and true distinctions; but its value is greatly lessened by the author's adherence to an artificial and antiquated classification—none the less antiquated, from a scientific point of view, because found in recent English works. The system is one of rights, not of legal relations; and all rights are grouped into the two medieval (not Roman) classes of rights in rem and rights in personam. This division leads to the customary absurdities. The rights which flow from family relations are classed as rights in rem (§ 16), — which they doubtless were in primitive society, when the head of the house owned wife and children, but which they are not at the present day. Of course the right to the custody of a child still expresses itself in an action which runs against third parties, and which therefore may be termed an action in rem; but the legal relation between father and child, like all the other family relations, is now a complex of reciprocal rights in personam a fact which the author elsewhere recognizes (§ 467).

The classification adopted also results in the close association of obligations created by contract with those generated by tort (book i, chapter viii). This is Roman, but nevertheless unnatural. In a proper system of legal relations, obligations created by tort naturally fall into a separate division of the law. They belong in the field of private law, because private law includes all relations between individuals; but they border closely upon criminal law, which is a portion of public law, because the action of tort is not limited to the redress of the private injury. The individual who brings an action of tort for actual damages, brings an essentially private action; but when he sues for vindictive damages, he becomes in a peculiar sense a representative and agent of the whole community a vindicator of the entire social order. Whether a delict shall beget a criminal action or an action for penalty, or both, is a question of social expediency pure and simple; and in the history of every system of law we therefore find crimes and torts divided by a shifting line. These facts the author entirely ignores, treating the action of tort as a suit for the recovery of actual damages only.

On the other hand, this theory of the obligation ex delicto, combined with an extremely peculiar construction of the obligation ex contractu, enables Mr. Smith to produce an apparent generic resemblance between the two. Contract, according to him, does not give the promisee any right to demand performance. The promisor is under a "duty" to perform, but there is no "obligation." Obligation is created only by some loss or "detriment" upon the part of the promisee, suffered by him in consideration of the promise. That is, "detriment" is not merely an essential element in the creation of obligation, but the very ground and cause of obligation; and it should therefore be the measure of obligation.

This construction obviously gives an excellent basis for the English doctrine of "consideration"; but it does not explain, on its face at least, why courts of equity enforce specific performance, or why damages, in action on breach of contract, are based on the value of the performance. According to the author's theory, there should be no action except for recovery of consideration. He bridges this difficulty by

asserting that it is the value of the consideration which is in question, i.e. "its value or utility to the obligee," and that, "as a practical rule, it is reasonable to assume, unless the contrary clearly appears, that the value of the consideration to the obligee is as agreed upon by him" (§ 188). This seems to me both lame and inadequate; and it requires no little ingenuity on the part of the author to bring the positive rules of English law under the cover of this theory. (See $$ 190 et seq.) As to the "civil" law, the author boldly asserts that its doctrine is identical with his, but remains in default with the proof of this startling thesis. In point of fact, whether civil law means classical Roman law or Justinian law or modern continental European law, its principles are diametrically opposed to Mr. Smith's. It is the accepted promise, the agreement, which creates obligation at civil law; consideration, in the English sense, is not necessary; the gratuitous promise, if accepted, is, in the absence of positive statutory restrictions, actionable; specific performance is enforced when practicable; and damages for breach of contract include not only positive detriment (damnum emergens), but failure to gain (lucrum cessans). A possible explanation of Mr. Smith's error is afforded on page 124 (§ 184), where he speaks of the 66 cause" of contract, in the civil law, as identical with the English consideration. This, of course, is all wrong. If A agrees to give B a hundred dollars gratuitously, i.e. without consideration, the agreement is not sine causa, but causa donandi. "Cause" is not consideration, but motive.

Passing without further comment from the author's systematic jurisprudence to the philosophical side of his work, we find him an outspoken and energetic defender of "natural right," and a vehement renouncer of Bentham and Austin and all their works. The state does not create rights, it merely formulates and enforces them. If the state gives the individual a "power" or "liberty" which rests upon no basis of justice, there is only a "quasi" or "pseudo" right. To speak of a legal as distinguished from a moral right is simply a perversion of the word "right" from its natural meaning. (See especially book iii, chapter iv.) So far, this is a harmless bit of logomachy; but the author has the courage of his convictions, and draws an exceedingly practical inference. If an act of the legislature is contrary to right and reason, the courts, in his opinion, are bound to declare it void,—and this

although the legislature has infringed no express constitutional provision (§ 270). If this be true, certain questions commonly assigned to the domain of pure ethics are obviously legal questions of the first importance. How do we find this "right" that overrides statutes? Who declares and interprets it? In the section last cited, this function seems to be assigned to the courts; but in other passages, Mr. Smith recognizes that the courts, like the legislature, may, and sometimes do, misinterpret the "right." Its authentic and final interpretation, accordingly, must be sought elsewhere.

