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has been repudiated or could be neglected by society without endangering its vital interests. This fact has also been cogently stated by another judge of the Supreme Court. "No society has ever admitted that it could not sacrifice individual welfare to its own existence. If conscripts are necessary for its army, it seizes them, and marches them, with bayonets in their rear, to death. It runs highways and railways through old family places in spite of the owner's protest, paying in this instance the market value, to be sure, because no civilized government sacrifices the individual more than it can help, but still sacrifices his will and his welfare to that of the rest ".1

Perhaps the best illustration of the social character of property is to be found in the attempts to regulate property rights through an appeal to the police power. This vague term means primarily the right of the community to secure order, suppress crime and violence, and protect life and property. This cruder and more obvious sense was gradually expanded so that the police power now includes not only the right of the state to prevent crime and violence but also the right to take the more positive measures that have to do with the health, happiness, economic welfare, and enlightenment of its citizens. In some states, as in modern Germany, the police power has absorbed almost the entire life of the community, political, economic, and even cultural. That this power is of recognized importance even in our individualistic social order has been recognized by the courts. In the famous Slaughter House Cases (1872), the Supreme Court made the following deliverance: "The power (police power) is, and must be, from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of the social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property ".

It would appear, then, that the use of the police power in 1 Holmes, The Common Law, p. 43.

the regulation of property rights is nothing more nor less than a concrete application of a principle fundamental to the spirit of American law. This principle is that all property is acquired, and the right to its enjoyment and use is guaranteed, on the assumption that this right conduces to the general welfare of the community and does not injure or invalidate the rights of others. More important still, however, for the social nature of the institution of property is the fact that of recent years the courts have advanced from the more or less negative exercise of the police power to a more positive and constructive interpretation. In 1907 the Supreme Court made this rather remarkable statement in regard to a case that had been decided the year before: "In that case we rejected the view that the police power cannot be exercised for the general well-being of the community. That power, we said, embraces regulations designed to promote the public health, the public morals, or the public safety . . . (the power of the state) is not confined, as we said, to the suppression of what is offensive, disorderly, or unsanitary. It extends to so dealing with the conditions that exist in the state as to bring out of them the greatest welfare of the people. This is the principle of the cases we have cited ".1

It is possible, then, to define the police power with reference to property rights as the power of the lawmakers, and ultimately of the courts as the interpreters of the law, to define and restrict the right of property from time to time as it may become necessary to meet the needs of an ever changing social order. An examination of the cases where the police power has been used will show that those which have attracted public attention and have proven to be of the most vital interest to the nation at large are those dealing with the regulation of private property. Indeed Professor Ely has defined the police power as "the power of the courts to interpret the concept property, and above all, private property; and to establish its metes and bounds". Certainly there are few things more interesting in

1 Bacon v. Walker, 204, U. S., 311, 317, 318. The earlier case cited was C. B. & Q. R. R. Co. v. Drainage Com., 200 U. S. 561, 562 (1906).

the history of the industrial life of the nation than the effective way in which this vague and yet powerful principle of police power has been used and is destined to be used even more extensively in socializing and democratizing the institution of private property. It bids fair in time to dislodge private property from its "impregnable constitutional position."

When we push our analysis beyond the rather vague term, police power, which in reality the courts have never succeeded in defining and from the nature of the principle itself can never place in the logical straitjacket of a final definition, we get into a sphere where social psychology and social ethics must come to our aid. We discover that in its last analysis the police power draws its strength and divines its purpose from that fundamental organization of the sentiments of the community that we have labeled the social conscience. This is intimated by one of the most socially minded members of the supreme bench, Mr. Justice Holmes, as follows: "The police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or the strong and preponderant opinion to be greatly and immediately necessary to the public welfare " This is a clear recognition of the rôle of the social conscience in directing the police power and providing it with an ultimate sanction. It is to this court of last appeal in the enlightened sentiments of a free people, sentiments, to be sure, that change from age to age with the shifting stresses and strains of the social order, that we must look for the determination of the right of private property. If the time should ever come when the prevailing sentiments of the community demand the abolition of private property, a contingency that is exceedingly remote, the lawmakers and the courts would be duty bound to give rational expression to this fact in the laws of the land. For it is out of the stuff of the social conscience that laws are made and here they find their ultimate sanction.

1219 U. S., 110 (1911), p. III.

BIBLIOGRAPHY

1. Books: BEARD, C. A.: Economic Interpretation of the Constitution of the United States, 1913; ELY, R. T.: Property and Contract in Their Relation to the Distribution of Wealth, 2 vols., 1914; GEORGE, HENRY: Progress and Poverty, Bks. 6, 7, 8; GREEN, T. H.: Works, Vol. 2, pp. 517 ff.; HOBHOUSE, L. T.: Morals in Evolution, pp. 318 ff.; HOLMES, O. W.: The Common Law, Ch. VI, "Possession and Ownership"; LETOURNEAU: Property: Its Origin and Development, 1892; LLOYD, H. D.: Wealth Against Commonwealth, 1894; MARSHALL, L. C.: Readings in Industrial Society, Chs. 3, 14; RITCHIE, D. G.: Natural Rights, Ch. 13; RYAN, JOHN A.: Distributive Justice, 1916; VEBLEN, T.: Theory of the Leisure Class; WESTERMARCK, E.: Origin and Development of the Moral Ideas, Vol. 2, Chs. 28, 29.

2. Articles: HADLEY, A. T.: “The Constitutional Position of Property in the United States." The Independent for April, 18, 1908; HUXLEY, T. H.: "Natural Rights and Political Rights." Nineteenth Century, Feb., 1890. (A criticism of Henry George.); OVERSTREET, H. A.: “ Changing Conceptions of Property." International Journal of Ethics, Vol. 25, pp. 165 ff.; SHELDON: What Justifies Private Property?" International

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CHAPTER XVIII

MECHANISM AND MORALS

An examination of the material structure of modern society will show that it is essentially industrial in nature and that it has two poles, the machine and business enterprise. The technology of our modern life, that is its methods of procedure in the mastery and direction of physical and human energy, is based upon the machine. The business enterprise that animates the machine process is dominated by the capitalist-manager or the entrepreneur whose chief incentive is profits. There are of course large sections of our modern life that are not dominated by the philosophy of the machine, just as there are classes that are not prompted primarily by the desire for gain. But the strategic position occupied by the entrepreneur in the business world and the dominance of the machine, especially in those industrial processes of vital concern to human welfare, lend to these two facts an importance that is entirely paramount in the industrial life of the nation. The problem of social morality, therefore, so far as industry and business are concerned, falls into two phases. The first of these has to do with the cultural incidence of the machine upon the character and the way of life of the people. The second phase deals with the ethics of business enterprise, which is most intimately connected with the machine process. In this chapter we have to deal with the first phase of the problem.

SI. THE MACHINE PROCESS

To understand the rôle of the machine process in modern life we must define what we mean by the machine. The distinction between a tool such as a scythe and a machine such as a lawn-mower is fairly clear. Such ancient and honorable

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