It was deemed impracticable to secure the desired ends by merely amending the Articles of Confederation; so an entirely new constitution was prepared. The task occupied the entire summer of 1787, and when the document was finished it went to the thirteen States for their approval. In some of them the issue of adoption was doubtful, for many provisions in the new constitution were bitterly attacked. But its friends were as active in its defense; Hamilton and Madison wielded their pens to good purpose in a publicity campaign, and in the course of time all thirteen States gave the document their indorsement. These letters of Hamilton and Madison in advocacy of the new constitution, subsequently published as "The Federalist," form a notable treatise on the principles of federal government. The new central government began its career forthwith; and in his first inaugural Washington called upon the representatives of the people "to lay the foundations of national policy" in a way that would "command the respect of the world.”

STRENGTHENING THE UNION; TERRITORIAL EXPANSION; AND FOREIGN POLICY

Three outstanding features marked the trend of American political history during the first thirty years after the nation. became welded into a federal unit. The first of these was the steady extension of those powers which the Constitution had intrusted to the new central government. A dozen years after the establishment of the United States Supreme Court the post of Chief Justice was given to John Marshall and was occupied by him with firmness and dignity until 1835. Marshall was a believer in an efficient central government; he was sure that this was what the framers of the Constitution had meant to establish; and for thirty-four years he devoted his great powers to the work of assaying from the nation's organic law all the jurisdiction it could yield to the authorities of the union. It was under his leadership that the court took the epoch-marking step of declaring that the Constitution gave to the Federal Govern6 H. C., xliii, 192-211. H. C., xliii, 212-221. 8 H. C., xliii, 243

ment not only express but implied powers, and that where the Constitution gave a power to Congress it intrusted to that body a choice of the means to be used in carrying its authority into practical operation. "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." " When Marshall put aside his robes of office in 1835, the Constitution had been securely anchored in its station as the supreme law of the land and the Washington government, chiefly through his masterly legal skill, had been brought to a dominating place in the national life.

These three decades covered, in the second place, an era of territorial expansion, the successive steps of which have been traced in another lecture.10

In the third place the relations between the United States and European powers were placed on a better footing during the first quarter of the nineteenth century. The withdrawal of France and Spain from contiguous territory removed a source of possible danger. The war with England (1812-1815) cleared the international atmosphere of some noxious features, and in the era of better feeling which followed its conclusion came the virtual neutralization of the Great Lakes-a stroke of great and statesmanlike prudence." Within a few years came the promulgation of the Monroe Doctrine with its unfaltering enunciation of American diplomatic policy in relation to the lands of the New Hemisphere. In the twenty years intervening between. 1803 and 1823 the Republic has cleared her boundaries to the south, removed a possible menace from her boundaries to the north, and frankly made known the fundamentals of her future policy as respects all surrounding lands.

12

Opinion of Chief Justice John Marshall in the case of McCulloch vs. the State of Maryland, H. C., xliii, 222-240.

10 See Professor F. J. Turner in the lecture on "The Territorial Develop ment of the United States," History, V.

11 Arrangement as to the Naval Force to be Respectively Maintained on the American Lakes, H. C., xliii, 283-285.

The Monroe Doctrine, H. C., xliii, 296-298.

F

V. LAW AND LIBERTY

BY PROFESSOR ROSCOE POUND

OR what end does the legal order exist? What do we seek to achieve through the political organization? What is the ultimate purpose in lawmaking, that is, in the selection and formulation of the standards for the public administration of justice which organized society establishes or recognizes? These are the first questions in legal and in political philosophy. The history of juristic thought and of political thought is chiefly a history of the way in which men have answered them.

