EDITORIAL DEPARTMENT statutes, or than Lord Campbell's Act or Lord St. Leonard's Act or the Negotiable Instru ments Law? Do the refinements of equity and the ultra-ethical impossibilities which the chancellors imposed upon trustees have deeper roots or represent right and justice better than trustees' relief acts? Are any judicial decisions more deliberately worked out or more carefully adjusted to the cir cumstances to which they are to be applied than the draft acts proposed by the Conference of Commissioners on Uniform State Laws or the National Congress on Uniform Divorce Legislation? What court that passes upon industrial legislation is able or pretends to investigate conditions of manufacture, to visit factories and workshops and see them in operation, and to take the testimony of employers, employees, physicians, social work ers, and economists as to the needs of work men and of the public, as a legislative com mittee may arid often does? Failures are not confined to legislative law-making. The fate of the fellow servant rule, of the doctrine of assumption of risk, and of the whole judgemade law of employers' liability, the TaftVale case in England, and the fate of judicial adjustment of water-rights in America should make 'lawyers more cautious in criticizing the legislature. Freaks of judicial law-making are abundant. Spendthrift trusts are as out of line with right and justice as any statutemade institution ever was. The Exchequer rule as to reversal for error in admission of evidence, our American judge-made law of instructions to juries, our practice of new trials on the slightest provocation, and our whole pitfall-bestrewn practice in appellate courts are warnings of the evil possibilities even of judicial law-making. In short, crudity and carelessness have too often characterized American law-making both legislative and judicial. They dp not inhere necessarily in the one any more than in the other. "Formerly it was argued that common law •was superior to legislation because it was customary and rested upon the consent of the governed. To-day we recognize that the so-called custom is a custom of judicial decision, not a custom of popular action. We recognize that legislation is the more direct and accurate expression of the general will. We are told that law-making of the future
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will consist in putting the sanction of society on what has been worked out in the sociologi cal laboratory. That courts cannot conduct such laboratories is self evident. Courts are fond of saying that they apply old principles to new situations. But at times they must apply new principles tp situations both old and new. The new principles are in legisla tion. The old principles are in common law. The former are as much to be respected and made effective as the latter — propably more so as our legislation improves. The public cannot be relied upon permanently to tolerate judicial obstruction or nullification of the social policies to which more and more it is compelled to be committed." JURISPRUDENCE. " Christian Science and the Law," by John C. Myers, Law Notes (V. xii, p. 5). JUVENILE COURTS. " Children's Courts," by J. J. Kelso, Canadian Law Times and Review (V. xxviii, p. 163). LABOR AND THE LAW (Power of Congress to Forbid Discrimination Against Unions). Dis crimination Against Union Labor — " Legal?" by Richard Olney, American Law Review (V. xlii, p. 161). "For some ten years at least the tendency of every branch of the general government has been in the direction of enlarging the functions of. the nation and belittling those of the several states. It is not strange if a reaction has set in. It would naturally first show itself in the judiciary, because upon that •department falls the burden and the strain of accommodating the plain text of the Con stitution to the wishes and wants of the legis lative and executive departments. Such a reaction, though to be expected, would indeed be remarkable if.it did not become excessive — if it did not cause the pendulum, which has been swinging much too far towards increas ing the powers of the nation, now to swing too far in the opposite direction. An instance in point would seem to be the recent decision of the United States Supreme Court pronouncing unconstitutional those provisions of the Act of July, 1898, which . . . prohibit a carrier engaged in interstate commerce from dis criminating against union labor through any of the well-known methods by which the mem ber of such a union is for that fact alone practically denied employment by the carrier. The
