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The Green Bag

our courts regard the right to contract, not as a phase of liberty—a sort of freedom of mental motion and locomotion—but as a phase of property, to be protected as such. A further result is to exaggerate private right at the expense of public interest. Blackstone's proposition that 'the public good is in nothing more essentially interested than in the pro tection of every individual's private rights,' has been quoted in more than one American decision; and one of these is a case often cited in support of extreme doctrines of lib erty of contract. It is but a corollary that liberty of contract cannot be restricted merely in the interest of a contracting party. His right to contract freely is to yield only to the safety, health, or moral welfare of the public." The learned author rightly maintains that our jurisprudence suffers overmuch from the vestiges of a false theory of natural rights. He seems, however, to overrate the practical mischief arising from this fact. The bill of rights of our American Constitution owes its accurate interpretation to the sound common sense rather than to the doctrinal foibles and failings of judges. An eminently sensible judgment may be framed in strange and eccentric terminology, and yet may be funda mentally sound and capable of being ex pressed in language unexceptionable from a scientific standpoint. A social philosophy of law, this writer apparently would say, would commit one to the view that the rights of the individual, as regards freedom of contract and security of property, are limited not only by the health, safety, or morals of the public, but by the right of society to relieve the necessitous classes. This seems to be the position to which he is led, either by a false deduction or by something wrong in his fundamental theory that social rights are superior to in dividual rights rather than co-ordinate with them. If they are co-ordinate in ethics, why not in law? At all events, this is how he states his theory:— "The sociological movement in jurispru dence, the movement for pragmatism as a philosophy of law, the movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles, the movement for putting the human factor in the central place and relegating logic to its true position as an instrument, has scarcely shown itself as yet in America. Perhaps the dissenting opinion of Mr. Justice Holmes in Lochner v. New York (198 U. S. 45, 75, but see also Holmes, "The Path of the Law," 10 Harvard Law Review 457, 467, 472), is the best exposition of it we have." Conflict of Laws. "The Personal Law in Marriage." By Th. Baty, D.C.L., LL.D. 11 Bombay Law Reporter 69 (April). In marriage cases the conceptions of status and contract are so closely interwoven that the personal law finds itself on insecure

ground, but "it seemed fairly certain that the strong tendency of jurisprudence was to admit the personal law as decisive of capacity to enter into the marriage status." Westlake laid down this general rule. Chetti v. Chetti (see 21 Green Bag 286, June) goes a long way toward repudiating the authority of the personal law in matters of marriage, but— "In Chetty's case, it may be possible to make the decision consistent with a mainte nance, in principle, of the authority of the personal law. For the personal law, if, as alleged, it prohibited him from marrying out side his caste, contemplated a particular sort ofinstitution—Hindu marriage—which is quite a different institution from and incommen surable with European or Christian marriage. Polygamous marriages have often been held to be no marriages at all by the English courts, t. e., they do not constitute the same relation, and the rules applicable to the one do not apply to the other. Consequently, the incapacity to contract a proper Hindu union with any one not a Hindu is irrelevant to the question of capacity to enter into a relation of so different a type as Christian marriage. And a personal incapacity to enter into Christian or European marriage at all would certainly not be recognized by the law of England." Conservation of Natural Resources. "The Future of Man in America." By President Charles R. Van Hise. World's Work, v. 18, p. 11718 (June). "It is in order that humanity itself may be given an opportunity to develop through mil lions of years to come, under the most advan tageous conditions, that we should conserve our natural resources." Distribution of Wealth. "The Variability in the Distribution of Wealth and Income." By Warren M. Persons. Quarterly Journal of Economics, v. 23, p. 416 (May). "Before there can be any general agree ment concerning the tendency in the distribu tion of wealth and income, two conditions must be fulfilled: first, adequate and reliable statistics; and, second, a scientific and gen erally understood method of measuring con centration. At the present time neither of these conditions is fulfilled." European Politics. "The Achilles Heel of Germany." By Archibald R. Colquhoun. North American Review, v. 189, p. 801 (June). "Will the Slavs respond to the 'call of the blood'? Whether or no, it is plain that the Polish question, the pivot on which RussoGerman and Austro-German relations depend, is by no means settled, and still remains the Achilles heel of Prussia and of the Teutonic hegemony." Evidence. "Compulsory Exhibition in Personal Injury Suits." By T. Hall Shastid, M.D. Lawyer and Banker, v. 2, p. 35 (June).