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was delivered to anybody who had not business difficult to find stronger and more impressive at the Brewster Sessions; but it is said that the words than those written in this, now celedelivery of the report to persons other than the brated cause, by Justice Brewer, of the United justices, although they had business at the States Supreme Court, and which are :
“A Brewster Sessions, was in excess of privilege. I most earnest and eloquent appeal was made to have said it is a somewhat new point, and one us in eulogy of the heroic spirit of those who naturally feels some hesitation about it. But I threw up their employment, and gave up their have come to the conclusion that the occasion means of earning a livelihood, not in defense was privileged. The report most clearly was of their own rights, but in sympathy for and to made and published by direction of a competent assist others whom they believed to be wronged. authority, namely, the justices. It cannot be We yield to none in our admiration of any act said but that it was a report that, at any rate, was
of heroism or self-sacrifice, but we may be perconvenient 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 be learned too soon or too thoroughly that Sessions. And, as far as I can see, the defendant under this government of and by the people the did not do anything more than that which he was means of redress of all wrongs are through the ordered to do by the court. Now, that being so, courts and at the ballot box, and that no wrong, I arrive at the conclusion that the occasion was a real or fancied, carries with it legal warrant to privileged one, and that nothing has been done invite as a means of redress the co-operation of which can be said to be a violation or an abuse of a mob, with its accompanying acts of violence.” the privilege. There are certain words in the Continuing, Judge Brewer, in closing the case of Stuart v. Bell, 64 L. T. Rep. 633; (1891) opinion, says : “We have given this case the 2 Q. B. 341, which, I think, are very applica- most careful and anxious attention, for we reable to this case. They are these: “The reason
lize that it touches closely questions of supreme for holding any occasion privileged is common importance to the people of this country, convenience and the welfare of society, and it Summing up our conclusions, we hold that the is obvious that no definite line can be so drawn government of the United States is one having as to mark with precision those occasions which jurisdiction over every foot of soil within its are privileged, and separate them from those territory, and acting directly upon each citizen; which are not.' I think those words are appli- that
, while it is a government of enumerated cable to the present case, because it seems to powers, it has within the limits of those powers me that this report was convenient, and indeed all the attributes of sovereignty ; that to it is almost necessary, for the purpose of carrying
committed power over interstate commerce and out the business of these sessions, and it was
the transmission of the mail ; that the powers ordered, as I have already said, by a competent
thus conferred upon the national government
are not dormant, but have been assumed and authority. Then there was the point with regard to actual malice. That point has not been put into practical exercise by the legislation of relied upon. Clearly there was no evidence of congress; that in the exercise of those powers
it is competent for the nation to remove all actual malice that ought to have been left to a jury. The occasion, therefore, was privileged, ficial, to the passage of interstate commerce or
obstructions upon highways, natural or artiand the appeal must be dismissed.”'
the carrying of the mail; that, while it may be
competent for the government (through the The Debs case has attracted from its incep-executive branch and in the rise of the entire tion the liveliest interest, not only because it executive power of the nation) to forcibly reembraces what is perhaps one of the most vital move all such obstructions, it is equally within questions of the day, the relations between its competency to appeal to the civil courts for capital and labor, but because it was also neces an inquiry and determination as to the existence sary to have finally adjudicated what is the full and character of any alleged obstructions, and power of the courts to regulate questions in- if such are found to exist, or threaten to occur, volving not only interstate commerce, but the to invoke the powers of those courts to remove peace and order of the country. It would be or restrain such obstructions ; that the juris
diction of courts to interfere in such matters ground alone. Every government, intrusted by injunction is one recognized from ancient by the very terms of its being with powers and times and by indubitable authority; that such duties to be exercised and discharged for the jurisdiction is not ousted by the fact that the general welfare, has a right to apply to its own obstructions are accompanied by or consist of courts for any proper assistance in the exercise acts in themselves violations of the criminal of the one and the discharge of the other, and law; that the proceeding by injunction is of a it is no sufficient answer to its appeal to one of civil character, and may be enforced by pro- those courts that it has no pecuniary interest in ceedings in contempt; that such proceedings the matter. The obligations which it is under are not in execution of the criminal laws of the
to promote the interest of all and to prevent land; that the penalty for a violation of injunc- the wrongdoing of one, resulting in injury to tion is no substitute for and no defense to a the general welfare, is often of itself sufficient prosecution for any criminal offenses committed to give it a standing in court.
