ries, and the slight rebate sometimes made for the prompt payment of taxes, accompanied by an additional charge for failure to pay when due. If illegitimacy is common through the heavy expense of a formal religious marriage, as in Latin-America, the legalization of marriage through civil ceremony at nominal cost largely reduces the per cent, just as a wise divorce law proves to be a great aid in social morals. The American device of reducing the cost and difficulty of securing a patent stimulated enormously the latent capacity for invention. The reduction of the cost of postage is a well known instance of an aid to commercial and industrial expansion, and many governments stimulate local administrative efficiency by offering to pay part of the expense if a set standard is maintained.10

These and many other illustrations that might be suggested point to a trend in legislation when lawmaking will cease to be the crude social instrument it is at present and will become the great agency through which a nation will wisely direct the energy of its people for the upbuilding of national achievement. Plato said 11 that perfect government would come when wise men legislate or or legislators become wise. An unintelligent democracy is like a rudderless ship, for scientific government above all things requires an intelligent public opinion; but this condition depends on the growth of general scientific knowledge, political intelligence, and civic patriotism.

Legality of Legislation.-When legislation has been passed by a lawmaking body and sanctioned by the

10 England, for example.

11

"States will prosper when kings become philosophers, or philosophers kings."

executive, its provisions presumably must be observed throughout the state. But such legislation may be in violation of the letter and spirit of the constitution. Under such conditions a department of government or a citizen conceivably might refuse to enforce or to obey the law. Government would soon become a farce unless conflicting interpretations could be settled. The constitution may itself specify what department shall finally decide on the legality of a law; but, failing that, in autocratic monarchies whatever the king sanctions is the law and must be enforced and obeyed. In constitutional monarchies the will of the legislature, approved or even, perhaps, if disapproved by the king, is the deciding factor. In the United States of America, however, both the legislative and executive departments may agree as to the legality of a law and yet when it is brought before the courts as the law bearing on a case it may be decided to be unconstitutional and hence null and void. By custom the decision of a supreme court is generally accepted as final and is usually followed by the other two departments of government.12 This enormous power placed in the hands of the American judiciary is justified only by the prominence of the judiciary in the British-American systems and the confidence felt in the impartiality of its decisions. The system is not imitated by other states, which prefer to rely on the final interpretations made by either the executive or the legislative departments.

"The executive, however, has on several occasions ignored such decisions and enforced its own interpretation of the constitution. See, for discussion of this point, Willoughby, The Supreme Court, Chap. VII.

CHAPTER XVII

CLASSIFICATION OF LAW

The Meaning of Law.-If the state finds its origin in the war band, then the notion of law will be found in the command or order proceeding from the chief or chiefs in authority. A command by implication involves the notion of enforcement in some form or other, that is, it has a sanction. Furthermore, it is a command given to the group as a whole, a general or public command, having in view the welfare of the group. Lastly the members of the band or group recognize the utility of obedience to the command, realizing that safety is involved in harmonious action, under the leadership of those who admittedly are best able to decide on the policy that should be followed.

In the same fashion in the modern state there is a recognition of unity, of common interests and safety, and of the necessity of wise leaders authorized to voice the general will by enunciating commands having sanctions, commands that will be enforced, if needful, by the power and authority of the entire body politic. This power of command and enforcement is naturally best illustrated when the state performs its original function of warring in behalf of national safety. At such times unanimity of action is demanded and there is no time for lengthy discussions of individual rights or legal prêcedents. The command may be a demand for conscription

for military service, or the surrender of home and property, or the seizure of foods and clothing, but whatever it be, disobedience is followed by prompt and stern punishment under military, or martial, law, since the general safety requires the obedience of all.

Social Customs.-It will be recalled that in society as a whole there are many social governmental organizations having their own social authorities and their customary laws or rules, and that these ordinarily live their apparently independent lives under the protection of the state. In time of war these also come under the command of the state, forgoing their usual freedom and becoming subject to political law, as far as may be deemed necessary for public safety. In other words, the actual sphere of governmental activity enlarges considerably in times of national danger, resuming its normal field when once peace is fully restored.

When Social Custom Becomes Law.-Even in times of peace there is an approximation to this situation for there has been a steady encroachment of the state on the functions usually exercised by social agencies. With growth in civilization the function of the state passes beyond the mere preservation of life and property and broadens into the aim of general welfare. In doing so, however, it must trespass on or interfere, so to speak, with the jurisdiction of social authorities by taking charge of the customs and rules enforced by the superseded authorities and giving them henceforth the sanction of the state. Once a social custom ceases to be merely social and has behind it a political sanction it becomes law and in theory may be assumed to have been law from the beginning and from that time forth to be commanded by the state. Social customs in themselves are not law,

but whenever any such customs are adopted, as it were, by the state, they become because of that fact political and their enforcement becomes a matter of governmental obligation.

The theory of sovereignty implies, it will be remembered, that the state has supreme authority over the whole of society, but that in practice the government has limitations placed on it since there are many powers "reserved to the people." Yet as already explained, when the need arises, whether in war or peace, the sphere of governmental authority is extended, under the war power in time of war, or in times of peace by a broadening of the police power by interpretation, or by a change in the fundamental law authorizing the change. A recent illustration of this sort may be found in the prohibition of the manufacture and sale of liquors in the United States. Before 1917 persons might under regulation manufacture or sell liquors without legal condemnation, but in the midst of the War prohibition was ordered as a war measure and this was followed by the adoption of the Eighteenth Amendment to the national Constitution, whereby henceforth it became criminal to do what formerly had been permissible. This important change rudely shocks the minds of many who cannot readily see how a socially endorsed custom of long standing becomes over night a legally prohibited act. It is a vigorous instance, however, of a process of many centuries—the slow transference of social sanction to political authority, the intrusion of law over social custom, this making an added political function.

If this explanation be kept clearly in mind, one may be prepared to define law as command, even though many laws have an origin in social custom, and law may be de