480 JURISPRUDENCE 



If such associations had been formed seventy-five years ago, the 

 spirit of the age would have left them free to act as they pleased. 

 Freedom from restraint being the spirit of the times, it would have 

 been thought unwise to restrain that freedom in the case of a power- 

 ful monopoly as much as in the case of a poor slave. But at the 

 present time we are more anxious for the public welfare than for 

 the welfare of any individual, even of so powerful a one as a labor 

 union or a trust, and in accordance with the genius of our age the law 

 has developed and is now developing in the direction of restraint 

 upon the freedom of action of these great combinations, so far as such 

 restraint is necessary to serve the public interest. For centuries 

 innkeepers and carriers have been subject to such control, though 

 little restraint was in fact exercised until within the last fifty years. 

 To-day the law not only requires every public service company to 

 refrain from discrimination and from aggrandizing itself at the ex- 

 pense 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 doctrine 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 and 

 privileges have been conferred, 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. 



VIII. Scientific Study of Law 



A summary of the history of jurisprudence in the last hundred 

 years would be incomplete without a consideration of legal scholar- 

 ship during the period, and of the results of the scientific study of 

 law. The reformers of a hundred years ago were profoundly in- 

 different 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 rea- 

 soning. 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 



