must be used in vaccination; (f) compels everybody to attend church; (g) compels everybody to attend a certain church; (h) forbids the sale of oleomargarin; (i) compels dealers to label oleomargarin as such; (j) forbids the use of oleomargarin altogether; (k) compels parents to send their children to school; (1) compels parents to send their children to certain schools.

5. Of the following enterprises name one, if there is one, which should be undertaken by government in this country: (a) The operation of telegraph lines; (b) the operation of railroads; (c) the operation of trolley lines in cities; (d) the operation of coal mines; (e) the manufacture and sale of gunpowder; (f) the manufacture and sale of illuminating gas; (g) the manufacture and sale of ice.

6. If government should undertake the enterprises named above to which of the several grades of government, local, State or federal, would each enterprise be assigned?

Topics for Special Work.-The Functions of Governmer': 21, 514528. Socialism: 21, 500-512. Outlines of the Socialist State: 24, 277323. Personal Liberty vs. Governmental Authority: 30, 392–397. Governmental Enterprise in the Non-Essentials: 30, 402-410.

XXXII

LAWS

Introductory. A constant service of a popular government is to make laws suitable to the ever changing conditions of society. Since the American voter is indirectly a law-maker-frequently he is a direct law-maker-he ought to have clear and just notions respecting the nature of laws. He ought to know what law is, what are the different kinds of laws, what are the characteristic features of a law, and above all he ought to have sound ideas in respect to what law can do and what it cannot do. In this chapter we shall consider those phases of the subject of law which are of practical interest to the voter.

A law is a

What a Law is; the Different Kinds of Laws. formal expression of the will of society in respect to some matter of social concern: it is a rule of action made by government and enforced by the sovereign authority of the state. A rule of action that cannot invoke for its enforcement the whole power of the state is not a law in the sense in which the word is here used.

A satisfactory classification of the thousands of laws that are now in operation is difficult to make. A lawyer classifies laws in one way, a political scientist in another. The broadest classification of laws is made when they are divided into public laws and private laws. All laws may be regarded as defining and protecting the rights of persons, and persons may be regarded as either public or private. By a "public person" is meant either the state

son

or a body holding authority under it; by a "private per"is meant the individual citizen. A public law is one which regulates rights where one of the persons concerned is a public person, that is to say, the state, and a private law is one which regulates rights where both of the parties concerned are private persons. "The punishment, for instance, of a traitor is a matter of public law. The right violated by him is a public right, because the person in whom it resides is the state. The state has a right not to be conspired against. . . . If, on the other hand, a carrier damages my goods, the question raised is one of private law. My right to have my goods safely carried is a private right because both the carrier and myself are private individuals."' 1

Another useful classification of American laws may be made by considering their origin and grouping them according to the sources from which they have emanated. Such a classification gives us the following groups of laws.

1. Constitutions. These include the federal and State constitutions. Laws of this class are direct expressions of the popular will, and are fundamental in character.

2. Statutory Laws. These are the laws that have been formally passed and promulgated by a legislative body. They include the treaties made by the United States, the statutes of Congress and of the State legislatures, the ordinances of municipal councils and the by-laws of townmeetings. There must be placed in this class also those laws of the colonial assemblies, and of the British Parliament that were in force in the colonies at the time of the Revolution and that have never been repealed.

3. The Common Law. A third class of laws consists of a set of rules and principles which have not been promulgated by a legislature, but which have grown out of custom and usage and have been gathered from judicial decisions (p. 181) and from the opinions of jurists. These 1See Holland, "Jurisprudence," p. 101.

rules and principles constitute the common law. Constitutional laws and statutory laws are written, but the common law may be said to be unwritten, for its rules are not formulated in written documents. Most of the rules of the common law have come to us from England, but custom is making laws in America all the time, and when an American custom has hardened into a law that law is to be classified as belonging to the common law. The rules of the common law are so fundamental and so important that they are often called the "great body of the law"the vital principles of all law.

Some of the Characteristic Features of Law. Among the characteristic features of a law there are several that frequently have a practical bearing upon daily conduct: (1) All laws are equally binding. If a law has originated from a rightful source and conflicts with no higher law it is binding, whatever may be its origin. A by-law of a townmeeting is as relentless in its operations as a law of Congress, and if necessary armies and fleets will assist in its enforcement. (2) The law is no respecter of persons. Everybody, rich or poor, high or low, who comes within the scope of the authority of a law must obey it. (3) Ignorance of the law excuses no one. When a law is passed means are sometimes taken to give it publicity by advertising it in newspapers, but government does not undertake to inform everybody of every law that is passed. It is assumed that citizens are able to learn what the law is, and the maxim is that to be able to know is the same as to know. This rule sometimes works hardships, but it could not safely be changed. (4) A law remains in force until it is repealed. "Laws sometimes sleep, but never die." In a case tried recently in the District of Columbia the judge recognized as binding a statute passed by the British Parliament in the reign of Richard II (1372-1399), and decided the case in accordance with the ancient and almost forgotten statute.

Law-making and Public Opinion. For the regulation of the varied interests and activities of our busy and progressive life thousands of laws have been made and thousands more are making. This production of laws cannot cease. As a community develops the laws must keep pace with the new conditions. Steam has called forth hundreds of laws, and electricity is constantly presenting problems for the consideration of the law-maker. Not only must new laws be made, but old ones must be repealed or amended. The ideas of men concerning right and justice change, and it is the business of the legislature to make the law conform to existing views. To meet the demand for new legislation the energies of our legislatures, municipal, State and federal, are taxed to the utmost. Frequently more than a thousand laws are passed at a single session of a State legislature, and it has been estimated that the output of Congress and of all the State legislatures is more than ten thousand laws every year.

In this hurly-burly of law-making the voter takes a part; he chooses the representatives who make the laws, and in this way is brought very close to the actual work of legislation. When considering a proposed law there is one rule the voter should keep in mind, and that rule is this: A law should not be enacted if public opinion is strong against it. Public opinion is the moral force which at a given time sways and controls a community. This force may be low or it may be elevated, but it is always a controlling force. In an absolute monarchy, as well as in a republic, successful resistance to public opinion is quite impossible. If people are ruled by a despot, it is because they desire to be ruled in that way; the despotism falls as soon as public opinion is hurled against it. Laws as well as other things must bend to this irresistible power. Indeed, we may say that a good and useful law should always be enacted by public opinion before it is passed through the legislature.

We cannot always tell on which side of the question public opinion really stands, and cannot for this reason