discussed in this article, a distinct tendency toward humaner conceptions. That this development should be slow, is not only natural, but desirable. To the writer it appears essential that courts of law should act as the final brake upon extremes of popular opinion, and should protect the public from their own temporary following after the false gods of extreme setimentalism and fashionable theorism. It appears essential that they should not yield to new ideas until time has proved their permanence, and their real place as a part of the fixed and settled national conviction, until they are seen to be a permanent habit of national thought. None the less, while they should not yield to mere popular hysteria, it would appear that they should not over-rigidly adhere to obsolete methods of thought.90 The great merit of the common law lies in its flexibility, and this flexibility exhibits itself, not merely in its ability to adapt old conceptions to new facts, but to absorb and apply what is settled and permanent in economic and ethical ideas.

ing the scope those duties which a citizen owes to his fellows, a recognition that the interests of the common good are of paramount importance in many matters which previously were considered as concerning only the individuals involved, and an adjustment of the proper exercise of mutually conflicting individual rights in accordance with what will best serve the interests of the State as a whole. Third, in a weakening of the extreme individualistic attitude which made every man the primary guardian of his own interests, and a growing recognition that there being many classes lacking this power of self-protection, the duty falls with the power of performance. The nicer ethical perceptions of modern times have as yet had less influence, though even here the more enlightened, modern ideal of business honesty has caused the early view that one who had failed to take the precaution to demand a warranty from his vendor, might be cheated with impunity to give place to the view that a vendee need not investigate the truth of facts stated by his vendor.

"A true conservatism does not consist in a blind worship of and adherence to what is and always has been, and a flat refusal to avail oneself of the wider experience and greater knowledge of the present time, but on the contrary, in a gradual acceptance of what is good in modern thought, a not too rapid yielding to the just demands of progress, in order that its forces being penned up may not finally in a great flood of ultra radicalism sweep away the existing social structure; and this appears especially true of the law, where it has been so often the case that a blind refusal to modify some archaic and, to modern thought and under present conditions, barbarous rule of law has led to legislative action of the most extreme character.

It may be said that changes so extreme should be left to the legislature. Such a contention would seem to concede almost the whole battleground to the advocates of a code, as distinguished from a common law. The common law is enabled to develop a new conception, and has done so time and time again, by slow steps to a final just and convenient solution of the problem. It is able to advance and recede, and finally to work out a principle capable of enforcement, without undue inconvenience. Legislative action, on the contrary, can make no such compromises and experiments, nor can it take into account every conceivable situation and provide for each. While not arguing for the immediate legal recognition of humanitarian duties it should not be forgotten that a system of law which lags too far behind the universally received conceptions of abstract justice, in the end must lose the sympathy, the confidence, perhaps even the respect of the community. Every day one sees instances of the evils of this divorce between the popular and judicial idea of justice. Juries habitually perjure themselves by verdicts in the very teeth of the facts, because the law as laid down to them by the Court offends the settled popular convicition of what is right.

While courts of law should not yield to every passing current of popular thought, nonetheless, it appears inevitable that unless they adopt as legal those popular standards which they themselves, as men, regard as just and socially practicable, but which, as judges, they refuse to recognize solely because they are not the standards of the past of Brian, of Rolle, of Fineux, and of Coke; they will more and more lose their distinctive common law character as part of the machinery whereby free men do justice among themselves.

To enforce their unpopular rules they must administer them themselves, and must more and more take over the functions of the jury, who cannot be depended upon to carry into effect ideas utterly out of accord with their own ideals of social convenience and justice. More and more

will they tend to become, if not actually, at least to the popular mind, the embodiment of the State as over-lord, not as the incarnation of the will of the people, arbitrarily administering an irksome discipline upon a people yielding thereto only until their dissent grows so strong as to impel them to demand from their legislative representatives recognition of their views.91

Francis H. Bohlen.

"It must not be overlooked that the American people like, perhaps all other peoples, is very inert, very slow to move, not acting at all until some violent appeal to their imagination inflames them. This very inertia, once overcome, tends to create a momentum carrying their action to violent and often absurd extremes. Perhaps there is no better simile of the comparison between the ultra conservative attitude of the courts, and that contended for, than the contrasted attitudes of the old-fashioned schoolmaster arbitrarily-almost tyranically-imposing his will upon the students, who yield because nothing short of an appeal to their parents will make resistance effective, and that of Dr. Arnold, who yielding to school sentiment and tradition when just and workable and imperceptibly directing it into proper channels rather than appearing to impose his own will upon his scholars, for so many years made Rugby the ideal Public School.

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VOLUME 56

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NOTES.

ANTI-TRUST Law as AppLIED TO LABOr Cases.

The recent case of Loewe v. Lawlor (208 U. S. 274) on its facts presented a boycott of the plaintiff, a hat manufacturer, by the defendants, members of a vast combination, called the United Hatters of America. This organization is a part of the American Federation of Labor, and the boycott was effected by threatening plaintiff's customers throughout the States with loss of patronage if they continued to deal with the plaintiff. The case was held to be within the Sherman Anti-Trust Act1 and the defendants were required to pay triple damages under Section 7 of that Act.

The broad principle upon which the case rests is that the Act

'Act of July 2, 1890.

[339]

applies to combinations of labor as well as capital. This conclusion is based upon the generality of the language of the Act, in that it embraces "every contract in restraint of trade;" upon the fact that during the pendency of the bill in Congress futile efforts were made to exempt labor organizations from its operation; and that in at least one case the point had been decided.2 It is manifest that in holding that the Act applied to combinations of labor as well as capital, a principle was laid down which was much broader than were the facts of the case. The emphasis is laid upon the combination and not upon the means employed to effectuate this combination. Thus, although the means here resorted to was a boycott, yet the decision does not seem to have been rested upon this ground. It is submitted, therefore, that the doctrine of our case, that a combination of labor in restraint of interstate commerce is unlawful, substantially affects the common law rules in trade and labor cases. A consideration of the scope of this doctrine will make this apparent.

In our analysis of this doctrine we find these three elements, all of which must exist in order that the doctrine may apply: (1) the combination; (2) the restraint; (3) the interstate commerce; we shall take these up in their order. The combination may be of individuals or groups of individuals, and may take the form of a contract, an unincorporated association, or a corporation. The "restraint" to be within the Act need not be an unreasonable one. On the principle that the fixing of the price of goods embarked in interstate commerce by the members of an association inter se, is unlawful, it would seem that the fixing of the price of labor employed in interstate commerce is also unlawful. Therefore, it would seem that a strike in pursuance of such a combination would be within the Act; and that this would probably also be true in case of a “sympathetic" strike. Lastly, the restraint must be of interstate in contradistinction to intrastate commerce. Thus, under the principle that the restraint which the Act declares unlawful is

"U. S. v. Workingmen's Amalgamated Council, 54 Fed. 994; see also In re Dels. 64 Fed. 724.

Addystone Pipe & Steel Co. v. U. S., 175 U. S. 211; Northern Securities Case, 193 U. S. 197.

Northern Securities Case (supra).

Montague v. Lowry, 193 U. S. 38; Swift & Co. v. U. S., 196 U. S. 395; Addystone Pipe & Steel Co. v. U. S. (supra).