THE AIM OF LAW (1) IN PRIMITIVE SOCIETIES

In primitive societies the answers are that the legal order exists simply to keep the peace, that men seek through the legal order to avert individual self-redress and prevent private war, and that the purpose of lawmaking is to establish rules by which controversies may be adjusted peaceably. Accordingly, whereas to-day we seek, as we say, to do justice, seeking to preserve the peace and to adjust controversies peaceably simply as means thereto and incidents thereof, primitive legal systems make peace the end. Where to-day we think of compensation for an injury, primitive law thinks only of composition for the desire to be avenged. Where to-day we seek to give to each what he ought to have or the nearest possible equivalent, primitive law seeks only to give him a substitute for vengeance in case he is wronged.

(2) IN GREECE AND ROME

Greek philosophy and Roman law soon passed beyond the crude conception of the end of the legal order in primitive society. Instead, they gave these answers: The legal order exists to preserve the social status quo; men seek through

the legal order to keep each individual in his appointed groove, and thus to prevent the friction with his fellowmen which primitive law sought only to mitigate. This is brought out very clearly in Greek political philosophy. Thus, in Plato's ideal state the state is to assign everyone to the class for which he is best fitted and the law is to keep him there, in order that a perfect harmony and unity may prevail. St. Paul's well-known exhortation (Eph. v, 22ff. and vi, 1-5) in which he calls on all the faithful to exert themselves to do their duty in the class in which they find themselves, proceeds upon the same conception. The Roman lawyers turned this idea of political philosophy into law. In the great institutional book of Roman law, the Institutes of Justinian, we are told that the precepts of law come to three; to live honorably, not to injure another, and to give to everyone his due. The idea here is that the state and the law exist to maintain harmoniously the existing social order. What the interests of another are, which one is not to injure, what makes anything another's due, so that it is to be given him, are matters which are left wholly to the traditional social organization.

(3) BEFORE AND AFTER THE REFORMATION

On the downfall of the Roman empire the Germanic invaders brought back for a season the primitive ideas of buying off vengeance and keeping the peace through arbitrary peaceful solution of disputes by mechanical modes of trial and hard and fast rules. But during the Middle Ages these conceptions gradually yielded to the classical idea of the legal order as a means of preserving the social status quo, the more since the latter was fortified by the unassailable authority of texts of scripture and of the Roman law. Moreover, from the thirteenth century on, philosophers more and more sought to sustain authority by reason, and in this way they prepared the way for a new conception which developed in the seventeenth century. For by that time two events of capital importance had compelled a complete revolution in legal and political philosophy. In the first place the Reformation had divorced the philosophy of law

and of politics from theology and had set them free from the authority of the church. This was the work of the Protestant jurist theologians of the sixteenth century.' Secondly, following the nationalist movement which resulted from the breakdown of the unifying and universal authorities of the Middle Ages, the church and the empire, the Germanists overthrew the idea of the binding authority of the Roman law in modern Europe. Accordingly it became necessary to find new bases for legal and political authority, and those bases were found in reason and in contract, or the consent and agreement of the individual.'

REASON AND NATURAL RIGHTS

In the seventeenth and eighteenth centuries reason was made the measure of all obligation. Seventeenth-century legal and political philosophers considered that law existed in order to produce conformity to the nature of rational creatures. In practice, however, though they had broken with authority as such, they accepted the Roman law as embodied reason and essayed very little that did not have authority behind it. In consequence the Roman maxim— not to injure another and to give to everyone his own-was taken to express the nature of rational creatures, and respect for personality and respect for acquired rights remained the two cardinal principles of justice. But these principles raised two obvious questions: (1) What is there in personality that makes aggression an injury, and (2) what is it that makes anything one's own? The answer was sought in a theory of natural rights, or of certain qualities inherent in individual human beings and demonstrated by reason to which society, state, and law were bound to give effect. According to this theory, justice is the maximum of individual self-assertion; it is the function of the state and of the law to make it possible for the individual to act freely. Hence the sphere of law is limited to the minimum of restraint and coercion necessary to allow of the maximum of self-assertion by each, limited by the like self-assertion by all.

1 See Harvard Classics, xxxvi, 353.

For this nationalist idea see H. C., xxxvi, 7.

H. C., xxxiv, 319