labor. It has regulated and, under some circumstances, forbidden strikes. It has forbidden boycotts. It has forbidden (though it knew it not) combinations of labor in different States in restraint of commerce between those States. But this is no time to multiply references to a kind of legislation with which every man before me is familiar, and in shaping which many of whom have had a part. It is the age of Collectivism. The functions of the State multiply. Its circle of activities expands, and the circle of activities around each private individual is correspondingly reduced."

From the foregoing catalogue, imposing as it is, Judge Baldwin has omitted items that prove, as no others can, the fact of the mighty change which he says has taken place. Washington and Jefferson regarded the right to carry on a lottery as one of the "rights of man." Only the death of the latter prevented the sale of Monticello by that process, while the building of the cathedral at Baltimore was made possible by a lottery scheme in which the archbishop won the grand prize donated by him to the undertaking. When in 1836, in the midst of the slavery agitation, President Jackson recommended the passage of an Act prohibiting the circulation of incendiary papers through the mails a storm arose in the Senate, where the proposal was trampled underfoot. Clay said that Congress could "not pass any law interfering with the subject in any shape or form whatever," while Webster "contended that the bill conflicted with that provision in the Constitution which prohibited Congress from passing any law to abridge the freedom of speech or of the press. What was the liberty of the press? he asked. It was the liberty of printing as well as the liberty of publishing in all the ordinary modes of publication. And was not the circulation of papers through the mails an ordinary mode of publication? He was afraid that they were in some danger of taking a step in that matter that they might hereafter have cause to regret, by its being contended that whatever in this bill applies to publications touching slavery, applies to other publications that the States might think proper to prohibit; and Congress might, under this example, be called upon to pass laws to suppress the circulation of political, religious or any other description of publications which produced excitement in the States. It would be admitted, that if a newspaper came directed to him, he had a property in it; and how could any man, then, take that property and burn it without due form of law? and he did not know how this newspaper could

be pronounced an unlawful publication and, having no property in it, without a legal trial." Such views as to the lack of state power in Congress to regulate and control the intellectual contents of the mails and to purge them of any matter put by it on its index expurgatorius had entirely vanished prior to 1891 when the Supreme Court of the United States was called upon to uphold the constitutionality of an Act of Congress vesting in administrative officers, without trial by jury, the right to exclude from the mails any newspaper containing a lottery advertisement. The court in its opinion said:

"The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people."

In other words, public opinion had changed. The ideas of Washington, Jefferson and the archbishop of Baltimore as to lotteries were repudiated; the ideas of Clay and Webster as to the right of Congress to regulate the intellectual contents of the mails were repudiated. In 1905 Mr. Dicey, the Vinerian professor of English law at Oxford, published a book, entitled “Law and Opinion in England," in which he maintains that: "In England, however, the beliefs or sentiments which, during the nineteenth century, have governed the development of the law have in strictness been public opinion." Later on he adds: "Does not the advance of democracy afford the clue to the development of English law since 1800?" Doubly true is that statement when applied to the development of law in the United States since the end of the Civil War. As Judge Baldwin eloquently contends, there has been since that time a transformation. We have passed from the age of individualism to "the age of collectivism." "The functions of the State multiply. Its circle of activities expands, and the circle of activities around each private individual is correspondingly reduced." The directing power is public opinionits agents are Congress, the State Legislatures and the courts. It cannot be denied that the action of the Supreme Court in the Freedom-of-the-Press Cases, by which lotteries were crushed out in this country, was sustained by an overwhelming public opinion. Nearly everybody believes that the end attained was an excellent one, and no doubt it was. But let us not deceive ourselves as to the cost of the victory. It is now settled that Congress, so far

as the contents of the mails is concerned, has as much constitutional power to make an index expurgatorius as was ever vested in the Roman Curia or in the Star Chamber. In the language of the Supreme Court, Congress can exclude by the hand of an administrative officer, and without trial of any kind, any newspaper from the mails that contains any "matter which it regards as injurious to the people." In the mighty conflicts yet to come that Censorial power over the press thus vested in Congress by judgemade law must be taken into account.