to give it a standing in court. This proposition in the course of such violation; that the com
in some of its relations has heretofore received plaint filed in this case clearly showed an exist the sanction of this court. In U. S. v. San ing obstruction of artificial highways for the Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. passage of interstate commerce and the trans
850, was presented an application of the United mission of the mail,—an obstruction not only states to cancel and annul a patent for land on temporarily existing, but threatening to con
the ground that it was obtained by fraud or tinue ; that under such complaint the Circuit
mistake. Court had power to issue its process of injunc- maintain such a suit was affirmed, though it
The right of the United States to tion; that, it having been issued and served on
was held that if the controversy was really one these defendants, the Circuit Court had authority to inquire whether its orders had only between individuals in respect to their been obeyed, and, when it found that they had claims to property the government ought not to been, then to proceed under section 725, Rev. be permitted to interfere, the court saying: 'If St., which grants power "to punish, by fine or
it be a question of property, a case must be imprisonment, *
made in which the court can afford a remedy disobedience, by any party
in regard to that property; if it be a question or other person, to any
of fraud which would render the instrument lawful writ, process, order, rule, decree, or command, and enter the order of punishment void, the fraud must operate to the prejudice complained of; and, finally, that the Circuit of the United States; and if it is apparent that Court having full jurisdiction in the premises, the suit is brought for the benefit of some third its finding of the fact of disobedience is not party, and that the United States has no peopen to review on habeas corpus in this or any cuniary interest in the remedy sought, and is other court. Ex parte Watkins, 3 Pet. 193 ; under no obligation to the party who will be Ex parte Yarbrough, uo U. S. 651, 4 Sup. Ct. , benefited to sustain an action for his use; in 152; Ex parte Terry, 128 U. S. 280-305, o short, if there does not appear any obligation Sup. Ct. 77 ; In re Swan, 150 U. S. 637, 14
on the part of the United States to the public Sup. Ct. 225; U. S. v. Pridgeon, 153 U. S. 48, or to any individual, or any interest of its own,
no more sustain such an action than 14 Sup. Ct. 746."
Perhaps, as has already been suggested, the any private person could under similar circummost important question from a legal stand- stances.' point of view is the power of the United States “ This language was relied upon in the subsecourts to preserve the peace and safety of the quent case of U. S. v. American Bell Tel. Co., citizens of every State alike. The opinion is 128 U. S. 315, 9 Sup. Ct. 9o, which was a suit one which deserves the most careful study, and brought by the United States to set aside a we regret that we cannot in these columns patent for an invention on the ground that it print more of it; but concerning the point had been obtained by fraud or mistake, and it which we have just mentioned we print the was claimed that the United States, having no following from Judge Brewer's opinion: “We pecuniary interest in the subject-matter of the do not care to place our decision upon this I suit, could not be heard to question the validity
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 "As said in Gillman v. Philadelphia, 3 Wall. the relief granted at the instance of the United 713, 724: The power to regulate commerce States to cases in which it has a direct pecuniary comprehends the control for that purpose, and interest. But it is not susceptible of such con- to the extent necessary, of all the navigable struction. It was evidently in the mind of the waters of the United States which are accessible court that the case before it was one where the from a State other than those in which they lie. property right to the land in controversy was For this purpose they are the public property the matter of importance, but it was careful to of the nation, and subject to all the requisite say that the cases in which the instrumentality legislation by congress. This necessarily inof the court cannot thus be used are those cludes the power to keep them open and free where the United States has no pecuniary in- from any obstruction to their navigation interterest in the remedy sought, and is also under posed by the States or otherwise; to remove no obligation to the party who will be benefited such obstructions when they exist; and to proto sustain an action for his due, and also where vide, by such sanctions as they may deem it does not appear that any obligation existed proper, against the occurrence of the evil and on the part of the United States to the public for the punishment of offenders. For these or to any individual. The essence of the right purposes, Congress possesses all the powers of the United States to interfere in the present which existed in the States before the adoption case is its obligation to protect the public from of the national Constitution, and which have the monopoly of the patent which was procured always existed in the parliament in England.'” by fraud, and it would be difficult to find language more aptly used to include this in the
The closing exercises of the Harvard Law class of cases which are not excluded from the
School were marked by the presence of Sir jurisdiction of the court by want of interest in
Frederick Pollock, professor of jurisprudence the government of the United States.'
