Public interests and the

problem of

stantial interests that may conflict with one another. Otherwise, private will prevail over public purposes, and the general welfare will be sacrificed in favor of that of special interests in the state.

It is evident that the promotion of the general welfare is bound up together with the accomplishment of the other government purposes of the people of a modern commonwealth. It is not possible to separate the purposes which give the commonwealth its character and pursue any of them without regard for the others. The people who form a commonwealth in order to promote their general welfare wish also to provide for the common defense and to insure domestic tranquillity, to establish justice, and to secure the blessings of liberty. They look to their government to balance their various public interests in such a manner as to secure each in due measure. This balancing of the public interests of the people of a commonwealth, together with the balancing also of the private interests of the various classes and groups and individuals within the body politic, is the practical means of establishing justice. If it is accomplished in such a manner as to maintain a harmony between them all, compatible with the spirit of the commonwealth itself, whether it be a militaristic or a capitalistic or a proletarian commonwealth, or whatever its nature, the justice that will prevail is that described by the idealistic theory of justice. Otherwise, some kind of realistic justice will prevail; which political idealists, as well as those whose interests are unduly neglected or injured thereby, will call, not justice, but injustice. The final problem in forming a commonwealth, therefore, is to contrive that its government shall respond as far as possible to public, and not to private, purposes, to the end that the dominant opinion may be true public opinion, and not merely the personal opinions of the comparatively few who rule and of their friends and followers.

NOTES ON BOOKS

1. An excellent statement of the principle of religious liberty, as it has come to be understood in the United States, is contained in Chapter xiii of Cooley's Treatise on the Constitutional Limitations, noted in the preceding chapters.

2. The best single book on the modern theory of the educational function of the state is J. Dewey's Democracy and Education (1917).

3. The economic functions of the state are fully discussed in the standard treatises on political economy, such as those of J. S. Mill (Principles of Political Economy, 1st ed., 1848), and F. W. Taussig (Principles of Economics, 1st ed., 1910). The former reflects the kind of opinion which had the greatest influence in English-speaking countries during the later nineteenth century; the latter expresses more accurately the prevailing tendencies in the United States. Suggestive interpretations of different schools of contemporary policy may be found in Lord Hugh Cecil's Conservatism, L. T. Hobhouse's Liberalism, and J. R. MacDonald's The Socialist Movement (all in the Home University Library). For recent statements of the collectivistic attitude toward the existing relations between government and industry, see R. H. Tawney's The Sickness of an Acquisitive Society (1920) and S. and B. Webb's The Decay of Capitalist Civilization (1923).

4. There is still no better book than A. V. Dicey's Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century (2d ed., 1914), and there is no adequate account of the development of economic policy in the United States. Monographs on special subjects, such as E. Stanwood's American Tariff Controversies in the Nineteenth Century (2 vols., 1903), and A. D. Noyes's Forty Years of American Finance (1909), are instructive.

5. The nature of public purposes, as understood by American lawyers, is explained in Chapters XIV and xv, dealing with the powers of taxation and of eminent domain, in Cooley's Treatise on the Constitutional Limitations, noted in the preceding chapters. For an excellent illustration of the development of public purposes in response to changing opinion concerning the promotion of the general welfare, see L. Rogers's The Postal Power of Congress (1916).

The necessity of a reign of law in a commonwealth

CHAPTER XI

THE REIGN OF LAW

1

THE foundations of the modern commonwealth consist in comparatively large measure of certain rational interests which all its people may have in common. The best statement of these interests is that contained in the Preamble to the Constitution of the United States. Of these interests the two that are most difficult to define are justice and liberty. Most political philosophers have sought to simplify the problem of definition either by defining justice in terms of liberty or by defining liberty in terms of justice. The latter seems the better way.

Liberty, meaning thereby political liberty in the scientific sense of the term, has accordingly been defined as the absence of human restraints upon human conduct other than those imposed by authority of just laws. Liberty,

therefore, cannot be understood except as a by-product of the establishment of justice. Its enjoyment, however, is dependent upon the nature of the legal processes by which the powers of the state are exercised and the purposes of its people accomplished. The necessary connection between liberty and law becomes clearer, the more carefully one examines the nature of particular liberties. Personal liberty, for instance, and the free use of one's own property, are rights which are secure only against deprivation without due process of law. No person can claim as a part of his personal liberty any absolute immunity against the employment of the police power to accomplish

an appropriate public purpose. Constitutional states, like the United States of America, have sought to make interferences with certain liberties, notably that of the press in the strict sense of the term, extraordinarily difficult. But even the immunity of the citizen against an official censorship of the press might be denied or abridged, if such action were found to be necessary to insure domestic tranquillity or provide for the common defense, provided it were not accomplished without due process of law. In this case due process of law would mean an amendment to the Federal Constitution. In ordinary cases the process is simpler by which public purposes are lawfully accomplished. But in all cases the security for the blessings of liberty consists in the requirement of due process of law. Justice might conceivably be made to prevail by the fiat of a benevolent despot. Liberty is inconceivable except as a product of the reign of law.

The

definition

By law, as the term is used in this connection, is meant merely those rules of conduct which are enforced with the of law sanction of the state. Doubtless there is a higher law lying hidden in the inscrutable purposes of the Creator of the Universe. The content of this law, however, must be sought in the conscience of men, except as they may believe it to have been revealed to them in their sacred writings. The rules of conduct so revealed may be enforced with the sanction of the state, in which case they become a part of the ordinary human or civil law. Or, if state and church are not united in a single commonwealth, they may be enforced only with the sanction of some church. this case they form no part of the civil law. Other rules of conduct may be discovered by the study of the natural relations of cause and effect in the material universe and may be enforced only with the sanction of individual reason or scientific authority. In this case also they form no part of the civil law. Natural rights and moral rights

In

What is a reign of law?

are real enough, in so far as men recognize and act upon them. But unless the state also recognizes them and thereby transforms them into civil rights, they form no part of the liberty, that is, the political liberty, of the people of the state. The laws of nature and the moral law serve to limit the authority of political sovereigns, but they do not enter into that process by which the rights of men are secured in modern states through the reign of law. In the United States, for example, the Declaration of Inde. pendence proclaims certain "inalienable," that is, natural rights. The consciousness of these natural rights profoundly influences the conduct of public affairs on behalf of the American people. But the rights derived from the law of nature do not enter into the administration of legal justice unless written into the law of the land by the lawmaking organs of government. If not formally incorporated into the law of the land, they merely serve as good advice for good Americans, to be followed or not at their discretion. The reign of law, which secures the blessings of liberty, is the reign of civil law.

The reign of law may take different forms in different states. In ancient times the authority of the Roman law at the height of the Empire afforded the best illustration of a reign of law, and the influence of that example, as well as the content of the Roman law itself, has greatly affected the development of political ideas in modern times, especially in the continental states of Western Europe. But the first modern state to put effectual checks on the arbitrary power of rulers, and thereby to establish the supremacy of the law in the administration of justice, was England.

2

In England, according to the eminent English jurist, Sir Albert V. Dicey, "when we say that the supremacy or