The American Journal of Sociology/Volume 01/Number 6/Recent Legislation in Restraint of Trade

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The American Journal of Sociology, Volume 1, Number 6  (1896)  by Charles Fisk Beach, Jr.
Recent Legislation in Restraint of Trade


Although from an historical point of view it might be both interesting and instructive to consider particularly the earlier statutes in restraint of trade, commencing with the statute of 21 James I, chapter 3, which declared all "monopolies" contrary to law and void, it will better serve our present purpose to devote this paper to some considerations growing out of the recent legislation in the United States aimed at contracts in restraint of trade, and to an attempt to state clearly the true basis and proper limitations of such legislation, together with some reflections upon the practical utility or feasibility of statutes of this sort, at the present time and under present conditions.

For all practical purposes, whether those of the student, the legislator or the lawyer, restraint of trade and prevention of competition in trade are substantially equivalent, and are governed by the same principles. To what extent, if at all, trade ought to be restrained, or competition prevented by statute, or may lawfully be restrained or prevented by contract, involves, at bottom, elementary questions of public policy. We are to understand, as of course, that the word "trade" in this connection means much more than barter and sale, or merchandising in the broadest acceptation of that term; and must include, when we consider legislation in restraint of it, not only the dealing of merchants, but the business of railroading, insurance and manufacture; and, indeed, not attempting now to speak with scientific accuracy, the greater part of all the contractual relations between man and man in a civilized community. This will include statutes regulating the practice of medicine, and of law; statutes of patent and copyright; usury laws; Sunday laws; laws regulating the sale of intoxicating liquors at retail; laws regulating the operation of mines; laws against champerty and maintenance; taxation of commerce, and particularly, in this country, of interstate commerce; "drummers'" taxes; laws attempting to regulate dealings in futures, forbidding wager policies on human life, prohibiting the operation of lotteries, and all that large body of legislation by which the regulation of labor is attempted.

When one begins to talk or think about "public policy," by which the economic soundness of all legislation of this sort is to be measured, he is confronted at the outset with the fact that it is a very vague and variable, or, as mathematicians say, a very unassignable quantity. This notion has crystallized itself many times in the law reports. Thus, for example, it has been said by a famous English judge that "public policy does not admit of definition, and is not easily explained,"[1] and by the Supreme Court of the United States that "the application of the rule is more difficult than a clear understanding of it."[2] Again, it was a long time ago well said, in another English case, that public policy "is a very unruly horse, and when once you get astride it you never know where it will carry you,"[3] and, quoting once more, from a recent English case, we find the court saying:

One thing I take to be clear, and it is this—that public policy is a variable quantity; that it must vary and does vary with the habits, capacities and opportunities of the public.[4]

Lord Justice Bowen also to the same effect said very recently in the High Court of Chancery:

The determination of what is contrary to the so-called policy of the law, necessarily varies from time to time. Many transactions are upheld now by our own courts which a former generation would have avoided as contrary to the supposed policy of the law. The rule remains, but its application varies with the principles which, for the time being, guide public opinion.[5]

Nothing is more certain than the truth of these statements, which might be multiplied indefinitely from the law reports. They are iterated and reiterated by the judges every day:

Public policy is variable—the very reverse of that which is the policy of the public at one time may become public policy at another.[6]

It changes with the changing condition of the times. It is hardly to be expected that a people who are transported by steam with a rapidity hardly conceived of a century ago, who are in constant and instant communication with each other by electricity, and who carry on the most important commercial transactions by the use of the telegraph, while separated by thousands of miles, will entertain precisely the same views of what is conducive to the public welfare, in commercial and business transactions, as the people of the last century, who lived when commerce crept slowly along the coasts, shut out of the interior by the absence of roads, and hampered by an almost impassable ocean.[7]

Public policy differs also in different states and countries, as well as in the same country at different times. As people differ in their beliefs, opinions, aims, habits and surroundings, it is natural and inevitable that they should entertain different views as to what will best promote the public welfare. We need not stop to illustrate this simple and obvious rule.

From the fact that public policy is thus variable, it follows that no fixed rule can be laid down as to what is or is not contrary to public policy. We look to the law reports to find what, from time to time, has been adjudged upon the subject, and here we see in clearest perspective the variance to which we have just referred. Upon the most casual examination of the law books we instantly discover that cases declaring a rule of public policy in one year of grace are of very little or no value as authority in ascertaining what is the true rule on the particular subject in another and later year. For example, how would it do to cite the decision in the Dred Scott case, which was absolutely sound law at the time it was rendered, in one of the cases arising in the year 1896 between a railway company and the Knights of Labor? We see that it is for the most part idle in discussions of this subject today to cite as authority, or even by way of argument, the decisions of the courts of half a century ago, or of even fifteen or a dozen years ago. What was absolutely right then may be absolutely wrong now.

