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consenting to be put to death although forbidden foreign corporation so offending shall forfeit its by court-martial law, was frowned down in a later right to do business within the State. There has case (Crain v. U. S., 162 U. S., 644). As might been legislation along the same lines in other States, be expected, in nautical trials, whatever their errors developing, however, no
new features. of severity in other respects, the naval accused is
“A German writer, who has lately written a book not desired to be critical and suspicious of his su- about American trusts, counts the American bar periors, but to accept all their doings with disciplined submission, and is thus protected against
among these parasitic institutions, saying that we failure to “plead in bar " and to take smart
hold meetings for the purpose of regulating fees,
exceptions." Another nautical feature of this case, and a very surprising statement that could hardly have which would not have suggested itself to a lawyer been made by any one save a foreigner unacquainted not having a seaman's life fully in his mind, will with professional life in this country. It is due to be found analyzed at length in the New York Mari- the truth of history to say that no such meetings time Register of September 18, 1901, under the title are held and that we can look upon the pending of “Maritime Notice."
contest for supremacy between the United States Against the array of able legal talent named in and the Beef Trust, if not with indifference, at this article, and their presumable greater army of least without apprehension. unnamed consultants, was marshaled not law learning, for the Navy Department does not pretend to witnessed a change of such magnitude as to be
“Our country, during the last thirty years, has that, but the skillful illusions of seamanship displayed by officials desirous of stretching their prov
without a single parallel in history. By means of ince of command to the utmost. Was the defect vast aggregations of money, corporate monopolies overlooked for a hundred years because micro- have been established in almost every branch of sccpical? Or was it as visible to the eye of the industry. What effect these tremendous creations seaman as a rope's end out of place?
will have on our future destiny morally, socially, In either alternative the value of instruction from financially, legally, no one ventures to edict with one used to living on the ocean wave would seem any degree of confidence. If it is true, as said by manifest.
Oliver Cromwell, that no one goes so far as the
GEORGE F. ORMSBY. man that does not know where he is going, we WASHINGTON, D. C.
are apparently entering upon a long journey.
Monopolies are as old as human history, and
we cannot doubt that by their grinding oppression The annual meeting of the American Bar Asso- they kept men and women lying awake of nights ciation, which was held in Saratoga Springs, N. Y., long before the first page of history was written. August 27, 28 and 29, proved one of the most They were forbidden by the laws of ancient Greece interesting gatherings of the kind in years. There and Rome; they were forbidden by the common was a large attendance of members when the meet- law of England, and the common law was ing was called to order by President U. M. Rose, inforced from time to time by statutes. For a of Little Rock, Ark., who then delivered an address. while, during the reign of Elizabeth, they four
After paying high tribute to the late President ished. At one time she had licensed more than McKinley and Henry Hitchcock, once president fifty monopolies to prey on the community. Hume, of the Bar Association, President Rose took up the historian, was amazed at their number and the subject of trusts, speaking in part as follows:
rapacity. "We are all by this time familiar with what are “In order to build up an empire in the East called . trusts;' so called perhaps because they parliament granted a monopoly to the East India contain in their composition not a single fiduciary Company, which became so oppressive that its element.
overthrow was matter of necessity.
