consenting to be put to death although forbidden foreign corporation so offending shall forfeit its

selling agencies, exercising functions similar to are misled by the laws relating to the examinathose of the trusts, all organized for the pur- tion of the books of banks, which are very easily pose of fixing prices arbitrarily. Every day brings examined. Banks have only to do with a single its report of some new and gigantic alliance, the commodity, one that has fixed and unvarying future of which cannot be predicted, since most values. The difficulty is enormously increased of these corporations are authorized to buy up the when it comes to like examinations of the books stock of any other corporation so that they may of other corporate bodies doing an extensive and at any time acquire supreme control over industries varied business. In such cases it is not unireextremely remote from those ostensibly in view quently found that the mysteries of modern bookwhen they were first created. keeping exceed those of alchemy, reminding one of the response of a railway president to his legal adviser to a question as to what the books of the company would show regarding a controversy then under consideration. 'Well,' said the president, as I foresaw long ago that this dispute would some time probably arise, and, not knowing exactly what form it would assume, I kept the books in a flexible condition.'

"The first success of one of these combinations, if successful at all, is alluring in a high degree. If the property is capitalized at twice its value, the lowest capitalization known, and the securities are floated at par, the result is that the former owners find themselves twice as rich as they were before, and at a very trifling outlay of time, money, or energy, to say nothing of a future of immense possibilities. We shall not be surprised, therefore, when told that many similar organizations are started with the deliberate intention of swindling unsuspecting stockholders.

"The Supreme Court of the United States and several of our Presidents have more than once called attention to the gravity of the situation, and we cannot suppose that men occupying such high positions of responsibility would wantonly excite public apprehension.

"There is one form of tyranny that governments, however instituted, cannot - at least directly exercise. Efforts have often been made to control prices by law, but never successfully. The natural laws of trade always triumphed over the artificial laws of men. But whoever can control the supply can fix his own prices, as we see in the case of Pharaoh in Egypt. It was not as King that he asserted that power, for the command of the supply would have given it to him if he had been a private individual.

"Flexible bookkeeping may justly claim a respectable antiquity. It formed one of the minor charges of Cicero against Verres; and a contemporary poet surmises that it was utilized by the contractors that built the pyramids. The remedy of publicity would only serve to prolong the present situation.

"Another proposed remedy is the modification of the tariff laws as far as they affect prices of commodities sold by the trusts. This would open the trusts to the competition of the foreign markets; and to that extent it would place a limit on the power to raise prices. It would not, of course, affect all the trusts; and hence it would be inadequate, though it might prove very useful.

"Another remedy suggested is an amendment to the federal Constitution giving power to congress to control all corporations; a very drastic remedy indeed, one that would greatly strengthen the lobby, one that might introduce an era of political corruption hitherto unknown.

"Lastly, it is suggested that the federal Constitution should be so amended as to enable congress to prevent by appropriate penalties the slugging of rivals by local underselling, by factor's agreeThis would not ments,' and by similar devices. prevent the investment of large sums in corporate hands; and corporations with large capital would still have an advantage; but laws of that kind would no doubt be rigidly enforced by the juries of the country; and public sympathy in favor of new and struggling enterprises would probably go a long way to redress the balance.

"A remedy sometimes proposed with seeming confidence is that of publicity. Publicity is a good thing. Monopolies delight in secrecy. It is said that the absent always suffer, and the public are not invited to participate in corporate meetings. Very lately corporations are organizing under conditions that do not permit even all of the stock- Several of the States are still wrestling with holders to examine the books, that privilege being the problem of primary elections. As to minority reserved for holders of preferred stock alone. It representation, it was not very clear how, as elecmay be that persons who rely on this remedy tions are held for the purpose of silencing minori

66

PRIMARY ELECTION PROBLEMS.