This notion is well expressed by Lord Watson, in a case decided, only about a year ago, in the House of Lords:

A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal. The course of policy pursued by any country in relation to and for promoting the interests of its commerce must, as time advances and its commerce thrives, undergo change and development from various causes which are altogether independent of the action of its courts. In England at least, it is beyond the jurisdiction of her tribunals to mould and stereotype national policy. Their function, when a case like the present is brought before them, is, in my opinion, not necessarily to accept what was held to be the rule of policy a hundred or a hundred and fifty years ago, but to ascertain, with as near an approach to accuracy as circumstances permit, what is the rule of policy for the then present time.[8]

Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition; but a statute stands rigid on the statute book, and is the same thing yesterday, today and forever; so that it must be amended or repealed, or modified, or disregarded in the progress of time, as conditions change, in order not to be quite out of tune and touch with the orderly progression of things.

This is something which the rural legislator, in his zeal to pass laws upon the subject of trade, seems entirely to have overlooked. Accordingly this inexorable fact has been the undoing of his work. By reference to the law books, he is informed with sweeping generality, that at common law monopolies are illegal and void. If he be industrious and curious, and reads Norman French, he finds out that, as early as the reign of Henry V, in the year 1415, a case, which seems to have been the first case of the sort, arose, in which a dyer had bound himself not to exercise his trade for half a year in the same town with the plaintiff. In an action on the bond, this was held to be an unlawful agreement, as in restraint of trade. This case was decided long before there was any statute on the subject, and from it has come down to us, in ordinary generation, a long line of decisions upon the general question there involved. At a later time patents or grants of the crown, in the nature of monopolies, to certain persons or corporations, secured to them the exclusive right to carry on some business, trade or avocation. We need not recount the familiar history of the creation of these monopolies, commencing about the time of Henry VIII, or a little later. By the forty-fourth year of the reign of Queen Elizabeth, these grants had begun to attract the attention of the courts, and in the case of "The Monopolies," reported by Lord Coke, they were declared to be illegal at Common Law. There was still no statute on the subject, and the argument ran back to the old case of the dyer in the reign of Henry V. In the case of "The Monopolies," which is the leading case upon the subject, it appeared that one Darcy had been granted the exclusive right to buy beyond the sea all such playing cards as he thought good, and to make and sell them within the Kingdom, that he and his agents and deputies should have the whole traffic and merchandise in playing cards, and that no other should have the right of making playing cards within the realm.

All trades, said the court, as well mechanical as otherwise, which prevent idleness (the bane of the commonwealth), exercising men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the commonwealth, and, therefore, the grant to the plaintiff to have the sole making of them is against the common law, and the benefit and liberty of the subject.

It is upon such a key as this that a vast deal of discussion of this subject has proceeded thence to the present time. Serious men, and able and conscientious lawyers, have gravely argued in the United States, within the past ten years, to courts of justice, in cases involving the legality of modern commercial trusts, along precisely this line, and have seemed not to understand that the case of "The Monopolies" and other cases of the same sort, are no more valuable as authority or available in argument in the nineteenth century, upon the question of the legality of our commercial trusts, than if cited in a contention over the Monroe Doctrine.

The struggle of the English people against monopolies culminated in the passage of the statute of 21 James I, which attempted their prohibition. In a legal sense, monopoly at the present day simply means the obtaining, without a grant from the sovereign, of the exclusive power to carry on a certain trade or business. In a proper sense, the term monopoly is applied to every large and successful business enterprise; and some statutes, as, for example, the proposed legislation in Illinois against department stores, go so far as to seem to proceed upon the notion that, because an enterprise has attained large proportions, it is, in a legal sense, a monopoly—ergo, unlawful. Railways, national banks and corporations of all kinds are, in the view of that part of the public, in sympathy with such legislation as this, obnoxious as monopolies.

