The daily morning journal and courier., 1898-12-28

. GNCH plSttHu lU USllONS' INOuoSCau
 self explicitly says that it makes no difference with his social contract the ory whether it had any historical bas- is or not. It was an assumption used to give vitality and concreteness to the conceptions of that natural justice to which eighteenth century writers held that law must conform. Hobbes and Locke and Blackstone and Rousseau, with all their wide divergences of opin
 ion on individual points, were united in holding to this theory of a compact. Hobbes might use it to deny the right or revolution, Locke to prove that same right; Blackstone might use it as con- servative force, Rousseau as destruc
 tive one. But absolutists and revolu- tionists, conservative and radical, all had before them the conception of a higher law of political necessity, limit ing the action of the courts, just as the economists of the same period held to the conception of public needs and claims as limiting the economic action of the individual. It was reserved for Bentham to deal the death blow to this theory, to show not only that the so
 cial compact had no foundation in his tory-which was an easy enough task, because nobody really thought it had but also no foundation in logic; to in- sist that so-caled natural law was no law at all; that law was what the courts said just because the courts chose to say it and for no other reason whatever. When a certain court object | ed to Daniel Webster's logic, "this is not law; it was law until your honor ! @@J-c 1. +:
 Of the practical gain in clearness of l legal decisions resulting from the ac- l ceptance of the theories of Bentham 1 there can be no dispute; but it was gain which has been purchased at very serious cost. The courts have been estopped from talking no small amount of nonsense, but they have also lost no small part of their educational infiu
 ence which they had under the old system. For Bentham may be said to have overthrown a theory which was l historically false and prophettcally true and substituted one which was hstori- cally true and prophetically false as a matter of history. Things have been law, not because they were just or even logical, but because the courts enuncia- ted them. But it is safe to prophecy | that this state of things will continue | so long as the courts are respected by the public as being at once just and | logical It is safe as well as convenient l for the lawyer to assume that what 1 ever the courts command will be law but only because the courts show them selves clearer sighted than the body of the nation The authority of the Eng | eel, r+c yrbi ,,nn1ina11U derived from the crown has been practically de rived from their own good sense and progressiveness A theory which leads them to rely more on precedent and less on good sense and progressiveness, while it may prevent the more com monplace judges from making an ex- hibition of themselves, nevertheless of fers a serious bar to the development of legal authority to meet new circum- stances and new emergencies, not to speak of the possibility that it may at times menace the general respect for the judiciary and general authority of the law as a whole. As matter of fact, the courts have made thmesslves in dependent of the help of the economists, by withdrawing from the consideration of those distinctively modern problems where precedent furnishes no clear guide for action. Tn making the corpus juris clearer and more consistent with itself, it would seem to a lawyer as if the courts have sometimes fallen short of meeting the needs of growing indus trial communities. Contrast the rapid progress of English law down to the middle of the last century in all econo- mic matters, where judges were among the most enlightened of reformers, with it's extremely slow development in the face of modern conditions. Take the matters of taxation. Have judicial de- cisions adapted themselves to facts? No. They are based on assumptions as to the possibility of assessment of per sonal property which may have been approximately true in the eighteenth century but are totally false in the nineteenth. The courts while protesting against unequal taxation, nevertheless refuse to look at the chief practical source of inequality, that source not having been a thing of great importance a hundred years ago. Or take the mat ter of transportation For a, generation and more our courts insisted on apply ing to the railroads the precedents de- rived from the highway It is not So very many years since they refused ia enter upon the most important of all railroad rate evils, the evil of diserim- ination-saying explicitly that if one mans rate was reasonable in itself it was irrelevant to enquire whether an- other man was charged a lower rate. Such instances of lack of attention to modern facts might be multiplied in- definitely, but these are enough to slow how the legal theory of sovereignty of the court has had the same effect as the economic theory of sovereignty of the individual in separating from one an- other and from the needs of practical politics two sciences whose best work has been done hand in hand, with each other, and in the most sedulous appli- cation to those needs.
 The results of this separation have been so serious that efforts have been made to reintroduce a connection by means of commissions" of var,ous forms; railroad commissions tax com missions, labor commissions, and an in definite number of others. Such bodies it is thought, will, like the courts, rep resent public opinion; but unlike the courts they will be possessed of tech nical knowledge which will enable them to look forward to the future and not merely backward at the past. On the