be but one sovereign, there can be but one law in any independent community, and that community must afford protection to all its citizens against the so-called laws of the lesser associations. Neither the so-called concurrent legislative power of the States, nor that upon subjects not covered by national law, nor the absolute power of legislation by the States upon its own property and affairs, is broad enough to conflict with the "rule of law" nor to serve as a basis therefor.

Unity of laws is not centralization, nor is self-government equivalent to independent legislative power. Ours is a government, not of men but of law. "rule of law" in the United States is national.

The

§201. CONCLUSION. JUSTICE AND COMMERCE ARE NATIONAL AND NON-POLITICAL. The police power is the right of a political corporation, under the law, to preserve the public peace. It rests upon the basis of correctional rules, and is not an attribute of sovereignty. The law applies to individuals and to groups of individuals, and recognizes their right to govern themselves so long as they do not transgress the law. Whether it be an industrial corporation, a religious society, a municipality, a county, or a State, the law says that the property of the group shall be held and administered according to the rules of the group, but always, to use the words of Becket, saving our order.

In Douglas v. Kentucky, 168 U. S. 488, it was held that a State can revoke a lottery license, such a power, whether exercised by a corporation or an individual, being merely the enjoyment of a gratuity. At p. 496, it was said that the State cannot alienate its power of regulation, that the police power is not a privilege but a duty. To the same effect is Holden v. Hardy, 169 U. S. 393.

And no society, even to direct its own property, may transgress the law. Thus the incidence of the law of the sovereign is direct, constant, paramount and exclusive, and it is only to the sovereign that the individual, or the association of individuals, whether industrial, religious, or political, has any direct and definite relation under the law. No man may serve two masters, and no association can be recognized, by the law, to the extent of removing the allegiance of its members from the sovereign.

"The more the operations of the national authority," said Hamilton, "are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affection of the citizens towards it, will be strengthened rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind flow, the less will it require the aid of the violent and perilous expedients of force. One thing, at all events, must be evident, that a government like the one proposed would

bid much fairer to avoid the necessity of using force than that species of league contended for by most of its opponents; the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of government, and that as often as these happen, they can only be redressed, if at all, by war and violence.

"The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws. It is easy to perceive that this will tend to destroy in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due cbedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land; to the observance of which all officers, legislative, executive and judicial, in each State will be bound by the sanctity of an oath. Thus the legislatures, courts and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." 1

The law common to the whole country must be American common law. In the English common law

1 Hamilton, Federalist, 47.

precedents may not be found to meet the cases under present conditions. In the matter of interstate commerce, for instance, transportation to great distances has so altered old conditions that the common law rule as to the reasonableness of freight charges by common carriers should be extended over the entire country, either by statute or decision as other principles of the common law embodied in the Constitution so extend. There is also an element of equity in every controversy in the courts as to the reasonableness of railroad freight rates and preferences in transportation that appeals to the judicial conscience. Such a sense of justice and right is not more completely exercised by any tribunal than it is in a law court, of which a jury is a constitutional and indispensable part. No action by the legislature is required, however, to bring about a condition which already exists or can be finally developed only by courts and juries. The action necessary to make the complete execution of the common law of the Constitution by resort to the courts eligible is, first, to make clear the jurisdiction of the courts; second, so to advance the causes as to give speedy justice; third, to reduce the limit of damages necessary to jurisdiction; and fourth, to equalize the conditions between the litigants so far as consistent with justice, to the end that the jurisdiction of the courts may be freely sought and remedies quickly and effectively obtained.

"The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals, do not flow

necessarily from the charter, but must be expressed in it or they do not exist." 1

"The grant to a corporation of special privileges to carry out the object of the incorporation, particularly the authority to exercise the State's right of eminent domain that it may appropriate needed property, a right which can be exercised only for public purposes; and the obligation, assumed by the acceptance of its charter, to transport all persons and merchandise, upon like conditions and upon reasonable rates, affect the property and employment with a public use; and where property is thus affected, the business in which it is used is subject to legislative control. . . . This is not a new doctrine but an old doctrine, always asserted whenever property or business is, by reason of special privileges, received from the government, the better to secure the purposes to which the property is dedicated or devoted, affected with a public use."

2

There are thus three objects before the law, - public property, a contract between a corporation using public property and the government, and the private contract of incorporation. As to the first, the Nation, the State, and the Municipality own each its own property and may control it. As to the second, each may make an inviolable contract concerning the use of its own property. As to the third, the contract is inviolable and free from any other restraint than that to which individuals are subjected. It is a noteworthy fact that the corporation is to-day often merely a cloak for the actions of a single individual who controls it. This is true to an alarming extent where corporations have the use of public property. It is only by a return to first principles that the condition

1 Marshall, C. J., in Providence Bank v. Billings, 4 Pet. 462. 2 Field, J., in Georgia Banking Co. v. Smith, 128 U. S. 179.