Recurring for a moment to the idea that considerations of public policy are at the bottom of all sound legislation in restraint of trade, and that public policy is a changeable quantity in the problem, Lord St. Leonards, in a case in the House of Lords, decided a little after the middle of the present century, used the following notable language:

My Lords, there are just a few remarks that I wish to make upon public policy. I will not add a word to what has been already said by my noble and learned friends, but I will call your attention to what fell from one of the learned judges (Mr. Justice Cresswell) as regards the restraint of trade. That learned judge says that with regard to the restraint of trade, there is a maxim in common law, and he refers to a case in Year Books (2 Hen. V, pl. 26), to prove it; but the learned judge did not tell your lordships upon what that maxim was founded. Nobody supposes that there was any statute upon the subject in those times. Upon what, then, was that maxim founded? Why, upon public policy for the good of the realm. It was not good for the realm that men should be prevented from exercising their trades. Now, let us see what this particular case is; it lies in few words and remarkable consequences have resulted from it. It was an obligation with a condition that if a man did not exercise his craft of a dyer, within a certain town, that is, where he carried on his business, for six months, then the obligation was to be void, and it was averred that he had used his art there within the time limited, upon which Mr. Justice Hull, being uncommonly angry at such a violation of all law, said, according to the book, "Per Dieu if he were here, to prison he should go until he made fine to the king, because he had dared to restrain the liberty of the subject." I wish to draw your lordships' attention to this case. Angry as the learned judge was at that infraction of the law, what has been the result of that very rule without any statute intervening ? That the common law, as it is called, has adapted itself, upon grounds of public policy, to a totally different and limited rule that would guide us at this day, and the condition which was then so strongly denounced is just as good a condition now as any that was ever inserted in a contract, because a partial restraint, created in that way, with a particular object, is now perfectly legal. Without any exclamation of the judge, and without any danger of prison, any subject of this realm may sue upon such a condition as Mr. Justice Hull was so very indignant at in that particular case. That shows, therefore, that the rule which the learned judge, whose opinion is now before the House, thought depended upon some rule of common law, regardless of policy, was founded upon public policy, and has been restrained and limited and qualified up to this very hour, and beneficially so, by that very policy which it is supposed had no bearing at all upon the foundation of the rule.[9]

All legislation affecting monopolies, or in any sort of restraint of trade, is meant to be, or pretended or intended to be declaratory of the common law. This is especially true of the recent legislation upon that behalf in the United States. It has not, as far ar I know, been attempted by any of these statutes from the first one, in the reign of James I, to the last one in the reign of Grover Cleveland, to make anything unlawful which was not assumed or supposed to be so at common law. The statute of James I declared the law as it was understood then to be—as for an example, it had been decided to be in the case of "The Monopolies," and all the later statutes have ostensibly done the same thing.

In this country prior to about the year 1889, the subject of monopolies, or contracts in restraint of trade, had not attracted the particular attention of our legislatures. Occasional decisions of the courts had assumed to prescribe common law rules, but no statute, state or federal, of any radical or strenuous character, had been enacted. During the two or three years prior to 1889, however, the attention of the public was called to the subject by the discovery that a large number of commercial trusts were in existence in the United States, which were, or which were assumed or supposed to be, monopolizing, or tending to monopolize, various lines of business. This was assumed to be in violation of the rights of the public, and statutes were at once proposed to remedy what it was taken for granted was a growing evil. Men looked into the law and found in the old English statutes, and especially in the earlier reports, much desultory denunciation of "monopoly," and much generalization upon the blessings and benefits of competition in trade. This, upon a superficial view, seemed to fit the case, and statutes were hastily drafted, and more hastily crowded through the legislatures of twenty or more states, under all sorts of partisan pressure, with the practical result, speaking generally, of declaring, in the United States, at the end of the nineteenth century, the common law of England of the fifteenth, sixteenth and seventeenth centuries. These statutes, taking a general view of their intendment, declare the law as the English judges of more than an hundred years ago expounded it, with little or no regard to the changed conditions of business since that time. They write the dogmas of the pre-Revolutionary period into our statute law of today. This was not, perhaps, an altogether unnatural result of the widespread interest and attention that "trusts" created in the subject. Perhaps everyone of these statutes—including the federal act of July 2, 1890, known as the Sherman Law—is open fairly and honestly to the same criticism, viz., that they seek to crystallize into statutes doctrines of public policy which are obsolete or obsolescent, if not wholly outgrown and outworn. Nothing, as was suggested above, is easier than to generalize in a sweeping fashion about the evils of monopoly and the blessings of competition. A legislator can do a very large business in that line on a very small capital, and there is a good deal of excuse, we must admit, for the activity which, even in hard times has been displayed in that business.

