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the crown, is to-day not on the popular side, but finds itself arrayed against the people. He refers especially to numerous decisions in opposition to the demands of labor. "As the law stands, I do not doubt they were rightly determined. But they serve to show that the right of the individual to con tract as he pleases is upheld by our legal system at the expense of the right of society to stand between our laboring population and oppression. This right of the individual and this exaggerated respect for his right are com mon law doctrines. And this means that a struggle is in progress between society and the common law; for the judicial power over unconstitutional legislation is in the right line of common law ideas. It is a plain conse quence of the doctrine of the supremacy of law, and has developed from a line of pre cedents that run back to Magna Charta. Men have changed their views as to the relative importance of the individual and of society; but the common law has not. Indeed, the common law knows individuals only." In this view he differs from that expressed by Professor Beale in his article on the "Devel opment of Law," reviewed in our March num ber, who felt that the individualistic character of our law had changed with our doctrines of sociology. Mr. Pound, however, says, "Thus the common law in the interest of the individual is struggling with the prerogatives of the people represented by the police power as it struggled with a like prerogative of the crown from Henry VII to James II. But times have changed. The individual is secure and new interests must be guarded. The common law renders no service to-day by standing fullarmored before individuals, natural or arti ficial, that need no defense, but sally from be neath its aegis to injure society." He feels, however, that "the common law lawyer need not despair. He should only look about him to find within our law the means of bringing it once more abreast of the time and of ranging it where it belongs — on the side of the people. Indeed, the law has already discovered them, and is already moving in the right direction. The residuary power of the crown to do justice among his subjects has served to meet two crises in our legal history. When the old polity of local courts became impossible, it gave us the king's courts and the common
law. When the common law was in danger of fossilizing, it gave us equity. To-day, when the sovereign people stands in the shoes of the sovereign king as parens patrice, this residuary authority has given us the police power. Not yet one hundred years old, and scarcely men tioned in the books until the last twenty-five years, this doctrine has been worked out slowly at the same time that the common law has been gaining its firm foothold in our constitutional law. It is furnishing the antidote for the in tense regard for the individual which our legal system exhibits." To facilitate this readjustment to the policy of our law, he contends for a more thorough education of lawyers and a "broader and sounder philosophy of law than the average practitioner imbibes from Blackstone or from Coke by way of Story and Cooley and Miller." LITERATURE OF THE LAW
A SOMEWHAT amusing though cutting criti cism of "Legal Life in the American Far West" by A. Nerinck (a translation from the Journal du Droit International Prive), is pub lished in the May Yale Law Journal (V. xiv, p. 380). MARINE INSURANCE (Contribution to General Average) IN the Law Quarterly Review for April (V. xxi, p. 125), is an interesting account of a problem in marine insurance entitled "Con tribution to General Average" by H. Birch Sharpe. He considers the question how, under a policy of marine insurance, obligation to contribute to general average arises. He con tends that the liability of an underwriter in respect to jettison of goods covered by his policy, is strictly limited to the amount he may be called on to pay as his share of con tribution to the general sacrifice. "If, then, the underwriter on a particular interest be liable to pay this amount, not as for a loss, but by way of contribution to a sacrifice, by which a loss of the whole adven ture has been averted, it must follow that underwriters on other interests are similarly liable to pay, their respective shares. In other words, jettison (in the 'Perils clause') means contribution to a loss by jettison, and nothing
