iu- adequacy of constitutions and statutes framed by legislators who cannot possibly foresee the circumstances of future cases, the law has much more vitality and adaptability than is generally understood. In fact, the law as a rule really rests in the breast of the judge. Through his power to construe the written law and to se- lect the principles and cases he will follow, the judge can almost always build a legal founda- tion for the decision he deems right in the case at bar. It is easy to modify the application J of statutes by the judicial power of construc- tion; and there are so many principles and precedents running ia different directions, that a judge can generally find some principle, precedent or construction to justify in legal form the conclusion he has arrived at on the 39 40 LEGAi DOCTEINB AND SOCIAL PEOGBESS facts. The usual judicial process, especially with judges of the higher courts who detenniue the law, is substantially this : The judge stud- ies carefully the facts of the case in. the light of argument, established priaciples and past decisions, makes up his mind what is fair and just under all the circumstances of the case, and then selects, applies and follows the prin- ciples and precedents that will lead to or justify the conclusion he deems right upon the facts. That is the heart of the judicial process as con- sciously or unconsciously carried on in the minds of the best judges. In discussing this well-known view some time ago with a justice of the United States Supreme Court, I declared my belief that by this method even the courts of last resort arrive at their decisions. He laughed and said I was right. I have at vari- ous times made similar statements to three chief justices in leading states and to a num- ber of lesser lights in the judicial world, always with assent to the proposition more or less em- phatically pronounced. Such corroboration is very interesting and important, though not es- sential to the proof, for the reported decisions of our courts bear internal evidence that makes the method luminous. Over a vast field the effect of the law is de- f termined absolutely by the attitude of the THE LAW IS LIVE AND FLBXIBLE 41 judge. Suit is brougM on a written contract, an insurance policy, for instance, and the de- fendant claims that . one of the clauses of the contract has been broken — a clause forbidding the use of a gas(^ine engine on the premises. The plaintiff offers oral evidence to show that the insurance agent knew a gasoline engine was used in the biiilding and that it was understood and agreed that this should not affect the in- surance. The court may rule for the defend- ant on the ground that oral evidence cannot be received to contradict or vary the terms of a written contract or the judge may invoke the principle that the rule against parol was in- tended to prevent fraud and wiU not be applied where its effect would be to consummate a fraud.^ iSee 13 Wall. 222; 6 Vroom, 360C; 7 Cush. 175; 133 Mass. 82; 135 Mass. 449. In 7 Cush. aad 133 Mass. the original papers show that only a soUoiting agent knew the facts on the Co.'s side and that he misstated the facts to the com- pany, as the assured would have seen if he had read the application filled out by the agent. In 7 Cush. there was other insurance and the assured so stated, but the agent made the application state the contrary. In 133 Mass. the assured was sick and so stated, but the agent made the ap- plication say she was well. Under such circumstances it would be a fraud on the company to hold for the assured and the policy must be sustained, and this can be accomplished by applying the rule against parol. The case is wholly dif- ferent where the company itself or the general agent who draws up and issues the policy, knows of the breach of condition. 42 liEGAL DOCTBINE AND SOCIAL PEOGEESS On the question whether the minds of the parties met in making a contract by mail the judge may rule that the contract was complete if the offeree mailed his accep^tance before re- ceiving notice of a revocation by the offerer; or he may follow the rule that the acceptance must be received by the offerer before revoca- tion in order to complete the contract; or he may adopt the principle that the matter de- pends on the question whether there was a point of time in which the minds of the parties did actually meet. If the acceptance was mailed before the revocation was mailed, there was a time when the minds of the parties met, but if the revocation was mailed before the ac- ceptance there was no time when the minds of the parties came together, the offer being in fact revoked before it was accepted.^ Insiired buildings in which a widow has the right of dower burned down and the insurance money is paid to the husband's executor. Has the widow lost her dower? The Court may rule that as dower attaches only to real estate other msurance, assured'a interest not the "sole unconditional title," vacancy, gasoline engine, ill health, etc. Then it would be a fraud in the assured to enforce the conditions of the policy and parol must be admitted. 2 36 N. Y. 307; 168 Mass. 198, 200; 1 Pick, 278; 9 How. U. S. 390. These cases can be harmonized on the third principle. Buti see 5 Q. B. D. 346; 5 C. P. D. 344, etc. THE LAW IS LIVE AND FLEXIBLE 43 the fire has destroyed the widow's right in the buildings, or he may adopt the principle that the insurance money really represents the buildings and will be treated as real estate so far as necessary to protect the rights of those interested in the property,* A owns a horse. B sells the horse as if it were his own. A stands by and witnesses the transaction, without protest or claim of owner- ship. The Court may hold that no title passed to the purchaser as B had none to give, or it may rule that the horse now belongs to the purchaser on the principle of estoppel. Estop- pel is the bar the law puts up to prevent a party from injuring another by setting up the falsity of a belief he has wrongfully caused, or allowed another to entertain and act upon. A allowed the purchaser to act on the belief that the horse belonged to B and he cannot now set up his own title. Different principles of common law lead to enactment of contradictory statutes. "Where paper is deposited in a bank for collection in another city and the bank sends it to a repu- table correspondent bank selected with due care, Massachusetts holds that the first bank is not responsible for the negligence of the cor- 8 See 26 N. Y. 253 j 29 Minn. 309; 40 Ch. D. 5; 85 Pa, 208; 18 Conn. 110; 75 Me. 202. 44 LEGAL DOCTEIISrE AND SOCIAL PBOGEESS respondent,* wMle New York holds that the first bank is responsible.^ The ground of the New York rule is that an agent is responsible for his sub-agents, and the ground relied on in Massachusetts is that an agent is not responsi- ble for sub-agents where the principle gives authority to employ such sub-agents and that the deposit of paper for collection at a distance implies authority to employ sub-agents. On broader grounds the weight of reason seems to be with the New York rule, for the first bank is in far better position to prevent loss by fault of correspondents than the ordinary depositor can be. The bank has intimate relations with its correspondents and much better means of judging their reliability and watching their con- duct, and holding them to account than the depositor. Moreover, the first bank's knowl- edge of its correspondents is an intricate mat- ter and the degree of care exercised in its se- lection a difficult question, and it greatly sim- plifies and clarifies the transaction to eliminate them and say to the first bank, "unless you make an express agreement to the contrary, you will be held responsible for your corre- *Faben3 v. Mercantile Bank, 23 Pick, 330. (See also 1 Cush,, 177.) B Allen V. Merclia,nts' Bank, 22 Wend. 215; Ayrault v. Pa- ciflc Bank, 47 N. Y. 570. THE LAW IS LIVE AND FLBXIBLB 45 spondents and can adjust your conduct and charges accordingly." "Principles of Construction" affect applica- tion of written law. "When it is a question of constitutional or statutory law, the result wiU vary according to the principle of construction the Court may deem applicable to the case. An act may be enforced accordiag to its letter, on the ground that the legislators meant just what they said; or according to a modified interpre- tation based on the idea that the legislature did not contemplate unreasonable consequences ; or according to the concrete purpose of those who framed and passed the act, on the ground that the known legislative intent should govern throughout; or according to the underlying reason of the law as it presents itself to the judge, on the ground that the reason of the law is the law. If none of these methods of interpretation produces a conclusion satisfac- tory to the judge's sense of justice, he may find reason to declare the act unconstitutional, as against either the express provisions of the constitution, state or national, or against the fundamental principles underlying our consti- tutions and which they were made to enforce. Bead the decisions of the United States Su- preme Court in the Income Tax Case,* the « Pollock V. Farmers' Loan & Tr. Co., 157 U. S. 429; 158 U. S. 601. 46 LEGAL DOCTBINE AND SOCIAL PEOGEESS Northern Securities Case ^ and other cases in which the several justices wrote separate opin- ions and note how each judge relies on a dif- ferent set of principles and precedents as the basis for his conclusion. One judge says an Income Tax is a direct tax, — ^is clearly such in its nature and effect and is so regarded by economists; and under the provisions of the National Constitution requiring direct taxes to be apportioned among the states in proportion to population, a Federal Income Tax law will be void if the tax is not so apportioned. An- other judge holds that the discussions in the Convention that framed the National Consti- tution and the early decisions under it, show that the term "direct tax" as used in the Con- stitution was not intended to include an In- come Tax. A third judge declares that di- rect taxes in the meaning of the Constitution cannot include an Income Tax because the con- sequences of apportioning such a tax in pro- portion to population would be imjust and ab- surd, and the framers of the Constitution can- not be supposed to have intended a construc- tion which would produce such consequences under the principle of apportionment accord- ing to population, two states of equal popula- tion would have to raise an equal amount of 7 U. S. V. Northern Securities Co., 193 U. S. 197. THE LAW IS LIVB AND FLEXIBLE 47 Income Tax. Say, for instance, $2,000,000 for each state. But one might be an agricultural state with very few incomes large enough to fall within the field of the tax and a total in- come of $4,000,000 subject to the tax, while the other might be a wealthy manufacturing and commercial state with many incomes large enough to come within the law and a total of $40,000,000 subjected to the tax. In this latter state those subjected to the tax would pay at rate of 5% on their incomes, while in the for- mer state those subject to the tax would have to pay at a rate ten times greater, or 50% of their yearly income. It cannot be supposed that the words of the Constitution were in- tended to be used in any sense that would lead to such results. The words "direct taxes" in the Constitution can refer only to such taxes as may be apportioned to population without injustice and oppression. Judges disagree. In the Northern Securities Case, the majority opinion, or rather the plu- rality opinion, delivered by Justice Harlan and concurred in by Justices McKenna and Day, declares that the Sherman Anti-trust act makes unlawful all contracts or combinations in re- straint of trade among the states, whether the restraint is reasonable or unreasonable. Every agreement aiming at monopoly of any part of 48 LEGAL DOCTEINB AND SOCIAL PBOGEESS interstate commerce or tending to shut out com- petition in such commerce is void. The North- em Securities merger did this, and therefore came within the prohibition of the Sherman act. Justice Brewer held that Congress must be presumed to have meant to outlaw only such contracts as are in unreasonable restraint of trade, but the Northern Securities, he thought, constituted an unreasonable restraiut of inter- state commerce and was witbin his interpreta- tion of the law. Justice Holmes said the stat- ute was a penal act, and could not be held to punish as a crime what had always been law- ful, unless such intent is expressed ia clear words. He did not expect to hear that Mr. Morgan could be sent to jail for buying the majority of the stock ia two or more railroads, and such purchases as an individual may law- fully make, a corporation may be authorized to make. Final and most far-reaching decisions are disputed. The act says nothing about compe- tition. It covers contracts in restraint of trade, and these limit competition ; but a contract may result ia limitiag competition, as in case of a fusion, and yet not be a contract ia restraint of trade. Justice White held that if the Sher- man act applied to the acquisition of the stock of two or more railways by an individual or THE LAW IS LIVE AND FLEXIBLE 49 a company, the enactment was beyond the power of Congress. The power of Congress to regulate interstate commerce does not ex- tend to dictation of the ownership of properties engaged in interstate commerce. Chief Justice Fuller and Justice Peckham also dissented from the majority decision, but filed no sepa- rate opinions, though there were still one or two diverse lines of argument open to them. Four for literal construction and enforcement ; five against, but one of the five believing a lib- eral construction still covered the Northern Securities case; judgment went against the company by a vote of five to four. Different courts apply the law with directly opposite results. Judge Landis of the Federal district court in lUinois on suit of the TJ. S. Department of Justice, fined the Standard Oil $29,240,000, August 31, 1907, for taking a series of rebates from the Chicago and Alton. But Judge Grosscup and his associates in the Court of Appeals reversed the judgment, July 22, 1908, and remanded the case for another trial, holding that Judge Landis erred in consider- ing each car-load rebate a separate offense and in imposing the maximum fine for the first of- fense, and that it was unreasonable that the Standard Oil Company of Indiana, with a capi- tal of $1,000,000, should be fined in a sum twen- 50 LEGAL DOCTKINE AND SOCIAL PEOGEESS ty-nine times as great as its whole capital stock ia order to ptmisli the parent company, the Standard Oil Company of New Jersey, which was not cited as a defendant in the case. Judge Landis cut through all technicalities and .went straight to the heart of the case. He found on the testimony of John D. Rockefeller himself and other Standard magnates and offi- cials that the Standard Oil Company of Indi- ana was only a tool in the hands of the Stand- ard OU Trust, which reaUy got the rebates, and that during the three years in which the transactions covered by the indictments oc- curred, the earnings of the Trust amounted to nearly $200,000,000, and that dividends averag- ing 40% a year were paid during that time. It seems a mere technicality to say that the Oil Trust was not before the Court. If a man could incorporate each of his fingers and toes and one of the fingers was caught in a criminal act and indicted by its corporate name, the man would be the real defendant and substan- tially before the court though not so in name. That is a fair illustration of the Oil Trust in this case, and the Oil Trust knew it was the real defendant and fought the case with all its might. The case was not fought by the Gov- ernment, however, against the OU Trust, but strictly against the IJidiana Company, the de- THE LAW IS LIVE AND FLEXIBLE 51 fendant named in the record. The profits of this company alone were $55,000,000 in eight years, a very large part x)f which undoubtedly consisted of rebates, and the fine was probably not excessive even as against the Indiana Com- pany alone without regard to its identification as an arm or integral part of the big Oil Trust. The shipments were by the carload, and the railroads allowed a rebate on each car. A bill of lading was made for each car, so the Attor- ney General of the United States and the Presi- dent and the Judge naturally regarded the carload as the unit of offense. The doctrine of the Court of Appeals, that each settlement or payigpnt of rebates constituted the umt of offense, leaves it to the shipper and the rail- road to decide how many offenses they shall be f liable to be prosecuted for and how much they shall be fined. Knowing well that this was not the first offense, but that the Indiana Company and the Standard had been taking rebates in untold numbers from all the big railroads for many years, and were among the most invet- erate offenders in the land, he used his dis- cretion to impose the maximum fine. When the case goes up, as we hope it may, it wiU be in- teresting to see if the Federal Supreme Court wUl hold that a company can limit its criminal lial^ity by the amount of its capital stock, or 52 LEGAL DOCTEINE AND SOCIAL PB0GBBS8 if a giant trust can escape the penalties of the law by organiziag little subsidiary companies to take the rebates from the railroads and pass them up to the controUiug corporation. It will also be interestiug to note whether the rebates on a traiaload constitute but one offense or whether if all the rebates for a year are paid at once, there is only one offense no matter how many thousands, or hundreds of thousands of dollars, may be included in the amount, nor how many items of rebate, as figured by the railroads, are covered by the accounts* The case affords an excellent illustration of the facility with which judges may back up with legal reasoning whatever opinions their mental attitude and feeling may lead them to adopt upon the facts. How great and immediate may be the influence of a judicial decision on indus- trial affairs, is indicated by the press reports to the effect that when Judge Landis imposed Ta On Nov. 16, 1910, over three years after the impositioa of the celebrated fine by Judge Landis, Judge John J. McCall of the U. S. Circuit Court, practically set aside the fine by ruling that the settlement of freight charges constituted the offense and not the various freight shipments. This ruling diminished the fine by $29,134,000. He also held tentatively that the "dates in the indictment should correspond to proof tendered," so that although The counsel for the Standard Oil had ac- knowledged the guilt, the trust stands a good chance to en- tirely evade every dollar of the fine since the dates in the in- dictment are dates of shipment rather than dates of settle- ment. (Ed.) THE LAW IS LIVE AND FLEXIBLE 53 the big fine, Standard Oil stock went down from $650 to $350, diminisliing the Stand- ard's values by hundred of millions; and that the reversal by the Court of Appeals brought the stock up again from $350 to $650 a share. In one hour, it is said. Standard Oil stock rose in value $270,000,000, and altogether it rose, on account of the appeal decision, more than $500,000,000. The reason and letter of the law may be contradictory. Blackstone says that the rea- son of the law is the law, and that statutes should be enforced according to their spirit and purpose, or the cause which moved the legis- lator to enact. "For when this reason ceases, the law itself ought likewise to cease with it." He illustrates the principle as follows : ' ' There was a law, that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong en- tirely to those who staid in it. In a danger- ous tempest all the mariners forsook the ship, except only one si^k passgiger, who by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession and claimed the bene- fit of the law. Now here all the learned agree, that the sick man is not withiu the reason of the law; for the reason of making it was to 54 LEGAL DOCTEINE AND SOCIAL PEOGEESS give encouragement to such as should venture their lives to save the vessel, but this is a merit which he could never pretend to who neither staid in the ship upon that account, nor con- tributed anything to its preservation." As the reason and purpose of the law must be de- termiaed by the judge, the rule that a law should be enforced according to its spirit rather than its letter, comes back to the funda- mental principle that the interpretation and en- forcement of the law are functions of the thought and conscience of the judge. If the question is whether the Sherman Anti-trust law prohibits labor unions, a judge who thinks the spirit and purpose of the law is not to prohibit beneficial combinations, but only those that are unreasonable and injurious in their restraint of trade, and who believes that trade unions do not belong to the latter class, will hold that the law does not forbid the ordinary labor organ- ization; while a judge who thinks trade unions are unreasonable and injurious combinations, or who believes the purpose of the law is to prohibit all combinations in restraint of trade whether reasonable or not, will hold the Sher- man law does invalidate trade unions. A still greater chance for flexibility. Black- stone further says in substance that laws are to be so interpreted as to avoid absurd and un- THE LAW IS LIVE AND FLEXIBLE 55 just consequences, for legislators are to be pre- sumed not to liave intended to produce such consequences. "Therefore," says Blackstone, ''the Bolo^ian law, mentioned by Puffendorf, which enacted that whoever drew blood in the streets should be punished with the utmost se- verity, was held after long debate not to ex- tend to the surgeon, who opened the vein of a person that fell down in the street with a fit." The rule that the judge may interpret the law so as to avoid absurd and unjust consequences, means simply that the judge may so interpret the law as to avoid doing violence to his own ideas of common sense and justice. If the judge thinks it is just and reasonable for a city taking over a water system or street rail- way to pay not only the value of the prop- erty but also to pay for the franchise estimated on the basis of earning capacity without allow- ing for the probability that the public may exercise its right to regulate rates or authorise competition, he will so order; but if he feel it is unjust, unreasonable and absurd to adopt a rule which on a long term or perpetual fran- chise would lead to valuations equaling the en- tire present wealth of the city or the state, he will sustain a valuation based on the principle that the state or city may and ought to reduce the earning capacity to a reasonable margin by 56 LEGAL DOCTEINB AND SOCIAL PEOGEESS exercising the power of regulating rates or au- thoriziag competition.® Courts sometimes annul the reason and pur- pose of the law. One of the most interesting and instructive illustrations of what the courts can do in the way of molding the law and checkmating the legislature is to be found in the history of trusts and uses. Parliament passed a law, the Statute of Mortmain, forbid- ding the tying up of estates in perpetuity in the hands of the Church or other corporative bodies. The courts held, however, that if an estate were deeded to A to the use of B, the beneficial right of B, not being an estate but merely an equitable right enforceable in chan- 8 Long Island Water Supply Co. v. Brooklyn, 80 N. T. Sup. (73 Hun), 499; 143 N. Y. 596, 600; 166 U. S. 685, 687, 691 (1897). The oompajiy franchise had fourteen years more to run and it claimed that it would earn, above all outlay and investment and interest, over $6,000,000 in these remaining fourteen years. But the commissioners out down the valua- tion of the franchise and contracts to $200,000 on the prin- ciple that it would be the right and duty of the State or of the City, acting under its permission', to prevent such excessive earnings by establishing a public plant or authorizing private competition or exercising the power to regulate rates, and this view was sustained' by the Supreme Court and Court of Appeals of New York and the Supreme Court of the United States. The question' was not one of statutory law nor was the ease fully reasoned out, but the facts afford an excellent illustration of the potency of the principle of rejecting a rule of action or provision of law that would lead to absurd and imreasonable consequences. THE LAW IS LIVE AND FLEXIBLE 57 eery, would not come within the Statute of Mortmain, so that by deeds in terms of a use or in trust, creating an equitable title ia the beneficiary a corporation could still have the whole benefit of an estate in perpetuity sub- stantially as if it held the legal estate. Under this ruling it was easy to evade the Statute of Mortmain and break through the barrier of the federal system, transferring the right to real estate with much more freedom than had been formerly possible. To prevent this Parliament passed the Statutes of Uses executing the use in the beneficiary so that he should have the legal estate in like manner and degree as he had the use. This brought the case agaia within the Statute of Mortmain. But the law- yers simply added a few words to the vital clauses in their deeds of trusts. Instead of deeding an estate to A to the use of B, they deeded to A to the use of B to the use of C. And the courts held that the statute executed the first use but not the second, so that the legal estate went to B, while C would still have the beneficial right enforceable in equity free from the Statutes and Uses of Mortmain. Courts may declare law void on certain grounds. Not only can courts side-track a statute when occasion requires, but they can often nullify a law by declaring it void either 58 LEGAL DOCTRINE AND SOCIAL PROGBESS on constitutional grounds or on broad princi- ples of justice existiag independently of consti- tutional provisions. For example a legislature cannot take private property or tax the people for a private purpose, but only for a public purpose.^ If a legislature seeks to take the property of A in order to give it to B, or taxes A, B, C, etc., in order to give the money to a private manufacturer or merchant, our courts have held that such an act is void as beyond the scope of legislative power." It is not a legislative act at all, but an act of usurpation. It makes no difference whether the constitu- tion says anything about it or not. The pro- visigas of the constitution are not the only limi- tations on legislative power. There are others that inhere in the very substance of republican institutions, underlying the constitution as es- sential to the very purposes for which the con- stitutions exist, and therefore impliedly recog- nized by the creation and maintenance of said constitutions." The cases cited and many others declare that legislative power is limited 9U. S. Supreme Court, 20 Wall, at 664, U. S., 487; 58 Me. 590; 2 Bill. 353. (Cooley on Taxation, p. 116, and cases cited.) 10 Judge Dillon im 27 la. 51, and 58 Me. 590. (See also 20 Mich. 487.) 11 The U. S. Supreme Court in 20 Wall. (See also Judge Dillon in 27 la. 51; 25 la. 540; and 39 Pa. St. 73.) THE LAW IS LIVE AND FLEXIBLE 59 by the great principles of justice for the en- forcement of which government is instituted, that acts in violation of these principles will he held void by the courts, although no provision of the constitution can be found to condemn them. Court prevents legislature from permitting cities to sell coal. On the question whether the legislature can authorize cities to establish municipal fuel yards to sell coal and wood at reasonable prices, the majority of the Massa- chusetts Supreme Court ^^ stated the opinion that the legislature could not give such author- ity because the buying and selling of fuel is not a public purj)ose, the ground of decision being that buying and selling coal did not differ from buying and selling other commodities in general, and the judges thought it would be bad policy to open the door for municipalities to go into mercantile business. If they could sell wood and coal, why not dry goods, groceries, hats and caps, boots and shoes, and everything else. To hold this a public purpose would be to open the way to Socialism and destroy the distinction between public and private purpose -^anything the public chose to undertake would be a public purpose. In a strong dissenting opinion Justice Oliver Wendell Holmes, now a 12 Opinion of Justices!, 155 Mass. 601. 