Page:Harvard Law Review Volume 12.djvu/460

440 440 HARVARD LAW REVIEW, in the absence of a clause in a State constitution corresponding with the Fifth Amendment, a State may not take property for public use without compensation, that such a taking is not "due process of law." The truer historical view seems to be that the right to take and the moral duty to compensate are separate, and that failure to compensate does not invali- date the taking. But the position supported is consistent with the general attitude which the author assumes. This attitude is the distinctive mark of the book. An ethical theory runs through the work, that the P'ourteenth Amendment embodies a broad bill of rights ; that the country is greatly menaced by improper legislation, and that its salvation is to be found in a broad construction of the Four- teenth Amendment. To this end the author gives to the word "liberty" its widest meaning, as equivalent to "freedom in the pursuit of happiness;" he wishes to include under the "privileges and immunities of citizens" all the rights mentioned in the first eight amendments; he regrets that the progressive income tax was not condemned as depriving citizens of the equal protection of the laws. This attitude is open to criticism, although the Supreme Court is showing a tendency to adopt it. Chief Justice Marshall's warning has a double-edged significance; we must remember it is a constitution with which we are dealing. While a constitution may well guarantee certain fundamental rights, such as that to personal freedom from restraint — which, indeed, is what "liberty" has always meant, unless this century has strangely broadened its significance — a constitution should not be expected to contain a solution of political problems, nor to act as a curb upon legislation hona fide, even though erratic. The danger of Mr. Guthrie's attitude is that it tends to. shift the responsibility of government from the legislature to the courts, where it does not belong, j. G. p. The Law of Monopolies and Industrial Trusts. By Charles Fisk Beach, Sr. St. Louis: Central Law Journal Co. 1898. pp. Ixx, 760. The greatness of the commercial interests involved and the novelty of many of the legal problems discussed malce this treatise of peculiar im- portance. It is the principal topic alone, however, that gives the book character. The chapters dealing with the legal effect of contracts re- straining trade and limiting the exercise of professions add little to com- mon knowledge, pp. 107-224. Again, such chapters as those on trades unions, municipal contracts, and railway agreements are, at most, illus- trative, and develop little new in principle, pp. 286-499. Nevertheless, the clearness of the exposition, and the fulness of the citations go far to justify these subsidiary portions of the work. Interest centres in the discussion of the industrial "trust" — that vital problem of modern economics as of modern law. The "trust" has arisen, and has developed three defined forms within a decade. In the first class, the stock of the combining corporations is transferred to a board of trustees; in the second class, a central corporation acquires the stock of the absorbed companies; in the third class, a central corporation takes the property of the merged companies outright. The thesis of the author is that all are equally illegal by common law. But, the assumption that the whole doctrine against restraints of trade is elemental common law may well be questioned, p. 6, Nothing seems clearer in an examina-