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difficult to find stronger and more impressive words than those written in this, now celebrated cause, by Justice Brewer, of the United States Supreme Court, and which are: “A most earnest and eloquent appeal was made to us in eulogy of the heroic spirit of those who threw up their employment, and gave up their means of earning a livelihood, not in defense of their own rights, but in sympathy for and to assist others whom they believed to be wronged. We yield to none in our admiration of any act of heroism or self-sacrifice, but we may be per

was delivered to anybody who had not business at the Brewster Sessions; but it is said that the delivery of the report to persons other than the justices, although they had business at the Brewster Sessions, was in excess of privilege. I have said it is a somewhat new point, and one naturally feels some hesitation about it. But I have come to the conclusion that the occasion was privileged. The report most clearly was made and published by direction of a competent authority, namely, the justices. It cannot be said but that it was a report that, at any rate, was convenient and desirable for a proper and effec-mitted to add that it is a lesson which cannot tive discharge of the business of the Brewster Sessions. And, as far as I can see, the defendant did not do anything more than that which he was ordered to do by the court. Now, that being so, I arrive at the conclusion that the occasion was a privileged one, and that nothing has been done

which can be said to be a violation or an abuse of the privilege. There are certain words in the case of Stuart v. Bell, 64 L. T. Rep. 633; (1891) 2 Q. B. 341, which, I think, are very applicable to this case. They are these: 'The reason for holding any occasion privileged is common convenience and the welfare of society, and it is obvious that no definite line can be so drawn as to mark with precision those occasions which are privileged, and separate them from those which are not.' I think those words are applicable to the present case, because it seems to me that this report was convenient, and indeed almost necessary, for the purpose of carrying out the business of these sessions, and it was ordered, as I have already said, by a competent authority. Then there was the point with re

gard to actual malice. That point has not been relied upon. Clearly there was no evidence of actual malice that ought to have been left to a

jury. The occasion, therefore, was privileged, and the appeal must be dismissed."

The Debs case has attracted from its inception the liveliest interest, not only because it embraces what is perhaps one of the most vital questions of the day, the relations between capital and labor, but because it was also necessary to have finally adjudicated what is the full power of the courts to regulate questions involving not only interstate commerce, but the peace and order of the country. It would be

be learned too soon or too thoroughly that under this government of and by the people the means of redress of all wrongs are through the courts and at the ballot box, and that no wrong, real or fancied, carries with it legal warrant to invite as a means of redress the co-operation of a mob, with its accompanying acts of violence.'

Continuing, Judge Brewer, in closing the opinion, says: "We have given this case the most careful and anxious attention, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our conclusions, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that, while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the national government are not dormant, but have been assumed and

put into practical exercise by the legislation of congress; that in the exercise of those powers it is competent for the nation to remove all obstructions upon highways, natural or arti

ficial, to the passage of interstate commerce or the carrying of the mail; that, while it may be competent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions, it is equally within its competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the juris

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diction of courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; that such jurisdiction is not ousted by the fact that the obstructions are accompanied by or consist of acts in themselves violations of the criminal law; that the proceeding by injunction is of a civil character, and may be enforced by proceedings in contempt; that such proceedings

are not in execution of the criminal laws of the

land; that the penalty for a violation of injunction is no substitute for and no defense to a prosecution for any criminal offenses committed in the course of such violation; that the complaint filed in this case clearly showed an existing obstruction of artificial highways for the passage of interstate commerce and the transmission of the mail,—an obstruction not only temporarily existing, but threatening to continue; that under such complaint the Circuit Court had power to issue its process of injunction; that, it having been issued and served on these defendants, the Circuit Court had authority to inquire whether its orders had been obeyed, and, when it found that they had been, then to proceed under section 725, Rev. St., which grants power "to punish, by fine or * disobedience, * imprisonment, by any party or other person, to any lawful writ, process, order, rule, decree, or command, and enter the order of punishment complained of; and, finally, that the Circuit Court having full jurisdiction in the premises, its finding of the fact of disobedience is not open to review on habeas corpus in this or any other court. Ex parte Watkins, 3 Pet. 193; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152; Ex parte Terry, 128 U. S. 280-305, 9 Sup. Ct. 77; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225; U. S. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746.”

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Perhaps, as has already been suggested, the most important question from a legal standpoint of view is the power of the United States courts to preserve the peace and safety of the citizens of every State alike. The opinion is one which deserves the most careful study, and we regret that we cannot in these columns print more of it; but concerning the point which we have just mentioned we print the following from Judge Brewer's opinion: "We do not care to place our decision upon this

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ground alone. Every government, intrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. This proposition

in some of its relations has heretofore received In U. S. v. San

the sanction of this court. Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. 850, was presented an application of the United States to cancel and annul a patent for land on the ground that it was obtained by fraud or mistake. The right of the United States to maintain such a suit was affirmed, though it was held that if the controversy was really one only between individuals in respect to their claims to property the government ought not to be permitted to interfere, the court saying: 'If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud which would render the instrument

void, the fraud must operate to the prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be benefited to sustain an action for his use; in short, if there does not appear any obligation on the part of the United States to the public or to any individual, or any interest of its own,

-it can no more sustain such an action than any private person could under similar circumstances.'

