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Recent legislation in our State has made it possible for independent oil refineries to exist by reason of antidiscrimination and maximum freight rate measures, and it is a source of satisfaction to our people to know that already and within the year last past, at least seven independent oil refineries have been started and are now in actual operation. Others are in process of construction, and the financing of them has been undertaken and concluded by reason of confidence on the part of the people, that the strong right arm of the State will continue to protect individual interests, as against any unlawful or oppressive action growing out of corporate and trust-ridden greed.

The maximum freight rate law for the transportation of oil, is only effective within the borders of our State. It is to be hoped, however, that adjoining, and even far distant, states will follow the lead already started here, and enact measures in sympathy with our own legislation on these subjects. The low price of crude oil has been a matter of discouragement to producers for more than a year last past, but the production has been enormous and is constantly growing, and at all times, is in excess of the facilities for transportation and storage, now provided.

The avenues for the use of oil as fuel are widening, and this has a tendency to provide a market where it otherwise would not exist. The outlook is altogether hopeful and inspiring.

In concluding this article, we note that our State Legislature has initiated some of the necessary measures to prohibit and regulate these vast natural resources. It is natural that in reaching the threshold of such legislation, many necessary and important provisions would be overlooked, but it is believed that succeeding legislatures will supplement that which has already been done, to the end that all lawful public and private interests will be faithfully subserved.

THAT WILDERNESS OF SINGLE

INSTANCES.

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W. H. ROSSINGTON, TOPEKA.

It is related of our most famous, and concededly our most able Judge, that he one day walked into the consultation room of the United States Supreme Court and handing to his associates his written views upon an important cause, remarked: "This, gentlemen, is doubtless the law of this case, and our Brother Story will be kind enough to supply the authorities." Whether true or false, it is a tale fraught with deep suggestion. It was the constant habit of our earliest, might I say our ablest, Judges to apply to the solution of controversies brought before them certain sound and settled principles of law and right reason. These principles were and are, for they still exist, fundamental, and not so complex and recondite in their nature or so great in number that a man endowed with a fairly vigorous and clear mind and a sound and retentive memory might not in half a life-time acquire and have them always readily at command for instant, beneficent and forceful use. Of cource, it was true then, as it is now, that at law as in matters of navigation, to use the language of Captain Bunsby, the “bearin's of the obserwation lies in the application on it.” To state exceptions to a rule is to enforce it as much as to decide a case to be within it. There is an ancient solecism in common use to the effect that the exception proves the rule. If the exception does not literally serve such purpose, it assuredly ought not to be allowed to invalidate the rule. It is one thing to expound and enforce a rule of law by excluding from its strict application a case clearly without its terms. Such treatment of a principle is its vindication and leaves it intact and burnished bright to still redress wrongs and vindicate rights which may be subject to its operation and within its fair inclusion. It is another and wholly different thing to indulge the method of grafting upon a rule of law numberless wiredrawn, ingenious and subtle distinctions until the rule itself is frittered away, lost, surrounded and hidden in an underbrush of so-called exceptions. The final result of such treatment of sound legal principles by bench and bar is to leave upon the lay mind the impression that the law is very like one of Lord Dundreary's conundrums: Something that no fellow can find out.

It tends to justify the scathing words of the poet Tennyson, who long since described it as

“The lawless science of our law, That codeless myriad of precedent,

That wilderness of single instances.” Our old friend Coke held a different opinion. His juiceless, harsh and prosaic temperament expanded under what he called the “gladsome light of jurisprudence," until his words became almost poetical. “Reason is the life of the law,” said he. “Nay, the common law is nothing else but reason.

The law, which is the perfection of reason."

We seldom or never get together on occasions like this that some one or more of our number does not quote the dictum of the admirable Hooker, who was not a lawyer but a theologian. He was discussing ecclesiastical polity and not dealing with land tenures or the law of water rights when he said: “Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world." I will not quote the rest of it.

Do we not swell with self-gratulation annually on hearing some one repeat this stately sentence, and do we not apply it smugly and literally to ourselves and as a fair description and vindication of the Kansas

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Court of Appeals reports? But assuming that Hooker had the rules of the common law of England, from whence our substantive law is derived, in his mind when he spoke, as Coke assuredly did, he was dealing with something at that time known and established ; of cognate and harmonious principles welded later on by the genius of Blackstone into a noble system of jurisprudence whose various parts held together, illuminated, vindicated and sustained each other, not only logically but ethically.

James I once tapped Mr. Justice Parke on the head and remarked, “Here is a little head that holds all the common law of England." No, my Liege," replied Parke, “a very small part of the law of England, but a somewhat large knowledge of where to find that law."

Who has a certain knowledge of the common law of any State so that he can confidently assume what it is or will be from what on principle it ought to be in the majority of the cases presented to him in the course of his practice, or indeed in any great number of such cases? To the average practitioner who has been long rubbing against the adamant of good and evil fortune in courts and before juries, there is a volume of esoteric

a meaning in that delicately sarcastic response of Henry Payne to Judge Gray, who interrupted him in his statement of a legal proposition with the sharp assertion that such statement was not the law. “It was until your honor spoke,” said Payne.

Whether the common law as we inherited it from our ancestors is or ever has been the perfection of human reason, it is nevertheless a method or system of reasoning from well defined and settled principles to the end of solving and justly settling contentions arising among men and women touching the every day practical affairs of life. The concrete question, the case at bar, is and ever has been mainly important as challenging and calling for the assertion and enforcement of such abstract principle. A judgment once pronounced after full and careful deliberation defining a principle of jurisprudence may be and should be applicable to other causes involving the same principle, because it has ever been as important that the law thus ascertained and expounded by the judges should be stable and consistent as that it should be coherent, intelligible and consonant with justice and right reason.

These observations are trite commonplaces and bound to be assumed in the discussion of any civilized judicial system. To that extent reports of decisions are the records of the law, the source from which sound principles are to be constantly drawn, the evidence of their persistent application, the living proof of their salutary use to the accomplishment of justice, which Daniel Webster on a memorable occasion declared to be the greatest concern of man on earth.

I am far from contending that the law shall be unchangeable; that courts may not abjure outworn doctrines and modify or set aside archaic and useless rules, however firmly buttressed by precedent. I do not in this brief discussion mean to be understood as in favor of regarding the settled doctrines of jurisprudence as being like an Alpine glacier which must perforce progress solidly a few feet in a decade. Human insti. tutions are subject to what Herbert Spencer called the law of development, and the radical reformer no less than the hide-bound conservative impedes the salutary operation of that law.

Conservatism and the reformatory spirit have ever been two opposing and reacting forces in the evolution of the law. In England, the home of the common law, the force that makes for reformation has curiously enough had larger influence and success than in this country, particularly in matters of practice and procedure. The most salutary influence upon the law, like truth, lies in the middle of these extremes. The extremes may be illustrated by the character and influence of two famous men of law, Jeremy Bentham and Lord Chancellor Thurlow. Bentham's schemes

so drastic and revolutionary that he almost

were

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