Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/585

 n. BEALE: JURISPRUDENCE 571 law not only requires every public service company to refrain from discrimination and from aggrandizing itself at the expense of the public, but the trusts and the unions also are similarly restricted. The principle of freedom of action, the courts in all questions now agree, rests upon the doc- trine that the interests of the public are best subserved thereby, and applies only so far as that is true. When freedom of action is injurious to the public it not only may be, but it must be, restrained in the public interest. That is the spirit of our age, and that is the present position of the law when face to face with combinations such as have been created in the last generation. An interesting example of restriction is that almost universally placed upon foreign corporations. In the competition of certain states for the privilege of issuing charters, great powers have been con- ferred, which were regarded as against the public policy of the states in which the corporations desired to act. Strict regulations for the action of such corporations have resulted, imposed in the European countries usually by treaty, in England and America by statute. A summary of the history of jurisprudence in the last hundred years would be incomplete without a consideration of legal scholarship during the period and of the results of the scientific study of law. The reformers of a hundred years ago were profoundly indifferent to the history of law. Bentham, the founder of so-called analytic jurisprudence, wished not to understand the existing law, but to abolish it root and branch, and to build a new system, the principles of which should be arrived at merely by deductive reasoning. It seems to us now almost impossible that such a man should have believed himself more capable of framing a practicable and just system of law than all his wise predecessors, but Bentham was a marvel of egotism and self-conceit, and his reasoning powers were far from sound. He seems to have been incapable of understanding the nature of law. " If,'* he said, " we ask who it is that the Common Law has been made by, we learn to our inexpressible surprise, that it has been made by nobody ; that it is not made by King, Lords, and Commons, nor by anybody else ; that the words of it are