3

"but with one another." 1 Hence law was a device to secure liberty, its only justification was that it preserved individual liberty, and its sole basis was the free agreement of the individual to be bound by it. The early history of New England abounds in examples of attempts to make this a practical political doctrine.2 The good side of all this we know well. On the side of politics, the conception of the people-not as a mass, but as an aggregate of individuals the precise ascription of rights to each of these individuals, the evolution of the legal rights. of Englishmen into the natural rights of man, have their immediate origin in the religious phase of the Puritan revolution. But on the side of law it has given us the conception of liberty of contract, which is the bane of all labor legislation, the rooted objection to all power of application of rules to individual cases which has produced a decadence of equity in so many of our state courts, the insistence upon and faith in the mere machinery of justice which makes American legal procedure almost impossible of toleration in the business world of to-day, the notion of punishing the vicious will and of the necessary connection between wrongdoing and retribution which make it so difficult for our criminal law to deal with anti-social actions and to adjust itself in its application to the exigencies of concrete criminality. Finally, our interpretation of jurisprudence and of legal history is either idealistic or political. Brooks Adams is the only American writer to insist upon the economic and social interpretation. But until we come to look at our legal history in this way, history on which our jurists rely chiefly is not unlikely to prove a blind guide. The history of juristic thought tells us nothing unless we know the social forces that lay behind it.

I have discussed at length the effect of stability of juristic thought and the nature of American juristic thought because those are the subjects which the lawyer must ponder. It is there that the divergence between law in books and law in action has a lesson for him. The other two causes may be looked at only in the briefest way.

Rigidity of legislation is best illustrated in the codes of procedure and practice acts, so common in the United States, which in large measure have defeated their own ends by going too much into detail. Legislation must learn the same lesson as case law. It must deal chiefly with principles; it must not be over-ambitious to lay down universal rules. We need for a season to have principles from which to deduce, not rules, but decisions. Legislation which attempts to require cases to be fitted to rules instead of rules to cases will fare no better than judicial decisions which attempt the same feat. So long as an imperative theory leads the law-maker to think that he has

1 Lord Acton, Lectures on Modern History, p. 200.

2 Merriam, Am. Political Theories, p. 19.

Dunning, Political Theories, from Luther to Montesquieu, pp. 220-221.

only to put his views of all the details of legal and judicial administration into sections and chapters, and, as the will of the sovereign, they will become effective law, the law upon the statute books will be far from representing what takes place actually in the courts.

The third cause mentioned, defective administration, perhaps more than any other cause, is immediately responsible for making law in action different from law in the books. If any legislation has an active public interest behind it, and is sought to be enforced by zealous partisans whose wishes command the attention of executive officers, it is labor legislation. But the proceedings of the American Association for Labor Legislation bear abundant and eloquent testimony that our copious labor legislation for the most part fails of effect because of defective administration. Both judicial and executive administration are at fault. A great deal of the law in the books is not enforced in practice because our machinery of justice is too slow, too cumbersome and too expensive to make it effective. One need only instance petty cases, triable by justices of the peace, appealable for a complete new trial to superior courts of record and then reviewable by supreme courts or courts of appeals. It is not to be expected that such a machinery of justice will afford any real check upon extortion by public service companies. But, beyond this, we have preserved an etiquette of justice, devised in large part in a past age of formal over-refinement, no small part of which is as out of place in a twentieth century American court of justice as gold lace and red coats upon a modern skirmish line. It is chiefly, however, in executive administration that laws fail of effect. The clash of departments or even of officials, so characteristic of our polity, the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state, the elaborate machinery of check, balance and subdivision which the Puritan jealousy of the magistrate has fixed in our institutions, too often result in a legal paralysis of legal administration. Effective administration is perhaps the great problem of the future. But that is a problem chiefly for the statesman and the student of politics.