60 LEGAL DOCTRINE AND SOCIAL PEOGBESS Justice of the Supreme Court of tlie Unitedi States, used these words : Justice Holmes's dissenting opinion. "I am of opinion that when money is taken to enable a public body to offer to the public without dis- crimination an article of general necessity, the purpose is not less public when that article is wool or coal than when it is water or gas or electricity or education, to say nothing of cases like the support of paupers, or the taking of land for railroads or public markets." In 150 Mass. 592, the Supreme Court held that the legislature could grant municipalities the right to make and sell gas and electricity, on the ground of the general convenience of the service, the impracticability of each individual's rendering the service for himself, and the necessity of using the streets in a special way, or exercising the right of eminent domain; whereas the buying and selling of coal and wood does not require special use of the streets, nor the right of eminent domain, nor the exercise of any other franchise or authority derived from the legislature. In dealing with sewers, water, gas and electric works, etc., courts have sought to strengthen their conclusions by reference to the necessity of a special use of the streets, or other action requiring legislative authority; but they did not decide that a purpose could THE LAW IS LIVE AND FLEXIBLE 61 not be a public one witliout this element; on the contrary, schools, libraries, museums, lodg- ing houses, hospitals, baths, scales, markets, etc., do not require any special use of the streets nor any franchise or rights of eminent domain, but can be established by any one without legis- lative authority. As to impracticability, it is as impracticable for each iadividual to es- tablish a coal yard, and get coal from the mines at reasonable rates, as it would be for each ia- dividual to supply himself with schools, libra- ries, baths, hay-scales, etc. In New Zealand there are not only public coal yards, but public coal mines also, owned and operated by and for the people. Personal attitude of judges has great signifi- cance. The prejudice of a judge agaiast anything that looks like Socialism may govern his interpretation of the law and linait the powers of municipalities and the legislature; while the favorable attitude of other judges toward public activities will give the law the color of their more liberal thought, broaden the meaning of "public purpose," and widen the scope of municipal and legislative authority. Truly the personnel of the judiciary is of in- calculable importance; the very heart of the problem of government; the key to justice, liberty, progress, and civilization. The m^e- 62 LEGAL DOCTEINE AND SOCIAL PBOGRESS VLV of the United States Supreme Court and tlie courts of last resort in the various states, is of vastly greater moment than the character of Congress or legislature, Grovemor or Presi- dent, vital as the influence of all these civic factors undoubtedly is. Courts more powerful than legislatures. Il- lustrations of the point we are considering could be multiplied indefinitely, but one more of special interest will be sufficient here. It relates to the limitation of legislative authority by principles recognized by the courts as fundamental principles of justice in- herent in a system of free government though not stated or enforced by any provision of the constitution. In People v. Hurlbur ^' for in- stance, Chief Justice Campbell and Justices Cooley and Christiancy held that the legisla^- ture could not appoint a board of public works to control the public buildings, pavements, sewers, water works, engine houses, etc., in the city of Detroit although no express pro- vision of the constitution negatived the act. The court held that there is a clear distinction between "what concerns the state and that which does not concern more than one locality. ' ' The people of a city or town have a right to the management of their local concerns and the ia24 Mich. 44 (1871). THE LAW IS LIVE AND FLEXIBLE 63 selection of their local officers who are to con- trol such concerns, and this right cannot be taken from them by the legislature, for it rests «f upon the principle of self-government, which is inherent in free institutions, and underlies the constitution as the purpose for which the constitution was established. Chief Justice Campbell distinguishes (People v. Mahaney, 15 Mich. 492,) where the validity of an act estab- lishing state control of city police is sustained, saying the question was "whether the police board is a state or municipal agency," and added, "I think it is clearly an agency of the state government. . . . There is a clear distraction in principle between what concerns the state and that which does not concern more than one locality. . . . There is no dispute concerning the character of the public works act. Its purposes are directly and evidently local and municipal." In Board of Park Commissioners v. De- troit,^* where the legislature appointed state of- ficers to buy land and improve it for a park for, and at the expose of, the city of Detroit, Judge Cooley said: "We affirm that the city of Detroit has the right to decide for itself upon the purchase of a public park. It is as easy to justify, on principle, a law which permits 1*28 Mich. 228 (1873). 64 LEGAIi DOCTEINB AND SOCIAL PBOGBESS the rest of the comiaimity to dictate to an in- dividual what he shall eat, and what he shall drink, and what he shall wear, as to show any constitutional basis for one under which the people of other parts of the state dictate to the city of Detroit what fountains shall be erected at its expense for the use of its citizens, or at what cost it shall purchase, and how it shall improve and embellish, a park or boulevard for the recreation and enjoyment of its citizens." Two views of judicial control over legisla- tion. In State v. Denny,^^ an act creating a board of public works to be appointed by the legislature, and to have control over streets, alleys, sewers, water works and lights, was held invalid as infringing the right of local self-gov- ernment inherent in municipal corporations under our system of free institutions. The right of local self-government antedated the constitution and was not surrendered by it. Judge Coffey, citing Cooley on Constitutional Limitations, 5th ed., page 208, says : "It does not follow that in every case the courts, before they can set aside a law as in- valid, must be able to find in the constitution some specific inhibition which has been disre- garded. . . . The constitution must be con- 1B118 Ind. 382 (1888). THE LAW IS LIVE AND FLEXIBLE 65 sidered in tlie liglit of the local and state gov- ernments existing at the time of its adoption. . . . The principles of local self-govern- ment constitute a prominent feature in both the federal and state governments. ... It existed before the creation of any of our consti- tutions, national or state, and all of them must be deemed to have been formed ia reference to it, whether expressly; recognized iu them or not." For the contrary view enforced in some other states take this statement from the Massachu- setts Supreme Court. "It is suggested, though not much insisted on, that the statute of 1885, ' •*« Men c. 323, is unconstitutional, because it takes from the city the power of self-government iu mat- ters of internal policy. We find no provision in the constitution with which it conflicts, and we cannot declare an act of the legislature in- valid because it abridges the exercise of the privilege of local self-government in a particu- lar in regard to' which such privilege is not guaranteed by any provision of the constitu- tion.i6 " The law under consideration in this case es- tablished a state police for Boston, and so was not within the limits of Michigan and Indiana le 148 Mass. 375> at 383-6. 66 LEGAL DOCTBINE AND SOCIAL PEOGEESS decisions, but the reason covered tlie whole field, and is often referred to as authority against the Michigan doctrine. A precedent for almost anything and a way to set aside almost any precedent. It is true that it is not always possible to frame a legal argument for the decision the judge regards as just and right on the facts of the case at hand. For the sake of stability in the law, and the pro- tection of rights that have grown up under former decisions, a judge may feel constrained to follow a precedent which he does not regard as wholly just and would not have agreed to if he had been on the bench that made the ruling in the leading or governing case. But this is not the usual situation. A good judge is al- ways exceedingly averse to putting himself on record with a decision he deems unjust upon the facts and he will not do so if he can reasonably avoid it, as he generally can. With the courts of forty-six states and several English speaking jurisdictions handing down decisions at the rate of several hundred bulky volxmaes every year, it is not difficult to find authority and reason for almost any practicable view; and even when certain precedents seem to stand in the way of the judgment the court would like to render, these can often be distinguished from the case at bar by some slight difference, or perhaps THE LAW IS LIVE AND FLHXIBLE 67 quite marked and vital difference in the facts and circmnstanoes. The multiplicity of prin- ciples and precedents enables the judge of ability and vigor to make his conceptions of justice and the formal law go hand in hand by the due selection and emphasis of the appro- priate legal principles and precedents; and if need be the judge can directly overrule a prec- edent that stands in the way of justice as he sees it. V, PtrNDAMENTAL BIGHTS AND RESPONSIBILITIES AS DE- PINED BY THE LAW ARE BASED UPON REASON AND THE NATURE OF THINGS. Both tlie written and unwritten law deals with, rights and wrongs. Eights are divided into rights of persons and rights of things, or more accurately speaking into right of persons ia their general relations to each other, and the rights of persons in their relations to property. The general rights of persons fall into two divisions, primary and secondary. The primary general rights consist of those fundamental personal rights that lie at the basis of the whole social structure. Primary general rights of persons, (1) iS'e- curity. The right of life, limb, health, reputa- tion, reasonable comfort and peace of mind. The right to personal safety against bodily ag- gression of every form is so carefully guarded by the law that the slightest impact upon or con- tact with the person of another is actionable unless such impact or contact is by permission expressly implied or clearly justified as incident 68 EIGHTS AND WEONGS DETEBMINE THE LAW 69 to the exercise of a legal right or ia the execu- tion of the law. Suit raay be brought for an unpermitted kijs, or blowing one's breath in an- other's face, or jostling a person or thing against him, or kicking the horse attached to the wagon in which he is sitting so that his person is jarred, even the attempt at wrongful impact on the person of another is prohibited and punished by the law, and this whether the danger be real or only apparent (as in case of the threatening use of an unloaded pistol) if the person is within reach of the method of at- tack resorted to. (2) Liberty. The right to free locomotion, free speech, freedom of the press, and freedom of action in every particular so long as the rights of others are not infringed. Even the rights of free locomotion and of free speech are not without bounds but are subject to such limitations as are necessary to safe-guard the rights of others — the man has no right to tres- pass on his neighbor's land or rob him of his reputation by slander or libel. (3) Equality. The right to equality before the law, equal opportimity and impartial treat- ment so far as concerns the action and influ- ence of law and government or of public or quasi-public agencies created and controlled by them or of any agencies performing public or, 70 LEGAL DOCTEINE AND SOCIAL PEOGBESS quasi-public functions. Unjust legislation in A's private interest, a false judgment in his behalf obtained by fraud or money or personal favor, and an advantage over rival shippers by means of railroad rebates, are all violations of the f tmdamental right of equality. (4) Contract. The right to make agree- ments and cooperate with others for any pur- pose that is not contrary to the public good. (5) Property. The right to create, acquire, hold, use, and dispose of property according to all the methods recognized by law. (6) Justice. Equality of benefit to service rendered; equality of burden to benefit re- ceived; due encouragement of beneficial con- duct and promise, and due repression of detri- mental conduct and promise, diffusion and equalization of accidents, burdens and benefits so far as they are independent of the conduct of the persons affected. The ideal of justice is that every man should receive the natural con- sequences of his own conduct but should not be either burdened or benefited beyond his fel- lows by conditions for which he is not re- sponsible. Justice consists of the series of equalities that results from the due appoint- ment of those elements of life that depend on individual conduct such as wealth, position, rep- utation, power, punishment, etc., and the due EIGHTS AND WBONGS DETEBMINE THE LAW 71 diffusion of those elements that are more or less independent of iadividual conduct, such as dis- tance, climate, accidents, social forces, the ac- cumulated knowledge of the past and all the benefits and burdens bequeathed by; former generations to the present. The principle of proportionality. The prin- ciple of proportion is the essence of justice in the encouragement of good and the repression of evil. One whose conduct is very beneficial to society should receive a greater reward than one whose life is only slightly beneficial, in order to maintain the due equivalence between the degree of encouragement and the beneficial quality of conduct, — i£ this is not done the social pressure pushing men to live the life of higher usefulness is lost. One whose conduct is very detrimental to society should be subjected to a greater degree of repression than one whose conduct is only slightly detrimental, in order to maintain the equivalence between repression and wrong-doing, otherwise there is no ob- ject to the wrong-doer to limit or suppress his evil tendencies, A man who makes a great invention or renders a great public service should receive a larger reward in wealth, social consideration, etc., than one whose life is of little or no benefit to the community; and one jtrho commits murder should receive a greater 72 LEGAL DOCTRINE AND SOCIAL PEOGBESS prmishment than one wlio steals a loaf of bread. TMs right to justice involves all the preceding rights and more. There is nothing absolute about any of these rights, not even the rights to security, liberty and justice. A man may forfeit the right to liberty by wrong-doing, or it may be modified and limited to any extent that may be necessary for the public good. A man's person may be taken by the law for the public defense or to aid in the administration of justice. Even justice itself may be departed from and some wrong done to individual citizens for the sake of a larger public good as where innocent per- sons are compelled to appear as witnesses or jurymen in criminal cases often to their serious inconvenience and injury. Secondary rights of persons. The secondary general rights of persons are: (1) Protection. The right to the full pro- tection of law and government m the enjoy- ment of all rights free from aggression of every kind, direct or indirect. (2) Redress. The right to adequate and speedy redress for all wrongs within the recognition of the law. (3) Fair trial. The right to a fair trial be- fore an impartial tribunal without unreason- able delay or expense. EIGHTS AND WRONGS DETERMINE THE LAW 73 (4) Self-defense, etc. In case of burglary, robbery, assault and battery and other cases of emergency, when there is no time or opportunity to secure protection from the public authorities, or the protection of the law proves inadequate, the citizen may defend himself, his family and his property with all the force that is reason- ably necessary under the circumstances ; and he may also in such emergency cases, defend the persons and property of others from aggres- sion. Special rights of persons. The special rights of persons are those growing out of particular relationships, public and private, such as the relations of Governors, Legislators, Mayors, Councilmen, Judges, Police, etc., with each other and with the people, the relations of persons as aliens or natives, and their relations as husband and wife, parent and chUd, guardian and ward, teacher and pupil, master and servant, principal and agent, etc. These rights and others mentioned below will be dealt with later in the book as far as necessary to our purpose. Rights of artificial persons. So far we have been dealing with the rights of natural persons. The rights of artificial persons or corporations public and private, depend on their charters, the statutes which control them and such constitu- tional provisions as may apply to them. 74 LEGAIi DOCTEINE AND SOCIAL PBOGBESS Rights of things. The rights of things con- sist in dominion over real estate and personal property. This department of the law treats of estates and interests in property, and the methods by which such interests may be gained or lost by act of the parties or by act of law. Public and private wrongs. Wrongs are divided into public wrongs and private wrongs. Public wrongs or crimes and misdemeanors are wrongs of so serious a character to society that the law attaches a penalty to them ia addition to whatever redress the persons especially in- jured may seek to obtain; such wrongs will be prosecuted and punished by public authorities acting on behalf of the state. Private wrqpgs are of two classes: (1) Breaches of Contract, and (2) Torts or viola- tions of right existing independently of contract, and including all private wrongs other than the mere breach of contract. The same act may be a tort and also a breach of contract, as in case of a breach of warranty; but if the act is wrong only because it breaks a contract — if it is not a violation of any right existing independently of contract as in case of A's refusal to con- struct a house he had agreed to build for B — the act is not a tort but only a breach of con- tract. The same act may also be a crime as EIGHTS AND WBONGS DETEEMINE THE LAW 75 well as a tort, as in case of seduction, libel, nuisance, assault and battery, etc. CivU and criminal law. A division of the law should be mentioned in this connection wMcli runs across the line that separates the written from the unwritten law — ^the division into criminal law and civil law. The criminal law deals with public wrongs, and its objects are: (1) Eetribution (2) Prevention (3) Eeforma- tion. The priacipal business of the civil law in this relation is the redress of private wrongs — the redistribution of loss caused by detrimental conduct so that the loss resting upon innocent or comparatively innocent persons by reason of such conduct may be transferred to the guilty parties. Redress of private wrongs. — Contributory negligence. If both parties are in fault in sub- stantially equal degree in relation to the loss, the law will not intervene but will let the loss rest where it has fallen. To use the machinery of the law to transfer loss from one party in fault to another party equally in fault, would not seem wise or just to the community. To have a loss fall on the wrong-doer A would do no more for the repression of evil than to have the loss fall on the equal wrong-doer B, and 76 LEGAL DOCTBINB AND SOCLiL PBOGBESS public moneys, the time of courts and public of-; ficers, etc, would be expended for nothing. This is the philosophic basis of the principles in pari delictu, and contributory negligence. It might be agreed that when both parties are at fault the loss should be divided between them. For instance, if a railroad traia is thrown from the track by a neghgent misplacement of a switch, and a passenger standing on the plat- form of a car in violation of the company's rules and the plaia dictates of ordinary pru- dence, has his leg broken and suffers a loss of $10,000 in time and costs, it might seem fair that the company should bear half the loss at least. The doctrine of contributory negligence is used however to compel the loss to remain in entirety where it has fallen. Plaintiff must have "clean hands." It is a rule of equity that the petitioner must come into court with clean hands. The plaintiff must come before the bar of justice substan- tially free from fault in relation to the loss or injury complained of. Where, however, one party is much more in fault than the other and the loss has fallen on the latter, the law will intervene to put the loss on the person most in fault. As if a near-sighted man walking without his glasses falls into a coal hole negli- gently left open in the pavement, or is struck EIGHTS AND WEONGS DETEEMINB THE LAW 77 while crossing the street by a carelessly driven automobile, the fact that he left his glasses at home would not prevent his recovery. The grounds of liability. The grounds of liability, or foundations on which suits for damages may be brought in tort and contract, are causation, contract, control and benefit of the service, and best position to prevent the loss. Causation of the loss or injury may be by willful wrong, negligent wrong or insane wrong. An insane person cannot be held re- sponsible in the sense that underlies the efforts of the law to mold human conduct through the trans-intellectual effects of punishment or re- dress ; but the property of an insane person may be held for his torts on the principle that where a loss must fall on one of two equally innocent persons, it must be borne by the one who caused it or was in the better position to prevent it. Expressed contracts. Liability on express contract rests upon the ground that stability, certainty and provision, and in fact the whole network of business and social interests, re- quire that men should be able to rely on the definite, well-considered promises of their fel- lows. Modem business is built on that founda- tion. Some have expressed the belief that agreements would be fulfilled as well or better without legal sanction. They say that if the 78 LEGAL DOCTEINE AND SOCIAL PBOGBESS matter were left to honor no one who broke his promise would be trusted the second time so that the motive to fulfillment of agreement would be stronger than at present. It is clear, however, that in our complex civilization where men are constantly moving about from state to state and business relations extend from ocean to ocean and from continent to continent, it would be a serious handicap if the sole reliance had to be placed on personal honor. The busi- ness world already carefully attends to the question of honor and scrutinizes a man's rec- ord as thoroughly as possible before trusting him, but it nevertheless needs very much, and values very highly the additional safeguards of the law, especially the right to proceed against the property of those who faU to f ulfill their contracts. The history of traffic agree- ments among railroad managers in the United States shows that even men of the highest rank in the business world would come together time after time and make agreements of honor and then go right out and secretly break those agree- ments because there was no legal sanction to hold them and their railroads liable for the breach. A reference to the marriage contract will make the effect of an absence of legal sanction equally clear, for one can easily im- agine the facility of annulment that would* re- EIGHTS AND WEONGS DETEBMINE THE LAW 79 suit if the binding force of the marriage con- tract rested solely upon honor in the present stage of human development. Implied contracts. Implied contracts rest upon fair inference from the words and con- duct of the parties, or upon a legal friction or presumption of an agreement to fulfill some duty or obligation recognized by the law; as the diity of rendering an equivalent for benefit received or accepted imder circimistances show- ing it was not intended as a gratuity. If a man goes into a restaurant, orders a dinner and eats it, the law implies a promise to pay for it, un- less he came as the guest and at the invitation of the proprietor. So if a railroad newsboy distributes boxes of candy among the pas- sengers, calling "Huyler's chocolates, 30 cents a box" and a passenger opens a box and begins to eat the contents, the law will imply a promise to pay. Control. Control is the principle that under- lies the liability of a master for the conduct of a servant in his employ. The master should bear the losses incident to activities carried on for his benefit and under his direction and con- trol. A master or employer is responsible for the acts of his servant or employe when those acts are done by his direction or authority, with his assent or ratified by him, where they involve 80 LEGAL DOCTRINE AND SOCIAL PEOGEESS a breach of the employer's contract, or are done within the scope of the business for which the servant was employed. If the servant goes out- side of the master's business to accomplish a purpose of his own the employer is not liable. But if the servant is acting within the sphere ,of activity in which the employer put him, the latter is responsible. The master has given the servant the opportunity and power, the service is carried on for the master's benefit, therefore the master must be responsible. So far as the acts of the servant result from or are made pos- sible by his employment, are involved in or are incidental to the service, are performed while carrying on this service, or while acting in general furtherance of the master's business, the master is liable. A defined realm of responsibility. If the driver of M's team leaves it in the street and goes into a saloon to get a drink and while there falls into a quarrel and commits assault and bat- tery, his employer is not liable, for the servant has gone outside the master's business to ac- complish a purpose of his own. But if while driving M's team the servant runs over a boy or strikes him with his whip, or collides with another vehicle either negligently or on purpose, the master is liable, for the injury was done while the employe was acting in the employer's EIGHTS AND WEONGS DETEBMINB THE LAW 81 business. It is sometimes said that the par- ticular act must be ia specific furtherance of the master's business or he will not be liable. But this is not true ; it is sufficient if the servant is suctmg at the time in the general furtherance of the employer's business. If an engineer loses his hat in a gust of wind, and to get it runs his engine back so negligently as to smash into a passenger car and injure one or more of the occupants, the company is clearly liable although the particular act was for the engi- neer's own purpose and not his specific fur- therance of the company's business. So if a conductor uses his authority to annoy a per- sonal enemy on the train, or kicks off a boy. who incurs his anger, or kisses a woman passenger against her will, these acts are for his own purposes and not in furtherance of the company's business nor within the con- ductor's authority, yet the company is clearly liable because the conductor is acting at the time in the sphere of activity for which he is em- ployed; his acts are incident to and rendered possible by the opportunities and powers con- ferred upon him by the company. The com- pany selected the conductor, put him in charge of the train and must stand the consequences. It gets the benefits of the service and must bear tJie losses incident to or arising from it. 82 LEGAL DOCTRINE AND SOCIAL PEOGBESS The servant himself is also liahle, of course, directly to the injured party. And the master who has to pay for the fault of the servant has an action over against him for reimhursement. The fellow servant doctrine. The old rule of the common law that an employe could not re- cover from the master for damages resulting from the negligence of a fellow servant, was based on the idea that the negligence of fellow servants was one of the ordinary risks of em- ployment which the employe took upon himself when he engaged in the business. But the rule is now quite generally modified by statute, and it is quite clear that the employer stands in far better position than the worker to prevent injury either by defective machinery or negligence of the company's employes. The master or his agents select the employes, the business is car- ried on under his direction and control and for his benefit, and he must bear the resulting losses among which are injuries to employes who are themselves innocent of fault. Legal and moral responsibility not cotermi- nous. Legal liability is generally accompanied by blameworthiness but this is not always true. L^al responsibility and moral responsibility coexist throughout a large part of their terri- tory, but are not cotermdnous at either end. One may be exceedingly blameworthy without EIGHTS AND WEONGS DETEEMINE THE LAW 83 incurring legal liability, as where a man out of spite and malice builds a high wall on tbe edge of his land on purpose to shut off his neighbor's light, air and view. And on the other hand legal liability may exist where there is no blame. A man may be liable on his contract even though it be impossible for him to fulfiU it, as if his property is swept away by fire or flood, cyclone or panic, so that he cannot make pay- ment at the time agreed, he is nevertheless liable on his note. Even if he becomes himself a physical and mental wreck so that payment is permanently impossible, he is still liable. Where the impossibility attaches to an act of a specific nature, it may excuse performance; as if an opera singer falls ill, or an artist who has