1 The common law ia ot coone a formulation of the deliveranoM of common sense on the pointa which it tonches. But common law, as well as common sense, being a formulation of habits ot thought, is neceaBori]; an outgrowth of past rather than of present clrcumstances, — in tbis case the circumstances of tbe eighteenth century, — whereas the sympathies of the vulgar, as tbey appear in jury deoiaioni, are iargely tbe outcome of those modem eiperlences that are at Increasing variance with the foundations of the common law.
It may be remarked by tbe way that, while tbe charge of partiality or corruption, often heard as against these higher tribunals, may in a few scattering iostsnces be founded, tbat is afl«r all not much to the point as regards practical consequences. The greater number of the courts, indeed virtually the entire judiciary, are no doubt alrava substantial Huspicion in the premises. And after all, if they were not incorruptible, — if the common run of the tribunals were ooi^ ruptly worlcing in the interest of tbe employers or owners, — that need not seriously affect the outcome as regards the general tenor of the decisions handed down. If tbey are corrupt ot biassed, they will decide in favor of the owners, who can afford to pay, and they will be under tbe necessity of finding plausible reasons in law for so doing. Such reason can be found only in the metaphysical Datoral right basis of the law ; and it it can Im found by the help of such legal ratiocination, then It in a valid ground of decision, that being the peculiar merit ot metaphyntcal grounds of decision. On tbe other hand, if tbe court is a " learned, upright judge," he will loot for the grounds of decision in the same plnoe and dnd Ihem in the sama shape. Necessarily so, since the point in dispute is almost invariably k qaestioa of the legal rights of property as against the material requlr-
r282 THE THEOBT OF BUSINESS ENTERPRISE fl Popular sentiment, then, does not at all nui- ^H formly bear out these decisions of the courts in disputes between property rights and naked mankind, especially not in the more rigorous enforcement of the principle of free