In the April number of this REVIEW a very strong and impressive appeal was made by the president of the New York Life Insurance Company for Congressional supervision of interstate insurance. The writer bases his hope of success mainly on the following:

"In 1902, the Supreme Court of the United States, in its interpretation of the powers of Congress under the commerce clause of the Constitution, went farther than ever it had gone before. The case before the Court was that of Champion vs. Ames, and it is known as the 'Lottery Case.' By this decision the validity of an act of Congress for the suppression of lottery traffic through international and interstate commerce and the postal service was sustained. As I read the entire case, the previous declarations of the Court that insurance is not commerce are therein substantially overruled; and, under the doctrine laid down, it seems reasonably clear that, if Congress should now pass an act providing for Federal supervision and regulation of interstate insurance, the Supreme Court would be bound to sustain it."

When we look the facts in the face, when we measure by standards that do not deceive the startling growth of State power, local and national, that has taken place in the last fifty years, and then couple with it the manifest tendency to carry it further still, we cannot deceive ourselves as to the actual conditions that confront the nation as a whole. We have returned to a time when "the prying eye of the Government follows the butcher to the shambles and the baker to the oven -a time of collectivism in which the dependent individual looks to the State for protection through the methods of orderly co-operation which modern legislation is seeking to enforce. During the period that divides Jefferson from Lincoln a transformation has taken place in our internal economic conditions, whose results have reversed the fundamental proposition upon which Jefferson's political theories were founded. Just as he and his followers demanded that gov

ernmental power should be limited to the greatest possible extent, and that the circle of individual rights surrounding the citizen should be widened to the greatest possible extent, a majority of the American people, including those who still profess to follow Jefferson, are now demanding that governmental power, State and Federal, shall be so widened, even at the sacrifice of individual rights, as to protect them against the incorporated battalions the new collectivism is hurling against them. Will proof of that assertion be demanded by any one familiar with the recent records of Congress, of the State Legislatures and of the courts wherein the people are striving, through the exercise of extraordinary state power, to restore the equilibrium of American society?

The ultimate arbitrating power in this country is the judicial which throws all statutory legislation into its crucible, where it is tested and refined. Only the finished product is the law. Public opinion working through the judicial power determines its final form. It is, therefore, of supreme importance that our judiciary, which has an honorable past, should be maintained at a high standard as to character, learning and worldly experience. Chief-Justice Baldwin, thoroughly equipped as he is on the historical and scientific side of law as well as on the practical, is a fine example of what an American judge should be. With such arbitrators standing between the individual and the State we have nothing to fear. The solution of mighty and delicate problems still await them. In extending national supervision over corporations engaged in interstate traffic such discrimination must be made as will preserve legitimate corporate enterprise from destruction. Public opinion now clearly recognizes the fact that the advance of the country cannot go on without the further development of the railroad system which will require the fresh investment of hundreds of millions in that direction. Unless State regulation guarantees security and a fair return on such investments, capitalists will not take the risk. On the other hand, there is a determined purpose, upon the part of the nation, to subject the earnings of corporations, in some instances so vast, to their just proportion of Federal taxation. The importance of this measure depends not so much upon the rate at the outset as upon the fact that a new subject-matter is to be subjected to a new kind of Federal control. The state

power that can impose such a tax can open every corporation record, so far as it should be opened, to inspection to the end that the exact amount which any corporation earns may be ascertained by law. The comparatively small opposition manifested to the measure recently passed by Congress is a sure indication that the corporate wealth of the country is willing to bear its just quota of the public burdens. The almost unanimous declaration by Congress that a constitutional amendment should put forever at rest its power to impose an income tax may be accepted as the beginning of the end, so far as the prolonged conflict on that account is concerned. As a part of the same scheme will inevitably follow a progressive inheritance tax, as a partial solution, at least, of the menacing problem that deepens as the concentration of vast wealth in a comparatively few hands increases. So long as we are menaced by the irritating contrast, in the midst of republican institutions, of great poverty and great riches side by side, the socialist and the anarchist will point eternally to the fact that there is an ultimate power that can eliminate it all by the destruction of the institutions that make such inequalities possible. The most effective answer the constitutionalist can make to such suggestions is the proposal by the State itself to accomplish the desired end through the legitimate exercise of its own machinery. A plutocracy that will be blind enough to endanger its own interests by resisting such a policy upon the part of the State must place itself ultimately in the same position as that assumed by the ancien régime upon the eve of the French Revolution.

HANNIS TAYLOR.