government, the latter excepts from its domain the power to fix and administer the law of private rights. The latter distinguishes the whole power of internal government into two parts, vis; the jural and the police. Under the jural power it would place the development and administration of the common law, or, better, of private law. Under the police power it would place everything else. This is certainly some advance in thought upon the subject. It is the conclusion to which one of Europe's greatest publicists has arrived.1 The scientific thought of the day has, however, gone much beyond this. It makes many further distinctions, which, however, cannot be clearly understood except by following briefly the historical development of the conception of the police power.

The etymology of the word is Greek, TOMTeîa. In its Greek home it was the term which designated the whole internal government of the state as distinguished from its foreign relations. It came into the political science of modern Europe at the epoch when the absolute monarchy was slowly developing its powers out of the regalia of the feudal monarchy. The revival of Greek and Latin learning was one of the chief forces contributing to this development, in that it furnished the contrast of a brilliant and powerful civilization, produced largely by the consolidation of governmental power, over against the dissolution, anarchy and poverty of the middle ages and the feudal system. The royal power began to expand its authority and activity beyond the limits of the royal regalia, or prerogatives recognized in the feudal compacts, and to interfere in the local affairs of the manors, bishoprics, abbeys and free cities in behalf of the individual subject. The struggle was long and bitter, but the crown. was in favor with the masses, who, as tenants of manors and religious corporations, or as servants of city guilds, had had enough of petty tyranny. The result was the

1 Robert v. Mohl, Die Polizei-Wissenschaft, I. Bd. SS. 5, 6. Dritte Auflage.

assumption by the crown of all governmental powers within the localities, and the administration of them through its own appointed agents. Under the conditions of the age, viz; hatred of the petty lord by the common man, and yet no capacity in the mass of the people to assume sovereignty and organize government, the principle was rapidly developed by the civilians about the throne that the King knew best what would promote the security and welfare of the people, and that to him belonged the duty and the power to invent and apply, at his discretion, the means for the attainment of the same; i.e. the police power of the crown became absolute and identical with what we now term the sphere of internal government. Among the states of western Europe, this development was most thorough-going in France and Germany, especially in France, under whose Grand Monarch it reached a degree of absoluteness, which sacrificed the individual to the government; i.e. the King's government became despotic. This result of the development produced the Revolution, the main purpose of which was to win for the individual man the constitutional power of seeking, in some degree, his own welfare in his own way; and to secure the constitutional recognition to him of the domain of free action necessary for the attainment of the same.

With this new thought and purpose, the political science of the present century has resurveyed the field of the police power, and has brought out four very fundamental distinctions in regard to it. The first is, that the police power is, in its nature, administrative, not legislative nor judicial; the second is, that it is not co-extensive with the whole scope of internal administration, as distinguished from external, but is only a branch of internal administration; the third is, that, in the exercise of the police functions, the executive discretion should move within the lines of general principles prescribed either by the constitution or the legislature; and the fourth is, that the community in its most local organiza

tion should participate, so far as possible, in the exercise of the police power. The purpose of these distinctions is to secure the individual against the tyranny of the government and, at the same time, to secure the public welfare against the selfishness of the individual; and the function which they assign to the police power, in so far as it is directed against the actions of men as distinguished from the processes of nature, is that of restraining the individual in the exercise of his rights when exaggerated by him to the point of becoming a danger to the community. Every right acknowledged to the individual by the state may be abused by him to the detriment of the state. The state must therefore confer upon the government the power to watch for and prevent such abuse. This is the police power. Its realm is, therefore, the counterpart of the realm of individual liberty. It is the guard which the state sets upon the abuse of individual liberty. It does not prescribe the method according to which that liberty may be enjoyed, but it fixes the point past which it may not be pursued, and contains summary governmental authority for preventing its abuse.1

The narrowing of the sphere of the police power is thus seen to be the general trend of the history of the theory of that power. I do not see how it can now be further narrowed without danger to public security. But the Supreme Court has not yet brought its definitions to the standard of the latest formulation of the theory. It gives, in its practice, a much wider range to the police power of the commonwealths than the latest thought upon the subject warrants. Its theory of the extent of the police power is, in the political science of to-day, obsolete. The practice of the Court, however, warrants us in holding it to be the doctrine of our public law that the constitutions and laws of the commonwealths fix, in first instance, the domain of the police power of the respec

1 L. von Stein, Verwaltungslehre, S. 186 ff.

tive commonwealths; but that these constitutions and laws are subject to revision, in any case of their application, by the United States judiciary, upon appeal made thereto by any individual under the plea that "due process of law" has not been observed in the deprivation inflicted upon him by the act of the commonwealth. This is again an immense power in the hands of the general judiciary. It is proper that it should be so placed; but in its exercise, again, no narrow spirit can be endured. The largest wisdom, the broadest patriotism and the most exalted humanity are the qualities of character absolutely necessary to the personnel of a body vested with such a power.

Lastly, the phrase “equal protection" of the laws has been defined by the Court to mean exemption from legal discriminations on account of race or color. This provision would probably, therefore, not be held to cover discriminations in legal standing made for other reasons; as, for example, on account of age or sex, or mental, or even property, qualifications. The Court distinctly affirms that the history of the provision shows it to have been made to meet only the unnatural discriminations springing from race and color. If a discrimination should arise from any previous condition of servitude, I think the Court would regard this as falling under the inhibition. The language of the decision implies this certainly, if it does not exactly express it.

The Court has been generous in the application of the principle of its definition to the details of practice. It has declared, under the direct issue, that where the custom exists of a participation of the community in the administration of justice, i.e. where the custom of trial by jury exists, the exclu sion of persons from the jury service on account of race or color or previous condition of servitude falls within the constitutional inhibition. It seems to me that the reasoning

1 Strauder v. West Virginia, 100 U. S. Reports, 303.

2 Ibid.

of this case would prohibit a commonwealth from making race, color or previous condition of servitude a disqualification for holding judicial office. The decision of the Court seems to me to cover all discriminations in legal status or in the administration of justice arising from race, color or previous condition of servitude, and to interpret the constitutional provision as conferring upon the individual the power to invoke the interference of the judicial department of the general government against any attempts made upon his liberty by the commonwealths with this purpose.

Second. The constitutional provision under consideration ordains that "no State" (commonwealth) "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It will be observed at the outset that the language of this part of the provision differs somewhat from that employed in the part which we have just reviewed. It does not read, "no State" (commonwealth) "shall abridge the privileges and immunities," etc., as it would if it followed the language of the clause just referred to, but "no State" (commonwealth) "shall make or enforce any law which shall abridge," etc. ; and it does not read, "no State" (commonwealth) "shall make or enforce any law which shall abridge the privileges and immunities of any person, as established by the constitution and laws of the United States," but, "the privileges and immunities of any citizen of the United States."

What do these differences of expression signify? Who are citizens of the United States as distinguished from persons within the jurisdiction of the United States? Against what organization or power or procedure of the commonwealths is the right of the citizen of the United States protected? And what are the privileges and immunities of citizens of the United States?

The constitution itself declares that "all persons born or

1 Constitution, Amendments, Art. XIV, sec. I.