at Oxford, who came to America to be present It is obvious from these decisions that
at the twenty-fifth anniversary of the deanship while it is not the province of the government of Professor Langdell. It may be recalled that to interfere in any mere matter of private con
the distinguished dean of the Harvard Law troversy between individuals, or to use its great School was the founder of the Langdell or case powers to enforce the rights of one against method of studying law. Among other things another, yet, whenever the wrongs complained Sir Frederick Pollock said: of are such as affect the public at large, and are
“We have long given up, the attempt to in respect of matters which by the constitution maintain that the common law is the perfection are intrusted to the care of the nation, and con- of reason. Existing human institutions can cerning which the nation owes the duty to all only do their best with the conditions they the citizens of securing to them their common work in. rights, then the mere fact that the government
“If they can do that within a reasonable has no pecuniary interest in the controversy is margin to be allowed from mistakes and accinot sufficient to exclude it from the courts, or
dents, they are justified in their generation. prevent it from taking measures therein to fully “Even their ideal is relative. What is best discharge those constitutional duties.
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 l that are assumed either to be universal in
human societies, or to be not materially Hence it seems to follow that a system different in the particular cases compared. It which is vital and really individual either must may perhaps be safe to assume in a general | be resigned to remain in some measure inarticway that what is reasonable for Massachusetts ulate, or must have some account to give of itis reasonable for Vermont. It would not be at self that is not merely dogmatic and not merely all safe to assume that everything reasonable for external history, but combines the rational and Massachusetts is reasonable for British India, the historical element. In other words, its aims nor, indeed, that within British India what will are not completely achieved unless it has a serve for Lower Bengal will equally well serve philosophy, and that philosophy must be its for the Northwest frontier.
This we recognize freely enough as re" The first right of every system, therefore, is gards other systems. It appears to us quite to be judged in its own field, by its own
natural that Roman law should have its
proper methods and on its own work.
conceptions and terminology. We think no It cannot be seen at its best, or even fairly; worse of the Roman law of property for startif its leading conceptions are forced into con- | ing from the conception of absolute ownership formity with an alien mould. A sure mark of rather than the conception of estates, no worse the mere handicraftsman is to wonder how of the Roman law of injuries by negligence for foreigners can get on with tools in any way being developed by way of commentary on a different from his own. Thus in England one specific statute and not, as with us, through jushall meet people who cannot understand that dicial analogies of the simpler notion of tresthe Scots do without any formal difference be- pass, aided by statute only so far as the statute tween law and equity; as, on the other hand, of Westminster was necessary for the existence I have known learned Scots fail 10 perceive of actions on the case.
What I desire to sug. that the common law doctrine of consideration, gest is, that, as we allow this liberty to others being unknown to the law of Scotland, is yet as matter of right, we should not be afraid of founded on a hard bottom of economic fact claiming it for ourselves; that, if English speakwhich every legal system has 10 strike some-ing lawyers are really to believe in their own where. We now realize that the laws of every science, they must seek a genuine philosophy of nation are determined by their own historical the common law and not be put off with a surconditions not only as to details but as to face dressing of Romanized generalities. structure ; and if we fail to attend to this we
“ Take for example the Germanic idea which cannot duly appreciate the system as we find at lies at the root of our whole law of property, the a given time.