agreed to paint a picture loses his arms, or a horse that is to be delivered on a given day dies the day before that time without fault of the vendor, performance is excused. But the fact that impossibility is not always an excuse shows how far beyond the line of blame legal responsibility may be carried, A master, as we have seen is legally responsible for torts committed by his servant while acting within the sphere of his employment, although he may have selected the servant with the utmost care, and expressly prohibited the acts complained of; and too when no blame either of intent or negU- 84 LEaAli DOCTRINE AND SOCIAL PEOGEESS gence is imputable to the servant. It is enough that the business is carried on under the master's control and for his benefit to make him responsible for the injuries resulting from it to innocent third persons. Act may be morally right yet criminal. Even criminal liability may exist where no moral blame attaches. The owner of a building may be liable for a nuisance established on his premises such as a liquor or gambling den oe* brothel, although he selected his tenant with due care, expressly stipulated against any such use of the property and personally inspected the premises every few months. So it is no ex- * ! cuse of bigamy that a woman honestly believed her husband to be dead. So no moral blame attaches necessarily to the running of an auto- mobile more than twenty or thirty miles an hour; or to the wearing of clothes appropriate to the other sex; but these are both sufficient causes for arrest and criminal prosecution. One of the most interesting points in the com- parative anatomy of legal and moral responsibil- ity is the fact that a person may be legally liable not only without blame but in consequence of conduct of the highest beneficence. For ex- ample, one who quietly puts a hopeless sufferer from incurable disease out of his misery may be doing an act of the greatest kindness but he EIGHTS AND WEONGS DETBEMINE THE lAW 85 would nevertlieless be criminally liable on the charge of murder. The law cannot trust the question of life and death to individual discre- tion. Such a rule would open the door to fraud and greatly diminish the security of human life. It is quite possible that in the future such dis- cretion may be given to a competent commission of experts but it can never be intrusted to individual judgment. The basis of criminal liability. Criminal liability at common law requires a free volun- tary act or omission on the part of one pos- sessing intellectual capacity sufficient to under- stand the nature and consequences of the act, and having knowledge of circumstances from which a man of ordinary prudence and intelli- gence would foresee that the act or omission might be dangerous or injurious. But under statutory provisions criminal liability may be broadened so that a man must find out at his peril those facts which may bring his conduct into conflict with the law. The full statement of the ground of criminal liability, therefore, must be as follows: — a free voluntary act or omission on the part of one who has sufficient mental capacity to understand the nature and consequences of the act and who knows or ought to have known of circumstances from jsrhich a man of ordinary prudence and intelU- 86 legaij doctrine and social pbogebss gence would foresee the act or omission might be injurious. A free act. There must be a free voluntary- act. Inability to refrain from the act is a de- fense. Punishment can have no preventive ef- fect on any other basis than that the fear of it acts upon the intelligence being capable of refraining from the prohibited conduct. If the defendant acted under compulsion, as of an armed force or because of necessity to escape irreparable injury, there is no criminal liabil- ity, also if he acted under irresistible impulse as in case of delirium tremens. The irresist- ible impulse or overwhelming passion of a sane man is no excuse. But irresistible impulse re- I suiting from disease which destroys the will destroys criminal liability. Temporary insan- ity induced by intoxicants or drunkenness vol- untarily incurred is held to be no excuse, but the real insanity of delirium tremens which overturns the will completely is a defense. If the act is done in sleep or hypnotism or tmder the influence of opium there is no criminal lia- bility unless the condition referred to was in- duced with a view to the commission of the crime. "Wherever an "act of God" intervenes or accidfent is the real cause of the injury no criminal liability exists. A sound mind. There must be mental ca- BIGHTS AND WBONGS DETEEMINE THE LAW 87 pacity sufficient to tmderstand the nature and consequence of the act. An infant under seven years of age is presumed incapable of orimiiial intent. And if there is a mental delusion as to the act, insanity, or mental incapacity for understanding the nature and consequences of the act there will be no criminal liability. Moral delusion as to the nature of the act, how- ever, is no excuse. An anarchist, for instance, may fully believe he is performing a virtuous action when he throws a bomb at a king or industrial aristocrat, but if he understands in- tellectually the nature and consequences of his act, viz., that it may cause explosion and death, it is a crime no matter what his individual opin- ion as to morality of his act may be. Foresight not essential to liability. It is not necessary even at common law that the indi- vidual should foresee the danger of injury re- sulting from his conduct. It is enough if the circumstances known to him at the time would have led a man of ordinaiy prudence and intel- ligence to foresee the danger from the act. The test of foresight is the average man, and the defective prevision of the individual actor is no defense unless his mental incapacity is so great as to put him in one of the excepted classes, infancy, insanity, etc. For example, a workman removing the walls of a building that 88 LEGAL DOCTEINE AND SOCIAL PBOGBESS is being torn down may not actually foresee danger to passersby from the methods lie adopts, but if tbe man of ordinary prudence and intelligence would have foreseen such dan- ger he will be criminally liable and may be in- dicted for manslaughter, if a person passing below is killed by the falling of the wall in con- sequence of his imperfect methods. Omissions are indictable. Omissions may be indictable as well as positive acts, for example, the omission of a person cognizant of crime to notify the government that a felony has been committed. So also is the neglect of a switch tender to turn the switch at the proper time, or of a train dispatcher to send a telegram, or of a physician to attend a patient, or of a pro- prietor, contractor, or workman to cover a dan- gerous ditch or well or properly safeguard any dangerous agency. Basis of liability for tort. Liability for tort generally involves as matter of fact the same three elements as criminal liability. But the essential elements are simply (1) an act on the part of the defendant which forms a link in the chain of causes leading up to and produc- ing the injury; (2) notice actual or construct- ive of circumstances from which a man of average prudence and intelligence would fore- see that the act might be injurious. EIGHTS AND WEONGS DETEEMINE THE LAW 89 No free voluntary act is necessary. A man may be liable for a tort committed under com- pulsion or necessity. '^ armed men compel A ■to take B's horse A is not criminally liable but he is liable ra tort. He takes B's horse to save himself but must pay for the conversion. Intellectual capacity to understand the na- ture of the act is not essential. A man may be liable as we have seen for his insane tort, as between two innocent parties he who causes the loss must bear it. There must be knowledge of circumstances from which the average man would foresee danger. A man is bound at his perU to keep his cattle in, for it is well known that if his cattle stray into his neighbor's fields they are likely to injure crops and garden ; but he is not bound to confine his dog unless he has actual ' notice of a propensity to do harm on the part of the particular animal, for dogs are not usu- ally dangerous or harmful. If A exercises do- minion over the property of another thinking it is his own, he is nevertheless liable in tort al- though he may not be blameworthy and has no actual notice of the facts that make his eon- duct wrongful. He is bound at his peril to be sure the property is his own. So if an auc- tioneer sells goods that have been sent to his rooms by mistake he may have to pay for the 90 LEGAL DOCTEINE AND SOCIAL PEOGEESS goods although he has no way to reimburse himself. If a clerk in a book store sells a libelous book the owner of the store is liable, under the broad rule already discussed that an employer is responsible for the torts of his employe committed while acting in the master's business. In such cases there is no moral blame or fault of any kind nor even knowledge of the specific circumstance that renders the act injurious but only a general knowledge that injury may result. The key to legal liability. It is a rule of public policy that as between two innocent parties the one withia whose sphere of activity or business the loss occurs and who is ia the best position to prevent the loss, shall be held responsible for it. In some cases the law will even put a loss on one who has not even so close a relationship as that of employer to the wrong-doer. For example, A's vessel may be held to pay for a negligent collision although the ship was in the hands of an independent lessee. Here we have only the general knowl- edge on the part of A that the ship he owns and leases may cause injury by collision, etc. If B were to hire A's carriage or automobile and negligently collide with another vehicle, A's carriage could not be held for the damages. But in case of a ship in foreign waters it may EIGHTS AND WRONGS DETERMINE THE LAW 91 be difficult for the injured party to enforce his claim agaiQst anything but the ship. So the vessel is held and the foreign owner is left to recover from the lessee as best he can. The owner could not be held personally liable in such a case but his property is held because that is the best and surest method of securing fair redress, such liability being one of the risks the owner knows he must take when he leases the ship. At bottom le^ liability is a question of what is reasonably expedient under all circumstances of the case, — ^public policy is the root of the tree. The formal liabilities have changed. Both criminal liability and liability for tort had thedr origin in vengeance — ^the impulse to destroy what hurts us and so prevent future harm.^ In early times the dog, or horse, or slave that caused an injury must be delivered up to the injured party to be put to death. In "Ex- odus" the ox was to be stoned. In Athens the ox was to be banished. The wagon that caused damage was to be burned at the stake. In later times the owner of the ox, or cart, or slave was allowed to make a money payment instead of delivering up the guilty person, ani- mal, or thing. Here we have the ribs of the i See "Andent Law," by Sib Henbt Maine, and "The Com- mon Lmo," by Oliveb Wehdell Holmss. 92 LEGAL DOCTBINE AND SOCLIL PBOGEESS eonunon law — punisliment for wrong-doing and payment of damages for injury. The liabilities of the law to-day are on a much higher plane than they were some hun- dred years ago. Our criminal law aims di- rectly and consciously at prevention, adjusts the punishment to the degree of guilt and strives to reform the criminal with ever-in- creasing care and wisdom; our civil law with a good degree of consistency aims to throw the loss arising in any transaction upon the one who has in the course of actions producing the loss, manifested in greater degree those quali- ties which should be eliminated. And may change again. It may be that in the future the philosophy of legal liability may be greatly simplified and clarified by distin- guishing between liability as a wrong-doer, and liability as insurer on a contract implied by law upon the circumstances of the case. A master, for instance, who is held for damage done by his servant without fault or negligence on the part of the employer himself, is not reaUy held in tort but in contract. He is not a wrong-doer, is not guilty of tort himself, but is held for the tort of another on a contract implied by the law that in consideration of carrying on his business in the community and engaging employes to do the work, he will guar- BIGHTS AND WRONGS DETBEMINB THE LAW 93 antee the public against loss or injury result- ing from such employment and such business carried on for his benefit. That appears to be true ground of liability in such cases and it would be well if the formal liabilities of the law could be put in each case upon their true foundations in reason and fact, instead of be- ing left to rest upon fiction or wrongly classed with liabilities of a wholly different nature and foundation. Only proximate consequences considered in recovering damages. In estimating damages the law looks only to the proximate conse- quences, that is to the direct and immediate consequences of the act, omission or event that formed the basis of suit, and does not take into account the indirect, remote, or secondary con- sequences except where liability for such con- sequences is clearly contemplated and provided for by contract. For example, if B destroys my books, and the loss of my library makes me ill so that I lose time and money, have to pay doctors' bills and cancel a valuable engage- ment to deliver a series of lectures, the law will give me only the fair value of the books de- stroyed: I cannot recover for the secondary losses incident to the sickness brought on by the destruction of my literary possessions. So if B blows up my store I can only recover the 94 LEGAL DOCTEINE AND SOCIAL PEOGBESS value of the building and its contents, or tlie difference iu their value before and after the wrongful act, in case they are not wholly de- stroyed. I cannot recover for the loss of cus- tom nor the wages paid my permanent em- ployes during the time the store is being rebuilt and newly stocked. A man is not held to contemplate the indirect or secondary con- sequences of his acts but only the natural, di- rect, and immediate consequences. It is the rule of the average man once more. The law requires only common prudence and ordinary foresight. In contract cases the same rule holds. I have a fire insurance on my store; if loss occurs within the terms of the policy I can recover for the damage to the property by fire and smoke and also for damage caused by water used to extinguish the fire, for these are the natural and proximate consequences of the fire, but I cannot recover for the salaries of employes engaged by the year or for the loss of trade during the period of reconstruction, unless the policy expressly covers such second- ary losses. The law will not presume that in- direct, remote and secondary consequences were within the contemplation of the parties unless they have made this clearly manifest. VI THE PXTliJ-OTIONS AND OBJECTS OF THE LAW CONTEM- PLATE A MUCH LABGEE SCOPE OE USEFULNESS THAN GOVBBNMENTS AS YET PBBFOBM In its comprehensive business of repressing evil and developing good, the law has various special functions and specific objects which may be stated as follows : FUNCTIONS OP THE LAW Eestraint — Pro- hibition and compulsion. Protection. Belief. Eegulation. Development. Service. SPECIFIC OBJECTS To establish justice, order, economy and facility. To insure domestic tran- quillity. To provide for the common defense. To secure the blessings of liberty. To promote the general wel- fare. Incident to all these and in a sense at basis of them all, are laws providing for taxation, by means of which the necessary funds are raised to establish and maintain armies and 95 96 LEGAL DOCTBINE AND SOCIAL PKOGEBSS navies, police, courts, prisons, schools, public parks, legislatures and all tlie machiiiery of tlie law. Service. Laws providing for schools, lihra- ries, parks, fire service, public water supply, etc., are laws of service. Development, Laws providing public schol- arships and prizes for good work ia school or any special inducements for the cultivation of ability, premiums for the best, varieties of stock or agricultural or manufactured products, approipriations for expositions to stimulate in- dustry, tariffs to protect and develop produc- tion, reasonable rights and privileges granted to private parties who will imdertake to open mines and build railways, farms and factories — all these are laws of development aimed at the positive production of good, not by the di- rect performance of the service through public agencies, but by the encouragement of effective private activities in the desired directions. Regulation. Laws providing forms for con- tracts, wills, corporate acts, procedure in court, requiring vehicles to go to the right in passing, prescribing the conditions of entering on the practice of medicine, law, pilotage, etc., etc., are regulative measures intended to secure order, economy, safety, and the facilitation of busi- ness. GEOWTH OF GOVBENMENTAL FUNCTIONS 97 Methods of relief. Belief is given by two broad methods that we have already seen: (1) Suits for damages at law whereby losses caused by conduct deemed detrimental to so- ciety are transferred from the innocent to those in fault. (2) Various more specific remedies are afforded by Equity which issues the writ of injunction and mandamus, which establishes and enforces equitable titles, liens and priori- ties, which decree the reformation, rescission or specific performance of contracts, reconvey- ance and re-execution, cancellation of void documents, redemption of mortgages, which orders contribution, subrogation, exoneration, discovery, election, marshaling, set-off, etc., and relieves against fraud, mistake, penalty of forfeiture, statute of fraud, or any of the merely formal rules of law where their action would conflict with justice, etc., etc. For in- jury or loss that is caused by conduct not deemed detrimental to society the law gives no relief. For example, A may open a store or build a factory to compete with B and may greatly injure B or ruin him perhaps, but the law gives him no redress, for industrial com- petition is regarded as a benefit to the commu- nity. Moreover, there are many losses resulting from conduct that is clearly detrimental for which nevertheless the law gives no relief be- 98 LEGAL DOCTRINE AND SOCIAL PE06BESS cause as we have seen above it does not at- tempt to enforce the whole of the moral law, but draws broad lines (based on considerations of cost, definiteness of proof, etc.) within which it will confine its action. A man may spend a large part of his wages for liquor, tobacco, bil- liards, or fancy dress, to the serious damage of his wife and children, or he may spend his days in idleness, or speculation, and the law will not intervene so long as he provides the necessaries of life for his family, and even if he fails in this, no remedy at law is available in many cases, as, for example, where through idl^ess, bad character or incompetence he has no earnings with which to support his family. Restraint. Eestraint is the primary func- tion of the law in point of time, that is, it was the first to be developed in primeval times. The earliest codes are composed of prohibi- tions and compulsions — Thou shalt not murder. Thou shalt not steal, Thou shalt not commit adultery. Thou shalt not bear false witness, Thou shalt observe the Sabbath day to keep it holy, etc. To restrain men by prohibiting certain ac- tions is still an important part of the business of the law. The whole of the criminal law is GROWTH OP GOVEENMENTAI, FUNCTIONS 99 concerned with prohibitions and the penalties for their violation. And the redress offered by the civil suits and the liabilities on which they are based have also a restraining tendency, influencing men to refrain from the violation of public or private right. The emphasis changes. The relative pro- portion of these special functions in the total make-up of the law, varies greatly in different times and countries. Among some peoples in early days the criminal law was practically 100% of the whole, but as civilization advanced, laws of regulation, encouragement and service were developed in abundance. The higher the civilization, the greater the relative develop- ment of service and the smaller the proportion of the law that is occupied by the criminal code. In a symmetrical statement of our law to-day, the crunuial lg,w would constitute considerably less than 1% of the total. At the limit of progress the law of restraint would vanish. With any given race or people, the aggressive qualities that give rise to the need for criminal law, are much more prevalent in the days of barbarism than in civilized commu- nities of the same race or people. Restraint becomes gradually less important. To the savage, surrounded by enemies and spending his days in defense and pursuit, an 100 LEGAL DOCTEINB AND SOCIAL PEOGEESS aggressive nature may be of tlie highest utility. But as social organization develops security and the arts of peace, the field for aggression diminishes, and the demand for cooperative qualities increases. The man who retains so much of the savage in his blood as to break out in quarrels, affrays and serious depredations, is a menace to the peace and prosperity of so- ciety and is put under the ban of the criminal law; this branch of the law is established to punish and suppress the more serious aggres- sions due to the survival in social man of an overplus of primitive individualism so pro- nounced as to be explosive. The tendency to an equilibrium is a universal law of nature. Antagonistic forces tend to destroy each other and leave only those that can act together in harmony. The laws of na- ture and the laws of man, the survival of the fittest, and the pressure of social forces acting under the direction of intelligence, are gradu- ally eliminating the primitive man, squeezing out the savage blood drop by drop, and evolv- ing a human nature whose impulses do not lead to aggression but to activities that are not at variance with the social welfare. Law, indus- try, education and social life are developing a cooperative type of character, the cooperative man, the mutualistic man. There are cases here GBOWTH OF GOVBENMENTAL FTTNCTIONS lOj J and there of reversion to primitive typW^'fent they are most wisely treated as eases oi de-- ' ''! formity or disease to be corrected or cured if possible, if not, to be so dealt with as to pro- tect society from present harm or future con- tamination. Society -will reach the limit of the usefulness of the criminal law as civilization advances, and as men become more moral and intelligent. Criminal law is like a scaffolding 4 around a giant building. It is necessary dur- ing the process of construction, but when the building is complete it is no longer needful. So when the building of the new cooperative na- ture is complete the scaffolding of the criminal law can be removed. The law changes in its very fundamentals. The change in the relative proportion of differ- ent fimctions is not the only transformation that is in progress in our jurisprudence. The whole law is in flux from age to age, and decade to decade. In one age we find despotic govern- ment, war and slavery, playing a most useful and perhaps essential part in the development of civilization — despotic government compel- ling men to obedient and concerted action ; war and absolutism compressing men into nations and holding them together until the repulsion of savageism might be replaced by the cohe- sions necessary to civilized life; slavery over- 102 LEGAL DOCTRINE AND SOCIAL PEOGEESS coming the indolence, inertia and lack of ap- plication iaherent in the primitive nature, and developing in mankind the power of sustained labor. But when that work is done and men are able to live and work together in well developed social and industrial organizations, the strenuous compressive legal forces will be- come such colossal evils, that a movement for their banishment will arise, and the details of the law will undergo a corresponding change. Industrial changes of to-day. Just now we are in transition from industrial competition to cooperation. Industrial struggle and the in- dustrial aristocracy developed by it have done much for civilization. They have developed individual enterprise and taught men combina- tion in industry and coordinated effort in great cooperative groups. For many years economists believed the competitive system to be the permanent status of industry, just as Aristotle regarded slavery as a permanent in- stitution based on the principles of divine right and justice. But our science of political econ- omy in recent years has been undergoing a change almost as remarkable as that which took place in astronomy in the Copernican era. Economists and publicists are pointing out the wastes of competition. They declare that from one-half to three-fourths of our stores GEOWTH OF GOVBENMBNTAL FUKCTIONS 103 and factories are useless duplications; that large bodies of men are devoting ene]:gies to occupations which are reaUy parasitic and det- rimental to society; that competition is cruel, wasteful, demoralizing, and in every way in- imical to the highest interests of society; that it ruins the lives of millions with struggle and want from the cradle to the grave, and mars the lives of others with pride and luxury; that it builds the slums of the cities and the palaces of the idle rich; that it wastes three-fifths of the industrial forces of the world, with its plan- less production, panics, strikes, inelastic, de- grading wage system that treats the laborer as conmiodity and denies him. the energy born of an interest in his work and its profits, its insufficient care of education, and the innumer- able conflicts and useless duplications it oc- casions; that it has given us a distorted civilization in which half the people own prac- tically nothing, one-eighth of the people own seven-eighths of the wealth and 1% of the people own more than 50% of the total wealth of the country; that 1% owns more than the other 99%, and could buy out the ninety-nine and have something left; that it has given us a standard of value and a division of labor that sacrifices manhood to merchandise; that it gives activity and growth to all that is hard, 104 LEGAL DOCTRINE AND SOCIAL PROGBESS combative, unsympathetic, unscrupulous and cunning in man, and hinders the development of sympathy and helpfulness, truthfulness and public spirit; that it rewards injurious activi- ties and gives some of the highest prizes to cunning dishonesty and injustice; that it is destructive of liberty and individuality ; that it makes automatons of the millions and imperi- ous despots of their employers; puts wages down and prices up by its wastes and its de- basement of the worker; prevents the survival of the best ; and has given us a distribution of power that threatens the life of the Republic. Cooperation superseding competition. There are many indications that competition is giving way to cooperation — ^that planless pro- duction with partial organization of industry for the benefit of a few, will give place to com- plete and scientific organization of industry for the benefit of all. The growth of public ownership and voluntary cooperation, the evo- lution of trusts and combines and trade unions, the development of socialistic thought, and the maturer direction of this thought toward a rea- sonable development of public ownership in the field of monopoly tmited with voluntary coopera- tion in commerce, manufactures and agriculture, where the way to cooperation is open without re- sort to the legislative form — all these powerful GROWTH OF GOVEENMENTAL FXJNCTIOIsrS 105 movements are working in the same direction — the replacement of competition by cooperation. Industrial aristocracy is to be replaced by in- dustrial democracy, just as political aristocracy was replaced by political democracy, and for similar reasons, viz. : to secure liberty, equality, protection from injustice, equalization of op- portunity, diffusion of power and benefit. In fact there is reason to believe that political demqgracy itself can only be completely real- ized through the establishment of industrial democracy; so that the vital and powerful trend of modem times toward political democracy is another giant force working for the extinction of industrial aristocracy and the competitive system on which it is based. The law responds to this movement. How vigorous is the trend toward cooperation not only in the world of thought but in the world of practical affairs, may be seen by a few plain facts of recent history. Public ownership increasing. The rapid growth of the movement for the public owner- ship of public utilities. Nearly all the civilized nations of the world own and operate their tele- graph and telephone system and the great ma- jority of them own and operate their railways also. From 1800 to 1900 public water works in the United States developed in round numbers 106 LEGAL DOCTEINE AND SOCIAL PBOGEESS from 6% to 60% of the whole number.