who, from experience, have omitted those ineffectual securities. This general proneness to perjury was much increased by the usual want of discernment in judges, who could not discuss an intricate evidence, and were obliged to number, not weigh, the testimony of the witnesses."

Daniel De Foe (whom Taine describes as "one of those indefatigable labourers and obstinate combatants, who, iltreated, calumniated, imprisoned, succeeded by their uprightness, common sense, and energy in gaining England over to their side") published in 1725 and 1727 his book, "The Complete English Tradesman," in which he treats of the ethics of English trade. In that work he refers to the "shop rhetorick" and "flux of falsehoods' used by tradesmen in disposing of their wares, and the common practice of keeping on hand a bag of spurious or debased coin from which to make change. Charles Lamb said this work was "of a vile and debasing tendency." The French critic is probably the better judge of De Foe.

In 1859 Herbert Spencer in his essay on "The Morals of Trade," treats of the ethics of the same tradesmen more than a century later. He refers to "the often-told tale of adulterations," and says, "It is not true, as many suppose, that only the lower classes of the commercial world are guilty of fraudulent dealing. Those above them are to a great extent blameworthy. On the average, men who deal in bales and tons differ but little in morality from men who deal in yards. and pounds. Illicit practices of every form and shade, from venial deception up to all but direct theft, may be brought home to the higher grades of our commercial world. Tricks innumerable, lies acted or uttered, elaborately-devised frauds, are prevalent; many of them established as 'customs of the trade'; nay, not only established, but defended. We cannot here enlarge on the not uncommon trick of using false trademarks, or of imitating another maker's wrappers. Omitting the highest mercantile classes, a few of the less common trades, and those exceptional cases where an entire command of the market has been obtained, the uniform testimony of competent judges is, that success is incompatible with strict integrity. To live in the commercial world it

appears necessary to adopt its ethical code; neither exceeding nor falling short of it-neither being less honest nor more honest. Those who sink below its standard are expelled; while those who rise above it are either pulled down to it or ruined. As, in self-defense, the civilized man becomes savage among savages; so it seems that in self-defense, the scrupulous trader is obliged to become as little scrupulous as his competitors. It has been said that the law of the animal creation is-eat and be eaten'; and of our trading community it may similarly be said that its law is-cheat and be cheated. A system of keen competition, carried on, as it is, without adequate moral restraint, is very much a system of commercial cannibalism. Its alternatives are-use the same weapons as your antagonists or be conquered and devoured."

If the statements of those three writers are to be accepted as evidence, and they would seem to be the best evidence, as to the ethics of trade in England at the several periods referred to, it would appear that the present condition of trade as to fairness in competition is far more wholesome. That bettered condition must be attributed largely to the judicial evolution of the principles treated in this book.

In this conclusion, the author is supported by Sir Frederick Pollock. In his First Book of Jurisprudence he says, "Rules of law may well have, in particular circumstances, an effective influence in maintaining, reinforcing, and even elevating the standard of current morality. The moral ideal present to lawgivers and judges, if it does not always come up to the highest that has been conceived, will at least be, generally speaking, above the common average of practice; it will represent the standard of the best sort of citizens. This is especially the case in matters of good faith, whether we look to commercial honesty or to relations of personal confidence. With few exceptions, the law has, in such matters, been constantly ahead not only of the practice but of the ordinary professions of business men."

Ethical evolution and organic evolution alike are accomplished slowly, and the possibilities of each are alike limitless. From the days when the Anglo-Saxon judges numbered the witnesses because of inability to weigh their testimony, to the

era when the requirement of fairness in trade was established, the English-speaking people have made immeasurable ethical progress. To that progress, the science of law has made many contributions, and has been indispensable.

We are dealing in the subjects comprised in this book with the highest ethical development of that which we term the common law. The standard set for the regulation of competition by the modern decisions evidences the high degree of ethical development of the modern judiciary. It is not to be expected that all of the decisions should reach the same altitude as the foremost. To say this, is merely to say that the judges who wrote the opinions were not of equal ability and learning. It is impossible that they should be. But on the whole, the body of cases with which we here deal, forms the most convincing proof which we have of the steady improvement of the morals of trade, and the gradual extinction of that "commercial cannibalism" of which Spencer wrote less than fifty years ago. It is doubtful whether jurisprudence has, during any corresponding period in the world's history, been of greater value to the advancement of civilization than it has in dealing with the subjects here considered, during the past half century.

It is a remarkable fact that in this department of the law which has, less than any other, been hampered by statutes and precedents, and which, more than any other, rests upon a foundation purely ethical, there should be found so great harmony between so many independent jurisdictions. English and American. Such legislation as has been effected in the United States has been desultory and comparatively ineffective. Its most admirable quality is its non-interference with commonlaw trademark rights.

In submitting this more comprehensive work to the profession, it is a subject of gratification to the author that his former book entitled "The Law of Unfair Trade" has been so generally accepted, and used as a working tool. The present work, it is hoped, will be found more adequate. The late cases have been exhaustively dealt with. The addition of the statutes and forms for registration employed in the several states and territories, and the Dominion of Canada, is intended

to facilitate the business of the practitioner, in registration and litigation outside of the state in which he resides. The forms of pleading have been added to from the best sources. The recently enacted federal trademark act, together with the rules and forms prescribed by the Commissioner of Patents for the registration of trademarks and patent office practice under the act, is reproduced in the appendix, while the acts of 1870 and 1881 have been preserved, with their annotations. THE AUTHOR.

St. Louis, October 1, 1905,