by injunction, and it was so ordered. This decision was recently affirmed by the Supreme Court of the United States. There was nothing revolutionary, not even anything new, in the decision of the latter court. It merely stated what the law is and always has been, and decided the case accordingly. The gist of the decision may be seen in the following quotation from the opinion: "The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union, and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make non-membership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power."

Yet, under the caption which stands at the head of this article, this decision has been made the subject of a stupid and mischievous attack upon the Supreme Court by The New Republic in its issue of December 22, 1917. In the course of the editor's comment on the case, it was said: "The decision will confirm the popular feeling, already strengthened by recent constitu

tional decisions, that a majority of the Supreme Court are endeavoring to enforce their own reactionary views of public policy, in direct opposition to the more enlightened views prevailing in legislatures and among the public. For there was no statute and no binding precedent to justify the decision. It was derived solely from the court's conception of the policy of the law, from its judgment of the proper balance of interests in an industrial conflict."

We have called this attack both "stupid" and "mischievous." If it is the former, it certainly is the latter. And its stupidity is shown in a misstatement of recent judicial history and in an utter failure to understand how and why a court of justice decides cases. For, in the first place, it is certainly not true that the justices of the Supreme Court entertain reactionary views of public policy, and still less true that they are endeavoring to enforce them. On the contrary, ever since the era of "progressive" legislation began, they have consistently shown themselves not only willing but anxious to give effect to the will of the people, as expressed in enactments of that character, whenever and wherever it was legally possible to do so. Indeed, it is not too much to say that, for this purpose, they have more than once strained constitutional barriers to the cracking point. This was demonstrated in an article entitled "Progressive Legislation, the Constitution, and the Supreme Court," in the January number of this REVIEW, pages 19-29. One who has not made himself familiar with the decisions has no right to charge the judges with reactionary

tendencies or any other kind of tendencies, for he does not know the facts. But one who does know the decisions and yet persists in this mischievous accusation might not unfairly be likened to the scriptural “deaf adder that stoppeth her ear."

In the next place, no honest court ever undertakes to decide any case in accordance with its own views of "public policy." In fact, public policy is something which does not even come within the sphere of a court's consciousness except in so far as it is explicitly set forth in constitutional and statutory laws. The definition of the public policy of a state or nation is for its legislative body, not for its courts. The mistake lies in supposing that the functions of a court in applying law to cases are elastic-that it can, if it chooses, disregard statutes and precedents and adjudge the rights of litigants in accordance with sentiment, public opinion, or the views of editors. All these may furnish a perfectly legitimate basis for the enactment of a new law. But courts do not enact laws. Courts are held within strict and narrow boundaries. They must take the law exactly as they find it and apply it impartially. A judge who should decide a case before him in accordance with his personal opinion of what the law ought to be would be guilty of encroaching upon the prerogatives of the legislature. A judge who should decide a case in accordance with a rule or a sentiment which he knew was not the law would be guilty of a betrayal of trust. And it will not be a happy day for our country when our judges

begin deciding cases in accordance with "views prevailing among the public," whether enlightened or otherwise.

"The Bases of Democracy

in China"

The natural skepticism of the western mind towards the possibility of maintaining anything like a really popular and democratic form of government in the most ancient of empires furnishes the occasion for an interest

ing article entitled "The Bases of Democracy in China," by Mr. Kia Lok Yen, of the University of Chicago, in the International Journal of Ethics for January, 1918. The author posits his occidental acquaintance as saying: "If anything is unthinkable, unbelievable, and even ridiculous, it is China's becoming a republic." And yet a republic has come into existence in China; and a fact is a fact, and there must be some reason for it. The explanation is that the westerner has dwelt too much upon the theoretically unlimited power of the emperor, under the old regime, as the Son of Heaven, upon the occasionally tyrannous behavior of governors and subordinate rulers, the fixity of caste, the prevalence of graft, and the immutability of institutions, and has given too little attention to the forms of organization, the political practices, and the popular philosophy which have governed the every-day life of the Chinese people. In effect, as this writer tells us, "the local self-governments have proved so efficient in managing their own affairs that the common uneducated people today often declare that they fail to see anything

that is considered important by the republicans which they have not had before." In China, the family is the social as well as the political unit. So strong is the bond of kinship that it is not uncommon to find four or five generations living in the same household. And however large the group, "the family is a living organism, possessing a spirit distinct from the individuals constituting it. Each member works for the family, and not for himself alone. The earnings of all the members are to be turned in to support the whole family, and every member has a claim on the earnings of every other." Moreover, the family as a whole is responsible for the civil and criminal liabilities of each member. All the property of all the family is vested in the father, as its head and representative, and his control over the life and activities of the group, as here described, remind one strongly of the "patria protestas" of the Romans. So far we seem to perceive a patriarchal system of government rather than democratic. But stretching out beyond the family is what our author prefers to call the "greater family," rather than the "tribe" or "clan," of which the important characteristic is the maintenance of the "ancestral hall," an institution not devoted to purposes of worship alone, but which has very important functions in regulating the social, economic, educational, and judicial relations of the individual members. It has its own property, and to a certain extent acts as a mutual loan association and a clearing house. Its records are carefully kept. It provides schools. It is likewise a court of arbi

