down in 1819 would have been different if the industrial changes of the next fifty years had been foreseen. Some one has aptly said that the Supreme Court follows the election returns. As it was, it appears that Chief Justice Marshall succeeded in bringing a majority of the court to his point of view only by means of methods which in the light of to-day are so high handed and questionable that they would hardly be tolerated for a moment.1

The potency of the courts to protect property rights depends upon public opinion. Respect for the law is not always at a maximum in the country having the most laws. "It is not the existence of statutes," writes President Hadley, "which makes murder a crime; it is the growth of a public opinion which makes the individual condemn himself and his friends, as well as his enemies, for indulgence in that propensity." The chance of convicting prominent business men under the criminal section of the anti-trust act until recently has been so slim that it was not worth while to bring suit. During the disorders attending the strike of employees on railways centering at Chicago in 1894, public feeling ran so high that the injunctions issued by the federal courts were not vindicated until much of the irreparable injury forbidden by the courts had been inflicted upon the railways and those dependent upon their services. The damages which the railways have since recovered by suits at law for the destruction of property are but a tithe of the losses which they sustained, to say nothing about the losses inflicted upon the public at large. When toll pikes in Kentucky were in public favor, the right of property in them was secure. When they came to be regarded as a "relic of barbarism," the courts were powerless to protect them.

Prior to the Civil War, many counties in Missouri issued bonds to subsidize the building of railways. The bond issues were loosely safeguarded, and some counties in which no railroad was built were addled with a heavy debt. The people in these counties naturally opposed paying the interest and the principal of the debt, and went so far in some instances as to elect judges of the county court pledged not to make the necessary tax levy. The bond-holders accordingly sought a remedy at the hands of the federal court in Kansas City, Missouri. But in a number of counties public opinion was so set that the orders of the federal court directing the county judges to levy the necessary tax have repeatedly failed to command obedience. One of the accepted and well-understood duties of the judges in some counties has been a jail sentence for contempt of court. In some cases the judges have taken to the woods as soon as elected. The Supreme Court has held that a federal judge can not himself or through any official appointed by him make a tax levy. The utmost that can be done is to order a

1 Orton, Jesse F., Confusion of Property with Privilege; Dartmouth College Case, The Independent, Vol. LXVII, 1909, pp. 392-397.

county official to levy the tax needed to pay a judgment, and to punish failure to comply as contempt of court. The upshot is that the decrees of the federal court have for years been in abeyance and the legal rights of the bond-holders have not been enforced. This incident renders it more than doubtful whether the federal courts could have prevented a number of states from repudiating their debts even if the eleventh amendment had never been added to the constitution. In the words of Lincoln:

In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.?

If the status of public opinion sometimes paralyzes the activity of prosecuting attorneys and nullifies the decrees of courts, it also occasionally enforces a higher standard of business conduct than the law requires. Numberless oral agreements are every day faithfully observed which can not be enforced at law. Many a man's word is as good as his bond. Every social group has a code of honor which in some respects exceeds the letter of the law. Probably "Wall Street" suggests a low order of cunning to most minds, and yet there is no place where certain kinds of contracts are more scrupulously observed. The whole fabric of credit so essential to modern business rests upon men keeping faith, and is in the main quite independent of the compulsory processes of the courts. Justice secured by means of litigation is frequently so expensive that it comes too high. Throughout the silver controversy the members of the New York Clearing House steadfastly refrained from paying their daily balances in silver, though Congress required the Clearing House rule forbidding such payments to be rescinded. During the Civil War, Massachusetts paid the interest on her bonds in gold, "though it cost her sometimes nearly three for one to keep her faith." 4 More noteworthy was the maintenance of the gold standard on the Pacific Slope. Legally debtors in California had as much right to tender greenbacks in full discharge of their debts as in any other part of the country, but the fact that a man could not tender greenbacks without injuring his credit and losing standing among business men effectually prevented such conduct. Self-interest resulted in a higher standard of business honor than the law demanded. In like manner competition at the present time frequently compels a higher standard of efficiency and honor among men than the law requires.

1 I am indebted to the Dean of the University of Missouri for this information.

2 Debates of Lincoln and Douglas, Edition of Follet, Foster & Co., Columbus, Ohio, p. 82.

3 White, Horace, Money and Banking, fourth edition, p. 171.

4 Lowell, James Russell, Prose Works, Essay on Democracy, Vol. VI, p. 11.

It is difficult to see why any one with any practical experience of business should take the law of the matter as a guide. The law is a very cumbrous, slow and inefficient machine for preventing robbery and other crimes on the part of rogues and burglars in the various forms in which they infest society. It makes no attempt to show how things should be done well. That is not its business. Any one who relies on the merely legal interpretation of his duties is only doing enough to keep him out of Wormwood Scrubs.1

Once more, when boast is made of the protection afforded private property by the courts, an important exception should be noted, namely, promissory notes. Congress has the right at any time to emit bills of credit and to declare them a legal tender in payment of preexisting debts. The man who lends another one thousand dollars to-day is without any remedy at law if his debtor at the maturity of the loan tenders him depreciated paper money which Congress has clothed with legal tender power. In other words, a large class of property is in an important respect well outside the protection of the courts. The only remedy open to those opposed to debasing our monetary standard is political action. It was this remedy and this remedy alone that brought about the resumption of specie payments and subsequently prevented the free coinage of silver. Even if the final decision of the Supreme Court in the legal-tender cases had been adverse to the power of Congress to issue the greenback, a large portion of the community, including the great army of wage earners, would have suffered an irreparable loss before the decision was reached.

