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also in the case of the Norfolk and Portsmouth Belt Line Co. v. The Commonwealth, the latter being a case involving the question of charges by the railway company for weighing cars of private persons on the company's scales. This in general is the scheme of the law, and seems to me to be the best and most workable one yet devised.
The question will naturally arise: Does such a law violate any provision of the Federal constitution? I know of none that it does. It certainly is due process of law, nor does it deny to any person the equal protection of the law. It gives all persons interested a judicial hearing after notice, and denies such hearing to none. I am aware that the theory of both the State and Federal constitutions is that the three powers of government shall be kept separate and shall not be possessed by the same body; and yet this is not always carried out in practice. We have many instances of the mingling of these powers. The division of these powers is not essential to a republican form of government, and therefore their union does not violate that provision of the Federal constitution which guarantees to each State such form of government. It is said by the Supreme Court in 7 Howard 41 that the power to determine whether or not a State government is in form republican is a political one, and that the Supreme Court of the United States must follow the decision of the State Supreme Court on the matter. It has also been decided by the same court that the Legislature of the State of Indiana could exercise judicial functions without violating any provision of the constitution of the United States.
To sum up the whole matter:
1. Corporations, being creatures of the law, must be governed by the law.
2. This government must be uniform to accomplish efficient control.
3. Such uniformity can be accomplished through exclusive State control, but this is not desirable.
4. It can be accomplished through Federal control by bringing all corporations under Federal incorporation laws.
5. Whether this control is obtained through State or through Federal authority, it should be under constitutional provisions to give the greatest efficiency.
The natural tendency of human instincts, as developed in trade and commerce, is to destroy competition and to create monopoly. The modern agencies of intercommunication have made the old methods of doing business inefficient, and at the same time they give opportunity for the rapid growth of monopoly. This being the case, it becomes the duty of government to regulate the operations of capital in the form of corporate combination in the interest of the citizen; if not, the National life itself is jeopardised. The safety of the Nation does not rest in its armament nor in the broad waters which surround it, but only in the spirit of its people. If this is weakened, the Nation is weakened also.
The law, to be efficient in its sphere must expand to meet the problems of government as they arise. It is the duty of lawyers and Law Associations to bring about such improvement in the law. Constitutions should expand and grow with the growth of society and its needs. It has been the boast of lawyers that this was the glory of the common law. Let this also be the boast of our own laws. The truest conservatism is sometimes the greatest radicalism. The strength of a people and the salvation of its institutions rest in the changing of its laws and constitutions to meet the changing conditions brought about by the forward movement of the world. As lawyers may we meet this demand of progress, and of duty.
“THE CASE SYSTEM."
E. B. CONANT, DEAN WASHBURN LAW SCHOOL, TOPEKA.
Mr. President, and Members of the Bar Association of the State of
Kansas: When I was asked to prepare a paper for this meeting, I was given freedom of choice of the subject of my paper. Although the subject of legal education is one of the most important subjects before the legal profession today; yet I find on examining the reports of the proceedings of this Association that the papers and discussions have been much more upon matters of public policy than of the legal education of the men who are about to enter the profession. It is for that reason, as well as from the fact that I am engaged in the work of legal education, that I chose a topic dealing with a certain phase of that subject. It is not likely that I can suggest anything of value to those who are already working under the “case system ;' but it is my purpose to present to the members of this Association the general scheme of the case system” and what seem to me to be the chief arguments in its support.
The so-called “case system” was inaugurated at the Harvard Law School in 1871, and may now be said to be in practically exclusive use at about ten schools in addition to the school where it originated; and, of the remaining ninety odd schools of law in the United States, most of them, and among that number are the two schools in this State, adopt the system to a greater or less extent, according to the views of their various instructors and according to their own local conditions.
Professor Langdell stated in the preface to the first
edition of his collection of cases on Contracts, which was the first of the collections of cases designed for use under the system, that “Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied. But the cases which are useful and necessary for this purpose at the present day bear an exceedingly small proportion to all that have been reported. The vast majority are useless, and worse than useless, for any purpose of systematic study. Moreover, the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number. It seemed to me, therefore, to be possible to take such a branch of law as Contracts, for example, and, without exceeding comparatively moderate limits, to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines; and that such a work could not fail to be of material service to all who desire to study that branch of law systematically and in its original sources."
It has been in accordance with that same idea that