^ Of the fi^ larggst cities in the United States, twenty- one origirially built and now own their water works, twenty have changed from private to public ownership, and only nine are now de- pendent on private companies for their water supply. Some of the remaining nine appear to be on the point of changing to municipal owner- ship, and practically all of them are in process of agitation for such a change. The public gas plants of the United States numbered fifteen in 1900 and twenty-five ia 1906, a growth of 67%, against an increase of 4:8% for the private gas works in this country. In 1881 there was but one electric lighting plant in the United States. The Census Bureau re- ports 818 public plants ia 1902. The central station list for 1904 gives 927 public plants, and the number is now estimated on high a,uthority at more than 1,000. The census re- port shows that thir^en plants had changed from private to public operation for each plant that had changed the other way. Municipal ownership of street railways in this country is as yet in embryo.^ 1 According to the study in Baker's Water Manual of 1897 there had been 205 changes from private to public ownership and only 20 changes the other way. (See Equity Series, "City for the People," p. 204.) 2 A municipal street railway system in Monroe, La., was 6B0WTH OP 60VEBNMENTAL FUNCTIONS 107 In Great Britain over three-quarters of the water works are owned by the local authorities. More than half the gas supply outside of Lon- don has been municipalized ; more than half the electric lighting plants belong to municipalities, aud about half the tramway undertakings are owned and operated by municipalities with opened for businesa August 1, 1906. Mayor Torsythe says the enterprise ia so successful that "the net receipts will equal principal and interest of the total cost in about seven years." It is stated further that the system has recently been extended eight miles to a suburban park, in which the city offers free bathing and boating to all who care to avail themselves of the privilege. The Municipal Journal and Engineer of November 28, 1906, says of this undertaJsing: "Two years ago the success of the city's move in taJdng over the water and lighting plants moved the mayor and citizens to go before the State Legislature and have the oiiy's charter changed so as to permit it to own and operate the street railway system. The system is said to be first-class in every respect." A street railway service over the Brooklyn Bridge was owned and operated jointly for some years by the cities of New York and Brooklyn with entire honesty and marked success, but was finally leased to the elevated in order to unify the service so that travellers would not have to change ears after they crossed the bridge. The municipality of Guelph, Ont., also operates a small street railway, the cause of municipalization being stated to be "public demand and failure of the private corporation to make a success." To- ronto, Ont., bought her street railways with the view of leasing them for company management under a contract providing for a large degree of public control, and in the interim between the old and new company managements, the city operated the lines. 108 LKQAL DOCTRINE AND SOCIAL PKOGEESS nearly 60% of the total track mileage. How rapid has been the development in this field may be seen from the fact that when Leeds and Glasgow adopted the policy of municipal oper- ation in 1894, only three municipalities, Hud- dersfield, Plymouth and Blackpool, had public tramways. In the next twelve years, 1895 to 1906, more than seventy of the larger towns and cities followed the example of Glasgow, and the only places in the kingdom of any large importance that have not adopted the policy of municipal operation are Dublin, Bristol and Edinburgh.^ Basic causes for public ownership. The main cause of this movement for the munici- palization of public utilities are to be foimd in the desire: (1) To secure a better and more extended service. (2) To obtain lower rates. (3) To secure for the city the profits of public service industries. (4) To improve the condi- tions of labor. (5) To identify the interests of owners and the public and bring into har- mony with the public welfare powerful monop- oly interests, which in private hands manifest more or less opposition to the public good. sin Germauny also rapid progress has been recently made in the municipalization of street railways, some thirty at the leading cities having adopted municipal operation in the space of a dozen years. GROWTH OF GOVBENMENTAL FUNCTIONS 109 (6) To secure to the city direct, continuous and complete control of its streets and all monopoly uses of them. In the United States the princi- pal causes of the municipal ownership move- ment have been the tendencies to over-capitali- zation, excessive charges and disregard of public health and safety manifested by private companies, and their corrupt and demoralizing relations with our governments and public oflScials. Growth of industrial cooperation. The per- sonal observations of the writer ia all the leadrog countries of Europe, and in this coimtry as well, have deeply impressed him with the vitality and value of voluntary industrial and commercial cooperation. In Grreat Britain alone 2,500,000 cooperators are united in a solid union with two great wholesale societies, 5,000 retail stores and many factories. They are do- ing a total business of about $500,000,000 a year; with $50,000,000 of profits, all of which go back to the working people in the shape of dividends on purchases and wages, instead of going to build the fortunes of millionaire man- ufacturers and wealthy store keepers. In fo^y ye^s population has increased 43% ; manu- factures 52% ; international commerce 130% ; and cooperative business over 5,300%. So that cooperation in England has grown more than 110 LEGAL DOCTEINE AND SOCIAL PEOGEBSS forty times as fast as her international trade, one hundred times as fast as her manufactures, and 130 times as fast as the population. When we remember that her international trade and her manufactures are England's special pride, the most important and energetic elements of her competitive business, we may realize in some degree how marvelous has been the prog- ress of British cooperation.* In the United States cooperative insurance and banking have attained large proportions and cooperative dairying is also well developed in many states. While in manufactures and distribution, cooperation has as yet made com- paratively little headway in this country, there still are several hundred prosperous coopera- tive stores. Cooperative buying and coopera- tive marketing of products has attained enormous proportions among the farmers and fruit growers. One California association does an annual business of $10,000,000; and another in that state has seventy-five local stores. One society with headquarters at In- dianapolis claims 200,000 members. And Iowa alone is said to have 250 grain elevators owned * See the Arena for July, 1903, "The Rise of Cooperation in Europe," by the present writer, with a diagram of the movement in Great Britain and a statement of the sixteen principal reasons for the astonishing development of her cooperative industries. GEOWTH OP GOVBENMBlirTAIi FUNCTIONS 111 and operated cooperatively by tlie farmers in their fight against speculators and the railroads for fair prices. Government already performs many lines of cooperative service. The U. S. government through its Department of Agriculture is cooperating with the farmers in various parts of the country for the development of agricul- ture; and Federal cooperation with state and individual enterprise for the development of natural resources has shown a decided tendency to increase in recent years. The trusts are a great cooperation. But most vigorous of all movements towards coop- eration in this country is the growth of trusts and combines. Every trust, on the inside, is a cooperation in place of a former competition; and as it grows in size or affiliates with other organizations, the area of cooperation expands. This process, together with coordination of labor organizations and the growing control of the law over industrial combinations in the in- terest of the public, will probably become, in the not far distant future, one of the most potent means of transforming whole sections of the industrial system to cooperative conditions. The law should adapt itself quickly to mod- em industry. Trusts and combines result from the action of the beneficent principles of union 112 LEGAL DOCTEINE AND SOCIAL PKOGBESS and cooperation. Industrial organization is almost" as important as civic organization. Men united into tribes, states and nations be- cause they found tbat a political combination gave tbem strength, for defense, aggression and civic action in general, and they are learning to unite in great industrial organization be- cause they find that combination in industry means economy and increase of power. Industrial combination is in itself an eco- nomic and social benefit. There are many cases on record in which combination in man- ufactures has resulted in saving one-half to three-quarters, or even four-fifths of the labor and capital required to yield an equal product under the former competitive conditions. The law should foster all these movements, the growth of trusts no less than the develop- ment of voluntary cooperation in other forms. Our legislators have made a great mistake in endeavoring to crush out trusts and combines instead of aiming to suppress the abTjses of combination and repress the anti-social forms of industrial organization, while encouraging the development of combinations not antago- nistic to the public good. Competition means economic waste, bad character product, and civic and social damage. The temporary relief to the public in the mat- QBOWTH OF GOVBENMENTAIi FUNCTIONS 113 ter of prices is secured at unreasonable cost. For many years economists liave recognized these truths in relation to water supply, gas and electric light and street railway systems. And now this old principle is coming to be rec- ognized as equally applicable to trusts and combines. Trusts are here to stay. The destruction of trusts and combines is a f^e ami. In the first place, it is impracticable. Trusts and combines exist in obedience to the law of in- dustrial gravitation which outranks any law that Congress or legislature can enact. It is impossible by any legislation practicable in a free country to prevent nien from acting ia harmony if they have the sense and character to do so. We may prevent corporations from holding stock in other corporations, but we can- not prevent individuals from buying stocks or uniting properties by purchase or exchange of interests therein. Combination is so profita^ ble that it continues to exist and multiply even in the forms prohibited by law. They are of great economic value. In the second place, the destruction of trusts and combines is undesirable, combination being in itself a social and industrial good. It is not I combiag,tion, but the abuse of the po;3-er of I combination that ought to be abolished. The 114 LEGAL DOCTEINE AND SOCIAL PEOGEESS real problem is to adopt measures that will se- cure the fair distribution of the benefits of combination and prevent the absorption of an undue share of those benefits by a few indi- viduals, or any arbitrary or unjust use of the powers of combination for private purposes of the controlling owners. When John D. Eockefeller, in his Standard Oil statement, intimates that laws against trusts and combines are foolish and unjust, he is talking economic sense. Since industrial combination is one of the principal sources of economy, power and efficient service, to pro- hibit such combination is to prohibit the econ- omy and efficiency that come through combina- tion. To prosecute and fine combination is to prosecute and fine economy and efficiency. Our anti-combine legislation makes economy a crime, progress a misdemeanor, and efficiency a felony. This is all wrong, and so far, John D. Eockefeller is all right. But they must be strictly regulated by law. But he intimates that the men in possession of trusts and combines should be left to manage them according to their own sweet wills, no matter if they make excessive charges, use un- fair methods to crush out would-be rivals, sell- ing low at competitive points while selling high at non-competitive points, resorting to rebates GBOWTH OP GOVBENMENTAL FUNCTIONS 115 or railroad favoritism of other types, and us- ing the power of combination to evade or defy the law, corrupt governments and courts, op- press labor, and fleece the public, taking to themselves all the benefits of the economies achieved by combination, and adding, perhaps, new plunder by lifting prices above the normal level of the competitive regime that was for- merly in vogue ; that combine managers should be left to operate the business as they please, he is talking economic, political and social nonsense. The law should clearly separate the use from the abuse, and should encourage the former and suppress the latter. Cooperation will make great changes in the law. The important changes in industrial and social life and institutions that mark the move- ment from competition to cooperation will in- volve great modifications in our law, modifica- tions which are already in process in the field of public ownership, the legislative attitude to- ward industrial combination, etc., and which in the end will not only remold many parts of our legal system but will annihilate large and com- plex sections of it and replace them with a few simple principles of cooperative service and regulation. The law and society act and react on each 116 LEGAL DOCTEIlirE AND SOCIAL PKOGBESS Other. The law is a growth, a development, an evolution accompanying social evolution in general, partly as cause and partly conse- quence. The interaction is constant and vigorous. On the one hand, for example, tariff laws and franchise grants create monopolies with their far-reaching consequences. While oil the other hand, the development of machinery breaks down the feudal system and abolishes its laws and customs, the growth of trade unions modifies the conspiracy laws, the factory laws, the whole body of labor legislation, and demands the modification of the laws relating to injunctions and proceedings in contempt. The religious devotion of early New England wrote the blue laws which went so far as to make it a penal offense "if a boy should siag or whistle on the Lord's day" or "shall go to sleep in church" or "shall chase a girl" or "shall laugh in Public School"; while the irreligion of the West frames laws that permit the stores and theaters and saloons and everything else to run wide open on the Sabbath day. The growth of the sentiment for human liberty wipes the slave laws from the statute books. Smaller changes are constantly in progress. Every legislature and every court is an institution with ample powers and opportunities for the modification of the law. GEOWTH OP GOVBKNMENTAL FTJNCTIOKTS 117 The law has grown and must grow. Every lawyer, judge and statesman ought to do his best to leave the law at least a little better than he found it. He is not called upon to try to write the ideal on the statute books at once. But it is his duty and his privilege to aid in a reasonable movement in that direction. The law is naturally conservative. It cannot be ex- pected to keep abreast of the best thought. I^ movement is obstructed by the'^gnorance, apathy and ^elf -interest of legislators, and by the inadequacy of popular education and the machinery of self-government. It takes time to crystallize public sentiment into law. The people have no adequate means of expressing and enforcing their will even after they have thought out a new advance. Yet many times the progress of the Igy is quite as fast as is fair to all the interests involved. It will not do to sweep away too ruthlessly the vested rights and interests that have been allowed to grow up under the sanction of existing laws, nor to sacrifice too far the present generation to the future. Evolution not revolution, should be the method of advance wherever possible. Changes must promote the happiness of this generation. Society is not an organism with a single conscious center that endures from age to age. On the contrary, every cell is conscious, 118 LEGAL DOCTEINB AND SOCIAL PBOGBESS and the cells live but a few years. The object now is the happiness of the individuals of this generation, and the law of a republic as a rule will not be changed so rapidly as to make the loss to the living greater than the gain to them, including in gain and loss not only the material elements involved but the intellectual and spiritual elements also. Will it pay in its total results or will it cost more than it comes to, — will the cost to the purchaser exceed the benefit to him, considering all the purposes he has in view? Those are the fundamental questions. The complexities of the problem may obscure the judgment many times, and rough estimates may be made without fully im- derstanding either the impulse or the out- come, but consciously or unconsciously the movement of the law in a republic hinges on the question of cost of living — the question of profit and loss to the present generation. Under a monarchy generation after generation may be sacrificed to the future. But under a system of self-government the people will not serve the purposes of the future any further than those purposes have become their own through development of material interests, in- tellectual ideals, or moral purposes. They may sacrifice their lower to their higher natures; thej; ma^ give their lives for the GEOWTH OF GOVBENMENTAL FUNCTIONS 119 Union or for the cause of liberty ; but tbe pur- poses they serve will be their own, they cannot sacrifice their totalities, physical and mental, to the future. The object of the law demands certain changes now. Wise statesmanship will look for the next s^p in the line of each advance, take the step carefully and give society, men and institutions, time to adjust themselves to the new conditions before taking another step in the same line of progress. A number of im- portant movements are before the people and the government now, claiming attention as next steps in the progress of civilization in their respective fields. Some of the proposed changes will be noted in the following chapter. vn CUERENT EEFOEM MOVEMENTS DEMAND AND AEl MAKING CHANGES IN THE LAW In stating these measures, instead of using tlie judicial form, we will adopt in a large degree the language of- those who are advocating the various movements in order to present them with something like the form and force that characterizes them as they come before our legislative bodies demanding their increased recognition in the law. (1) Direct legislation. The Initiative and Referendum ; in order that the people may have real and continuous control of the government instead of the mere privilege of periodic selec- tion of a new set of masters, whose will during their term of office is the real sovereign power in place of the people's will. (2) Popular nominations. Direct nomina- tions by popular petition only, in order to de- stroy the control over nominations which rings and bosses possess under the system of caucus and convention. (3) Proportional representation. Propor- 120 EEFOEMS MAKE CHANGES IH" THE LAW 121 tional representation, in order that every class and interest of substantial weight in each com- munity shall be represented in true proportion in the legislative bodies that make the laws for that community. (4) Voting preferences. Preferential vot- ing or majority choice, in order that single of- ficers, Uke mayors, governors, etc., may no longer be subject to the election by a minority of the voters, as imder our plurality system, but shall invariably be the choice of the majority. (5) Civil service reform. Extension of civil service system to the end that the ' ' spoils system" may be entirely eliminated from political life. (6) Home rule for cities. Municipal home rule, or self-government in local affairs, such as the control of streets, water works, street railways, fire departments, etc., national gov- ernment of national a£fairs, state government of state affairs and municipal control of dis- tinctly municipal affairs, constitutes the true adjustment. There is no more reason to per- mit Boston, Springfield, Fall Eiver, Lowell and Salem to teU the city of Worcester how it shall manage its street railroads, water works or electric lighting system, than there is to per- mit Maine, New Hampshire, Vermont, Ehode 122 LEGAL DOCTRINE AND SOCIAL PEOGEESS Island and Coimecticut to dictate to Massachu- setts how she shall manage the affairs of state. (7) Non-partisan city elections. Separa- tion of municipal and state elections, and elimi- nation of all party designations from municipal ballots, so that our cities will have a better chance to manage their municipal business on purely business principles, free from the taint of party politics, and to elect municipal officers with reference to their fitness for the work to be done without regard to their political affilia- tions. (8) Public ownership. The open door to public ownership of public utilities, so that our cities may own and operate street railways, lighting plants, etc., if they so desire. (9) Exemption of revenue-producing prop- erties from the municipal debt limit. (10) Provision for the valuation of all pub- lic utilities from railroads down to water works, in order to secure a fair basis for the regulation of rates and for estimates of compensation in case of public purchase. (11) Diffusion of wealth. Progressive in- come and inheritance taxes to aid the diffusion of wealth, which should be one of the prime ob- jects of statesmanship and to provide funds for public use by a system of taxation most in EEFOBMS MAKE CHANGES IM" THE LAW 123 harmony with the well-established principle al- ready referred to, that equality in taxation means equality in sacrifice. (12) A form of "single tax." The sociali- zation of land values due to the growth of popu- lation and the development of civilization, either by public purchase or by the gradual de- velopment of a system of taxing land values to absorb the unearned iacrement for public use. (13) Control of corporations. The regula- tion of trusts and combines. Several methods of dealing with trusts and combines are here proposed. We may let them alone. That might suit the trust magnates, but can hardly be regarded as adequate from the standpoint of the public good. We may prohibit them. The original savage impulse is t£ destroy whatever seems to injure us. This primitive instinct crops out fre- quently in civilized man and even in the most advanced communities, which sometimes mani- fest a reversion to the savage type of conduct, and resort to blind laws against trusts and com- bines, trying to destroy what is good as well as what is bad. This method cannot succeed and should not succeed. We may try to remove the causes of the 124 LEGAL DOCTEINB AND SOCIAL PEOGEESS growth and power of trusts and combines. The plan of removing the protection of the tariff from industries in which large monopolies have developed is of this class, as are also laws against rebates and railroad favoritism, laws forbidding a corporation to hold stock in other corporations, and laws requiring that goods be sold at the same price to all comers at the factory door. We may rely upon investigation and pub- lica^y. Publicity no doubt does have a power- ful restraining effect on the conduct of busi- ness affairs wherever the managers have not lost all conscience and sensitiveness to the ap- probation of their fellow men. But in the very worst cases where relief is most imperative, publicity has proved of little or no avail. The public has known for many years the frauds and iniquities of Standard Oil and the beef com- bine, and yet those evils have continued in one form or another with practically unabated viru- lence. We may provide for Federal license and incorporation with thorough and continuous supervision by Federal authorities. This is an excellent plan from which much good may be ex- pected. But we cannot hope in this way to prevent excessive charges or the secret use of combine power for anti-public purposes. BEFOEMS MAKE CHANGES IN THE LAW 125 We may enact that prices and wages shall be subject to final adjudication by boards of arbi- tration representing all th^e parties in inter- est, namely, labor, capital and the public. It is not fair for either party to a sale or contract to fix the terms. In a monopolized industry it is imfair to permit the seller to fix the price, and it would be equally unfair for the public, which is the buyer in this case, to fix tbe price. The only recourse in harmony with economic and etMcal principles is the fixing of prices and wages by decision of impartial tribunals. We may adopt a system of graded taxes ; put- ting a high rate of taxation on aggressive, anti- public combines which refuse to open their books to public inspection, or make fair prices, or reasonable capitalization, etc.; and a low rate of taxation on public spirited combines which open their books to public inspection and make fair capitalization, just prices, etc. The reason that men combine to-day in anti- social forms is that pro^t lies in that direction. If profit can be severed from anti-social methods and attached to forms of organiza- tion and management that are in harmony with the public good, while loss is attached to anti- social conduct, men will adopt the superior types of organization and business methods, and trusts and combines will become coopera' 126 LEGAL DOCTEINB AND SOCIAL PEOGEESS tive and public spirited instead of aggressive and anti-public. We may provide that labor and the public shall be recognized as partners in monopolistic industry and entitled to elect representatives to act on the board of directors. We may resort to temporary public operation of the business of trust and combines which violate the law. If a corporation cannot pay its debts a receiver may be appointed by the court to manage the business of the company until it is once more on a sound basis. So, if a trust or combine is convicted of breaking the law a public officer might be appointed by the court who should manage the business under supervision of the court, using the profits to pay off and extinguish the watered stock or ex- cess capital, reduce wages to a fair level, see that labor had reasonable wages and just con- ditions, and bring the whole business into harmony with law and the public good. Then the property could be returned to the company to be managed under careful and persistent supervision with salutary fear of public man- agement in case of any further serious breach of law. We can establish permanent public operation of monopolistic industries, acquiring title by the issue of public bonds or through purchase EEFOEMS MAKE CHANGES IN THE LAW 127 with, funds raised by progressive income and inheritance taxes, or in a^-y one of several other ways that have been frequently urged upon the public. In the case of railroads, street railways, lighting systems and other natural monopolies where the problem cannot be adequately met by the development of volun- tary cooperation, public ownership is the ulti- mate solution, care being taken iu all cases that political conditions shall be made such as to af- ford a reasonable prospect of successful public operation of these important properties. In commerce, manufactures, and agriculture, on the other hand, where the field is open for the most part, to the growth of voluntary coopera- tion, legislative cooperation should not be re- sorted to until every reasonable effort has been made to solve the problem by methods of volun- tary action under the direction and encourage- ment of wise laws. (14) Public ownership of monopolies. The abolition of private monopoly. We have seen that it is held by the courts that on the fundamental principles of justice in- herent in every government taxation cannot be levied for a private purpose, but only for a public purpose, and that an act levying taxes or authorizing the levy of taxes for a private purpose, as, for example, to bestow the money 128 LEGAL DOCTBINB AND SOCIAL PEOGEESS on a manufacturing company under private con- trol and operated for private profit is beyond the power of a legislative body in a free country, being not an act of legislation but of confisca/- tion. Every private monopoly involves the power of taxation for private purposes.