Character of people the best guarantee of the reign of law

posed to do what might be necessary to support it, arbitrary and oppressive rule was always possible. Despite the written constitutions, there was a government of men and not of law. Not only was there no reign of law in the narrower sense of the term, but the constitutions themselves possessed a merely "theoretic" authority. Such states, as Bryce observed, were not "real republics." Nor was it only in Central America that Bryce found nominally constitutional states whose rulers conducted public affairs in the private interest of themselves and their friends, without regard for the interests of the people, or at least without sufficient regard for public interests to bring such states within the class of "real republics." The majority of the Latin-American states fell in these two categories.

The maintenance of a reign of law evidently depends more on the character of a people than on the existence of a written constitution. The fact that a constitution has been formally put into writing may reveal a purpose to establish justice and secure the blessings of liberty under law, but unless the purpose is sufficiently widespread and deep-rooted to make the constitution something more than a thing of merely theoretic authority, the law will not be supreme. "Let this moment," said the first Manifesto of the Portuguese Republic, issued October 5, 1910, "be the beginning of an epoch of austere morality and immaculate justice." The spirit of a commonwealth was there, but, as subsequent events have shown, the flesh was too weak to bring about so great an improvement over such an inferior type of state as the Portuguese monarchy had been. The firmest foundation for a reign of law is indicated by the experience of the English themselves. No Englishman thinks any less of the Bill of Rights or of the

1 See ante, p. 64.

2 H. A. L. Fisher, The Republican Tradition in Europe, p. 1.

Act of Settlement or, to cite a more recent example, of the Representation of the People Act of 1918, because they are not incorporated in a single document under a distinctive title. The constitutional character of these statutes is recognized by all. But not all the fundamental rules for the conduct of public affairs have been embodied by act of Parliament even in the Statutes of the Realm. The authority of that part of the British Constitution, which is not written into the law of the land, but is expressed only in the form of an unwritten code, is supported by long-established customs which have acquired the force of constitutional habits. It is the strength of the purpose on the part of the people of a state to establish justice and secure the blessings of liberty under law, rather than the form in which that purpose is expressed, which affords the best guarantee that the reign of law will be maintained.

respect

law in

The American principle, that ours should be a govern- Growing ment of law and not of men, contains this first meaning for the of the reign of law, as understood by Englishmen. Strictly reign of speaking, the laws do not govern; men govern. But they this first govern by making and administering laws in accordance sense with the legal processes which have been duly established. The "Founding Fathers" inherited the principle from the mother country. Though anxious statesmen, like Abraham Lincoln in the midst of the Civil War, may sometimes have violated it, they did so in the belief that such action was necessary for the safety of the Union and hence ultimately for the preservation of the reign of law itself. The Supreme Court by its unanimous decision in the Milligan case sustained the principle against encroachments by overanxious and over-zealous friends of the Union, and the people sustained it against the attacks of those who would have withdrawn from the Union rather than recognize the supremacy of its law. Defective as the observance of

Importance of the

method of

constitutional

due process of law often is, even in the best administered states, there is little disposition on the part of peoples who have once learned to appreciate its benefits to deny the principle itself. Their chief concern is that the law be just. They will resist governments, if necessary, whose proceedings are deemed unjust, but with as little violence to the authority of the law itself as possible. In war-worn Italy black-shirted Fascisti might conquer power by a show of force, but their first use of official authority was to secure from the Parliament an act of indemnity of some sort to cloak their usurpation with a garb of legality. Bolshevism might avowedly proceed by lawless force and violence among the long-oppressed peoples of Russia, but among those who have once enjoyed the blessings of a reign of law there is manifest reluctance to seek justice and liberty by any other means.

The most important difference between the reign of law in England and in other states where it is maintained, so far as this first meaning of the term is concerned, results, amendment not from the presence or absence of a written constitution, but from the ease or difficulty with which the constitution, whether written or unwritten, can be altered. In states with written constitutions, which are not so easy to change as ordinary laws, the people have an additional guarantee that the reign of law will be maintained. If the constitution is of more than theoretic authority, the limitations which it imposes upon the lawmaking power of the ordinary lawmakers cannot be altered by them, at least not by as easy a process as that for the making of an ordinary law. The people's sense of security, as far as it springs from a confidence that the reign of law will be maintained, is not wholly dependent upon the wisdom or self-restraint of the ordinary lawmakers. It is sustained also by the knowledge that at least greater deliberation is necessary, and in many cases also the concurrence of

other bodies of men, not so easy to move as the ordinary lawmakers, before the ordinary processes of law can be altered, and wide discretionary or arbitrary power be granted to officers of the government. In the United States, for example, the constitutional immunity against a censorship of the press and the constitutional right to trial by jury in prosecutions for libel cannot be denied or abridged by any ordinary lawmaking body. These rights can be altered only by the bodies which have the power to amend the Federal and State Constitutions. Constitutional law is more secure than statutory law. To the extent that the arrangements for making the law and the processes for administering it are embodied in a constitution which is comparatively difficult to change, there is greater security for the maintenance of the reign of law than there can be in any country where the processes of lawmaking and enforcement may be altered as easily as any other part of the law.

tive in

An unwritten constitution, like that of Great Britain, Comparacan be amended or revised by the same body of men who security make the ordinary law of the land and by a similar process. of reign of If the constitution can be as easily changed as any part Great of the law of the land, the maintenance of the established Britain arrangements and settled processes for the making and enforcement of law becomes merely a matter of policy, dependent, like ordinary legislative policies, upon the discretion of the ordinary lawmakers. Under such circumstances the process of law itself imposes no restraint upon the power of the lawmakers to deny or abridge the vested rights of the people. It is the sound judgment of the particular lawmakers who happen at any moment to be in power that alone furnishes the security for liberty. Such security is precarious in stormy times, when rulers are hard pressed to bring the ship of state safely into port. The comparative insecurity of the reign of law in England became apparent during the World War, when the Cabi

net Ministers and other parliamentary leaders, who controlled the lawmaking power, discovered what a wide discretionary authority was really vested in their hands. The Defense of the Realm Acts in their final form were less drastic than in the form in which they were originally enacted, but for a time they conferred upon the officers of the government an amount of discretionary, not to say arbitrary, power without precedent in the history of English law since the period of the Stuarts. For the first time in more than two centuries an Englishman not in the military or naval service could be sentenced to death without a trial by jury. What was done under these acts was done by authority of law, but such proceedings were a breach of the reign of law, as understood by Englishmen before the World War and expounded by Dicey. Nor is there any protection against such proceedings, either in England or in any state where the whole process of lawmaking and law enforcement can be changed by the same authority as can change an ordinary law, except that afforded by the wisdom and self-restraint of the dominant opinion in the lawmaking body of the state. If the lawmakers of such a state temporarily lose their heads, that sense of security, so essential to the Englishman's liberty, will be lost by all who do not share in the panic of the moment. In other words, it will be altogether lost.

3

The second meaning of the reign of law, as understood in England and expounded by Dicey, is "not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals." In England the idea of the universal subjection of all classes to one

1 Dicey, Introduction to the Study of the Law of the Constitution, 8th edition, p. 189.