Englishmen—and by Englishmen we must include ourselves as of the Anglo-Saxon stock—have always had what they have hugged to their hearts as a wholesome dread of monopoly. No Englishman ever knew, and no one of us can ever know, exactly what "monopoly" in this precious phrase means; but that it means something to be dreaded, no really sound Englishman ever doubted. It is a sort of bogey that has served to scare an hundred generations of us. So also, as of course, very much of the recent agitation which has arisen over monopoly, and which has provoked for the past six or eight years a flood of legislation and litigation in the United States in restraint of trade, is the outcropping of the grudge which the "have nots" always have against the "haves." It gave the politicians a chance, of which they were not slow to avail themselves, and of which they have made the most.

It is a significant fact that during the same period of time when our legislatures, including the federal congress, have been going off upon a quasi-mediæval tangent, the courts have for the most part been unswerved, and have in no notable instance been carried off their feet by the popular clamor. A great number of suits have been brought, in which it has been sought to commit the courts to the same radical views upon the subject which have been enacted into statutes, and in which it has been sought to secure adjudications upon the economic questions involved—for the most part without success. And it is, I repeat, creditable to the courts that this is so. The decisions of the courts of last resort have, as a rule, in spite of the popular clamor, come down, year by year, in an orderly and consistent stream of precedent, substantially uninfluenced by the accidental excitement upon the questions of combination, competition and monopoly, which has more or less disordered the thinking of the soberest of us for the past half dozen years.

The courts, in the greater number of cases, have accordingly reflected somewhat more accurately than the statutes, the public policy of the times. No doubt the decision in the case of "The Monopolies" formulated the views upon the subject at that time. But, thence to the present, there has been a constant relaxation of the rule as far as it affects trade and commerce. A long line of decisions, both here and in England, illustrate this; and for the reason just indicated it is to the decisions that we are chiefly to look, rather than to the statutes, for the more correct and intelligent view of the public policy of the period.

It was as we have already seen a long step from the blind bigotry of Mr. Justice Hull, in the dyer's case in 1415, to the temperate language of Lord St. Leonards at the middle of the present century. It is a longer step from that decision in the House of Lords, to the latest cases in point, which declare and define the public policy of the present day. Let us look for a moment at some of them, and, having seen how essentially public policy changed between the reigns of Henry V and Victoria, we shall see how, within the present half century, the doctrine of greater or greatest freedom in trade has grown and developed in the hands of the judges. In a leading case, more than twenty years ago, that consummate master of modern equity jurisprudence, Sir George Jessel, M. R., said:

If there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into, freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract.[10]

This language is adopted and approved in a later case by Lord Justice Fry, and has been frequently quoted with approval, both in English and American cases relating to contracts in restraint of trade. Thus it is paraphrased in a recent Minnesota case as follows:

A contract may be illegal on grounds of public policy because in restraint of trade, but it is of paramount public policy not lightly to interfere with freedom of contract.[11]

In 1894, in the House of Lords, the last remnant of the old rule which attempted to distinguish between partial and general restraints of trade, was swept way. Lord Herschell in delivering his opinion, in the case, said:

Whether the cases in which a general covenant can now be supported are to be regarded as exceptions from the rule which I think was long recognized as established, or whether the rule is itself to be treated as inapplicable to the altered conditions which now prevail is probably a matter of words rather than of substance. The latter is perhaps the sounder view. When once it is admitted that, whether the covenant be general or particular, the question of its validity is alike determined by the consideration whether it exceeds what is necessary for the protection of the covenantee, the distinction between general and particular restraints ceases to be a distinction in point of law.

In the same case it was further said:

In the age of Queen Elizabeth all restraints of trade, whatever they were, general or partial, were thought to be contrary to public policy, and, therefore, void. In time, however, it was found that a rule so rigid and far reaching must seriously interfere with transactions of every day occurrence. Traders could hardly venture to let their shops out of their own hands; the purchaser of a business was at the mercy of the seller; every apprentice was a possible rival. So the rule was relaxed. It was relaxed as far as the exigencies of trade for the time being required, gradually and not without difficulty, until it came to be recognized that all partial restraints might be good, though it was thought that general restraints, that is, restraints of general application, extending throughout the kingdom, must be bad. Why was the relaxation supposed to be thus limited? Simply because nobody imagined in those days that a general restraint could be reasonable, not because there was any inherent or essential distinction between the two cases. . . . . The true view at the present time, I think, is this: The public have an interest in every person's carrying on his trade freely; so has the individual. All interference with individual liberty of action in trading and all restraints of trade of themselves, if there is nothing more, are contrary to public policy and, therefore, void. That is the general rule. But there are exceptions. Restraints of trade and interference with individual liberty of action may be justified by the special circumstances of the particular case. It is a sufficient justification, and, indeed, it is the only justification, if the restriction is reasonable—reasonable, that is, in reference to the interests of the parties concerned, and reasonable with reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favor it is imposed, while at the same time it is in no way injurious to the public. That, I think, is the fair result of all the authorities.[12]