It soon South Carolina has passed two acts on this learned to charge 400 per cent. profit on every subject. The first act forbids all persons to form article that it sold, and the tea that it sold became pools, trusts, or combinations for the purpose of so inferior in quality that it had hardly a trace regulating or fixing the price of any article of trade of the plant of that name. or merchandise or to limit the quantity of any “Of course, these results were not reached at article of manufacture or commodity, or of any once; prices were raised gradually and stealthily repair, or the premium of any insurance. Heavy under pretense of decreased production. fines are prescribed for any violation of the act, “ Instead of fisty monopolies we have at present and, in addition, any domestic corporation infring- more than 4,000, to say: nothing of price and rateing its provisions shall forfeit its charter, and any fixing and profit-sharing pools, with buying and
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 “ The first success of one of these combinations, of the response of a railway president to his legal if successful at all, is alluring in a high degree. If adviser to a question as to what the books of the the property is capitalized at twice its value, the company would show regarding a controversy then lowest capitalization known, and the securities are under consideration. "Well,' said the president, floated at par, the result is that the former owners as I foresaw long ago that this dispute would find themselves twice as rich as they were before, some time probably arise, and, not knowing exactly and at a very trilling outlay of time, money, or what form it would assume, I kept the books in energy, to say nothing of a future of immense pos- a Aexible condition.' sibilities. We shall not be surprised, therefore, “ Flexible bookkeeping may justly claim a when told that many similar organizations are spectable antiquity. It formed one of the minor started with the deliberate intention of swindling charges of Cicero against Verres; and a contempounsuspecting stockholders.
rary poet surmises that it was utilized by the con“The Supreme Court of the United States and tractors that built the pyramids. The reinedy of several of our Presidents have more than once publicity would only serve to prolong the present called attention to the gravity of the situation, and situation. we cannot suppose that men occupying such high “Another proposed remedy is the modification positions of responsibility would wantonly excite of the tariff laws as far as they affect prices of compublic apprehension.
modities sold by the trusts. This would open the “ There is one form of tyranny that governments, trusts to the competition of the foreign markets; however instituted, cannot at least directly
and to that extent it would place a limit on the exercise. Efforts have oiten been made to control power to raise prices. It would not, of course, prices by law, but never successfully. The natural affect all the trusts; and hence it would be inadelaws of trade always triumphed over the artificial quate, though it might prove very useful. laws of men. But whoever can control the supply
* Another remedy suggested is an amendment to can fix his own prices, as we see in the case of the federal Constitution giving power to congress Pharaoh in Egypt. It was not as King that he to control all corporations; a very drastic remedy asserted that power, for the command of the sup- indeed, one that would greatly strengthen the lobby,
one that might introduce an era of political corrupply would have given it to him if he had been a private individual.
tion hitherto unknown. ' President Roosevelt has said more than once
“ Lastly, it is suggested that the federal Constithat the power of corporations over prices should tution should be so amended as to enable congress be subjected to public control. The principal diffi
to prevent by appropriate penalties the slugging culty pertains to the remedy. If existing laws
of rivals by local underselling, by 'factor's agree
This would not could be enforced perhaps no new ones would be ments,' and by similar devices. needed.
prevent the investment of large sums in corporate
hands; and corporations with large capital would PUBLICITY AS A REMEDY.
still have an advantage; but laws of that kind would “A remedy sometimes proposed with seeming no doubt be rigidly enforced by the juries of the confidence is that of publicity. Publicity is good
country; and public sympathy in favor of new and thing. Monopolies delight in secrecy. It is said struggling enterprises would probably go a long that the absent always suffer, and the public are
way to redress the balance. not invited participate in corporate meetings. Very lately corporations are organizing under con
PRIMARY ELECTION PROBLEMS. ditions 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
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
CODIFICATION. The objections are that they prolong the strife of a political contest; that they involve much
On the subject of codification, Judge Rose said: additional expense; that they tend to increase fraud Several of the States have recently passed laws and corruption, being held in the bosom of a single intended to accelerate proceedings in the courts political party whose members are not inclined to and to hasten the trial of causes. For some years reveal party secrets; that by substituting a house there was much complaint at our meetings of the to house canvass for a free and open public dis- law's delays, but the evil has been largely overcome cussion they lead to an ignoble political scramble, by the creation of intermediate courts of appeal. rife with personalities, misrepresentation and slan- The passage of the act establishing federal circuit der, thus lowering the political level and excluding courts of appeal has relieved the Supreme Court many persons from that active participation in the of the United States of an insuperable burden, but elections which would be beneficial to the public. this remedy has brought with it another evil in
“I express no opinion on the subject, but it is adding to the already swollen stream of our case difficult to see why the boss and the demagogue, law. The difference between theory and practice when active and efficient in a single election, should is well exemplified by the fact that though our throw up their hands at the prospect of a double Constitutions declare that the three departments of election. It is sometimes said that every people government shall be kept distinct and separate, yet has as good a government as it deserves, and this the courts have made most of the existing laws is true of all that are free. The evils that impair the and still continue the same function. So true is successful operation of our governments, both this that some of our law schools teach legal State and federal, are deep-seated, and quack ex- science almost exclusively from the decisions of the pedients dealing with surface indications cannot be courts. Mr. Chief Justice Holmes, of Massachurelied on to do any good. * Therein must the patient setts, in his interesting treatise on the common minister to himseli.'