"This language was relied upon in the subsequent case of U. S. v. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, which was a suit brought by the United States to set aside a patent for an invention on the ground that it had been obtained by fraud or mistake, and it was claimed that the United States, having no pecuniary interest in the subject-matter of the suit, could not be heard to question the validity

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"As said in Gillman v. Philadelphia, 3 Wall. 713, 724: 'The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the parliament in England.""

of the patent. But this contention was overruled, from obstruction, for it has always been recogthe court saying, in response to this argument, |nized as one of the powers and duties of a govafter quoting the foregoing language from the ernment to remove obstructions from the highSan Jacinto case: This language is construed ways under its control. by counsel for the appellee in this case to limit the relief granted at the instance of the United States to cases in which it has a direct pecuniary interest. But it is not susceptible of such construction. It was evidently in the mind of the court that the case before it was one where the property right to the land in controversy was the matter of importance, but it was careful to say that the cases in which the instrumentality of the court cannot thus be used are those where the United States has no pecuniary interest in the remedy sought, and is also under no obligation to the party who will be benefited to sustain an action for his due, and also where | it does not appear that any obligation existed on the part of the United States to the public or to any individual. The essence of the right of the United States to interfere in the present case is its obligation to protect the public from the monopoly of the patent which was procured by fraud, and it would be difficult to find language more aptly used to include this in the class of cases which are not excluded from the jurisdiction of the court by want of interest in the government of the United States.'

"It is obvious from these decisions that while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the constitution are intrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.

The closing exercises of the Harvard Law School were marked by the presence of Sir Frederick Pollock, professor of jurisprudence at Oxford, who came to America to be present at the twenty-fifth anniversary of the deanship of Professor Langdell. It may be recalled that the distinguished dean of the Harvard Law School was the founder of the Langdell or case method of studying law. Among other things Sir Frederick Pollock said:

"We have long given up. the attempt to maintain that the common law is the perfection of reason. Existing human institutions can only do their best with the conditions they

work in.

"If they can do that within a reasonable margin to be allowed from mistakes and accidents, they are justified in their generation.

"Even their ideal is relative. What is best for one race or one society, at a given stage of "The national government, given by the Con- civilization, is not necessarily best for other stitution power to regulate interstate commerce, races and societies at other stages. We cannot has by express statute assumed jurisdiction over say that one set of institutions is in itself better such commerce when carried upon railroads. or more reasonable than another, except with It is charged, therefore, with the duty of keep-reference expressed or implied to conditions ing those highways of interstate commerce free that are assumed either to be universal in

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human societies, or to be not materially different in the particular cases compared. It may perhaps be safe to assume in a general way that what is reasonable for Massachusetts is reasonable for Vermont. It would not be at all safe to assume that everything reasonable for Massachusetts is reasonable for British India, nor, indeed, that within British India what will serve for Lower Bengal will equally well serve for the Northwest frontier.

"The first right of every system, therefore, is to be judged in its own field, by its own methods and on its own work.

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It cannot be seen at its best, or even fairly, if its leading conceptions are forced into conformity with an alien mould. A sure mark of the mere handicraftsman is to wonder how foreigners can get on with tools in any way different from his own. Thus in England one shall meet people who cannot understand that the Scots do without any formal difference between law and equity; as, on the other hand, I have known learned Scots fail to perceive that the common law doctrine of consideration, being unknown to the law of Scotland, is yet founded on a hard bottom of economic fact which every legal system has to strike somewhere. We now realize that the laws of every nation are determined by their own historical conditions not only as to details but as to structure; and if we fail to attend to this we cannot duly appreciate the system as we find at a given time.

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Many points of early Roman law remain obscure to us, notwithstanding more than half a century of the brilliant and devoted work of model scholars, just because the historical conditions are matter of conjecture. In our own system the most elementary phrases of equity jurisprudence carry with them a vast burden of judicial and political conflict; and the range of activity left opened to the court of chancery in Blackstone's time can be understood only when we have mastered both the strength and the weakness of the action on the case two centuries earlier. But history does not exclude reason and continuity, no more than a man's parentage and companions prevent him from having a character of his own. Development is a process and not a succession of incidents. Environment limits and guides the direction of effort; it cannot create the living growth.

own.