^ Wherefore no legislative authority in a republic has a right to establish or permit a private mo- nopoly. It follows that every franchise grant or legislative act creating or protecting a private monopoly is a violation of fundamental prin- ciples of justice inherent in our system of gov- ernment. (15) The conservation of natural resources, forests, mines, waterfalls, etc. (16) The establishment of a parcels post. (17) A national telegraph and telephone system in connection with the postal service. (18) Postal savings banks ia order that the people's money may be absolutely safe and the savings of the common people may be invested for public improvements and other purposes more in harmony with the public good than the "Wall Street investments to which our bank de- posits are now so largely devoted. (19) Government insurance, loans and bank- 1 See the discussion of Muaicipal Charges in Mill's PoUUoal Economy. EEFOBMS MAKE CHANGES IN THE LAW 129 ing. Government insurance so tliat loss may be diffused as widely as possible and certainty of payment be rendered absolute and the cost reduced to a minimum. (20) A government loan oflSce operating through the Post Office and lending money at low interest on reasonable security so that farmers and workingmen may be able to bor- row on terms as advantageous as those which are obtained by the great capitalists from our private banks. (21) The issue of all money by the Govern- ment and the management of the money system by public authority in the public interest. (22) Direct election of U. S. Senators. The election of United States Senators directly by the people to the end that the Senate may be- come as truly representative and as responsive to the will of the people as the House of Eepre- sentatives. (23) Curb the Speaker. The abolition of the automatic power of a Speaker of the National House, so that he may no longer be able to interpose his will to prevent the passage or even the discussion of laws demanded by the people, but which are objectionable perhaps to the prejudice of the Speaker or the interests which he may represent. (24) Old age pensions and disability annui- 130 LEGAL, DOOTEINE AND SOCIAL PEOGBESS ties, in order that industrial veterans and dis- abled workers may have a reasonable support without the ignominy of a transfer to the poor- house. (25) Industrial arbitration or judicial de- cision of labor disputes. In primitive times all difficulties were settled by combat, but as civil- ization has advanced the method of judicial de- cision has been substituted for the method of combat in all classes of dispute except inter- national difficulties and labor contests. Inter- national questions are now rapidly being brought within the scope of judicial procedure so that industrial disputes are practically alone in the resort to primitive methods of decision. Jf two men cannot agree upon their rights, they are not permitted to fight out their troubles in the public streets, but must go into court and submit to the judgment of an impartial tri- bunal. A corporation and its employes have no more right to fight out their difficulties in the streets to the disturbance of the public business and the production of great loss, not only to themselves but to the public; and our laws should provide for arbitration on the request of either party to an industrial dispute, on the lines that have been adopted in Australia and New Zealand. (26) The complete establishment of an EEFOEMS MAKE CHANGES IN THE LiAW 131 eight-hour working day, so that the working classes may have sufficient time for the cultiva- tion of the social and intellectual elements of life. (27) Work for the unemployed. Eecogni- tion of the right to work. In this complex civil- ization of ours, it is many times impossible for men who are able and willing to work to find the opportunity. No guarantee of the right to life, liberty and the pursuit of happi- ness can avail unless the right to an oppor- tunity to earn an honest living is also guaran- teed. The task of keeping an adequate record of the need for labor of various kinds in differ- ent parts of this great country and of placing men where there is a demand for the services they can render is too much for any private in- stitution, and should be undertaken by our gov- ernments, municipal, state and national. In Massachusetts a State Employment Office has already been established, but it falls far short of the need and its efficiency does not compare favorably with that of the National Employ- ment Office in New Zealand and the Australian Colonies, where the state uses the police and the post offices throughout the country to keep constantly in touch with all opportunities for employment, and carries workers and their families on the state railways free of cost to 132 LEGAL DOCTEINE AND SOCIAL PEOGEESS the places where their labor is needed, the re- mitted fares to be refunded at some future time when the earnings of the assisted workers may justify the payment. (28) The right to be bom well. A system- atic effort to improve the quality of the next generation by the encouragement of breeding from the best and the prevention of breeding from the defective classes. (29) The rights of motherhood. Eecogni- tion of honest and efficient motherhood as a public service; protection of mothers from drudgery, want, and other conditions calculated to deteriorate their offspring; provision in the public schools for thorough training in the sciences of parenthood and child culture; and requirement of a working knowledge of the principles of these sciences as a condition prec- edent to the issue of a marriage license. (30) Rights of childhood. Prohibition of child labor in factories and mines. A child may do some work on a farm or as a newsboy or bootblack without interference with physical or mental development, but the grinding toil of the mill and the mine stunts both the body and soul of the child. (31) A guaranty to every child, so far as possible, of a wholesome birth and a bringing up under conditions calculated to secure a EEFOBMS MAKE CHANGES IIT THE LAW 133 healthy and effective development of mind and body. The present system or lack of system under which hundreds of thousands of children are allowed to be born under bad conditions and brought up underfed, imderclothed, underedu- cated and overworked — stunted in body, mind and character — is the most short-sighted public policy it would be possible to imagine, for it pollutes the stream of life and civiliza- tion at its very source. (32) A better criminology coming. Im- provement of the criminal law. At the dawn of history the prime object of the criminal law was vengeance. Now the main emphasis is placed on the deterent power of punishment, with some attention to reformation. The need is the adoption of better means of prevention and reformation. Probation of first offenders and of women and boys not only of the first but on later offenses also, if need be in the dis- cretion of the judge, is one of the methods by which excellent results have been secured where it has been adequately tried. It is much better to save the young offender by sympathetic treatment and careful watching than to im- prison the new recruit with hardened criminals and risk the perpetuation and intensification of the disease by contact with the contagion of inveterate cases. Judge Llndsey's Juvenile 134 LEGAL DOCTRINE AND SOCIAL PEOGEESS Court in Denver lias achieved most notable re- sults on these lines. Where punishment is meted out, certainty and rapidity are far more important than severity ; and more speedy trial and execution of judg- ment are of vital moment. The old methods of punishment ineffective. Still more important is the indeterminate sentence. The definite sentence of a stated term of months or years is an unqualified evil. A thief is convicted and sentenced to a year's imprisonment. At the end of that time he is released with the practical certainty in many cases that he wiU steal again at the first op- portunity. There are said to be in New York city more than fogr hundred professional criminals well known to the police. They havQ been arrested and convicted again and again, and it is perfectly well imderstood that they go to operating again as soon as they are out of jail. In other words society knowingly per- mits four hundred inveterate criminals to be at large to prey upon the city, and employs a body of police and detectives to watch them and run them in whenever they are smart enough to catch them at the game. It would be just as sensible to turn loose a mass of tigers or wild- cats, employ a body of men to watch them, ar- rest any of the wild beasts caught biting any EEFOKMS MAKE CHANGES IN THE LAW 135 one, put tliem in a cage for a few months and then release them to try it over again. When a man has proved himself to be of criminal nature he should be kept under close restraint until he has given evidence of .reform sufficient to make it safe to give him his liberty again. The law presumes a man innocent until he is proved guilty. And when he is once proved guilty of a serious offense the law should pre- sume that the criminal nature remains un- changed until there is reasonable proof to the contrary. Instead of a definite sentence of so many months or years therefore, the sentence should be iudeterminate, its duration depending on the conduct of the prisoner and the evidence he gives of sufficient reformation to restore the presumption of future innocence and make it safe for society to restore his freedom. Reformation the goal. Meanwhile, during his confinement, every effort should be made to aid the prisoner to regain his manhood. The most successful methods so far tried are the ap- peal to appetite, honor and the cultivation of the power and habit of useful industry. In one of the best prisons for example, where reforma- tion has been reduced to a science, the method is as follows: Three tables are set in the dining room where all the convicts eat. At the first table the fare is little more than bread and 136 LEGAL DOCTRINE AND SOCIAL PEOGEESS water. At the second table there is an abund- ance of well cooked plain and wholesome foods but no delicacies. While those at the third table enjoy all the delicacies of the season and the best cooking obtainable. The convicts who refuse to work in the prison shops sit at the first table, but they get the fragrant odors from the other tables and they soon begia to ask for work. Those who work regularly and conduct them- selves well are entitled to seats at the second table and if they achieve success in their work and attain a certain standard of merit in labor and conduct, they are promoted to the third table. There are carpenter shops, machine shops, shoe factories, saw mills, stone yards, printing shops, etc. The convict learns a trade by means of which he can support himself by honest labor anywhere in the civilized world. He gets full pay for the value of the work he does, part of which goes to pay the expenses of his imprisonment. Another part is devoted to restitution or compensation to the persons injured by the wrong for which he was com- mitted. Still another part goes to the support of his family if he has one. And the remainder is put to his credit and paid over to him when he leaves. The time of his release depends upon his record. "When iu the judgment of the Court he has given sufficient proof of fixed EEPOEMS MAKE CHANGES IN THE LAW 137 habits of industry and good conduct lie is re- leased. He goes out "with the money he has earned by honest labor in his pocket and the consciousness of skill that will enable him to make a good living without resort to crime. At the prison gate he is met by the officers of a sympathetic organization that will help him find employment and friends and keep him from his old associations until he is firmly rooted in the new life of an honest citizen and has be- come a useful member of society. Such are some of the methods that should be grafted into the criminal law of all our states. There are other measures which are very im- portant iu their relation to the prevention of crime but which are also advocated on other grounds as follows. (33) Better opportunities for immigrants. Better immigration liaws. In addition to sound body and mind, good character and visible means of support, immigrants who come to re- main ia this country should be required to ac- quire a working knowledge of the English language. There should be a national bureau to help immigrants to place themselves iu locali- ties where their labor is needed and to get a foothold in the path that leads to good citizen- ship and industrial independence. Society has as much of a duty to protect itself from the ia- 138 LEGAL DOCTRINE AND SOCIAL PEOGBESS fection of mental and moral disease and de- basement, as it has to guard itself against physical contagion — as much duty to determine the sort of people it wUl admit to fellowship as members of its communities, as a family has to decide what sort of folks it wiU admit to its fold, what associations and influences shall be brought to bear upon its children. Immigration that is adapted to republican institutions and twentieth century civilization, is no problem, but half-civilized and uneducated populations bring us an opportunity for social assimilation and civic service of a high order. The state for the general welfare must provide educa- tion, protection and opportunity for these wards. They should be fed and clothed if necessary while they are taught the elements of American citizenship and helped to secure the opportunity to become self-supporting. They should be if necessary compulsorily taught, and paternally looked after while their opportunity is being found. (34) Government should clean up the slums. The slums of our big cities are prolific sources of disease and crime. The law should provide for the clearance of slum areas and the perma- nent abolition of the conditions which now exist in those areas where thousands upon thousands of children are being brought up imder circum- REFOEMS MAKE CHANGES IN THE LAW 139 stances directly and definitely calculated to create defectives and cruninals. Laws should be passed to enable our cities to do as Birming- ham and other English cities have done, namely, take over slum areas, tear down congested and unsanitary buildings, open up wide thorough- fares and recoup the cost by retaining the owner- ship of the land along the boulevards and rent- ing or building upon it for the benefit of the city. (35) Take the profit out of the saloon. Abolition of the traffic in liquors for the profit of the seller. Just so long as the vendors of intoxicants can make a pr(^t by their sale, there will be an organized effort to attract boys and workingmen to the saloons to spend their wages for drink and the development of drunk- enness and crime will be the result. Eminent judges declare that from three-fourths to nine- tenths of the crimes and misdemeanors that occupy our courts are the direct or indirect re- sults of the traffic in intoxicants. A recent grand jury, after dealing with the winter docket of crimes, states that, "the grand jury- feels it a duty to state that in many cases brought before us, a few drinks of liquor have preceded the trouble. The expenses of this jury, of the State's attorneys and stenogra- phers, together with the great expense which 140 LEGAL DOCTEIKE AND SOCIAL PEOGEESS must follow in order to punish adequately the men we have indicted, therefore apparently flow in great measure from the presence of saloons." The Gothenburg system. It is not necessary, in order to remedy these conditions, to prevent individuals from drinking intoxicating liquors. All that is really necessary is to sever the rela- tiMi which now exists between the sale of liquor and the profits of the seller. The existing order of saloons should be abolished, and in their stead a better kind of saloon established, where men could find the social atmosphere they crave and could buy liquors, if they chose, in moder- ate quantities and under stringent regulations calculated to prevent the possibility of intoxica- tion; where the seller will have no profit from the sale of liquors, but will make a profit on the sale of non-intoxicating drinks to be sold in great variety in the same saloons. In this way the vendor will have every interest to develop the sale of temperance drinks and no interest at all to increase the sale of intoxicants; in- stead there will be a definite counter interest resulting from the fact that if men buy intoxi- cants, the demand for the temperance drinks on which he makes a profit will be to that ex- tent diminished. This is substantially the REFORMS MAKE CHANGES IN THE LAW 141 Gothenburg system which has produced such admirable resTilts in Sweden. The state should guarantee the purity of the liquors and to carry out the plan in sufficient perfection might find it best in the end to take over the manufacture of intoxicants and abolish entirely the private liquor business from the manufac- ture to the sale. If such a plan on thorough trial in American cities should not eliminate drunkenness and the criminal effects that now flow from the consumption of intoxicating liquors, more drastic measures would be then in order, even to the complete abolition of the manufacture and sale of intoxicants, if that were found to be the only means of ridding society of this prolific cause of crime and de- basement. (36) Train the children for the work of life. Industrial education and expert vocational counsel. Our public schools teach the common English branches, but as a rule give no definite instruction in the meg^s of making a good liv- ing. Society is very short-sighted as yet in its attitude toward the development of its human resources. It trains its horses, as a rule, better than its men. It spends unlimited money to perfect the inanimate machinery of production, but pays very little attention to the 142 LEGAL DOCTBINE AND SOCIAL PEOGBESS business of perfecting the human machinery, though by far this is the most important factor in production. The great mass of our children leave school before getting even a reasonable training in the common branches of an English education. According to the figures given by the school authorities a year or two ago less than 1;16 of the children in the Boston primaries go through a High School course. In Philadelphia less than 1-30 of the children go through the High School, and in Washington less than 1-13. Here are the data for these three cities. The High School figures include the pupils in all schools and courses of High School grade, commercial and manual training, as well as academic. PUPILS IN THE PtTBUO SCHOOLS. Boston PhilOfdetplUa Wasli- mgton First year primaries 13,622 33,588 9,198 First year grammar 10,007 19,386 5,061 Last year grammar 4,869 5,710 3,136 Last year high schools 850 1,089 663 Nearly two-thirds of the children in Boston and Washington and five-sixths in Philadelphia drop out of school even before they finish the grammar grades. There are not seats enough in the grammar schools for much over one-third to one-fifth of the children, nor seats in the High Schools for more than one-tenth to one- EEFOEMS MAKE CHANGBS IN THE LAW 143 twentieth. Our cities evidently do not expect or intend to educate the bulk of the boys and girls beyond the primaries or lower grammar grades. The mass of children go to work to earn their living as soon as they are old enough to meet the law, and often before that. Do not specialize too young. Science de- clares that specialization in early years in place of all-round culture is disastrous both to the individual and to society. There is a clear relation between intelligence and variety of action and experience. A knowledge of each of the great classes of industry by practical contact is the right of every boy. This varied experience should be obtained under a thorough- going, scientific plan of educational develop- ment and not by the wasteful and imperfect method of drifting from one employment to an- other in the effort to make a living, running an elevator in one place, marking tags in another, tending a rive^t machine in another, etc., etc., spending many years of time and energy in narrow specialization, and getting no adequate, comprehensive understanding of any business or industry. The union of a broad, general culture with an industrial education including a practical experience broad enough to form a true founda- tion for specialization in the proper field, pos- 144 LEGAL DOCTBINB AND SOCIAL PROGEESS sesses an economic and social value tliat can hardly be overestimated. Yet practically all our children are subjected to the evil of un- balanced specialization — specialization that is not founded on, not accompanied by the broad culture and experience that should form its basis and be continued as coordinate factors in a fuU development — specialization that is not only unbalanced and ill-founded but also in many cases inherently narrow, inefficient and hurtful in itself. But learn to do something. Most of the children who leave school early specialize on narrow industrial lines, and most of them who remain in school specialize on book learning. Book work should be balanced with industrial education, and working children should spend part of their time in culture classes and in- dustrial science. Society should make it pos- sible for every boy and girl to secure at least a High School education and an industrial train- ing at the same time. This can be done by the establishment of Public Half- Work High Schools, in which boys and girls can study half of each day, and support themselves by working the other half day for the public water works, lighting or transportation systems, street de- partments or some other department of the pub- lic service, or for private employers. EEFOBMS MAKE CHANGES IN THE LAW 145 Part time schools are practical. A city or town can easily make arrangements with mer- chants, manufacturers and other private em- ployers, whereby High School pupils may have the opportunity to work half time iu many lines of industry. The Women's Educational and Industrial Union of Boston is already carrying on this sort of arrangement with some of the leading merchants of the city, so that the girls in the Union's classes in salesmanship are able to support themselves and get most valuable practical training by working half time in the stores. Enlightened employers are glad to make such arrangements, realizing the im- portance to themselves and to the whole com- munity of such advanced industrial and cultural training. Some of our agricultural colleges and state- universities, especially in the West, afford opportunities for young men and women to earn their living while getting a college education. All that is necessary is to extend the methods and principles already in use to the public school system as a whole, so that no boy or girl shall longer be debarred from the training of mind and hand, which is the right- ful heritage of every child society allows to be bom into this complex and difficult world. With proper provision for self-support by half-time work, the law might well require that 146 LEGAl, DOCTEINE AND SOCIAL PROGEESS scliool attendance should be continued until six- teen or even eighteen in place of the present re- quirement of fourteen years. A variety of scientific trade schools and con- tinuation schools should also be established on the plan that has done so much for the develop- ment of German industry in recent times, whereby young people after leaving ordinary public schools may continue their education, general and industrial, by attending these special schools in the evening or on part time. Expert vocational advice should be provided. In connection with the public school system of education throughout the country, provision should be made for expert counsel in the choice of a vocation. Young people should be thor- oughly tested and aided and helped to come to a true understanding of their aptitudes, abilities, interests, resources and limitations, and the relations of these to the conditions of success in different industries, substantially on the lines adopted by the Vocation Bureau es- tablished by Mrs. Quincy A. Shaw in connection with the Civic Service House in Boston on plans drawn up by the present writer at the beginning of 1908. An account of the Bureau and its methods and results may be found in the Arena for June, July and August of this same year. BEFOBMS MAKE CHANGES IN THE LAW 147 (37) Civic training in the public schools. Education for citizenship. The School City, or student self-government, should be established in connection with all public schools as one of the most important means for the development of character, civic interest, and habits of good citizenship in the plastic years of youth before the money motive has come to warp the judg- ment and the conscience. Still more emphatic is the duty of improving our general system of education. (1) By providing for thorough and scientific moral training, both by precept and practice, from the primary up through the High School and the university. Care, thoroughness, relia- bility, energy, enthusiasm, courtesy, helpfulness, cooperation, sympathy, kindliness, the sense of justice, etc., can be developed by exercise, just as the muscles and mental faculties are ex- panded and strengthened by exercise, and such development should be made a prime object of our educational system. (2) The laws of health should be drilled into the children so persistently and effectively that, in addition to a clear understanding of those laws, obedience to them shall become habitual, and daily living in full accord with the laws of physical well-being shall become the natural order of society. 148 LEGAL DOOTEINB AND SOCIAL PEOGBESS (3) Full instruction should be given in the public schools in regard to the relations of the sexes so that boys and girls may come to a knowledge of this vital subject from the moral and scientific side instead of getting their in- formation from polluted and secret sources as they do for the most part now. The conditions of true marriage and the best methods of child culture should also be taught together with ideals of conduct that will cause defectives to refrain from multiplying their kind, and lead to the breeding of each generation from the best of the preceding generation instead of from the lower strata chiefly as is the case at present. A satisfactory record of proficiency in such courses of instruction, and a thorough working knowledge of the principles involved, might well be made the conditions precedent to the issue of a marriage license. (4) The methods of gfeneral culture should be materially modified if we are to give our boys and girls an adequate preparation for life and work instead of a preparation for pass- ing an examination to get a degree. We should train for ability and character rather than for examinations. And the principal test should be the successful performance of things that have to be done in daily life rather than the answering of a series of questions about a book EEFOEMS MAKE CHANGES IN THE LAW 149 or lecture course. Systematic and scientific training of body and brain, of memory, reason, imagination, inventiveness, care, thoroughness, truth, promptitude, reliability, sympathy, kind- liness, persistent industry, etc., etc., is what we need. Education for power with actual per- formance and useful work should be the funda?