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sions, although this is true, though in a lesser degree, of all lawyers. A comparison of Livingston's Law Registers for 1852 and 1868 with the census lists of 1850 and 1870 shows that the older states had one lawyer per 1000 and as low as one lawyer for every 2000 inhabitants, while the frontier states show ratios varying from three to 2000 to as high as three or six to 1000, the number per 1000 increasing with the newness of the frontier. States which in 1852 showed a high percentage of lawyers per population, in 1868 showed a great reduction, these states having in the meantime passed through the frontier stage. Possibly the litigation on land and water rights, possibly the "wanderlust," the "Call of the West," caused this large influx of lawyers. That the law could not support this excess proportion of lawyers is shown by the fact that they entered so many other professions. It was only after the frontier community grew older that the number of lawyers adjusted itself to the real needs of the community.

In conclusion it would be well to point out a few differences between the frontier lawyer and the lawyer of today. The reader must have already called up in his mind a great many differences. Dos Passos in his interesting book on the "American Lawyer" makes a distinction between the past and present lawyer, which I will quote, for it is equally applicable to the frontier and present lawyer. The present lawyer "has no less brains, no less natural intellect; and he is a better business man withal than the lawyer of yore. Simply he is armed with different weapons. Real eloquence and knowledge of sound elementary law have almost disappeared, and the lawyer is burdened by the incubus of form, statutes, codes. Codification has aided dishonest clients, for trickery, cunning and pettifogging are more pronounced and visible. "43 The frontier library, yes the law library of fifty years ago, was small, so the principles of law were studied from a few classical texts. To

43 Dos Passos, American Lawyer, p. 23.

day we have mammoth libraries, and we study law by the case method by selections made from thousands of reports. As a foundation for law we study literature, history, political science and economics, while on the frontier such a training was exceptional. The frontier had, however, what no education could give, a certain sympathy with the spirit of the frontier. This failure to appreciate the frontier feeling accounts for the inability of the New England lawyer to handle a western jury with the same success that the frontier lawyer did. On the other hand, the successful frontier lawyer failed in the east, and as an example I point to Abraham Lincoln, whose first appearance in the east was a great disappointment. Each lawyer, the eastern and western, had his own sphere in which he was supreme. When either left his own sphere, he failed, until he imbibed the spirit of the new environment, be it east or west. The "Lawyer on the Frontier" is a distinct type.

MILWAUKEE, WIS.

RAYMOND T. ZILLMER.

"THE GREAT AMERICAN EXPERIMENT."

Judge Sanborn, as a circuit judge, in the spring of 1911, rendered a decision enjoining the enforcement of certain orders made by the Minnesota Railroad & Warehouse Commission. During the past fifty years there have been many orders of federal courts sustaining and enjoying orders made by state authorities, but none of these have commanded the nation-wide consideration following that decision.

The decision by Judge Sanborn occasioned the railroad commissions of eight sister states, having seventy similar cases pending in the federal courts involving precisely the same issues, to file a brief with the Supreme Court as amici curiae, opposing the doctrine he announced. This action was later unanimously endorsed at a representative gathering of thirty state railroad commissions, in their annual convention at Washington, D. C.

After the railroad commissions had determined to file a brief and argument against the doctrine announced by Sanborn, the governors, at their national convention, unanimously agreed upon a similar action. Finally, the federal government through the attorney general of the United States, filed a brief opposed to the positions taken by the governors and railroad commissions of the various states. Perhaps never before in the history of the United States, has any case called forth such an array of briefs and arguments from the various departments of the state and national governments.

The Minnesota Rate Case will probably take rank as one of the great legal contests of the present generation. The decision of the Supreme Court of the United States reversing Judge Sanborn of the lower federal court, brought into

issue the whole subject of the relative functions of state and nation in our scheme of government, as applied to the commercial affairs of the country. It focused attention for the moment, on the wisdom of our American plan of dual government.

The Supreme Court refused to decide the real issue that the public had under consideration at the time. The Court said that the question as to whether federal regulation of commerce shall supplant state regulation is not a question for the judiciary to determine; it is legislative and not judicial in character. The contest was thereby transferred from the court room to the halls of Congress. It now becomes, not a question of precedent or of statute, but one of expediency, of wisdom.

Since that decision a movement has been gradually inaugurated throughout the nation, loking toward the elimination of state regulation of commerce. This is reflected in speeches, magazine articles and books.

It is probably safe to say that not since the Civil War has this question of the relative rights and functions of state and national governments commanded such widespread consideration as during the past few years.

The issues of today again concern vast property interests. The rights of railroads, express companies, telegraph, telephone and other public service corporations, as well as many huge industrials, the rights of shippers, producers and consumers, and the future policies of state and nation on many grave questions of business are vitally concerned.

Shall we proceed as rapidly as possible to eliminate state government from our commercial life?

For several years there has been gradually developing in the country a sentiment in favor of wiping out state lines. An agitation, partly spontaneous and partly inspired by interested persons, has been carried on to support a change in the trend of our judicial decisions relative to the powers of

a state to regulate business. There is absolutely nothing new about the doctrine that an order by state authorities is unconstitutional when it interferes with, and places a direct burden upon, interstate commerce. That principle is old; it has been well settled for over a half century. It is now vigorously claimed that the time has arrived for the practical abolition of all state regulation. This thought has permeated the minds of some of our ablest leaders. Such a change in the American plan of government would be of stupendous importance.

Let us pause a few moments and carefully weigh the wisdom of this dual system, or federal plan.

We are on the eve of another struggle for party supremacy. The birth and death of political parties are intensely dramatic and interesting; but, at the most, parties are only temporary things. Our form of government is of far greater consequences; it has outlived and will outlive hundreds of brilliant leaders and many great political parties. Its creation was, and its change will be, a news item of the centuries.

Is state regulation worth preserving? You may start with this premise: Within the next twenty-five years substantially all our commercial affairs will be carried on by companies doing both state and interstate business. What is well for railroads will be good for others. Shall we abandon our state governments, so far as the regulation of business is concerned? Here is an issue which strikes at fundamentals; which has to do with the method of government.

In striving after the new, we frequently fail to realize the intrinsic value of the old. Let us consider a few of the reasons justifying this federal plan or dual form of regulation, which contemplates both a centralized governing power and also state regulation.

It is true that our constitution in many respects was a -compromise, the creation of circumstances. The different colonies were loath to yield up any of their powers. Ham

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