"Hence it seems to follow that a system which is vital and really individual either must be resigned to remain in some measure inarticulate, or must have some account to give of itself that is not merely dogmatic and not merely external history, but combines the rational and the historical element. In other words, its aims are not completely achieved unless it has a philosophy, and that philosophy must be its This we recognize freely enough as regards other systems. It appears to us quite natural that Roman law should have its proper conceptions and terminology. We think no worse of the Roman law of property for starting from the conception of absolute ownership. rather than the conception of estates, no worse of the Roman law of injuries by negligence for being developed by way of commentary on a specific statute and not, as with us, through judicial analogies of the simpler notion of trespass, aided by statute only so far as the statute of Westminster was necessary for the existence of actions on the case. What I desire to suggest is, that, as we allow this liberty to others as matter of right, we should not be afraid of claiming it for ourselves; that, if English speaking lawyers are really to believe in their own science, they must seek a genuine philosophy of the common law and not be put off with a surface dressing of Romanized generalities.

"Take for example the Germanic idea which lies at the root of our whole law of property, the idea of seizin. So much has this idea been overlaid with artificial distinctions and refinements in the course of seven centuries, that it is possible even for learned persons to treat it as obsolete.

Nevertheless, it is there still. Actual enjoyment and control of land or goods, the recognition of peaceable enjoyment and control as deserving the protection of the law, the defence of them against usurpation, and, at need, restitution by the power of the State for the person who has been deprived of them by unauthorized force, these are the points that stand in the forefront of the common law when we take it as presented by its own history and in its native authorities. Or, more briefly, possession guaranteed by law is with us a primary, not a secondary, notion. Possession and rights to possess are the subject-matter of our remedies and forms of action. The notion of ownership, as the maximum of claim or right in a

the abitrary legislation of the Tudor period plunged us into a turbid ocean, vexed by battles of worse than fabulous monsters, in whose depths the gleams of a scintilla juris may throw a darkling light on the gambols of executory limitations; a brood of the common law, or on

specific thing allowed by law, is not primary, but developed out of conflicting claims to possession and disposal. He is the true owner who has the best right to possess, and to set or leave others in his place, fortified with like rights and exercising like powers over the thing in question. This is the line of development | the death struggle of a legal estate, sucked dry indicated by our own authorities. It leads us gradually from the crude facts to the artificial ideas of law, from the visible will and competence of the Germanic warrior to use his arms against any intruder on his homestead to the title, rights and priorities of the modern holder of stock or debentures.

"It is impossible here to follow the steps; they form a long, and sometimes intricate history. But is the process on the face of it absurd? Is there anything unreasonable about it? Can any one assign any obvious objection against using the genius of our own laws as the most promising guide to their fundamental ideas? As it is, our students, not to say the books they put their trust in, are in little better plight than our learned ancestors of the 18th century. They too commonly start with a smattering of Roman doctrine taken directly or indirectly from Justinian, then find (as they indirectly from Justinian, then find (as they needs must) a great gulf between Roman and English methods, and lastly make desperate endeavors to span it with a sort of magic bridge, by invoking supposed mysteries of feudalism, which in truth are in no way to the purpose, and they are still on the wrong side when all is done. Is there any real need for this trouble? "I venture to think not. Let us dare to be true to ourselves, and, even if the first steps seem less easy (for everybody thinks he knows, by the light of nature, what ownership is, and resents being undeceived), we shall find increasing light, instead of gathering darkness, as we go farther on our way. We may smile at our medieval ancestors' anxiety to keep something tangible to hold on to; their shrinking from incorporeal things as something uncanny; their attempts, as late as the 14th century, to give delivery of and avow some by the handle of the church door; their Germanic simplicity may be called rude and materialistic, but, at all events, they did their best to keep us in sight of living facts. In one respect they failed. We cannot deny it. It is no fault of theirs that

in the octopus-like arm of a resulting use, while on the surface, peradventure, a shoal of equitable remainders may be seen skimming the waves in flight from that insatiable enemy of their kind, an outstanding term. There are some ravages of history that philosophy cannot repair, and the repentance of later generations can at best only patch.

Observe that when I defend our fathers, I make no pretense of right to attack the Roman institutional system on its own ground. The history of Roman forms of action and Roman legal categories is quite different from ours. The common law has never had a procedure answering to the Roman Vindication. At first sight it may seem a small matter whether a man who finds his cattle in strange hands shall say: 'Those are my beasts; it is no business of mine where you got them; I claim them be

cause they are mine' (which is the Roman way), or shall reverse the order of thought and

say: 'Where did you get those beasts? for they were mine, and you have no business to hold

them against me' (which is the Germanic way). Practically, no doubt, the result may come to much the same thing, but the divergence of method

goes pretty deep.

"The formulas of the Roman republican period are already more modern and abstract than ours, and Roman lawyers of the empire, when they began to systematize, had to construct their system accordingly. The fact that their work, in its main lines, has lasted to this day, and has stamped itself on the modern codes of not only Latin, but Teutonic nations, is enough to show that it was not ill done. Only when modern admirers claim universal speculative supremacy for the Roman ideas and methods need we feel called upon to protest. In that case we must remind the too zealous Romanizer that the masters of modern Roman law, notwithstanding their advantages in systematic training and in having a comparatively manageable bulk of material, are still not much nearer than ourselves to the attainment

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