law of England, has shown that very much of that Several of the States have recommended an law has grown up around the distinctions mainamendment to the federal Constitution requiring tained in common-law actions. It is evident that senators of the United States to be elected by
case law should be abolished we should popular vote. This is one of many signs of distrust have only a sew disconnected pillars and a few of our legislative bodies. There is probably no broken arches to declare where our temple of very valid objection to this change, as it is clear jurisprudence formerly reared its vast, intricate, that since the rise of political parties the device of and imposing fabric. a secondary body of electors, though well suited
ROMAN AND ENGLISH COMMON LAW. to the time when the federal Constitution framed, serves at present no useful purpose, as
Mr. Bryce, in an interesting paper on the terriwe see in the case of presidential electors who no torial expansion of the Roman and the English longer act on their unbiased judgment, but under common-law systems, has defined the present a political pledge imposed when they were nomi-boundaries of each; but he says nothing about the nated for that position. But it is by no means sure ubiquity and the diffusiveness of the civil law. that the election of senators by popular vote will The first encroachment of the Roman law in coníer any benefit, seeing that it cannot be easily England is involved in mystery. The earliest writexplained how the same voters who cannot elect ers on the English common law, Glanville, Fleta, good representatives can be confidently expected and Bracton, prove that there was already a strong to elect good senators.
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 oi 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 con- during one winter. Few persons could accomfirmed by the almost total absence of Celtic words plish such a feat; but it is thought that two years in our language.
of study will generally suffice for the acquisition Later, and during several centuries, the Roman of a fairly good knowledge of the corpus juris. law was largely imported by the ecclesiastical The system has other advantages. Arguments are courts under the guise of the canon law, by the oral; printed or written briefs being rarely used; courts of admiralty, and, above all, in a wholesale and cases are speedily disposed of. As the judges manner by the Court of Chancery, until at present write no opinions, they have time to read and perhaps one-half of our system is made up of the improve their legal knowledge. Not many books civil law. In a wide sense, then, it may be said are used in court, but questions of fact are closely that Rome still rules the world from the ruins of argued. the forun). On the other hand, the English com- Custom reconciles us to almost anything, and
law has made but few conquests abroad, it would reconcile us to this also. To the European though it has been greatly extended by territorial continental lawyer nothing seems more amazing expansion. In a few instances where the two sys- than our rule of stare decisis and our endless chain tems have come into immediate contact, as in Scot- of cases. “Why," they ask, “should a judge land, Quebec, and Louisiana, the influence of the who has decided one case wrongly be obliged common law has made itself distinctly felt. Other to decide the next one wrongly also, thus making wise it has mostly maintained its insular character. the error of yesterday the law of to-day? Why Another exception may, however, be noted. Trial should he not utilize knowledge continually inby jury is not distinctly an English institution; but creased by reading, study, and observation?” France did avowedly borrow it for use in common Nevertheless, much could be said on our side if trials. It also borrowed the grand jury; but this it was worth while. But as to the discretion used was soon discarded.
in deciding cases the courts under either system
seem to have about the same; for our courts can DistinCTION BETWEEN THE SYSTEMS.