idea of seizin. So much has this idea been “Many points of early Roman law remain overlaid with artificial distinctions and refineobscure to us, notwithstanding more than half ments in the course of seven centuries, that it is a century of the brilliant and devoted work of possible even for learned persons to treat it as model scholars, just because the historical con obsolete. Nevertheless, it is there still. Actual ditions are matter of conjecture. In our own enjoyment and control of land or goods, the system the most elementary phrases of equity recognition of peaceable enjoyment and control jurisprudence carry with them a vast burden of as deserving the protection of the law, the dejudicial and political conflict; and the range fence of them against usurpation, and, at need, of activity left opened to the court of chancery restitution by the power of the State for the in Blackstone's time can be understood only person who has been deprived of them by unwhen we have mastered both the strength and authorized force, these are the points that stand the weakness of the action on the case two cen in the forefront of the cominon law when we turies earlier. But history does not exclude rea- take it as presented by its own history and in son and continuity, no more than a man's parent- its native authorities. Or, more briefly, possesage and companions prevent him from having a sion guaranteed by law is with us a primary, character of his own. Development is a pro- not a secondary, notion. Possession and rights cess and not a succession of incidents. En- to possess are the subject-matter of our remevironment limits and guides the direction of dies and forms of action. The notion of ownereffort; it cannot create the living growth. ship, as the maximum of claim or right in a
specific thing allowed by law, is not primary, the abitrary legislation of the Tudor period but developed out of conflicting claims to pos- plunged us into a turbid ocean, vexed by batsession and disposal. He is the true owner tles of worse than fabulous monsters, in whose who has the best right to possess, and to set or depths the gleams of a scintilla juris may throw leave others in his place, fortified with like a darkling light on the gambols of executory rights and exercising like powers over the thing limitations; a brood of the common law, or on 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 in the octopus-like arm of a resulting use, while gradually from the crude facts to the artificial on the surface, peradventure, a shoal of equitideas of law, from the visible will and compe- able remainders may be seen skimming the tence of the Germanic warrior to use his arms waves in flight from that insatiable enemy of against any intruder on his homestead to the their kind, an outstanding term. There are title, rights and priorities of the modern holder some ravages of history that philosophy cannot of stock or debentures.
repair, and the repentance of later generations “It is impossible here to follow the steps ; can at best only patch. they form a long, and sometimes intricate his
“Observe that when I defend our fathers, I tory. But is the process on the face of it ab- make no pretense of right to attack the Roman surd ? Is there anything unreasonable about institutional system on its own ground. The it? Can any one assign any obvious objection history of Roman forms of action and Roman against using the genius of our own laws as the legal categories is quite different from ours. most promising guide to their fundamental | The common law has never had a procedure As it is, our students, not to say the answering to the Roman Vindication. At first
a small matter whether a books they put their trust in, are in little better sight it may seem plight than our learned ancestors of the 18th
man who finds his cattle in strange hands shall century. They too commonly start with a
say: 'Those are my beasts; it is no business of
mine where you got them; I claim them besmattering of Roman doctrine taken directly or
cause they are mine' (which is the Roman indirectly from Justinian, then find (as they needs must) a great gulf between Roman and way), or shall reverse the order of thought and English methods, and lastly make desperate say: 'Where did you get those beasts? for they endeavors to span it with a sort of magic bridge, them against me' (which is the Germanic way).
were mine, and you have no business to hold by invoking supposed mysteries of feudalism, Practically, no doubt, the resuit may come to which in truth are in no way to the purpose, much the same thing, but the divergence of and they are still on the wrong side when all is
method goes pretty deep. . done. Is there any real need for this trouble?
“The formulas of the Roman republican “I venture to think not. Let us dare to be
period are already more modern and abstract true to ourselves, and, even if the first steps than ours, and Roman lawyers of the empire, seem less easy (for everybody thinks he knows, when they began to systematize, had to conby the light of nature, what ownership is, and
struct their system accordingly. The fact that resents being undeceived), we shall find increas- their work, in its main lines, has lasted to this ing light, instead of gathering darkness, as we day, and has stamped itself on the modern go farther on our way. We may sinile at our codes of not only Latin, but Teutonic nations, medieval ancestors' anxiety to keep something is enough to show that it was not ill done. tangible to hold on to; their shrinking from in-Only when modern admirers claim universal corporeal things as something uncanny ; their speculative supremacy for the Roman ideas attempts, as late as the 14th century, to give and methods need we feel called upon to prodelivery of and avow some by the handle of the test. In that case we must remind the too church door; their Germanic simplicity may zealous Romanizer that the masters of modern be called rude and materialistic, but, at all Roman law, notwithstanding their advantages events, they did their best to keep us in sight in systematic training and in having a comparaof living facts. In one respect they failed. tively manageable bulk of material, are still not We cannot deny it. It is no fault of theirs that I much nearer than ourselves to the attainment