The author's theory on this point is most fully set forth in book i, chapter iv. The individual, he declares, intuitively knows right from wrong, and the individual intuitions agree in the main. But they do not agree in details, and "as no reason can be given why one man's conscience should be forced upon another, it follows that, in all questions between men, we must resort to the common conscience as the practical test of right and wrong" (§ 56). Here we seem to reach relatively firm ground — although we are not yet informed how this common conscience becomes legally cognizable, otherwise than in usages, constitutions and statutes, judicial decisions, etc., nor how its commands are to be enforced, otherwise than through the machinery of the state. But the author does not rest here. "In view of the difference in morality of different peoples and ages, and of different classes of individuals in the same age and country, it is evident that positive morality cannot be accepted as infallible. Hence the ultimate standard of right is to be sought in reason, or scientific morality" (§ 53). But only two pages farther on, Mr. Smith plunges us into a bottomless gulf of uncertainty by admitting that "the first principles" of scientific morality are "assumed," and that "it cannot, in the present stage of its development, assert the absolute truth of its conclusions (§ 56).

It is singular that the author does not see that his "scientific morality," "in its present stage of development," with its "assumed" first principles, is purely an individual intuition,—and that no reason can be given why one man's intuition should be forced upon another. I, for one, intuitively reject certain of his intuitions. I cannot see, for example, why the "obligation" of contract should be radically different from the "duty," and I reject this distinction of his as extremely immoral.

Mr. Campbell's Science of Law may be dismissed very briefly. The pamphlet is but the "preliminary chapter" of a projected work on jurisprudence; and this preliminary chapter deals almost exclusively with the philosophy of law. Mr. Campbell's legal philosophy is practically the same as Mr. Smith's. He, too, bases all law upon natural right; and with him, too, the cognition of right is intuitive. He denies

the omnipotence of the state, and is even more vehement than Mr. Smith in his denunciation of the utilitarian theory. But he is also much cruder; and one striking evidence of his crudity is contained in the title of his work. He declares his theory to be "the American theory" ; and this he seeks to substantiate by quotations from the Declaration of Independence and from our national and state constitutions. But the theory is, or rather was, just as truly English in the seventeenth century and French in the eighteenth, as it was or is American. It is the revolutionary theory; and it has become imbedded in our political and legal speech because our national life began with a revolution against constituted authority.

That both these authors attack the dominant English theory as to the source of legal right, is, as I have already said, an interesting fact. As formulated by Bentham and Austin, the theory invites attack. It is true that the state makes the law; but the state must be sharply distinguished from the government, and this the dominant English jurisprudence does not always do. Nor, in truth, are the assailants of Bentham's doctrine clearly conscious of this distinction; but, as the brunt of their attack is really directed against the assumption that the government makes the law, and as they have little difficulty in showing the inadequacy of this theory, they compel the defenders of the dominant doctrine to reformulate their thesis and to define the word state. It would be better, because of the ambiguity of this word, to use the word sovereign. Sovereignty may reside in the government, or in one of its departments; but it may reside elsewhere. In our system, for example, the sovereign is not, as Mr. Smith seems to think (§ 531), the national and state governments with their various departments: it is the amending power. It would be interesting to know whether Mr. Smith desires to invest any individual or body of individuals in this country with the power to declare a constitutional amendment void, as contrary to “right.”

But while it is true that the state, i.e., the sovereign, creates rights, and that there are to-day no rights other than those recognized by the state, it is also true that the state ought to be the faithful interpreter of the social sense of right and equity. The emphasis which the English school places upon the first of these truths tends to obscure the second. The sense of equity is law "in the making," and it is the duty of the jurist as well as of the moralist to see that the development of law shall not lag too far behind the developing sense of equity. If books like Mr. Smith's and Mr. Campbell's operate to quicken the general recognition of this duty, they are not written in vain.

MUNROE SMITH.

POLITICAL SCIENCE

QUARTERLY.

THE OLEOMARGARINE LAW:

A STUDY OF CONGRESSIONAL POLITICS.

HE time was when a discussion of great political questions. aroused and attracted the attention of the whole people. The entire country was interested in and often electrified by the orations of Webster and Clay and Calhoun in Congress, or of Seward and Lincoln and Douglas on the stump. But the autocratic machine work of committees under the five-minute rule has abolished such debates in the House, and the editorial machine work of the daily press has supplanted those of the campaign; so that a grave and vital question in our national life may be decided and settled at the present time almost without the notice of the general public.

Legislation runs wild at our state capitals. Grant the doctrine that state laws may prescribe or prohibit certain drinks, and it is an easy step to interfere with or prohibit certain foods, as has been done in the case of oleomargarine. If this tendency continue, we of this generation may live to see laws passed to regulate our clothing or our religion, that will be as arbitrary as anything against which our forefathers rebelled. At Columbus, last winter, a bill was introduced to prevent any denizen of Ohio from eating meat slaughtered and dressed outside of the state limits. And at Springfield, Illinois, the coopers' unions sought the passage of an act to prevent the use of second-hand flour-barrels and butter-firkins.

Few voters have much respect personally for their representatives in our law-making bodies. The men whom we send to