3860 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
plained the phrase. The voluminous United States Digest did not 
include the phrase, either in its original edition or in its revision 
in 1873, among its separate headings, nor among its subdivis- 
ions of constitutional law. It was not until 1879 that it began to 
appear among the subdivisions of constitutional law in the annual 
supplements of that work. 
It is, as appears clearly enough from our decisions, a branch of 
constitutional law peculiar to countries having legislatures with 
limited power. It is an outgrowth of the American conception of 
protecting the individual from the state. It originated in connec- 
tion with the discussion of the limitation on the legislative powers 
of the states under our federal system. The name itself seems to 
have been introduced by Chief Justice Marshall in the case of 
<‘ Brown vs. Maryland’’ in 1827. A somewhat careful search for 
the phrase fails to find it in legal or political writings of this 
country prior to that time. The combination of its terms seems 
to be still unknown on the other side of the Atlantic, notwith- 
standing that both words come to us from the French, and its 
suggestion is distinctly traceable to Montesquieu. 
It was entirely natural that it should appear in a decision of our 
Federal Supreme Court and from Chief Justice Marshall. 
Sir Henry Maine says, that popular government in modern times 
was first redeemed from general distrust and suspicion by the over- 
whelming success in the United States of a body of Englishmen, 
who from circumstances 
“had never had much to do with an hereditary king and an aristoc- 
racy and who had determined thenceforth to dispense with them 
altogether.’ 
With all deference to a great name, the absence of kings and 
nobles was not the governing feature of the situation when the 
fathers of the republic took in hand the task of framing that gov- 
ernment which was to take away forever, let us hope, the ill fame 
of popular institutions. The condition which was the most 
important factor seems to have been this: that body of Englishmen 
of American birth to whom the great task fell were already organ- 
ized into thirteen states to which they were enthusiastically 
attached. These states from their origin had been in most respects 
1 Pop. Govt., p. 11. 
