1900.] HASTINGS—POLICE POWER OF THE STATE. 549 
CHAPTER hve 
CONCLUSION. 
The foregoing has been written quite in vain, and under a com- 
plete misapprehension, if there is any need of extended discussion of 
the relations of the police power decisions to the general growth of 
law. As tothe police power itself enough and too much has been 
said. If that were the subject of examination the work might be 
as brief as the famous chapter on the snakes in Ireland, as compen- 
dious as De Tocqueville’s remark as to the English constitution, 
‘Elle n’ existe point.”’ 
It is not necessary to adopt Treitschke’s oft-repeated declaration, 
Eat the state is force,’ in. order to conclude that “‘the police 
power ’’ isa fiction. Every judge whom we have seen attempt to 
analyze it finds in it Madison’s ‘‘ indefinite supremacy’’ of the 
state. The doctrine of faculties and separate powers of the state 
may not be as essentially absurd as Treitschke thinks,* but in our 
case the term is certainly a mere abstract and collective one for the 
state, where regarded as employed in certain functions ; and con- 
stant forgetting of this fact has made endless trouble. 
Judges and lawyers need to recollect constantly that the police 
power is not an entity. They need to assure themselves of 
this quite as earnestly and as often as Claud Bernard found that 
physicians need a like assurance with regard to disease. This is 
obvious enough to have required no demonstration, and Justice 
Harlan’s opinion, last February, in Lake Shore Railroad Company 
vs. Ohio, has done this work with satisfactory thoroughness, if it 
was needed. 
If the whole significance of these cases has not been miscon- 
ceived, the characteristic thing about this latest development in our 
jurisprudence is its unintended growth out of unconscious habits. 
Chief Justice Marshall dropped the seed without intending it. 
Justice Barbour picked it up without observing it, and until it had 
1 Vorlesungen, Vol. 1, 33-323; Vol. 2, 11-27, and elsewhere. 
31d VO. 2; Pp. 3: 