Turning from this latest case in England to the later cases in the United States, we find the same trend and tendency in the opinions. Chief Justice Fuller, in a case in the Supreme Court, of the United States, lately said:

The decision in Mitchell vs. Reynolds (an old English case decided about 1710) is the foundation of the rule in relation to the invalidity of contracts in the restraint of trade; but, as it was made under a condition of things different from those which now prevail, the rule laid down is not regarded as inflexible and has been considerably modified. Public welfare is first considered, and if it be not involved and the restraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is whether, under the particular circumstances of the case, and the nature of the particular contract involved in it, the contract is or is not unreasonable.[13]

The Court of Appeals of New York say that they "do not think that competition is invariably a public benefaction, for it may be carried on to such a degree as to be an evil."[14] And in the famous case against the Sugar Trust, Mr. Justice Barrett, of the Supreme Court of New York, who tried the case at Circuit, in rendering his opinion, upon deciding the case, impressively said:

Excessive competition may sometimes result in actual injury to the public and competitive contracts to avert personal ruin may be perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable and are condemned as against public policy.[15]

That was a notable decision and this is notable language from a judge at Circuit, at a moment when the public temper was inflamed against combinations of capital, in a case involving vast interests, when "kill trusts" was in the air, when the case had been tried with consummate ability upon behalf of the People, and argued to the court with an ingenuity and eloquence not often heard in these degenerate days in courts of justice, when all the ancient learning had been massed, when the sentiments of the middle age upon the subject had been most persuasively urged upon the court in rounded periods and polished phrase, and when a trial court might well have been excused for indulging in a little rhetoric in the popular vein. His honor after all calmly said: "excessive competition may sometimes result in actual injury to the public, and competitive contracts to avert personal ruin may be perfectly reasonable."

In a recent case in the Northwest, we find this sober language:

Modern investigations have much modified the views of courts, as well as political economists, as to the effect of contracts intended to reduce the number of competitors in any particular line of business. Excessive competition is not now accepted as necessarily conducive to the public good. The fact is, that the early common law doctrine in regard to contracts in restraint of trade largely grew out of a state of society and of business which has ceased to exist, and hence the doctrine has been much modified, as will be seen by comparison of the early English cases with modern decisions both English and American.[16]

While thus larger and larger commercial freedom has been attained in the progress of time, as public policy has adapted itself to more modern conditions, it is curious to notice how, in some other directions and along some other closely parallel lines, the pendulum has swung the other way. Commercial contracts in restraint of trade have for one hundred and fifty years grown steadily in public favor, and have constantly secured greater and greater sanction in the courts, whilein certain otheranalogous matters the reins have essentially tightened up. Take, for example, public opinion regarding lotteries. Only a comparatively short time ago lotteries were entirely legal. Columbia College, my alma mater in the law, lawfully secured some part of its endowment, some part of the very fund by which it is now nurtured and maintained, from the profits of a lottery operated in its interest in the city of New York. That was only something more than an hundred years ago. But now no one believes, that the University of Chicago will ever secure any money in this way, and with the expiration of the charter of the Louisiana Lottery a year or two ago, all such business in this country became legally impossible. Public policy now strenuously condemns what a century ago it frankly sanctioned and approved.

For another example, consider the matter of wagers, from a legal point of view, and especially wager policies on human life. A century or so ago, wagers, and actions to enforce their payment, were sanctioned by the courts both here and in England, and all sorts of wagers were enforced by law. Thus it was adjudged to be "within the sound policy of the Kingdom" for the Court of Kings Bench to serve as a stakeholder between two persons who had made a bet whether or not another person had bought a wagon of a fourth.[17] Lord Mansfield during the reign of George III, presided at a trial and charged a jury, with becoming gravity, upon the astonishing question, which had been the subject of a wager between the parties to the suit, whether a third person, who wore the clothes and bore the name of a man, was a male or a female. The jury found that it was a woman. Subsequently, however, his lordship upon a hearing before the whole bench, had the grace to say: "This case made a great noise all over Europe; and soon afterwards, I own, I was sorry."[18]

Still later came the famous litigation which the English courts entertained over what were known as the Napoleon wagers, mere bets that Bonaparte would or would not die within a certain time, or would or would not escape from St. Helena, within a given time. In the infancy of life insurance, wager policies on human life were held lawful, but come now, like all other wagers, under what we are bound to regard the wholesome ban of our present public policy.