For the lawyer, the moral of the difference between law in books and law in action is not to be obsessed with the notion that the common law is the beginning of wisdom and the eternal jural order. Let us not be afraid of legislation, and let us welcome new principles, introduced by legislation, which express the spirit of the time. Let us look the facts of human conduct in the face. Let us look to economics and sociology and philosophy, and cease to assume that jurisprudence is self-sufficient. It is the work of lawyers to make the law in action conform to the law in the books, not by futile thunderings against popular lawlessness, nor eloquent exhortations to obedience to the 1 Proc. Second Annual Meeting of Am. Assn. for Labor Legislation, pp. 9, 32, 92.

written law, but by making the law in the books such that the law in action can conform to it, and providing a speedy, cheap and efficient legal mode of applying it. On no other terms can the two be reconciled. In a conflict between the law in books and the national will there can be but one result. Let us not become legal monks. Let us not allow our legal texts to acquire sanctity and go the way of all sacred writings. For the written word remains, but man changes. Whether laws of Manu or Zarathustra or Moses, or the fourteenth amendment, or the doctrine of the Dartmouth College case, or Munn vs. Illinois, or the latest legislative discovery in Oklahoma, all laws tell us the same tale.

III

THE POLICE POWER

WHAT IS THE POLICE POWER?

BY WALTER WHEELER COOK, OF THE UNIVERSITY OF WISCONSIN

(From the Columbia Law Review, May, 1907)

Nearly all of the legislation regulating industry finds its sanction in that elastic, indefinable power called the "police power." Hence, any study of the relation of government to industry must pivot on an understanding of the police power and how federal and state courts interpret it. - EDITOR'S NOTE.

No phrase is more frequently used and at the same time less understood than the one which forms the subject of the present discussion. It is a common thing for our courts to say that the police power does not admit of an exact definition, yet only a few of those who make the remark appear to understand clearly why this should be so. As the eminent holder of the Roosevelt Professorship in Berlin has so well said:

The police power is the dark continent of our jurisprudence. It is the convenient repository of everything for which our juristic classification can find no other place.1

*

As a convenient method of approaching our subject, let us examine briefly the definitions or descriptions given by two or three writers who have studied the problem with a considerable degree of thoroughness. The author whose words have already been quoted, after showing the apparent confusion of the Supreme Court of the United States upon the question, begins with the derivation of the words from the Greek and traces their introduction into the political science of modern Europe and their history since, and concludes by stating what he conceives to be the most recent view of political science upon the scope of the police power, closing as follows:

1 Burgess, Political Science and Comparative Constitutional Law, Vol. II, p. 136.

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 or judicial; the second is, that it is not coextensive 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 organization should participate, so far as possible, in the exercise of the police power. ... 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.1

The most noteworthy thing about this treatment of the subject is that the problem is treated as being purely one in political science as distinguished from constitutional law. The author is describing the meaning which ought, in his opinion as a political scientist, to be given to the phrase "the police power"; or perhaps a more accurate statement would be, that he is describing the limitations which he thinks ought to be imposed by the constitution upon the government in behalf of individual liberty. . . .

*

The author of the most recent and without doubt the most valuable treatise upon the police power 2 pursues an analytical rather than an historical method in dealing with the subject. He begins 3 by making an analysis and classification of the objects of government in the abstract, finding them to fall into three classes: (1) the maintenance of national existence; (2) the maintenance of right, or justice; (3) the promotion of the public welfare. Under the first he includes international relations, governmental organization and support, war, and the putting down of internal revolt and insurrection; under the second, the administration of civil and criminal justice; under the third, not merely the prevention of wrongful acts but the imposition of positive regulations designed to promote the general welfare. The general welfare, he finds, "embraces a variety of interests, calling in different degrees for public care and control. They may be classified as follows: the primary social interests of safety, order and morals; economic interests; and non-material and political interests." 4 The police power, he concludes, is occupied with the accomplishment of the objects which fall under the third class. The essence of the police power, then, is the exercise of control for the purpose of promoting the general welfare.

1 Burgess, op. cit. Vol. I, p. 216.

2 Freund, The Police Power.

3 Ibid. p. 3. 4 Ibid. p. 7.