generally find precedents for almost any proposiAt present the most vital distinction between tion; and the civil law courts have no need of these rival systems grows out of our rule of stare precedents. The greatest and most serious diffidecisis, which is peculiar to the common law. In culty of our system grows out of the vast accumuall civil-law countries the law has been reduced lation of law books; a difficulty that increases every to a statutory form; and the decisions of the courts day. 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 This is not true of our judiciary, which leaves a must be left to their own devices. Clearnesss and trace compared with which the king's highway is brevity are valuable qualities in the law; but they but as a spider's web. There are, of course, many are not indispensable, as might be shown by a long books relating to the civil law; but these are not line of authorities; and when the mere compressed laws like our volumes oi reports; and their use head-notes of cases fill two immense volumes annuis optional, just as are works on theology to the ally, it will be seen that even brevity in writing theologian. The system is far simpler than ours. opinions would afford but small relief. Gibbon, in his autobiography, tells us that in writing his “ History of the Decline and Fall of Rome "
EARLY ATTEMPTS AT SIMPLIFICATION. 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 Ition of several distinguished rulers. Julius Caesar had a scheme of that sort in view, but the daggers and a vast number of discordant decisions will of Cassius and Brutus prevented. Cromwell cher-9 have passed into oblivion. ished 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 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 Whatever difficulties may be in the way of codifiover the effort. Justinian and Napoleon succeeded cation — and there are many – I think that most where others failed, and their several codes consti lawyers recognize that it is the goal towards which tute their best claims to remembrance. Justinian we are inevitably tending. There seems to be no was a barbarian, and Napoleon had not a drop of other refuge from the riotous and confusing pandeFrench blood in his veins, but each left an eternal monium of es. Writing more than fisty years legacy in an intelligible body of laws.
ago, Mr. Spence said: “What may be effected when In 1866 a commission created by the English some modern Tribonian shall appear, with the parliament was directed to prepare a special digest capacity and the power of compiling from the of three selected branches of the law with a view now almost countless volumes of the law a rational to ultimate codification, but again the sons of and uniform system of jurisprudence, unfettered by Zeruiah prevailed, and, in 1872, the commission merely casual and technical principles, it would be reported that it was not advisable to take action idle at present even to hazard a conjecture.” in detail, but that a general compilation of the whole Perhaps it might be better to adopt the ideas of of the law should be made, which, of course, has the opportunist in reducing to a code form these never been done.
branches of the law that are most amenable to In code making, commercial codes usually ap- that treatment, and thus to proceed by regular pear first on the scene. The German juris! Boch- gradation to those that are more difficult. If we ardt published in 1871 a collection of all the com- wait for the future Tribonian, whose imperial grasp mercial codes then in force, amounting to forty will enable him to cover the whole ground in one in number, representing most of the countries of successful and comprehensive effort, it is probable the civil law, Turkey, Japan, and various other that no one of us will live to be able to say eastern lands, but not a single English-speaking dimittis." COI ry was on the list.
At the conclusion of Judge Rose's address there
a brief recess, after which routine business, NEGOTIABLE INSTRUMENT CODE.
including election of members and the reading of You are acquainted with the history of Negoti- reports, was taken up. able 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 I.aw Schools." The Bar Association self-governing colonies of Great Britain.
in general session later listened to papers by Judge Following this example, our committee on uni- M. D. Chalmers, of London, parliamentary counsel form State laws, with the aid of the State commis- to the British treasury, on “Codification of Mersioners, took up the subject and very carefully cantile Law," and Judge Amasa M. Eaton, of compiled our Negotiable Instruments Law along Providence, R. I., "The Origin of Municipal the same iines, and this has already been passed Incorporation in England and in the United by congress for the District of Columbia, and in States." twenty other States, so that it seems now to be He said: “ Codification, of course, does not mean almost sure that it will soon become the law the abolition of litigation. No code can provide throughout our whole country. Thus, seemingly, for every case that may arise or always use lanthe day cannot be far distant when the law relating guage which is absolutely accurate. If a code to this important subject will be substantially the provides a clear rule for a great majority of the same wherever the English language is spoken. cases which crop up in ordinary business it satisfies