1900.] HASTINGS—POLICE POWER OF THE STATE. 435 
to whether it should go to the courts for determination or be 
peremptorily decided by executive officers. So he holds that in 
collecting the revenue the entire jurisdiction is in the United 
States; and it can deal summarily with its officers and is not 
amenable to process, and its submitting to an appeal to the courts 
is a mere voluntary concession on its part. 
But notice the limit that he finally puts upon this power on the 
part of Congress thus to place questions among judicial or non- 
judicial ones as it may please: 
‘We do not consider Congress can either withdraw from judicial cogni- 
zance any matter which from its nature is a subject of a suit at the com- 
mon law, or in equity or admiralty, nor, on the other hand, can it bring 
under the judicial power a matter which from its nature is not a subject 
for judicial determination.” 
In other words, if the matter in question is such as have hereto- 
fore gone to the courts of law, equity, or admiralty, to get their 
opinion before the executive can act, to them under the constitu- 
tion it must continue to go. The precedents are to settle it. If, 
on the contrary, it is such as have been heretofore determined by 
the executive and ministerial officers of the government without 
such consulting of the judiciary, then they may continue to exer- 
cise that power till Congress chooses to say they must lay it aside ; 
and if the putting of it into the hands of the courts would involve 
too grave a departure from usage that may not be done. 
The final result is that this admired and admirable decision is de- 
termined in all respects by precedents long antedating the constitu- 
tion. A long discussion at the bar and the production of this 
opinion seems the only immediate effect of establishing by the 
constitution three codrdinate powers in the state. It is, however, 
probable that it is not by any means altogether so. There are pre- 
cedents and precedents and they may be applied in various ways. 
It is by no means certain that we are where we would have been 
had there been no distinct declaration in favor of a strict separa- 
tion of judiciary, executive and legislature. ‘The doctrine has, at 
all events, not been without its effect upon the development of the 
police power, as has been seen. 
Meanwhile, the new phrase was passing out of the decisions into 
text-books and treatises. In 1857, Judge Sedgwick published his 
Construction of Statutory and Constitutional Law. In this he gives 
considerable place to the police power chiefly from the point of 