CODIFICATION.

ties, any advantage could be gained by perpetu- codification — and there are many I think that ating minorities in the representation. Accordingly most lawyers recognize that it is the goal toward experiments along that line have proved to be which we are inevitably tending. There seems to unsatisfactory. As to primary elections some in- be no refuge from the riotous and confusing pandetelligent observers are of the opinion that, so far monium of cases." from doing any good, they only make matters worse. The objections are that they prolong the strife of a political contest; that they involve much additional expense; that they tend to increase fraud and corruption, being held in the bosom of a single political party whose members are not inclined to reveal party secrets; that by substituting a house to house canvass for a free and open public discussion they lead to an ignoble political scramble, rife with personalities, misrepresentation and slander, thus lowering the political level and excluding many persons from that active participation in the elections which would be beneficial to the public. "I express no opinion on the subject, but it is difficult to see why the boss and the demagogue, when active and efficient in a single election, should throw up their hands at the prospect of a double election. It is sometimes said that every people has as good a government as it deserves, and this is true of all that are free. The evils that impair the successful operation of our governments, both State and federal, are deep-seated, and quack expedients dealing with surface indications cannot be relied on to do any good. Therein must the patient minister to himself.'

"Several of the States have recommended an amendment to the federal Constitution requiring senators of the United States to be elected by popular vote. This is one of many signs of distrust of our legislative bodies. There is probably no very valid objection to this change, as it is clear that since the rise of political parties the device of a secondary body of electors, though well suited to the time when the federal Constitution was framed, serves at present no useful purpose, as we see in the case of presidential electors who no longer act on their unbiased judgment, but under a political pledge imposed when they were nominated for that position. But it is by no means sure that the election of senators by popular vote will confer any benefit, seeing that it cannot be easily explained how the same voters who cannot elect good representatives can be confidently expected to elect good senators.

On the subject of codification, Judge Rose said: Several of the States have recently passed laws intended to accelerate proceedings in the courts and to hasten the trial of causes. For some years. there was much complaint at our meetings of the law's delays, but the evil has been largely overcome by the creation of intermediate courts of appeal. The passage of the act establishing federal circuit courts of appeal has relieved the Supreme Court of the United States of an insuperable burden, but this remedy has brought with it another evil in adding to the already swollen stream of our case law. The difference between theory and practice is well exemplified by the fact that though our Constitutions declare that the three departments of government shall be kept distinct and separate, yet the courts have made most of the existing laws and still continue the same function. So true is this that some of our law schools teach legal science almost exclusively from the decisions of the courts. Mr. Chief Justice Holmes, of Massachusetts, in his interesting treatise on the common law of England, has shown that very much of that law has grown up around the distinctions maintained in common-law actions. It is evident that if our case law should be abolished we should have only a few disconnected pillars and a few broken arches to declare where our temple of jurisprudence formerly reared its vast, intricate, and imposing fabric.

ROMAN AND ENGLISH COMMON LAW. Mr. Bryce, in an interesting paper on the territorial expansion of the Roman and the English common-law systems, has defined the present boundaries of each; but he says nothing about the ubiquity and the diffusiveness of the civil law.

The first encroachment of the Roman law in England is involved in mystery. The earliest writers on the English common law, Glanville, Fleta, and Bracton, prove that there was already a strong infusion of Roman law in the English system. To "Several of the States have recently passed laws account for this circumstance some writers have intended to accelerate proceedings in the courts, supposed that the civil law, established in England and to hasten the trial of causes. For some years during the Roman occupation of more than three there was much complaint at our meetings of the hundred years, was taken over by the Anglo-Saxon law's delays, but the evil has been largely over- invaders; but history tells us that in that invasion come by the creation of intermediate Courts of all of the native Britons were exterminated, except Appeal. a remnant who took refuge in the mountains of “Whatever difficulties may be in the way of Wales, or escaped to their brethren over seas in

Brittany; a gruesome story that is powerfully confirmed by the almost total absence of Celtic words in our language.

