The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-12-16
New Law for a, New Age.


Keen legal minds are beginning to
realize that nineteenth century law is
inadequate for twentieth century con-
ditions." The common law, which was
believed to contain within itself the
potency and the promise of being equal
to any human emergency, is now seen
to be Ineffective in coping with the
problems arising out Of the tremendous
movement toward social and economic
GENERALIZATION. Melville M. Bigelow
points this out with great lucidity in
his discussion Of "New National
Forces and the Old Law in the current
Atlantic Monthly.
Along with the elaborate SYSTEMS Of
checks and balances which our consti-
tuition makersg got, ftomp Montesquieu,
they imported Je1emy Bentham 8 die
tum Of freedom Of contract This legal
doctrine fitted in admirably with the
new doctrines Of political equality, and
was adopted without question as part
Of our constitutional system During
the nineteenth century, when freedom
Of contract marched with freedom Of
land and of opportunity, this country
enjoyed the blessings of competition.
But the business Capitalization Of to-
day is the own child of freedom Of con-
tract, whose purpose it has overthrown.
Competition has builded our great
trusts-has made them inevitable. just
at this point, the old system of law
stops short. 1t cannot bridge the gap
between the nineteenth century indi-
vidualism and the twentieth century
Capitalization. While there has been
evolution in social and economic con-
ditions, there has been little or none in
political and legal conditions. The
great legal prosecutions Of combinations
have been almost without exception in
effective. If the combination is dis
solved, it's spirit and policy survive in
some other form.
AS Mr. Bigelow points out, the law
has as yet no effective weapon against
the new crimes of combination, for
those crimes turn more upon the in
tentlon than upon the fact To take an
example close at hand, everyone knows
that the Great Northern and the North
ern Pacific are practically combined and
that there is no competition between
them. But how can it be proved? The
constitution protects any accused per-
son by the provision that he NAV not
be forced to incriminate himself.
Under this aegis stand all the trusts.
Ii you dissolve the corporation and
take "a &c away its charter, the men who
managed 1t may continue the business.
saIe In their constitutional exemptions.
The combinations of capital are par
alleled by the combinations Of labor.
and. between them, Mr.. Bigelow de.
clarees' they are usurping the functions
OF government. Monopoly means tag
alton, and taxation not based on anv
snatural basis but on the will of the
men me who control it. The public TINS
IS forced to pay the taxes assessed
upon 1t by both capital and labor, while
inc law which should be able to restore
this function to the government nroves
inadequate.
Inc IN remedy naturally is legal and
political political Capitalization equal in d.
gree to the. social and economic CEN
trlal1lLzation. This is the tendency Of tbe
time, but progress is slow. The ind;-
clal :. decisions of the day. show H.
erect OF this social pressure, but iudge- q
mace law is continually running IN
against legal principles once SUPPOSED
TO oe lmmutable, but now shown to be
ap 2, to another age than this.
Inc centralizing legal movements Of
me goyernme are approved By most.
/. t mixing men, and Mr. Bigelow fndsi
y the experiments now on foot H.
promise fll relief for situation tb,+
may easily become intolerable. p
privilege is not to- rule in this con nm 81 =
i th'ere must be a restoration to the on,,' z
eminent Of its functions. The ialeas -
winch the president and his sunnorta
are proceeding equality in railroad
rate- making, equality as regards local.
tiles, equality between shipper ana