- mental test. Power in any direction comes from exercise or activity in that direction to- gether with sufficient development in other di- rections to give symmetry and balance to the whole. Even the po^r of sympathy and the sefl;ge of justice can be developed by daily ex- ercise on the same principle that we develop the biceps or the bicycle muscles. Knowledge is excellent but a man with knowledge only, without the power of original thought and the ability to put his ideas into effective execution is little better than a book, — ^he contains a r^c- o:^ of fafiis but cannot build or execute. He may not be even up to the book standard of life if he has not learned to express and impart his knowledge. That is why college graduates, even those who stood high in their classes, often fail to make good in business. They are good bookworms, sponges, absorbing machines, but they do not know how to do things, and have no taste for doing things. They are really un- fitted by their hajbits of passive absQjption for 150 LEGAL DOCTEINE AND SOCIAL PBOGEBSS the active life of the business world. We must train our students to full powers of action, not only in football and otber athletic sports, but in the various liues of useful work so far as possible according to their aptitudes as brought out by scientific tests and varied experience. And we must give our working boys the power of thought and of verbal expression that come with general culture. And we must do all this in the formative period before the progressive hardening of the system has taken the bloom from development and modifiability. The state should prepare every child for a useful life. Youth is the period of plasticity and rapid development iu which the founda- tions should be laid for an all-round cul- ture, character development, and special voca- tional power. In the schools we have the next generation plastic in our hands ready to be molded to any form we please. The fluidity of youth is shown in the fact that practically 75% of the infant's body is water, while only 58.5% of the adult's body is liquid. Though some degree of plasticity may be re- tained to the end, the more fundamental char- acteristics of a man are generally fixed at twenty-five and the mental at thirty-five to forty years. If you were molding a statue in plaster you would not think it wise to negleet EBFOEMS MAKE CHANGES IN THE LAW 151 the work or let it drag along half done till the plastic mass had stiffened iato rigidity. It is just as unwise to neglect the opportTinities af- forded by the plasticity of youth. A year of the period from fifteen to twenty-five is worthy more than two years after thirty-five for formative purposes and the development of power. In this plastic period of rapid growth, this age of brain and heart, society should guarantee every child a thorough all-round de- velopment of body, mind and character, and a careful plaiming of and adequate preparation for some occupation, for which, in the light of scientific testing and experiment, the youth seems best adapted, or as well adapted a^s to any other calling which is reasonably available. If this vital period is allowed to pass without the broad development and special training that belong to it, no amount of education in after years can ever redeem the loss. Not till society wakes up to its responsibilities and its privileges in this relation shall we be able to harvest more than a fraction of our human re- sources, or develop and utilize the genius and ability that are latent in each new generation. vni CERTAIN CHANGES ARE NEEDED NOW IN DUE SYS- TEM OF LEGAL PRACTICE Among the progressive measures tliat are pressing for adoption are several that affect the form and methods of the law as a system of jurisprudence. (1) One action for all rights. The law should provide in all our states that the plaia- tiff should secure in a single action all his rights iu relation to the cause at suit. (2) Technicalities should be minimized. No suit should be allowed to fail for lack of form. Technicalities should be eliminated from our system of jurisprudence so far as possible, and direct decision on the merits of the case, free from all technicalities of every class, should be the rule in all our courts. (3) Simplify the law. Simplification and unification of the law is of very great impor- tance. It is absurd beyond expression that the laws of our various states should differ in re- gard to what constitutes a valid marriage or sufficient ground of divorce, the rights of hus- band and wife, the descent of property, the methods of making a valid contract, etc. 152 CERTAIN FAULTS IN LEGAL METHOD 153 Codification has been proposed as a remedy for the complexity and incoherence of our com- mon law, but there is reason to believe the rem- edy far worse than the disease. Codification takes the life from the law. It gives you canned law instead of fresh fruit picked day by day from the living tree. To attempt to reduce the principles of the com^aon law to any stated form of words is to destroy the very essence of the common law and establish an inert rigid- ity in place of the vital flexibility and adapta- bility that constitute the great superiority of our common law. Our statute law is univer- sally regarded as inferior to the common law for the very reason that no legislator can fore- see and provide for all the contingencies of future cases, whereas the coinmon law, untram- meled by set phrases and inflexible provisions, freely applies the principles of justice and com- mon sense to all the facts and circumstances of each new case as it arises. The true path to the simplification and uni- fication of the law lies through conventions of judges and statesmen, who will bring together the laws of their states, and try to harmonize and simplify them by agreeing, not on any set phrases or fixed provisions, but on the prin- ciples to be followed in administering the com- mon law in all the states. 154 LEGAL DOCTEINB AND SOCIAL PBOGBESS For statute law a similar plan might be adopted, but definite phrasing might be at- tempted in this case, since codification may well be applied to statute law, though destructive to the most valuable characteristics of the com- mon law. (4) Revise law of evidence to facilitate jus- tice. The laj^ of evidence should be revised in order to eliminate the rules which tend to de- lay and defeat justice rather than aid its administration. A scientist making an investi- gation would not hamper himself with technical rules nor with any limitations beyond those involved in a scientific effort to secure evidence relative to the subject in hand, and he would give each part of the proof its due weight in the formation of his conclusions. It is not pos- sible in a court of law to foUow entirely the broad and simple methods of scientific investi- gation, but it is possible to come much closer to that ideal than is the practice to-day, aside from the examinations made by the Masters in Chancery which approach quite closely to the scientific method. Jury trials at law are hedged about with numerous limitations which often cause unnecessary waste of time and money in the trial of cases and not infrequently produce a miscarriage of justice. The very CBKTAIN FAULTS IN LEGAL METHOD 155 multiplicity of the rules of evidence opens the way for cunniag lawyers to raise doubts and disputes and take appeals, to the great iacrease in the cost and difficulty of legal proceedings. In the Standard Oil trial before Judge Landis, for example, the Oil Trust lawyers took 169 ex- ceptions. In some of the famous murder cases hundreds of exceptions have been taken to the rules of the trial court. In this mass of ex- ceptions, taken in the course of long and com- plex trials the Appellate Court is very apt to find some departure from the rules of law in respect to the admission or exclusion of evi- dence, on which a new trial may be ordered, justice delayed and perhaps finally thwarted. The rules of evidence should be so broadened and simplified that technical objections and masses of exceptions will become a practical im- possibility. (5) Provide for intelligence in jurors. The Jury System, though perhaps the best method that can be devised for keeping the fountains of justice free from the bane of class prejudice and professional bias, is nevertheless far from satisfactory in its present form. A great im- provement might result from an educa^nal quali^ation for jury service. Certainly no man who has not at least a High School educa- 156 LEGAL DOCTBINE AND SOCIAL PBOGBESS tion or its equivalent, as well as a character above reproach, is fit to sit in judgment on his f eUow men. The method of drawing jurors might also be improved. Perhaps it might be a good plan to have the judges draw up the lists for jury- service and then subject such lists to the Grand Jury for approval. (6) Give better treatment to witnesses. Provision should be made for the better treat- ment of witnesses, especially in criminal cases. It is a gross injustice that innocent persons should be subjected to imprisonment in the common jails simply because they happen to be important witnesses in future trials. The story called "The Silent "Witness" in McClure's for January, 1896, contains a vivid illustration of what may happen to a witness under our present law. A young man from the country was passing the door of a saloon in New York, when a crowd of men came pouring out, sur- rounding two men who were fighting. As they reached the pavement, one of these men drew his revolver and shot the other. The crowd scattered. The countryman, seeing the crim- inal about to escape, grasped and held him until the police arrived. They not only arrested the* murderer, but took the countryman into cus- tody also as the only obtainable witness of the CBBTAIN FAULTS IN LEGAL METHOD 157 crime. He was put in jail and kept there in order to make sure of Ms appearance at the trial, and during the long months before the case came into court, the disgrace and confine- ment so wore upon him that when at last the trial came on, it was found that the witness hadi' died in prison. This is an extreme case, of course, but it forcibly illustrates the deep in- justice of any system of laws which will permit the imprisonment of innocent persons who may be wanted as witnesses in the state's behalf. If a witness cannot be trusted to appear when a case comes on for trial, it might be right to shadow him with a detective in order to be sure that he stays within reach of the court. If a witness fails to appear when ordered by the court to do so, it is proper then to subject him to imprisonment as punishment for his con- tempt. But to deprive a witness of his liberty, and keep him. for weeks and months together from attending to his business without any re- muneration for his loss of time and liberty or the ignominy of imprisonment is clearly a crime committed in the name of the law. (7) Eedress for false accusation. Eeason- able redress should be insured by the law to- persons falsely accused. In civil cases an ac- tion lies for damages for malicious prosecution, but in criminal cases the state may prosecute 158 LEGAL DOCTRINE AND SOCIAL PEOGEESS the wrong person, hold him in prison for months or even years, destroy his income, ruin his business and cover his name with ignominy, and the man has no redress. This is an out- rage of which no legal system should be guilty. (8) Expense and delays in securing justice should be abolished. Free and speedy justice should be ensured to every citizen. Many times the cost of litigation compels an injured party to endure the wrong. rather than incur the loss and inconvenience involved in prosecu- tion. Cases are on record where men have spent fortunes ia trying to protect their rights in the courts, and through numerous appeals and long delays and the excessive cost of legal proceedings have been compelled at last, through the exhaustion of their resources, to abandon the effort to protect their rights, los- ing in the legal battle both their fortunes and the rights they sought to protect. Such, for example, was the experience of the man who discovered the new process for refining oil. The Oil Trust people stole his invention and fought him through court after court until his means were . all exhausted and he lost both property and iavention. The man who in- vented the railroad spike, it is said, was worth $50,000. But the railroads used his invention without acknowledgment. He prosecuted them. CEETAIN PATTLTS IN LEGAL METHOD 159 They fought the suits through court after court until his money was gone and justice beyond his reach. Such a system makes the attainment of justice, in many cases, a matter of combat little better than the methods by which our barbarian ancestors settled their disputes; the difference being simply that they fought outdoors with their swords, while we fight in the courts with purses. If the state is to protect the rights of its citizens, it must see to it that the administra- tion of the law is made so swift and sure and costless to the plaintiff who has a well-grounded case, that the resort to the courts for legal re- dress may cease to be a greater evil than suffer- ing the injury which forms the subject of com- plaint. IX ESSENTIAL PEINCIPLES TO WHICH THE LAW SHOTTLD ALWAYS CONFOBM The fundamental problem of law and govern- ment. All the measures we have mentioned, from the improvement of the criminal law to the right to work are phases of the fundamental problem of law and government, viz. : the estab- lishment of the best conditions for the develop- ment of higher types and the fostering of in- stitutions in which such higher types find their natural expression and means of action. Man and the law are both results of the action of great natural and social forces, that have brought them both from barbarism to civiliza- tion, and will carry them on to still higher levels, not perhaps to a condition worthy to be called ideal, but certainly much nearer to it than we are at present. While we cannot ex- pect to reach the ideal we can earnestly move in that direction with the purpose of approach- ing it as closely as may be practicable. The basic method in such approach is the elimina- tion of anti-social motives and habits, and the development of social motives and habits. 160 PEINOrPLBS THE LAW SHOULD FOLLOW 161 An ideal not yet reached. In tlie ideal state, desires which, cannot be satisfied without in- fringement of the rights of others, would be reduced to a minimum, and the essential ego- istic impulses still remaining would be guided and governed by an altruistic will, a will in tune with the public good, and representing social thoughts, principles, motives and habits trained into the very nature of the child by precept and practice throughout the period of its education from the cradle to the end of school and aided and developed in after life by the influence of cooperative industry and a po- litical co-partnership existing not in name alone, but in full realization of the principles of de- mocracy and the spirit of brotherhood. The way to reach the ideal state — Individ- uals must progress in advance of institutions. The path to the ideal society lies through the improvement of individuals. Perfection in the social organism is a question of cellular devel- opment. If aU the cells are perfect, they will group themselves in perfect forms, assume true relations, and the whole will be perfect. Jf^ any cell is crushed by injustice, cramped by ig- norance, starved by poverty, deformed by vice, corrupted by luxury or poisoned with selfish- ness — ^if any cell is imperfect in any degree, the whole falls short of perfection by the de- 162 LEGAL DOCTEINE AND SOCIAL PBOGBESS fects of tlie faulty cell, and tlie false relations resulting therefrom. The development of good and repression of evil in individual men and women is the fundamental process. Especially is education of the children, the fresh and plas- tic cells, a mighty power for the reorganization of society. Institations mold mankind, but institutions are themselves the product of iu- dividual thought and feeling. A man of clear perception and keen appreciation of the right, raises his voice against a grievous wrong, and points perhaps to the remedy. Some of his hearers are stirred to truer thought and have their emotions directed and deepened. They in their turn modify the minds and hearts of the people they meet. Opposition to the wrong increases thus until it becomes Public Senti- ment. Then laws and institutions are changed, and the wrong vanquished. The new institu- tions bring the lingering minority of mankind into harmony with the new advance, and mold the natures of all into more perfect fitness for further progress. Thus instit]^tions and stat- utes are merely a part of the means by which individual improvement achieves further indi- vidual improvement. Perfect manhood the object — ennobled manhood the means. No wise man will lose a chance of deepening and correcting his ideas of social questions,- PBINCIPLES THE LAW SHOULD FOLLOW 168 neglect an opportunity of modestly impressing his thought and f eeliags upon others, or receiv- ing their views for his enlightenment. Every brain he sets to thinking, every heart he sets in motion in behalf of those who dwell beneath the shades of Poverty, Injustice, Vice or Some- thing-That-Ought-Not-to-Be, is an item ia the column whose addition makes up "Public Senti- ment," "Law," "New Institutions." The transformation of ages may flow from the heart of a child, and the humblest student of social science may drop some word, that, taking root, in the braia of a man who trundles the world at his heels, will lift humanity into a new and higher type of civilization. Good and evil mixed in every man. The de- velopment of good and the suppression of evil is the prime business of the law. If evil were found in a state of absolute purity, like Eoyal bakiag powder, it would be easy to annihilate it at once. But, unfortunately, good and evil are not chemically pure, but are mixed in the nature of every man, and there is no way to repress the evil but to put pressure or limita- tion on the man who manifests it, so that it is impossible to oppose evil without to some ex- tent hindering the activity of the good qualities bound up with the bad ones in the person whose freedom is limited. 164 LBGAIi DOCTRINE AND SOCIAL PEOGEESS This leads to two considerations of great moment, as reducing to a minimum tlie incon- venience resulting from this union of good and evil in every person — ^the selective effect of in- telligence and the separative and progressive power of proportionality. The need of selective intelligence. Eepres- sion and encouragement are of two sorts — one of which acts upon the intelligence of the per- son operated upon, while the other acts inde- pendently of, or aside from his intelligence. If a boy is whipped for making faces at his aunt, the shingling does, for the time being, repress his smiles, as well as the forbidden grimace, but, as to the future, the whipping has no tend- ency to diminish his laughter, but only his im- pudence, for the youth knows the purpose of his punishment, — ^through the medium of his intelligence, bad action is separated from good, and the repression applied to the former, — that is, the trans-intellectual effect of punishment is selective. The extra-intellectual effect, including the deterioration of physical and mental powers owing to imprisonment, disease, remorse, or other repression following vile action, falls to some extent on the good qualities of the actor, — the total power of his life is diminished. PBINOIPLES THE LAW SHOULD FOLLOW 165 But the repression may, by its trans-intellectual power, stop up the channels into which a por- tion of his life current was pouring, thereby turning the stream more completely in the di- rection of good, so that although his total power is decreased by the bodily and mental effects of his punishment, yet so much larger a per- centage of his vigor goes to good than was formerly the case, that his beneficial axjtivities are absolutely, as well as relatively, larger than before. The principle of proportionality. Turning now to the second consideration above men- tioned, the priociple of propoi^tionality is of vital moment. It is the core of equity, the heart of justice. It is clear that the amount of encouragement or repression in eaxjh case must not be arbitrary, or uniform, but must be pro- portioned to the degree of good or evil in the action or promise in question, for if repression is not duly proportioned, — ^if the same punish- ment is meted out, and the same consequences accrue, to two men of different degrees of guilt, there is no reason for the better to be so. If he is to iacur the punishment any way, he may as well sin up to it, so far as that influence is concerned. As the old proverb has it, "One may as :well be hung for a sheep as a lamb." 166 LEGAL DOCTEINE AND SOCIAL PBOGBESS If, for example, theft and murder were pun- islied with, equal severity, a robber, seeing that his danger is the same if he is convicted of theft, as if he were guilty of murder, will natu- rally be incited, iu many cases, to kill the per- son whom otherwise he would only have robbed ; since, if the penalty is the same, there is more security and less danger of discovery, when he that can best make the discovery is put out of the way. Is essential to justice. The element of pro- portion, so essential to the idea of justice, is tacitly recognized in every criminal code of the world,' by the graduation of offenses and pun- 1 There is one notable exception in history, — an exception that most strongly emphasizes the necessity of proportion. In the year 624B.C., Draco was appointed to draw up a code of laws for Athens. He provided the same penalty, — death, — for every offense — ^the slightest theft or even laziness, as well as murder or treason. Such laws were too cruel to be en- forced. " Sentiments of humajiity in the judges, compassion for the accused when his fault was not equal to his suffering, the unwillingness of witnesses to exact too cruel an atone- ment, their fears also of the resentment of the people — all these conspired to render the laws obsolete before they could well be put into execution. Thxis they counteracted their own purpose, and their excessive rigor paved the way for the most dangerous impunity." Grimshaw, p. 23. These intol- erable laws remained in force until 694 B.C., when Solon re- pealed them all (retaining the death-penalty for murder only), and established a criminal code in which punishments were graduated to the various degrees of offense. On this whole subject, see Gbote's Greece, chaps. 10, 11. PBINCIPLES THE LAW SHOULD FOLLOW 167 ishments; the principles being applied with, a skill detenniiied by the knowledge and charac- ter of the legislator. Permeates the whole law. The same princi- ple permeates the civU law of every nation. Each is to receive payment ia proportion to ^hat he has given, or the service he has ren- dered, — that is the meaning of quantum valehat and quantum meruit. Each is to pay in pro- portion to the damage he has caused, — ^that is the law of torts. Each is to bear such part of an innocent loss as corresponds to his share of the interest at risk, — that is the law of general average, distribution among creditors in cases of insolvency, contribution among insurers and co-contractors, and sureties of all kinds, abate- ment of legacies when the assets are deficient, etc., etc. The popular maxim "Equality is Equity, "2 means, not numerical equality, but 2 That equality as to burdens, services, etc., means propor- tionaJity as to individuals may be seen with the utmost clearness by an example. Suppose A to have rendered three times the service that B has. The law of equality between service and reward will give to A three times as much re- ward as B receives. B's service is 1, and his reward 1. A's service is 3, and his reward 3. B's reward is not equal to A's, but bears the same pro- portion to A's reward that B's service bears to A's service. "Equality is Equity," does not mean numerical equality, except between those who are really equal in respect to the essential oircumstaiices to which the maxim, applies, or who 168 LEGAL DOCTEINE AND SOCIAL PEOGEESS equality of burden to benefit, reward to service, punishment to fault, damage to loss caused, contribution to interest, etc., etc., which, applied to iudividuals means that each is to be burdened in proportion to benefit, rewarded in propor- tion to service, punished in proportion to fault, required to pay damages, in proportion to loss caused by his detrimental conduct, and to con- tribute to a common enterprise in proportion to his interest in it. Limits the taxing power, and even the leg- islature. One of the readiest illustrations of this principle is the hmitation of the taxing power. Our courts declare that it is of the essence of justice that a common burden shall be sustained by a common contribution.^ An apportionment of the tax among all those in- terested in the purpose for which the fund is to be expended, is a necessary element in all taxation, and any attempt at the exercise of the taxing power by the legislature, without such apportionment is absolutely void, even without any express provision in the constitu- tion. For such legislation would be a viola- tion of the implied limitations upon the govern- ment that grow out of the very nature of free come within the principle of the next section. See Story's Jur., p. 558. s See Blackwell on Tax Titles, Parsons' Edition, p. 24. PEINCIPLiES THE LAW SHOULD FOLLOW 169 institutions, — ^would be beyond the autbority wbicb the people bave delegated to tbe legis- lature.* For instance, a tax levied exclusively on real estate, for a purpose in wbicb tbe own- ers of personal property are also interested, is beyond tbe power of tbe legislature.^ So is a tax on County A for tbe common benefit of tbat and anotber county not taxed.^ Neitber is it any more proper to levy a tax on a wide district for tbe benefit of a portion of it. Taxes raised by a city partly in eacb of two counties, cannot be voted toward tbe court- bouse of one of tbe counties.'^ Tbe legislature cannot set aside any race as special objects of taxation.^ If it is clear tbat tbe legislature bas imposed a tax on a class, or on a district, witbout regard to tbe proportion of burden to benefit, tbe courts will not sustain it. It can- not select classes or districts for manifestly ex- ceptional burdens.^ Among tbose witbin tbe proper field of tbe tax, tbe maxim "Equality is *See p. 35, 20 Wallace, 655; 18 Mich. 495; Sedgwick on Statutory and Cbnsti. Construction, p. 177; 2 Ken't Com. 331; Blackwell on Tax Titles, Parsons' Ed., 24, 35; Cooley on Taxation, pp. 2, 140. 6 Oilman v. Sheboygan, 2 Black, U. S. 510. « See decision of Sharswood, J., in Hammett v. Phila.j ^5 Pa. St. 151; also 64 Ala. 266, and 9 Minn. 293. T Blackwell, 54; Bergen v. Clarkson, 6 N. J. 352. 8 Lin Sing v. Washburn, 20 Cal. 534. • Blackwell, 53; 12 Allen, 223, 237; 65 Pa. St. 146, 151. 170 LEGAL DOCTRINE AND SOCIAL PEOGBESS Equity" means Equality of sacrifice or taxa^ tion in proportion to ability to bear it.^" The taxing power is one of the best illustrations of the mighty hold that the principle of propor- tionality has upon our law, — it is indeed as we have previously pointed out, the very soul of justice, — and so deeply reverenced by our judges that they do not hesitate to declare that it is embodied in the very idea of free govern- ment, and that an act of the legislature in con- travention of it, is not a law at all, — ^not an act within the authority of the legislative agents of a free people. Proportionality essential to development. Examining the matter in the broadest light, it is clear that proportionality is an essential ele- ment in the law of development, the law of the movement toward the Ideal. The better life must receive the higher reward in order that an influence may be brought to bear on the lower life to move it toward the higher. Ji, in any respect, the inferior is rewarded equally with the superior, one influence tending to urge the inferior to acquire superiority is lost.^^ The best must prosper most, for if the worse 10 See Cooley on Taxation; the works of Walker & Mill, on. Political Economy. 11 Sometimes as a choice of the least of two evils, we ha.Te to forego one proportionality in order to secure another of higher value. PEINCIPLES THE LAW SHOULD FOLLOW 171 prosper most, the movement will be downward. If A at the zero of conduct and of promise, receives the zero reward and the zero repres- sion, then B at one degree of conduct or prom- ise above zero, should receive one degree of reward; C at two degrees above, two degrees of reward ; D at three degrees above, three de- grees of reward, and so on : and M two degrees below zero, should receive two degrees of re- pression and so on. The same thing holds in relation to good and bad faculties in the same man, as in the relations between one man and another. If B is deprived of a motive for struggling to improve himself, and come up to C's standard, and C has no motive to maintain his superiority, he might as well be as lazy, careless, dishonest, and selfish as B — as he will fare as well. So, if C and D are treated alike, C has no motive to go up, and D may as weU relax his efforts, and fall to the level of C. The law of development therefore requires ap- portionment. Only by a carefully adjusted graduation of repressions and encouragements along the whole line, can we bring to bear on every man and on every faculty a continuous pressure upwards. If, in going from bottom to top, there is any step of merit that is not met by a corresponding change of reward, the impetus to take that step is absent. 