mon

Later, and during several centuries, the Roman law was largely imported by the ecclesiastical courts under the guise of the canon law, by the courts of admiralty, and, above all, in a wholesale manner by the Court of Chancery, until at present perhaps one-half of our system is made up of the civil law. In a wide sense, then, it may be said that Rome still rules the world from the ruins of the forum. On the other hand, the English comlaw has made but few conquests abroad, though it has been greatly extended by territorial expansion. In a few instances where the two systems have come into immediate contact, as in Scotland, Quebec, and Louisiana, the influence of the common law has made itself distinctly felt. Otherwise it has mostly maintained its insular character. Another exception may, however, be noted. Trial by jury is not distinctly an English institution; but France did avowedly borrow it for use in common trials. It also borrowed the grand jury; but this soon discarded.

was

DISTINCTION BETWEEN THE SYSTEMS.

during one winter. Few persons could accomplish such a feat; but it is thought that two years of study will generally suffice for the acquisition of a fairly good knowledge of the corpus juris. The system has other advantages. Arguments are oral; printed or written briefs being rarely used; and cases are speedily disposed of. As the judges write no opinions, they have time to read and improve their legal knowledge. Not many books are used in court, but questions of fact are closely argued.

Custom reconciles us to almost anything, and it would reconcile us to this also. To the European continental lawyer nothing seems more amazing than our rule of stare decisis and our endless chain of cases. "Why," they ask, "should a judge who has decided one case wrongly be obliged to decide the next one wrongly also, thus making the error of yesterday the law of to-day? Why should he not utilize knowledge continually increased by reading, study, and observation?"

Nevertheless, much could be said on our side if it was worth while. But as to the discretion used in deciding cases the courts under either system seem to have about the same; for our courts can generally find precedents for almost any proposition; and the civil law courts have no need of precedents. The greatest and most serious difficulty of our system grows out of the vast accumulation of law books; a difficulty that increases every day.

At present the most vital distinction between these rival systems grows out of our rule of stare decisis, which is peculiar to the common law. In all civil-law countries the law has been reduced to a statutory form; and the decisions of the courts do not form precedents; they neither add anything Most of the cases now decided are of no use to to the law nor do they take anything from it. In the law as a science, mere threshing over old straw, France there are two annual publications relating saying again what has been as well or better said to the proceedings in the courts; one giving a hundred times before. According to the inevitasketches of criminal and sensational trials, the other ble law of evolution the decisions become more consisting of gossip about proceedings in the and more discordant; and much of the time of the courts. They both come under the head of light courts is taken up in vain efforts at reconciliation. reading, and very light reading at that, and neither At the present rate the time must soon come when, ever contains the slightest reference to any princi- if two lawyers meet like the ancient augurs without ple of law. In the preface to the volume for 1901 laughing, they will exhibit remarkable self-control. of one of the series, called "A Year of Justice," Occasionally some one writes an article for a law the author begins by saying: 'The judiciary journal imploring the judges to write short opinpasses onward and leaves no trace. It has diction-ions; and every judge that reads it at once sends aries, but no annals. No one keeps the journal out and buys a gross of new, bright steel pens warof the court-room."

ranted not to corrode. In such matters the judges must be left to their own devices. Clearnesss and brevity are valuable qualities in the law; but they are not indispensable, as might be shown by a long line of authorities; and when the mere compressed head-notes of cases fill two immense volumes annually, it will be seen that even brevity in writing opinions would afford but small relief.

This is not true of our judiciary, which leaves a trace compared with which the king's highway is but as a spider's web. There are, of course, many books relating to the civil law; but these are not laws like our volumes of reports; and their use is optional, just as are works on theology to the theologian. The system is far simpler than ours. Gibbon, in his autobiography, tells us that in writEARLY ATTEMPTS AT SIMPLIFICATION. ing his "History of the Decline and Fall of Rome" he made his admirable summary of the civil law A desire to simplify the law has fired the ambiafter studying the Roman Pandects and Digest tion of several distinguished rulers. Julius Caesar

and a vast number of discordant decisions will have passed into oblivion.