The property-owning interests dependent upon a protective tariff for their prosperity are in a position similar to the holders of promissory notes. The tariff schedules fixed by any Congress may be changed at any time without the slightest obligation to compensate those whose business interests are thereby disturbed. The courts can not be successfully invoked to stay the hands of Congress. Here as in the case of promissory notes the parties interested are limited to political action, and if the history of tariff legislation indicates anything it is that the remedy is more than adequate.

The case of the liquor traffic, a business in respect to which the police power of the state is subject to a minimum of restraint by the courts, illustrates the same point. The state may, if it deems wise, prohibit the manufacture and sale of intoxicating beverages without indemnifying any one for losses sustained. The liquor business is commonly regarded as disreputable. When run for profit, it is inconsistent with the public good and it is accordingly subjected to all sorts of restrictions. It is notorious that the business in many communities is conducted in flagrant disregard of law. Comparatively few states, however, go so far as to try to prohibit the traffic. In most communities

1 Withers, Stocks and Shares, p. 145.

the business flourishes and there is no lack of capital willing to assume the risks incidental to embarking in it. As in the case of protection, the political remedy is usually more than ample to safeguard the liquor interests.

II

The framers of the constitution were fearful of democracy and entertained serious misgivings concerning the essential goodness of man. In theology, many of them accepted the doctrine of original sin, total depravity, infant damnation and the final perseverance of the saints. In politics, they distrusted the masses, favored a restricted suffrage, provided an electoral college for the choice of president, left the election of United States senators to the legislatures of the several states, contrived the system of checks and balances and established an appointive judiciary with power to set aside an act of Congress. The constitution was the work of the "solid, conservative, commercial and financial interests of the country" who feared legislative tyranny and whose solicitude never lost sight of the safety of property. For a long time, however, the guaranties of property in the constitution were never seriously put to the test. The one noteworthy exception was property in slaves which the constitution failed to protect. Until recently the ownership of property was widely diffused, and because of the abundance of fertile land the man without property to-day stood an excellent chance of becoming an owner to-morrow. There was no wage-earning class destined to remain such to the end of its life. For a time the scarcity of men willing to work for hire handicapped the development of manufactures. It has not been the distinctive features of our form of government so much as our environment that has given us peace with plenty.

It does not follow consequently that our governmental and economic systems, under the conditions which obtain to-day, are proof against socialism. The institution of private property depends upon the general consensus of opinion which varies from age to age. It is a common error to suppose that whatever is always will be. Take the right of a man to interfere with the business of another by normal competition, by way of illustration. This is regarded as a matter of course today, but there was a time when the right to engage in a given trade was restricted to the members of a certain guild, and a man was not at liberty to enter any pursuit he might elect. The individual's position in the social order was determined by the status into which he happened to be born and not by competition. Accordingly, the courts in place of upholding the right of competition as at present were once inclined to look upon it with disfavor. Likewise, property rights are no more

1 Wyman, Control of the Market, pp. 11-12.

absolute than is the right of competition. Slave property, once nationwide, became sectional and then disappeared altogether. Property in general depends as much upon considerations of social utility as property in slaves. For a long time it was restricted to movables. At first it included only weapons and ornaments. Gradually it came to include domestic animals. The ownership of land was vested in the community and not in private hands until comparatively recent times. The powers and franchises granted corporations are wholly optional with the several states, and depend upon considerations of social expediency. But for the social will embodied in positive law, there would be no such thing as theft.

At the present time property rights are being modified in various directions. There is a strong tendency to municipalize or nationalize certain industries. In Ireland, the property rights of the large landowners have been abridged by Parliament. Railways and other labor organizations that occupy a strategic position are altering the distribution of the social income and are establishing a sort of joint proprietorship. This is the effect of "full crew bills." According to the committee of railway managers, the demands of the railway employees on the eastern roads at the present time for an advance of wages are equivalent to putting the income of three hundred and forty millions at five per cent. ahead of the first mortgage bonds of the roads.1 The modification of the liability of employers at common law, the enactment of workingmen's compensation acts and more ample provision for playgrounds, art, music and education by taxation and private benevolence point to the growth of collective property. The social obligations resting upon private property are increasing. The abridgment of property rights is reflected in the lighter punishments provided for offenses against property. Imprisonment for debt has been abolished. The branding of thieves and vagabonds has been discarded. Capital punishment for crimes against property no longer exists. Many punishments which appear cruel and unusual in the light of to-day did not appear so at all to our forefathers. As humanitarian considerations have gained ground, private property has lost something of the sanctity in which it was once held.

It is remarkable how quickly even the staunchest defenders of property sometimes face about and demand an abridgment of property rights. All that is needed is some event that brings out clearly the opposition between private and public interests. A strike that ties up the steam roads of the country, or the street railway service of a city, may turn out to be such an event. The anthracite coal strike undoubtedly was. No one would probably accuse so "safe and sane" an organ as The New York Tribune of socialistic leanings, and yet this paper remarked:

1 The Commercial and Financial Chronicle, July 12, 1913, p. 76.