172 LEGAL DOCTEINB AND SOCIAL PEOGEESS Diffusion of burdens and benefits. Closely allied to the principle of proportionality and in fact a corollary from it, is tlie principle of the diffusion of burdens and benefits that re- sult from natural causes or broad social in- fluences and not from the individual conduct of the persons burdened or benefited. Distributing the effects of accidents. The leveliag of accidents, and the equalization of equal lives so far as practicable, is a duty clearly imposed by the law of development. It results from the principle of proportion, not only that lives of unequal merit must be un- equally treated, but that lives of equal merit must fare equally well. If the accident of birth, color, or sex gives certain persons an advantage over others of equal or greater merit, the law of development is broken. If a fire or flood destroys the property of good and bad alike, or damages some good man while it leaves a bad one undisturbed, the prin- ciple of proportion is violated. Earthquakes, tempests, lightnings, etc., and to some extent diseases, fall indiscriminately upon inferior and superior. If the cyclone and lightning could become endowed with powers of intelli- gent selection, — if discriminating earthquakes would occur each year or two, — if the Angel of Flames could be enlightened, and the Demon of PBINCIPLBS THE LAW SHOULD FOLLOW 173 Disease be harnessed to the Law of Develop- ment, the world would not be long in reaching the miUennium. But, as we cannot make these powers observe a true proportion, the only thing remaining is to neutralize their force as far as we are able, in order that if we cannot make them work consistently for good, we may at least prevent their giving evil an advantage. Government should equalize losses through insurance. Insurance rests upon and is justi- fied by the principle of distributing accidental loss, and the same principle of justice that makes it right to spread a loss over the whole number of stockholders or customers of an insurance company, instead of letting it fall in a crushing lump upon the innocent individual that Nature has hurt in her blind rush, — that same principle makes it more right that the loss should be spread over the whole community, or the whole world, and thus destroy completely the favorit- ism of Nature. It is more just that, a particu- lar class should bear the whole of a burden not due to its fault than that an individual should bear it. A disproportion between classes for other cause than disproportion of merit violates the l%w of development as truly as a similar disproportion between individuals. The public should insure its citizens against loss of property without their fault, workmen against 174 LEGAL DOCTEIITB AND SOCIAL PEOGEBSS sickness or accident, and their families and de- pendents against their death, for in all these ways burdens fall on individuals without their fault, and such burdens ought to be borne by the community in order that equal lives may fare equally well. No accidents or circumstances independent of his own conduct must be al- lowed to favor or burden any individual, so far as such effects can be prevented without too high cost. Equal pay for equal work. One result of this principle of the equalization of equal lives is that the same service should receive the same pay whether performed by man, woman, or child. Another is that ultimately all transpor- tation should conform to the principle of the Post Office, — one price regardless of distance, — so that th^ accMent locality may effect indi- vidual lives as little as possible. Diffusion calls for many reforms. A progres- sive income tax, the limitation of the inheritance of capital, public ownership of monopolies, and the repeal of all indirect taxation, are also de- ductions from this principle. So also is the pub- lic guarantee of a reasQ|iable ppporiunity to earn an honest living. The state ought to guarantee the innocent poor at least the oppor- tunity to procure as good shelter and food as it provides for the criminals in its jails. Cases PBINCIPLES THE LAW SHOULD FOLLOW 175 are not rare in which, men and women have violated the law for no other purpose than to secure the protection from hunger and cold af- forded by a prison, or a home for fallen women. The state cannot starve its arrested critniaals, nor expose them to the weather; equal treatment of equally valuable lives re- quires that innocence should at least fare no worse at the hands of society. The principle of intelligent selection. An- other priueiple of vital moment in the develop- ment of the law and its work of encouraging good and repressing evil, is the replacement of automatic selection by intelligent selection. In the vast series of reactions between groups of men and between each man and the whole physical and social environment, whereby some faculties, individuals, and modes of action are selected for limitation or destruction, and other faculties, individuals, and modes of action are selected for preservation, multiplication, and development, the methods of selection and molding fall into two radically different groups which I shall distinguish as Automatic Selection and Intelligent Selection. The latter involves the use by man of the forces of nature and life, with a conscious purpose of repressing evil, and encouraging good, or in any way molding qualities aild conduct into an ideal 176 LEGAL DOCTBINE AND SOCIAL PEOGEESS form. Automatic Selection includes all species of modification iu wMcli this element of iatelli- gent selective purpose is absent. We may illustrate tlie principle most vividly perhaps by a reference to the development of animal life. For example, the animals gener- ally used for food by the wolves of a certaia is- land become too few to supply the wants of the wolves, and they have to pursue the deer that dwell in the forests. But the deer are fleeter than most of the wolves. The slow wolves die, — the fast ones live and multiply. Their prog- eny inherit their qualities. The slowest deer are caught, — the fleetest escape and multiply. The continuous chasing they receive develops their speed still more, and the new generation is swifter than the old one. So the fleeter wolves find a fleeter set of deer, and so the double development and the double destruc- tion go on for hundreds of years, each buying increase of caution, fleetness, and strength with ages of cruel warfare, heartbreaking pursuit, savage and bloody banqueting, famine, and tor- ture-deaths. That is natural selection,^^ the survival of the fittest,^^ in the struggle for ex- 12 "The preservation of variations that are beneficial to the being under its conditions of existence," Origin of Species, p. 63. IS Not wholly a fortunate phrase, for it seems to imply the survival of those who are really the best, whereas it PEINCIPLES THE LAW SHOULD FOLLOW 177 istence. How different the process can be made by man's intelligent direction. Advantages of intelligence. The fleetness of a race of dogs or horses can be doubled with- out subjecting them to hunger, cold, or cruelty of any sort. They may live a life of peace and comfort and yet the progress wished for may be made in a hundredth part of the time that Nature's cruel methods would require. It would be done by careful training and breeding from the best. Intelligent Selection has the most tremendous advantages over Automatic Selection in respect to power, accuracy, rapidity, economy and kind- ness ; nothing is of vaster moment to humanity than the replacement of Automatic Selection by Intelligent Selection, and the improvement to the utmost of the methods of IntelUgent Selec- tion. Nature's processes are very wasteful. She produces a million of germs in order that one may mature. She sows with the wind. Man on the other hand plants carefully the seeds or slips he wishes to grow, gives them proper soil means only that those who are fittest to meet the conditions of present existence, suryiye, and, if those conditions are morally bad, as in countries where power and wealth go to conscienceless cunning, instead of to merit, or unselfish service, then the worst will survive, so far as these forces aSect the lesult. 178 LEGAL DOCTEINE AND SOCIAL PEOGEBSS and depth, proper ligM, heat, moisture and suf- ficient space that they may not choke each other. Intelligence operates without the terri- fic wastes and all enveloping chance that harass Nature and compel her to expend a world of energy and eons of time for every atom of progress she procures. Nature's methods not a pattern for human law. Not only is Automatic Selection very cruel, slow, and wasteful, it is also very iu- accurate. It frequently fosters an evil quality because it is linked with a good one, and dis- tributes its encouragements and repressions in proportion to accidents of locality, birth, re- lationship, lightning, fire, flood, and other things that have nothing to do with the intrin- sic virtues and merits of the man. While Nature, aside from conscious human direction, conforms in a rough general way to the law of development, yet, in many particular instances, she fails of a true application of the principle because of her inability to distinguish between the quality of the soldier, and the eminence on which his battery rests, — between the industry and skill of the farmer, and the fertility or location of his land, — between the use of strength, foresight, or intelligence for moral purpose, and their use for selfish and im- moral purpose, — the strongest and cunningest PEINOIPLES THE LAW SHOULD FOLLOW 179 conquers, whether he is a robber, or the inno- cent defender of his home, whether he is seek- ing to ruin a railroad for his private emolu- ment, or endeavoring to save his country from conquest, division or slavery. The law must discern between good and evil. The incapacity in Mother Nature to draw the line in individual cases, between the man and his circumstances, or between the good and evil use of power and iatelligenee, tends to obliter- ate the true connection between character and consequence. Good conduct can not be in- creased by securing to men advantages ia pro- portion to climate or soil, nearness to a city, other accidental circumstances unconnected with their personal superiorities and defects, or in proportion to anything else whatever than good conduct itself, and the manifestation of quali- ties that promise it. It is for us to perfect the application of the principle that underlies the rude justice of Nature, and we have already done something in this direction. Nature left the thief and murderer to private vengeance. On the whole, this made it dangerous to steal or kill, but many times the avenger himself was slain, or the rob- ber retained his booty unmolested. But intelli- gence entered the game, and the criminal must now destroy eighty millions of people before 180 LEGAL DOCTBISTE AND SOCIAL PEOGEESS he can be safe, and the earth has become a globe of glass that will not hide his flight. The certainty that repression will fall upon the evil- doer is very much greater than when it de- pended upon automatic selection. Again our civil courts have been established to distribute losses so that they will fall upon demerit, rather than on merit. Instead of leaving the dispute to angry private settlement, in which the strong- est or most cunning would succeed without re- gard to justice, the government steps in, with cool deliberate judgment, to compel the one in fault to bear the loss, to save the innocent from wrong, and give to merit its reward. Thus adding certainty of repressing evil and increas- ing good. We still rely too far on natural selection. The work that remains to be accomplished in this matter of substituting Intelligent for Automatic Selection, is to the work that has been done, as North America to the Island of Manhattan. We use the intelligent selection of a court of justice to settle the difficulties of man and man, or of state and state, but we leave the disputes of labor and capital to be ad- justed by primitive methods. We punish one who, by physical strength, wrests the earnings of a citizen from his grasp, but, if he uses mental strength to do the same PEINOIPLES THE LAW SHOULD FOLLOW 181 bad deed, we do not punish, but applaud his cunning, if it be not too open and direct in its methods. Strength of mind and body in them- selves are benefits, but evil modes of action ought to be repressed whatever power be used in their performance. We have applied intelli- gent selection to the separation and repression of such modes quite perfectly in one case, but far from perfectly in the other and more im- portant one. Intelligent selection should be applied to human propagation. Again, Intelligent Selec- tion is applied to dogs and horses with wonder- ful results, but children are left to the primitive plan. Our domestic animals we breed from the best, — ourselves we breed on a very, different plan. Population is held in check, so far as it is restrained at all, by the old, cruel, imperfect methods of automatic selection,^ — by hunger, cold and death, while crime and disease are too often left to propagate themselves with the fertility of desperation. The training of a race-horse, and the care of sheep and chickens have been carried to the highest degree of perfection that intelligent planning can attain. But the education of a child, and the choice of his employment are left largely to the aneient haphazard plan, — ^the struggle for existence, the survival of the fittest. 182 LEGAL DOCTBINE AND SOCIAL PEOGEESS We choose with the utmost care the materials of our public buildings, and polish the columns with marvelous skill. But we pay little or no attention to selecting the best materials for the next generation, — the commonwealth of to- morrow. We have tried, with very imperfect success, to establish intelligent selection in politics, but we have not brought it to bear to any great ex- tent on industrial life, in order to banish the cruelty, waste, and retarding effects of the old Automatic Selection. The law should deal with good and evil at their sources. Finally it is of vast importance that the law should go to the sources of good and evil. We are too apt to wait till the epi- demic comes and the pestilence is upon us be- fore taking adequate means of stamping out the germs of disease, requiring proper methods of producing and handling our milk supply, meat products, and other foods, and eliminating careless and injurious practices from our methods of living. We are too prone to per- mit children to grow up under conditions calcu- lated to create incompetent defectives and criminals instead of securing to every child the conditions essential to normal, healthful and moral development and so eradicating the causes of evU at the root. PEINCrPLES THE LAW SHOULD FOLLOW 183 There is no more potent method of diminisli- ing evil than to kill it in the bud, and prevent the scattering of the seed. And there is no better way of securing good than by nourishing it in the young, and giving it every means of development. Foster the promise of good and cancel the promise of evil. This is one of the most important of all the applications of the principle of Intelligent Selection. We have done comparatively little good work in this direction. A state, nation or industrial system that gives little attention to education, permits crim- inals to multiply, leaves the slums of our cities to rot in the vitals of humanity and breed a pes- tilence for the future, is not making a satis- factory effort to conform to the law of develop- ment. Summary. Summing up the foregoing dis- cussion we may now state in a single paragraph the law of development, or the essential princi- ples to which the law should conform in the process of molding men and institutions to higher types, viz: the proportional repression of evil actions and qualities, and encouragement of good actions and qualities, hy all means not costing more than the worth of what they achieve, remembering that different methods are proper in different stages of development, 184 LEGAL DOCTRINE AND SOCIAL PEOGBESS that we must always endeavor to reach, the sources of good and evil, to level the effect of accidents, to equalize equally valuable Hves, and that it is always of the utmost importance to replace automatic selection by intelligent selection so far as practicable. X THE QEEAT FUNCTION OP THE IxAW IS SEEVICE THE PEOMOTION OF GOOD AND THE DIFFUSION OF BENEFIT Standards of good and evil change. The determination of what is good and what is evil depends npon experience and reason, and varies as we have seen in different times and countries. One age regards slavery as a divine institution. Another age holds slavery in ah- horrenee but thinks the wage system and com- petitive industry to be in full accord with justice and the public good. A third age may regard competition and the wage system as only a little more civilized than chattel slavery, holding that the purchase of labor in competi- tive market is really the purchase of manhood and womanhood at the lowest prices at which the necessities of the workers may compel them to sell ; that to buy labor according to the law of supply and demand is to buy men as commodities, degrading manhood to the level of com and cotton, marble and lead, pig-iron and lumber. In the South before the war, the 185 186 LEGAL DOCTRINE AND SOCIAL PE06BESS planter bougM men out and out, took the whole life of a man, and all Ms labor, and gave back enough, to keep bim in good condition, because it was the owner's interest to keep him so; in the North to-day, we do nearly the same thing in substance, — we do not buy a whole life at once, but we buy it on the inst alhn ent plan, a day, a week, a month, a year at a time, and the purchaser in some cases takes the whole, the same as before, but the market price is not al- ways enough to keep the rented life in good con- dition, and when the worker's prime is past, capital no longer buys his years, but casts him aside for younger men, thus squeezing the life out of each generation so far as possible for the benefit of the employing class, and forfeiting the productive energy and civic and social values that come from a share in the profits and control of industry by the workers. What is beneficial? Experience and reason down to date appear to have clearly demon- strated that certain conduct, qualities and con- ditions are beneficial, and certain other con- duct, qualities and conditions are detrimental to society as follows : Beneficial conduct, qualities and conditions: Security Good Faith Character Liberty Care Education Equality Efficiency Knowledge THE lAW IS rOE SEBVICE 187 Skill Sympathy Kindliness Social purity Social cohe- Justice Health Order Wealth Stability Democracy Certainty Diffusion of Truth benefit EeliabUity Power over sion Confidence nature Prudence Progress Foresight Science Industry Art Economy Invention Association Combination Cooperation Exchange What is detrimental? Detrimental conduct, qualities and conditions, consist of the oppo- sites, absences and denials of the above; and manifest themselves, so far as conduct is con- cerned, in the following forms: (1) Direct or positive aggressions such as murder, theft, arson, assault and battery, cruelty, deceit, slander and libel, malicious prosecution, imprisonment of innocent wit- nesses to keep them on hand till the trial, con- finement of young offenders in close contact with veteran criminals, etc., etc. (2) Indirect or negative aggressions such as failure to fulfill agreement, lack of due care, delay or failure of justice at the hands of the law, etc. 188 LEGAL DOCTEINE AND SOCIAL PEOGBBSS (3) Refusal of voluntary cooperation for valuable purposes such as the exercise of voting franchise, the education of children, administra- tion of justice, etc. All three classes of actions are negative ia greater or less degree to the beneficial elements above enumerated and diminish the coopera- tion and coherence which constitute the essence of society. The law is beginning to compel cooperation. The third division is left for the most part to education and ethics. The law does not as a rule attempt to compel cooperation, but con- fines itself to the prevention and punishment of aggressions and the redistribution of loss oc- casioned by them. In some cases, however, the law does compel cooperation, as when it de- mands the payment of taxes, orders men to serve in the army or militia, requires parents to send their children to school until they attain a certain age, or makes property owners cooperate in or contribute to the building of pavements and sewers, the planting of trees, or other public improvement. Equality as fcaown by the law. The term equality in the above analysis of benefits does not mean per capita equality, in wealth, earn- ings, or any other element of life. The law does not guarantee equality of possessions any THE LAW IS FOB SBBVICE 189 more than equality of size, weight or ability, neither can it accord the same treatment to a criminal as to a man whose life is highly moral and useful. Equ|Jity in the sense of the law means equality of opportunity and the equal treatment of all persons under the same es- sential circumstances. There is a school of socialists who advocate the equal division of wealth. Two brothers in business or in fact any group of partners or cooperators may voluntarily agree to divide the product or profit of the enterprise equally without regard to the fact that some have greater ability than others and contribute more to the creation of the prod- uct. With well developed men the approba- tion of their fellows, the position and op- portunity to manage large affairs that come with proof of ability, efficient service, and hap- piness inherent in useful and successful work, are sufficient spurs to industry without the added impulse of money payment in propor- tion to service. But there are in every com- munity men who do not respond as yet to the higgler mo|ives and who need the money motive to make them work. Any attempt to secure equal division of wealth or product by legisla- tive authority would tend to enervate this class and woidd be a serious injustice to the more in- dustrious and conscientious classes of the com- 190 LEGAL DOCTEINE AND SOCIAL PBOGBBSS munity. The law should do its utmost to pre- vent pauperism on the one hand and the build- ing of fortunes from the unearned increment taken from the product of other men's labor on the other. Equal division by law under present conditions at least, would be a contra- diction of the fundamental principles of justice that it is the duty of the law to sustain and en- force. Justice calls for the apportionment of benefit, so far as reasonably possible, in due pro- portion to merit. It does not accord the nian of ability more wives or more votes than his in- feriors because in such cases no rational ap- portionment is reasonably possible. But in the case of payment for service rendered a fairly accurate adjustment of benefit to merit is at- tainable, so that any establishment of equality in the division of product must be developed to adopt such a system with good results. In- dustrial education, cooperative industry and social evolution may in time develop a type of man who will work for his country as earnestly as he will fight for it without regard to the money motive. When that time comes it may be possible, if it should then be deemed de- sirable, to equalize men in respect to wealth and earnings. But as human nature exists to- day in. the mass of men the equalization of THE LAW IS FOE SEBVICB 191 wealth, by force of law would be esceedingly unjust and disastrous. Legal meaning of liberty. Liberty means freedom to do anything that has not been clearly proved to be detrimental to social in- terests, — (1) full freedom to all that is bene- ficial to society; (2) freedom also in the field of doubt for the sake of progress ; and because happiness of the individual is the object, and liberty one of the primary and most important means of its attainment, the burden of proof in every case is upon those who advocate a limitation of liberty; (3) no freedom at all to do what is clearly contrary to the public good. No one can be allowed any liberty at all to com- mit murder, theft or arson. Even the freedom of speech and public assembly must be so limited as to exclude aggressions upon indi- vidual rights and incitements to disorder and deeds of violence. Nor is it necessary to wait in every case imtil the dangerous words are spoken before interposing the prohibitions of the law. If you see a man piling brush against your house and about fo scratch a match to set it on fire you do not have to wait till the house is ablaze before arresting him. The law makes for stability. For the sake of stability, certainty and prevision the law draws 192 LEGAIi DOCTEINE AND SOCIAI, PEOGBESS broad lines, prescribes forms and methods of procedure, establishes precedents and lays down presumptions. After twenty years your adverse possession becomes a title. You must sue for a tort within six years, and after thirty years a deed or will proves itself, the witnesses being presumed to be dead. If a man or woman is absent for seven years without being heard from, he or she is presumed to be no longer alive and the wife or husband of the absentee may marry again. These are a few illustra- tions of the tendency to make broad rules to favor the stability and certainty of life and guard against the intrusion of old claims long after the facts and evidence surrounding them had passed into oblivion and the lives of the parties concerned had developed into new lines in apparent security and which the law after the lapse of a reasonable time wiU not allow to be disturbed. Usages of business involved in or affecting cases that come before the courts are ascer- tained by them and enforced if found to be just and reasonable. A large part of the law of contracts and property consists of these usages which have been established in court and judicially approved as elements to be taken into account in interpreting rights, construing THE LAW IS FOE SBRVIOE 193 contracts, wills and statutes and in giviag judg- ment. Some branches of the law are antiquated. Forms and rules, usages and precedents often cling to the law long after the reasons for them have ceased to exist, so that while the mass of the law can be explained on principles of justice and common sense as understood to-day, we have to go back to the feudal system, to Saxon times, and even to the German forests to find the origin and reason for parts of the law. These rudimentary remnants of the past will be found particularly in the law of real estate, and the law of procedure, but appear also in contracts and criminal law and other parts of our system of jurisprudence.^ The law is inadequate as yet in securing economy. Economy of time, resources and happiness is a benefit in respect to which the science of the law is inadequate as yet. It is time that cost should determine in large degree the extent of any interference with conduct, and decide which method of prevention and de- velopment, the law, education, or public opinion is to be used; but the rate of change in social conditions must not be pushed by the law so 1 For exainples the reader is referred to Sir Hbnby Maine's Ancient Law; and Justice Ouvbb Wendeix Holmes's book on The Common homo. 194 LEGAL DOCTRINE AND SOCLUL, PEOGBESS fast as to make the cost to the present genera- tion greater than the gain. Aside from the sub- conscious recognition of such limitations, and some efforts, generally inadequate, to keep tax- ation within reasonable limits, the law has done but little in this field. It has permitted the most reckless destruction of natural resources, mines, forests, etc., for the satisfaction of private greed. It has authorized the waste of vast resources in fmiitless attempts to secure competition in public service utilities. And it has permitted and even sanctioned the growth of parasitic industries and classes that annually waste hundreds of millions of our wealth, and cause still greater loss through the debasement of manhood and womanhood they entail. The law has done much for education. For the sake of progress the law may favor sci- ence, literature, art, invention and discovery through the educational system, by the found- ing and operating of special institutions such as the Smithsonian and the experiment sta- tions of the department of Agriculture, the provision of funds, the offering of prizes, and the granting of temporary monopolies to discoverers, inventors, and authors. Of all the forms of private monopoly, a monopoly of the results of one's own ability and labor is probably the least objectionable. And yet when THB LAW IS FOE SBEVICE 195 we remember that every book and every inven- tion is largely the result ojF the accumulated wisdom of the past which is the common herit- age of mankind and that they owe their value to the existence of highly civilized communities containing millions of purchasers, it becomes evident that books, inventions and discoveries are largely social products. In fact the very training and ability which enable the author and inventor to do their work are themselves the product of modem civilization. It is only necessary to ask what inventions Edison would have made and what books Herbert Spen- cer or Tennyson would have written if they had been bom in the heart of Africa in order to see that the inventor and the author are themselves so^al prodjicts; and even if Edi- son could have invented the phonograph or Tennyson could have written his poems in the African jungle they would have had n^ value for lack of a purchasing public. The law of patents not yet equitable. Such considerations and the fact that nearly every great invention is made by several workers al- most simultaneously, and is achieved by adding some slight improvements to the work of pre- ceding inventors and discoverers who worked toward success step by step, generation after generation, each adding a little till the new idea 196 LEGAIi DOCTBINE AND SOCIAL PEOGKESS is fully developed and made practical — all these tlungs make it clear that it is impossible to tell how much of the value of any iavention is really due to the man who takes the last step, gets the patent and puts his product in the markets of 80,000,000 of civilized and progres- sive people who appreciate new ideas and are able to pay for them. In view of all this it is not impossible that in a cooperative cormnunity, instead of paying a million a month to the ia- ventor of smokeless powder or the discoverer of the Bessemer process, and nothing per month to the discoverer of Xzrajs or the anti- toxia cure for diphtheria, some plan may be devised for making all inventions and discover- ies public property with judicial appraisal of their values (subject to revision from time to time in the light of experience and the growing use or disuse of the new production), and the payment of royalties or of life annuities suffi- cient to constitute a tremendous spur to in- vention and discovery, but free from the ir- regularities that affect the present system under which some discoverers receive no special compensation while others accumulate fortunes so great as to be distinctly contrary to public policy and the reasonable diffusion of wealth. Whether or no'^such a plan proves practicable in the future, we are of course at THB liAW IS FOB SERVICE 197 present very far from the adoption of such methods, and must make the