While non-commercial wagers of every sort have, in the process of time, become illegal, and are now so declared by statute in perhaps every civilized community, it is another curious illustration of the way in which freedom of trade asserts itself in these days that, pari passu with the decline in respect of legal sanction of mere wagers, dealings in futures which are of course a form of wager, have become more and more legal and are now substantially lawful in all enlightened communities. It will certainly be but a short time until they will have the same unquestioned legal sanction as any other form of trading. It is already impossible to pass a federal statute making them unlawful, although attempts are made at almost every session of Congress to get a law of that sort enacted. In many of the states it is true that there are statutes upon the subject in which such dealing is more or less positively forbidden; but here again the courts have been and are in advance of the lawmakers, and more in line with the most enlightened public opinion. In spite of much attempt to legislate such dealings out of existence, the courts have, by refining and distinguishing the statutes which have been improvidently enacted upon the subject, secured to them a substantially unquestioned legality everywhere. Other illustrations will occur to every reader.

It is the function of a critic to criticise, and in this paper I have not attempted to suggest what legislation in restraint of trade, if any, might be expedient and politic; but rather to point out what appears to me to be the inherent weakness and inutility of the existing statutes of this character. There is, it goes without saying, such a thing as an unlawful restraint of trade, which is and ought to be contrary to public policy. My proposition is, however, that the legislation of the past six or eight years upon the subject in the United States, both state and federal, has been for the most part the outcome of a condition of the public temper not calculated to promote sane legislation; that it has been out of joint, and out of line with the most enlightened public policy; that all such legislation is unscientific, impolitic and fatuous, and that it cannot abide the wear and tear of even the next short time. The furore which occasioned it is already subsiding, and the country will grow more and more away from it, and leave it standing as a monument to the over zeal of ill-instructed or half-instructed legislators.

It will in the end do no great harm, like the pope's bull against the comet; and it will do some good if it serve as a warning to future law makers, that statutes which fly in the face of sound public sentiment had better not be enacted, and will not be enforced by the courts of a free country; that such statutes have no place in the corpus juris of an enlightened and commercial community; that water cannot be legislated to run up hill; that even an act of Parliament cannot stay the slow precession of the equinoxes, nor the activity of Mrs. Partington with her broom beat back the incoming tide; and finally that it is the true function of the legislator to catch the flow and function of affairs, to reflect it in his work, and laying aside his ill-digested theories and speculations of what might, in Utopia, be ideally excellent, to do, in the matter of statute making what he can, and not try to do what he can not.


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  1. Kekewich, J., in Davies vs. Davies, 36 Ch. Div. 359, 364.
  2. Bradley, J., in Oregon S. S. Co. vs. Winsor, 20 Wall., 64.
  3. Richardson vs. Mellish, 2 Bing., 229.
  4. Davies vs. Davies, supra.
  5. Evanturel vs. Evanturel, L. R. 6 P. C. 1, 29. Approved by Bowen, L. J., in Maxim-Nordenfeldt Guns and Ammunition Company vs. Nordenfeldt (1893), 3 Ch., 665.
  6. Griswold vs. Ill. Cent. Ry. Co. 90 Iowa, 265, 1894.
  7. United States vs. Trans-Missouri Freight Assn., 58 Fed. Rep., 58.
  8. Nordenfeldt vs. Maxim-Nordenfeldt Guns and Ammunition Co. (1894), App. Cas., 535. 553. 554.
  9. Egerton vs. Earl Brownlow, 4 H. L. Cas. 237.
  10. Printing, etc., Co. vs. Sampson, L. R., 19 Eq. Cas., 462, 465.
  11. National Benefit Company vs. Union Hospital Company, 45 Minn., 272.
  12. Maxim-Nordenfeldt Guns and Ammunition Co. vs. Nordenfeldt (1894) App. Cas., 535.
  13. Gibbs vs. The Baltimore Gas Company, 130 U. S., 396.
  14. Leslie vs. Lorillard, 110 N. Y., 519.
  15. People vs. The North River Sugar Refining Company, 54 Hun 354.
  16. National Benefit Company vs. Union Hospital Company, 45 Minn., 272.
  17. Good vs. Elliott, 3 T. R. 693.
  18. DaCosta vs. Jones, Cowp., 729.