moting such relations than the English system and even if that were as respects the continent of Europe to be answered in the affirmative, the question would still recur, is the system as well adapted to the genius of the English and American people as that which from time immemorial has prevailed among them? Into the depths of this philosophical inquiry I shall not at this time enter, but I do not hesitate to affirm that the great principle of English law that no man shall be required to accuse himself lies deeply imbedded in the conscience and in the affections of our people, and that if it were proposed deliberately to abandon our method an enormous majority of voices, approaching unanimity, would resent the proposition. What do we see in Pennsylvania? By virtue of a statute wise and beneficial in itself, a person accused of crime may, if he will, become a witness on his own behalf, the constitutional right, however, being protected by the prohibition of the statute that if he do not elect to testify no allusion to such omission may be made. Now behold the danger of what seem to be slight assaults on great citadels of principle. Within one generation from the enactment of this law there has already occurred the remarkable fact that a district attorney in one of the counties has in proof of the prisoner's guilt called the attention of the jury to the fact that he did not testify. (Commonwealth v. Dorman (No. 2), 22 Superior Court Report, page 20.) Straws show which way the wind blows. No one can believe that the official in question with the solemn responsibility of his office upon him deliberately intended to commit an injustice, but the fact probably is that he is a young man, during the whole of whose experience the right of the accused to testify has prevailed, and from the silence of the accused he drew the reasonable inference that the theory of guilt was more probable than the theory of innocence, but at the same time he deprived the prisoner of his constitutional right to refrain from accusing himself. Is it too curious an inquiry to speculate a little as to the relation between this ignoring of a great underlying constitutional principle and the increasing speed of trials in criminal courts? If the body of young and careful students who attend our law colleges and universities were early trained in the practical application of the criminal law I have already said that their insight and their outlook would be larger-they would realize and they would teach the community that in general the fate of a particular wretched creature who stands on trial is not the sole and in many cases not the main question. When a prisoner is tried the law is tried, and therefore the community is tried. Judged by accurate legal standards general impressions created by irresponsible statements, inadequately sifted, which so often form the common opinion of a community, are merely prejudices, and not judgments; and when prejudices stand in the place of judgment the commonwealth is on the road to its downfall. If then mere speed and mere economy are real hindrances to the administration of justice, it becomes important so to enlarge the bar of the criminal courts as to give every prisoner an opportunity in his own defence, whether he have money to pay the lawyer or not, and such an opportunity would be presented if the young gentlemen of this University would after admission attend the criminal courts and be ready to take up the defence of undefended prisoners, for which purpose I think I may say without assumption our judges stand ready to assist. Thanks to the creation of an additional court in our district, we are enabled now to hold three criminal courts where we formerly held but two, and the additional time required for the purposes I have mentioned can be found in that arrangement. The education involved in trying criminal cases is of the highest and most dignified kind. That crime must be punished sternly and unflinchingly is the fiat of reason and of law, but there are differences between criminals and between crimes. One man may be hopelessly bad in disposition, vicious, cruel, selfish, with a total incapacity to regard the rights of others and a readiness to yield to his passions without effort or desire to control them. He is an enemy of society and must in its defence be rendered as little capable of harm as possible. There are, however, myriads of weaker natures yielding to momentary temptation and violating the law without settled hostility to the rights of others, but with mere selfish thoughtlessness which being awakened to reflection by punishment, no longer merits the name of criminal disposition, though the act committed be a crime. In the cases of such men, while the protection of society remains the paramount interest it may be reconciled with relative tenderness to the individual concerned. So that you see the investigation of criminal cases is not the mere reading of statutes and the dry examination whether the act charged is in violation of the statute, but requires the deeper investigation into character and motive which are always involved in criminal cases. Never forget the old saying, that "sin lieth at thy door," and that the man who stands charged in a criminal court is generally a man not so very unlike him who may stay outside free and uncharged. It is from the study and consideration of character very often normal, though many times abnormal, that are presented in the criminal court that