had a scheme of that sort in view, but the daggers of Cassius and Brutus prevented. Cromwell cherished a like purpose in which he did not succeed. To Mr. Chalmers the credit of this great work He dispersed the parliament, he overturned the is mostly due, and by it he has earned an enduring throne, he cut the king's head off, he gave to Eng-fame commensurate with the immense benefits thus land the only written Constitution that it ever had, conferred. We are glad to have him with us, and he even called the speaker's mace a bauble, but beg leave to tender him our hearty and respectful he could not overcome the stubborn resistance of congratulations on his splendid victory over obstathe English bar to change, and so he said that the cles to which many others succumbed. sons of Zeruiah were too hard for him and gave over the effort. Justinian and Napoleon succeeded where others failed, and their several codes consti tute their best claims to remembrance. Justinian was a barbarian, and Napoleon had not a drop of French blood in his veins, but each left an eternal legacy in an intelligible body of laws.

In 1866 a commission created by the English parliament was directed to prepare a special digest of three selected branches of the law with a view to ultimate codification, but again the sons of Zeruiah prevailed, and, in 1872, the commission reported that it was not advisable to take action in detail, but that a general compilation of the whole of the law should be made, which, of course, has never been, done.

In code making, commercial codes usually appear first on the scene. The German jurist Bochardt published in 1871 a collection of all the commercial codes then in force, amounting to forty in number, representing most of the countries of the civil law, Turkey, Japan, and various other eastern lands, but not a single English-speaking country was on the list.

NEGOTIABLE INSTRUMENT CODE.

Whatever difficulties may be in the way of codification- and there are many I think that most lawyers recognize that it is the goal towards which we are inevitably tending. There seems to be no other refuge from the riotous and confusing pandemonium of cases. Writing more than fifty years ago, Mr. Spence said: "What may be effected when some modern Tribonian shall appear, with the capacity and the power of compiling from the now almost countless volumes of the law a rational and uniform system of jurisprudence, unfettered by merely casual and technical principles, it would be idle at present even to hazard a conjecture."

Perhaps it might be better to adopt the ideas of the opportunist in reducing to a code form these branches of the law that are most amenable to that treatment, and thus to proceed by regular gradation to those that are more difficult. If we wait for the future Tribonian, whose imperial grasp will enable him to cover the whole ground in one successful and comprehensive effort, it is probable that no one of us will live to be able to say nunc dimittis.”

66

At the conclusion of Judge Rose's address there was a brief recess, after which routine business, including election of members and the reading of reports, was taken up.

You are acquainted with the history of Negotiable Instruments Law, prepared by Mr. M. D. The Association of American Law Schools was Chalmers, now a member of the British parliament, also in session. An address was made by the who has honored us with his presence at our meet-president, Emlin McClain, of the University of ing at this time. As the draft of the act commended Iowa College of Law. A paper was presented by itself to the legal profession and to the business Joseph H. Beale, Jr., of Harvard and the University community, it was enacted as a law by parliament of Chicago Law Schools, on The First Year Curin 1882, and has since been re-enacted by all of the riculum for Law Schools." The Bar Association self-governing colonies of Great Britain. in general session later listened to papers by Judge M. D. Chalmers, of London, parliamentary counsel to the British treasury, on 'Codification of Mercantile Law," and Judge Amasa M. Eaton, of Providence, R. I., on "The Origin of Municipal Incorporation in England and in the United States."

Following this example, our committee on uniform State laws, with the aid of the State commissioners, took up the subject and very carefully compiled our Negotiable Instruments Law along the same iines, and this has already been passed by congress for the District of Columbia, and in twenty other States, so that it seems now to be almost sure that it will soon become the law throughout our whole country. Thus, seemingly, the day cannot be far distant when the law relating to this important subject will be substantially the same wherever the English language is spoken.

He said: "Codification, of course, does not mean the abolition of litigation. No code can provide for every case that may arise or always use language which is absolutely accurate. If a code provides a clear rule for a great majority of the cases which crop up in ordinary business it satisfies