Its

tration whose judgments, though not legally compulsory, are always obeyed for the sake of family pride. And the important detail is that its affairs are administered by a board of elders, varying in number, who are elected by popular vote for a definite term. "Thus the greater family too is an organism having a spirit of its own distinctly apart from those of the individual families constituting it. Within it exists a representative and co-operative system where all the members enjoy the same rights and privileges and discharge the same duties and obligations. ligations. Here too it should be strongly emphasized that harmony and co-operation are not attained at the expense of individuality." Beyond this sphere lies the village, which, when it includes more than one clan or group, is organized on exactly the same principle, being governed by a board of elders elected by and from the representatives of the various groups, so that "the relation between the village and the group organizations is precisely the same as that between the group and the families or between the family and the individuals.”

There are also economic and industrial institutions that have long spread the leaven of democracy throughout China, particularly the merchants' and artisans' guilds. Each of these organizations is administered by a president, secretary, and executive board, all elected annually by popular vote. It is their office to settle disputes arising between their own members and controversies with other guilds, to fix the rate of exchange and of interest and the date for the settlement of accounts,

and to discharge many of the functions of a board of trade, a city council, a board of charities, and a council of arbitration. An authoritative writer on Chinese affairs is quoted as saying: "The democratic management of industrial and economic affairs through the guilds, and the democratic origin of industrial and commercial law, furnish the historic and economic basis for the democratic character of Chinese civilization."

But conceding all this, the western mind cannot blink the fact that the general or central government was essentially a despotism, pure and simple. The theoretical correctness of this view the author frankly grants. But whatever were the theoretical powers of the emperor, the method by which he ruled. the country had necessarily curtailed his authority to such an extent that he had to do almost as the people pleased. Actual contact of the general government with the people was only through the rulers of the provinces, districts, and counties, and "the duties of these officials consisted mainly in keeping order and collecting the taxes from their respective territories." "The only obligation the people had towards the central government was the payment of taxes, which were generally very small in comparison with those of the

western countries." What is more, we should not lose sight of the influence of the teachings of Confucius and his followers, combining religion, morals, and political philosophy. Our author is positive that the popular idea of gov ernment, as derived from or founded upon Confucianism is expressed in these maxims: "Government should be by the consent of the governed; moral agencies rather than physical forces should be employed; the ablest, wisest, most experienced, and most virtuous are indispensable for a good government; there rests with the people the right to depose any ruler whose conduct they do not approve." "It is true," he says, "that the king is generally called the Son of Heaven, and that in latter times this has been taken to mean appointed by Heaven; but then Heaven does not see nor does it hear. Heaven sees when the people see; Heaven hears when the people hear." And thus "the popular idea of government frankly accepts the divine right of the king. But then it turns right around and robs him of this right and vests it in the people by identifying the will of Heaven with that of the people themselves—a logical defect in Chinese philosophy which seemingly proves in this case to be a blessing and not a curse."

THE FUNDAMENTAL LAW OF AMERICAN CONSTITUTIONS. By Fred A. Baker, of the Detroit Bar, and Lecturer on Constitutional Law and History in the University of Detroit. Washington, D. C.: John Byrne & Co., 1916. Three volumes. Pp.

1077.

Mr. Baker began his legal training in Michigan at a time when the Supreme Court of that State, always of highly respectable authority, enjoyed the singular pre-eminence of numbering in its membership no less than three great constitutional lawyers at one time, Cooley, Christiancy, and Campbell. He has well carried on the great tradition of sound scholarship, extensive historical research, and clear thinking and expression in matters of constitutional law, and has rendered important service to the youth of his State in presenting the fruits of his labor in the form of a series of lectures on the fundamental principles of American constitutional law, delivered at the University of Detroit. These lectures have been collected and printed in the volumes before us, and are thus made available to a wider circle of readers. The work is primarily intended for students at law, and Mr. Baker rightly contends that in our country, where the rules and principles of the Federal and State constitutions so intimately permeate the details of governmental action, and where lawyers take so large a part in the making, executing, and interpreting of the laws, a thorough

knowledge of constitutional law and practice is of the utmost importance. "No lawyer," he says, "is qualified to practise his profession unless he is well grounded in the fundamental law of his country; without it he is like a machine without a balance wheel, or a ship without a rudder." Equally important is such a knowledge to all those who aspire to lead public opinion or to play a part in the momentous business of government, and it cannot but be that there are many who would profit by an acquaintance with Mr. Baker's excellent work.

It reviews in detail the topics of the sovereignty of the people, the division of the powers of government, the constitution and administration of the legislative, executive, and judicial departments, and the guarantees of public and private freedom. It is unquestionably true, as Mr. Baker more than once insists, that no study of constitutional law can be complete or even adequate which confines itself to the text of the constitutions or to a reading of the decisions in which the courts have applied constitutional rules to concrete facts before them. For all the great principles which are concerned with the system of representative government, the apportionment of powers, or the liberties of the citizen have their roots deep in the past, and extensive studies in political history are necessary to a full comprehension of them. This is therefore Mr. Baker's method of teaching constitutional law, and his historical sources range from the observations of Caesar