you may ascend to the larger study of mankind as a whole, without proficiency in which your desire to advise men who have enormous corporate and property interests will forever remain unsatisfied. The passions of men are comparatively few and simple, their manifestations various and complicated. The same feelings of envy and greed which impel the poor criminal to steal his neighbor's watch may in a richer man, who has as many watches as he wants, lead to trespass on his neighbor's lands or franchises. Greed and selfishness are the basis of an enormous mass of criminal acts, and they also are behind those wrong acts which being less than crimes are the subject of cognizance in the civil court. The more profound your study of mankind in his nakedness, the better will you be trained for advising men in all relations. It is not true that the contemplation of criminality by the thoughtful observer tends to produce cynicism and a lack of just confidence in human nature; the wider and truer a man's knowledge the greater and broader his toleration, the saner and juster his judgments. We are now living in an era when great property interests hold the front of the stage. The whole industrial system of the world is being reorganized. Relatively few great captains are taking the lead in industry, and we have now the phenomenon that in the arts of life called peaceful, there are striking analogues to an Alexander, Cæsar and Napoleon. There is, however, a law of reciprocity in nature. The solid organization of capital is producing an unprecedented solidity of organization by labor. Thus the manifold bickerings of individuals, which were characteristic of the past, tend to be reduced in number and significance by corporate antagonisms. Great masses of men, aggregations of wealth, of power and influence are arrayed against each other, and the old machinery of the law needs to be tested and readjusted from time to time in order that it may meet the changed manifestations of the same old human nature. In these movements the lawyer must necessarily play a prominent part as citizen, legislator, practitioner, or judge. Whole classes of causes now prominent will tend to dwindle, while new categories now vaguely foreshadowed will develop. We hear much in these times of the economic view of human relations, and academic terms are hurled about by which it is sought to be demonstrated that an age of the world has come in which numbers or other powers have the right to get what they can, regardless of the peace of communities, the rights of man or the just obedience to the commonwealth and its laws. Such manifestations are transitory and ephemeral. Their tremendous forces may for a little time appear to destroy all that is established and sacred, but after the whirlwind comes calm, and after combat, peace. Law is peace. The practice of the law is a continuous battle for peace. That the conflicting interests of mankind shall not be adjusted primarily by force, and secondarily by that modified force called fraud, is the mission of the law, and whatever conflicts impend it behooves the professors of that science to stand true to their mission. Fearless and unafraid they must proclaim and defend the doctrine that all legal adjustments must be based upon moral right and that every apparent triumph of force, however great, or of fraud, however subtle, must in the end crumble before the august majesty of the state whose principle is justice. ENGLISH CASES ON THE RESTRAINT OF LIBEL BY INJUNCTION SINCE THE SUPREME COURT JUDICATURE ACT, 1873. In 1854 the Parliament of Great Britain passed an act, known as the Common Law Procedure Act, 1854, for enlarging the jurisdiction of the courts of common law.1 This act enabled anyone who sued for the breach of a contract or other injury to claim a "writ of injunction against the repetition or continuance of such breach of contract or other injury." It also enabled the plaintiff in any such action to apply ex parte for an injunction to restrain the repetition of the act complained of, either before or after judgment, and provided that the court had a right to issue such injunction on such terms as appeared "reasonable and just." This statute appears to give jurisdiction to the common law courts to issue a permanent or interlocutory injunction to restrain a tort, where an action for damages for such tort has been instituted, the permanent injunction to be given only after judgment in favor of the plaintiff. As far as the writer is aware no case involving an application to a court of common law for the restraint of a libel arose subsequent to the passage of this act, and before the Judicature Act of 1873. This last act created a Supreme Court, with two permanent divisions, the High Court of Justice and the Court of Appeals, and vested in the High Court of Justice the jurisdiction which, prior to the act, had existed in many courts of original jurisdiction, among others the courts of common law at Westminster, and the High Court of Chancery. The jurisdiction to issue injunctions to restrain tort which had been vested in the courts of common law by the Common Law Procedure Act, 1854, and the jurisdiction of Chancery over the same subject was thus vested in the High Court of Justice. Furthermore the Judicature Act expressly gives the court power to grant an injunction "by an interlocutory order in all cases in which 1 Stats. at Large, 17 and 18 Vict., Ch. 125. Section 79. Section 82. Section 5. Section 16. |