best of our patent and copyright laws by means of such modifica- tions as experience indicates are necessary to bring them more fully into harmony with justice and the public good. The law must do more for industrial develop- ment. Of all the benefits the law can help society to secure none is of greater moment than cooperation for valuable industrial and social purposes. From the days when our savage ancestors wandered in the primeval forests with little or no cooperation beyond what was necessary for the raising of offspring, down to the present time when every civilized community presents a vast network of coopera- tion in numberless variety of political, indus- trial and social forms, the history of the development of civilization has been in large de- gree the story of the growth of cooperation in larger and larger circles and ever increasing variety. And to-day there is no better test of the degree of civilization to which any com- munity has attained than the extent to Ts^hich its members have learned to cooperate with each other for their common purposes. The law should do its utmost at all times to favor the growth of cooperation in forms that are in har- mony with the public good, and to discourage 198 LEGAL DOCTEINE AND SOCIAL PEOGEBSS ajQd suppress such forms and metliods of com- bination as experience may prove to be contrary to social well-being. This may be accomplished by according profit and advantage to beneficial forms of organization, and attaching loss, dis- advantage, penalty and prosecution to detrimen- tal forms of combination. The whole empire behind every citizen. The extent to which cooperation may be carried and the results which may be achieved by it are well illustrated by the story of Camion, an English citizen, who, incurring the displeasure of the King of Abyssinia, was, without cause, cast into a dungeon in the fortress of Magdella, on the top of a lofty Abyssinian mountain. It took six months to get word of the situation to Great Britain. When the facts were known the Eng- lish Government at once demanded Cameron's release. The King refused. Within a few days thereafter, ships of war with ten thousand troops on board were sailing down the African coast. The soldiers marched across six hun- dred miles of wilderness imder a burning sim, climbed the mountain, planted their camion in front of the fortress, battered down the iron gates, went down into the dungeon and brought forth that British citizen, carried him across the six hundred miles of torrid territory, put him on board a white winged ship and sped bim THE lAW IS FOB SERVICE 199 to his home in safety. That was a splendid thing for a great nation to do. It cost Great Britain $25,000,000 and hundreds of lives. It would have been done no matter what the cost, for every dollar and every life in the Empire is behind each citizen to protect him agaiast in- justice and aggression in a foreign land. But govermuent is not yet awake to its whole duty to its citizens. Suppose Cameron had been found in a London sweatshop, working at exhausting drudgery sixtgen hours a day in a filthy, ill-ventilated tenement, for barely enough to keep body and soul together. Would the English Government have interfered in his be- half? Would it have spent $25,000,000 to clear up the slums and stop the sweating of em- ployes? No. Why not? Because cvna pri^e and patriotism have not as yet developed to the same extent as national pride and patriotism. What we need is a civic or domestic patriotism that will put every dollar and every life in the community behind each man to protect him. from injustice and aggression at home as well as abroad. And the time is coming when this will be realized. The spirit of justice, brotherhood, kindliness and cooperation is constantly grow- ing. We can see it in the better treatment of women and children, in the laws against cruelty to animals, in the abolition of slavery, in the 200 LEGAL DOCTEINE AND SOCIAL PKOGRESS diminution of war and the amelioration of con- flict, when it does occur — the Eed Cross, the hu- mane treatment of prisoners, and the respect for private rights and property in the enemy's territory. We can see it in the trend toward free government that has filled three continents with the light of civilized democracy. We can see it in the growth of industrial and social co- operation and in the wide-spread demand for the better division of wealth and for the elimi- nation of the industrial and social evils that still cling to our civilization. It is only a question of time when the new spirit of justice and broth- erhood and civic patriotism will express itself in laws and institutions, and every man will have the same security against injustice in his own country that he now has against injustice in a foreign land. The law is a great factor in all development. In one age war, conquest and autocratic govern- ment weld men into states and nations, and slavery develops habits of continuous toil. In another age competition develops initiative, enterprise, invention, combination, industrial power and dominion. In a third age coopera- tion may bring industrial peace, security and justice. Each age keeps the benefits worked out under the institutions of its predecessors while seeking to eliminate the evils of the past THE LAW IS FOK SEBVIOE 201 through high forms of political, social and in- dustrial organization. In all these changes that fill the history of the race the law is a principal and indispensable factor. The highest function of law may yet become the dominant one. The motives and character of men change with the changing laws and in- stitutions. Self-development and civic prefer- ment were the dominant motives in Greece. In Eome the ruling passion was military conquest. In the Middle Ages it was religious devotion. In the days of chivalry it was devotion to women and to high ideals of personal honor. To-day the domjpant motive is profit, money- getting, commercial conquest. To-morrow the spirit of service or the love of doing good work for its own sake, which already rules the lives of many, may become the dominant social mo- tive, and the piizes of life may be awarded more nearly in proportion to true social values and actual service and less in proportion to mere success in money-getting than is the case at present. XI IlS^TEENATIOITAIi IUA.W ALSO AIMS AT MOLDING MEN AND INSTITUTIONS TO HIGHER TYPES International law presents some interesting analogies and equally interesting contrasts with domestic law. First principle. The first principle of inter- national law is that every nation is equal and independent and has for itself and its citizens a right to security, liberty and property with- out interference so long as the rights of other nations are not infringed. Equality of nations and of individuals. The analogy with domestic law is manifest. In the latter every individual is equal before the law and has the fundamental rights of security, lib- erty and property. In the law of nations every nation is equal before the law and has the same fundamental rights. Nations are not equal in size, strength, wealth or value to the world any more than individuals, but among nations as among individuals justice demands equality of opportunity, equal security and equal liberty so 202 INTEElSrATIOJrAX, LAW MAKES FOE PEOGEESS 203 long as the rights of others are not infringed. If they are not to be equal before the law, if one is to have more right to security, liberty, etc, than another, who is to determine how much liberty each is to possess? It is the same with independence, if nations are not to be re- garded by the law as independent who shall de- termine the degree of dependence that shall belong to each. It is manifestly impossible to arrive at any basis of agreement other than that of equality and independence in the eye of the law. Applies to nations only. It must be noted that the principle applies only to nations. The law cannot give the same rights to a handful of barbarians as to a powerful civilized people, therefore a broad line is drawn and such groups as are clearly not entitled to equality and inde- pendence are cut off by the definition of the word nation. A na^n, in international law is a permanent community of considerable size and some degree of civilization, possessing a fixed territory and having a definite and effect- ive political organization with sovereign powers and wholly free from external control. The distinction between peoples entitled to the rights of nations and those that are not, bears some analogy to the line drawn by do- mestic law between infancy and maturity; the 204 LEGAL DOCTBINE AND SOCIAL PEOGBESS latter requiring full age and sound mind as the basis for the rights of citizenship. Second principle. The second principle of international law is that every nation has the right to use force, strategy and all other neces- sary means except perfidy ^ to secure redress or prevention when it deems its rights invaded or threatened, or when the rights of another na- tion are invaded or threatened. In theory, international law does not sanction aggressive war, but in practice as there is no one but the nation itself to decide whether its rights and interests are endangered, in any case it is easy to find an excuse to wage aggressive war. The only penalty for such violation is the adverse public opinion of the civilized world, (which is without adequate means of expression and enforcement. Restrictions upon warfare. In recent times usage and agreement among nations have placed some limits to the forms of force to be employed in civilized warfare. For example, bullets that explode after striking the body are prohibited. There is a constantly increasing 1 Peifldy in international law means the violation of com- pacts made in war or with reference thereto. It is manifest that no state can be allowed the right to break its contracts made in war or in reference to war, otherwise there would be no means of security in terminating war or carrying ob negotiations for tkat end. INTEBNATIONAIi LAW MAKES FOE PBOGBESS 205 tendency to recognize and apply the beneficent principle that the application of force should be confined so far as possible to the clash of armed masses with the least possible iaterfer- ence with the rights and property of private individuals; so that in war between civilized countries, armies no longer kill or maltreat women, children or noncombatants, nor bum and devastate towns and farms as they march through the enemy's country. Position of other nations. In case of war be- tween two powers other nations may choose whether they will take part ia the conflict or remain impartial; a nation may join one bel- ligerent against the other to protect or advance its rights and interests, or to aid a cause it regards as just and worthy of support, as when we aided Cuba in its revolt against Spanish injustice; or when France assisted America to resist the tyranny of England and throw off the yoke of King George. Duties and rights of neutrals. Nations that choose to be neutral must show no favor to either belligerent, except such reasonable con- cessions as may have been agreed upon by treaty before the war. They must not sell or * forward arms or ammunition to either bellig- erent, carry any contraband of war, nor the enemy's forces or dispatches on their vessels; 206 LEGAL DOCTEINE AND SOCIAL PBOGBESS they must not permit any act of war in the neutral territory, such as the raising of an armed force^ or equipping of war vessels to go to the aid of either party in the struggle. As an example of the sort of modification of a neutral's duiy of impartiality which may be made by treaty before the war, we may name an agreement to allow the privateers of one nation to bring their prizes into port while ex- cluding the privateers of her enemies. Neutrals must not interfere with the follow- ing rights that usage has accorded to belliger- ents: (1) Search of vessels on the high seas to see if they belong to the enemy, carry the enemy's goods, or contraband of war to an en- emy's port, etc. (2) Confiscation of enemy's goods found in neutral merchant vessels. (3) Blockade of enemy's ports. The right of search flows from the necessity of ascertaining what is the enemy's property in order to exer- cise the right of capture. On the other hand, the rights of nations that remain neutral must be respected as in time of peace, and any property found to be neutral must be treated as it would be if there were no war. If a nation claiming to be neutral violates any right of a belligerent or favors either side beyond what may be stipulated for by reason- INTEBNATIONAX, LAW MAKES FOB PEOGRESS 207 able treaty prior to hostilities, she forfeits her right to protection as a neutral, puts herself in the list of enemies and may be treated accord- ingly- The need for international organization to en- force international law. The contrast with domestic law in respect to the means of enfor- cing rights, is very strong. The individual citizen is not allowed to undertake the adminis- tration of justice on his own account. He must not seek to punish, nor to obtain redress by force, nor even to defend his rights by force except in cases of emergency when there is not time nor opportunity to call upon the law. The nation, on the other hand, is obliged to adminis- ter justice on its own account because there is not international organization to which it can appeal for the protection and enforcement of its rights. It may take the matter to the Hague Court or arbitrate it in some other way if the other party to the controversy is willing, but there is no international police or armed au- thority Representing a world organization to compel the nations to do justice in their rela- tions with each other. There is reaspn to be- lieve that this will follow in the course of time. The Hague tribunal is the beginning. A Par- liament of Nations and an International Army and Navy to enforce the decrees of the court 208 LEGAL DOCTEINE AND SOCIAL PBOGEESS and require submission of disputes to judicial decision in all cases, will surely follow.^ This mil enable the nations to disband their armies and buUd their navies for conamerce instead of war. It wUl free an enormous volume of social force for the arts of peace and the purposes of civilization, and work a change similar to that which took place when the organization of the state freed individuals from the necessity of spending a great part of their time and re- sources in conflict, or in preparation for it, as the only means of defense against the aggres- sions of their fellows. The coming of universal peace. As intelli- gence and sympathy increase, as commerce grows, as democracy develops and the common people who have to do the fighting come into full control in the various countries, interna- tional organization and disarmament will be inevitable and the time will come that Tenny- son dreamed of in Locksley Hall: "Till the war-drum throbb'd no longer, and the battle-flags were furl'd In the Parliament of man, the Federation of the world." 2 Read World Organization, by Raymond Bbbdgman. xn THE LAW IS A EESEEVOlB OF SOCIAL PEOGBESS The law as a reservoir. The law is a reser- voir of social progress, and this reservoir will become stagnant unless it have an outlet and an inlet. Into it the new life of this age must flow; it must circulate and permeate the whole and the outworn forms of the past must go out. A stream that undammed is dissipated so that its bed becomes dry when water is most needed, will, properly dammed and conserved, irrigate miles of land and make it bear wonderful crops. The law is such a reservoir for social progress. Perhaps a better illustration is that of a firmly built foundation on which the edifice of social progress is built up into the sunlight and air. Below all fine civilization and social prog- ress, lies the firm foundation of a slowly and painfully haromered out legal system. The coral insect, deep in the ocean, lives, buUds its little accretion of enduring stone and dies, each one bearing the coral* stone nearer to the light and top; it is thus with those who aid in in- 209 210 LEGAli DOCTEINE AND SOCIAL PEOGEBSS creasing tlie lasting accretions of our legal system. . Progress leads; law follows. Social progress leads; tlie law follows. Laws cannot and Mshonld not be very far in advance of the people. Ordinarily there should be a distinct majority, if only of influence, in favor of a law ; otherwise it cannot be enforced, and unenforced laws lessen the respect for all law and tend to law- lessness or anarchy. Hence pu^ic opinion must be educated by radicalism up to at least a moderate demand for a law before it should be enacted, and then still further educated to the law's enforcement and improvement. Not until a predominating section of the community will support a law, should it become effective. Individuals in advance. Often men are in favor of a law which is itself morally in ad- vance of them. Thus a drunkard, kaowing the evils of drink, may sincerely favor stringent liquor laws. I have known gamblers who, though drawn almost irresistibly to a gambling house, wish everyone was closed so that they could not gratify their vice. Men have been known to work ardently for the limitation or prohibition of their own particular vice. Most everyone wiU publicly support the moral side of a question, even those who, if it were enacted, OONSBEVING THE PEOGBESS OP THE PAST 211 migh.t secretly violate tlie law. "Hypq^isy is vice's homage to virtue," said sorae wise maa, and so moral advances in laws are always, pub- licly, well supported. Law naturally conservative. Law is natu- rally conservative. It comes from the past and all but a very small accretion belongs to the past. Its face is turned backward looking at precedents and past rules. It frequently does not see present conditions which are different from past ones. Every good quality when car- ried to excess, becomes some bad quality. The great good quality of the law, is its stability, its strength, its conserving power ; when carried to excess, this becomes rigidity, immobility, re- sistance to progress and change and when com- pletely degenerated it becomes an involved technical system tied up with red tape which works for the form's sake and not for the sake of justice. Eadicalism must advance. Eadicalism must always go in advance of the law which holds it in check. Radic^sm is the centrifugal force which tends to throw away customs, forms, and institutions; law is the centripetal force which draws them toward a conserving center. Either working alone, means ruin and destruc- tion; both working harmoniously together mean 212 LEGAL DOCTRINE AND SOCIAL PROGEESS beneficent social development. When radical- ism has proven itself good, wise and construct- ive and when the public has accepted it, it be- comes a part of the law and ceases to be radical. Hence we wiU find institutions which are an accepted and conservative part of the frame- work of society in one country, advocated in another by the extreme radicals; yet at the same time, the second country may have in con- serving operation a well-established institution which in the first country is only hoped for by the extremest radicals. Thus Norway has the Gothenburg system of liquor selling; control and diminution is in such successful operation that no one considers its abolition. It is a con- servative part of the law there. In the United States, it is only advocated by radicals with a few imperfect and tentative attempts here and there. But on the contrary, in several of our states we have already the initiative and ref- erendum embedded in the state constitutions and have always used the referendum on all constitutions and constitutional amendments; in these places it has ceased to be radical and becomes a conserving part of the stable law. In Norway, on the contrary, the initiative and referendum are only feebly advocated by a few progressive thinkers. Eadicalism is not an ab- solute but a relative school of thought. It CONSEEVING THE PBOGEBSS OF THE PAST 213 stands for the things that the government is not ready to do. No government radical. Hence it is that no government is really radical. As soon as it gets into power, it must enforce the laws as they are, therefore, it is only able to make slow changes. This is why extreme radicals are always disap- pointed when their party gets into power ; from the very nature of its situation, it must conserve and can only make changes slowly and with due regard for the conditions which have been cre- ated by past laws, even laws which under pres- ent social conditions are working injustice. The change must be made gradually lest the immediate evils following from a too rapid change may be greater than the goods of the reform. This is a danger which the public rarely, and the radicals still less rarely, see. Hence they say the radical in power has gone back on his principles. Thus Premier Clemen- ceau of France has spoken and written most radical things and associated with the trade unionist and socialist, and yet as Premier of France he sides with the State and the law of the State in putting down the strike of his for- mer associates; he thereby shows his true statesmanship and understanding of his posi- tion as head of the legal system which has been built up in France. No government can be 214 LEGAL DOCTEINB AND SOCIAL PE.OGBESS strongly radical ; for radicalism in England or any other country, you must look outside of tlie Eadical party. Progress secured at cost. It is well that we have a great conserving reservoir of the past. Progress must always be secured at some cost and that cost consists of two things, — ^the striv- ing of the radicals under the impulse of ideals to carry new laws or to educate society to the point where it will enact new laws, and the cramping of society by outworn laws before it generates the energy to slough them off and create new forms. It is far better, generally, to secure progress at the expense of some cramping because not obtained fast enough, than to sacrifice it to the whims and passing passion of a great radical uprooting. Thus, in our own country, it would have been an immense financial saving to say nothing of the still more enormous savings of life, energy and love, if the nation could have paid the South the full market price of the negro slaves before the breaking out of the Civil War, but owing to the passions aroused, war was a greatly to be re- gretted necessity. Law not necessarily reactionary. While law is seldom in advance of public opinion, and often far in the rear, it is a serious error to view the law as essentiallyi reactionary and over-con- CONSERVING THE PEOGEESS OF THE PAST 215 servative. Accepted legal doctrine is, on the whole, as radical as human nature will stand for. There is nothing in the fundamentals of the law to prevent progress or to impede the development of the highest and noblest social institutions. Law holds germs of progress. In fact, the greatest and profoundest legal doctrines lay; sure foimdations for higher civilization and open the way for formal and regulax progress to it. Search carefully the fundamentals of law and in them you will find, though perhaps in un- developed form, the germs of all social progress, of all true reform, of even that which seems at present the most radical and quite impossible of attainment. The upper crust of legal enact- ments may hamper and bind society till it burst them, but below, in the roots of the law, are the germs, the reasons, the arguments of all true radicalism. Law's elasticity. There is an elasticity as well as rigidity in the law, its doctrines are superior to its specific regulations but it has no dogmas other than moral or social axioms, and it follows, therefore, that the law can be, as it has been, adapted to the progress that men and society make, and no legal doctriae or the- ory can prevent this adaptation. There is no such power in precedents as to forbid the enact- 216 LEGAL DOCTRINE AND SOCIAL PBOGEESS ment of new statutes, the revisions of constitu- tions and charters, the rendering of new deci- sions, or the creation of new principles of construction, where these are needed to con- form to newly accepted ideals or to fit new con- ditions. The law's forms and precedents built up under now old and obsolete ideals and con- ditions may hamper society, but search below these nearly dead forms and precedents for the real roots of the law and you will find great, far-reaching principles. These may be drawn on to justify, to condition, to really build up the new statute law and precedent needed by changed conditions of society and by society's further developed and larger ideals. Too many people, seeing only the old and likely worn-out precedent, say the law is antique and cramping. Let them dig down to its fundamental princi- ples for the justification of progress. Recognition of the law's social service. There is no more fundamental, far-reaching re- form needed to-day than this recognition of the broader scope of the law and the larger field for fundamental activities that is contained in its principles. The service function of the law and "the promotion of the general welfare" clause of the constitution are the lines along which the progress of the future will be made ; as war and crime decrease, as police activities CONSBBVING THE PEOGEESS OF THE PAST 217 grow less, more and more will be accomplislied in the development of civic usefulaess and the accomplishment of greater social service for the people by their governments. This, more than any other one thing, is to-day the great movement in law and tendency of government. Change in law's ideals. Law is the peg which when once driven into a progress, holds society there till that progress may be made an integral part of its civilization and from which further progress may be made. But with this progress there is, at the present time rapidly coming on a change in the law's ideals and methods. This change will increase greatly the benefit of law to civilization. The ten com- mandments are a bundle of negatives. In this, they are typical of all old law. Old laws mainly enacted punishments; the best modem crim- inologists, truly representing the fundamental change which is coming over the law's ideals and methods, are substituting reformation for punishment, they are abandoning the negative ideal, and have taken up the positive ideal. This change has taken place not only in the law as applied to individuals, but as to society and social conditions, untU our legislative halls re- sound with talk about the effect of laws on society. Silently and almost unobsei^ed has this 218 LEGAL DOCTBINE AND SOCIAL PEOGBESS change crept over the spirit of law. Its germ was embedded in ancient law, but the develop- ment of that germ is modem and its rapid de- velopment has taken place in our own time. It will accomplish itself more and more rapidly in the future. Law, from being negative, pro- hibitive, individual, primitive, is becoming posi- tive, permissive, social and creative. It is ad- justing the framework of society more and more so as to permit liberty of individual ac- tion and yet exerts its force to draw up indi- viduals to lofty ideals of conamon and social action. This is a view of the law that needs to be more generally understood. Social consciousness. In thus holding up social ideals, in being permissive and cre- ative, law will continue to develop in the minds of men a social consciousness that each is a living and vital part of the social whole, with duties as well as rights. The relation be- tween the law and a vital social consciousness is that of action and reaction, the law playing a more active part than is often appreciated. We have talked much of late about a new social consciousness, and well we may, but there is an element of the prophetic in our talk. There is much for the law to do for the masses in the further development of that consciousness. Social conscience. Concurrent with the mak- CONSBEVING THE PBOGEESS OF THE PAST 219 ing of a great social consciousness, but differ- ent, is the development of social conscience. No force is greater than the law in the crea- tion ia men of that social conscience which will say that every child, no matter how poorly born, shall have the fullest opportunity for develop- ment that is possible ; that every man willing to work, shall have the opportunity for healthful work and hopeful rest; that every locality can develop freely and fully; that present right- eousness is greater than precedent ; that human life shall take precedence over property rights. The law is helping to create the conscience which in turn will make the new law express- ing itself. This view of the law is above and beyond the specific schemes and formal rules of the socialists of various schools, it transcends the narrow comprehension of pur-blind anti- socialists and so-called individualists; yet it grasps the best ideals of both and builds upon the good foundations of the past and present. The law is here. It fits human life on the whole fairly well. It is far in advance of many. It is a great uplifting force to the masses. And law is to hold fast that which we have gained, as well as to be the arena in which the spheres of individual and communal develop- ment are slowly and painfully to be molded and remolded and given definition.