Nov. 24, 1906.] 
SUPPLEMENT TO FOREST AND STREAM. 
8.7 
nower by any grant, contract or delegation whatever.”— 
101 U. S„ 814; 111 U. S., 746; 96 U. S., 521. 
Being a governmental function it is of such 
inalienable character that its surrender or abridg¬ 
ment is declared illegal by the Federal judiciary, 
thus showing that the sovereign power of the 
United States can be invoked to prevent a lesser 
sovereignty from parting with this essential ele¬ 
ment of government. 
And again: 
“It is the great principle on which the statutes for the 
security of the people are based. It is the foundation for 
criminal law in all governments of civilized countries and 
all other lands conducive to the safety of the people. The 
power has always been exercised by governments, and its 
existence cannot be reasonably denied. All the laws for the 
protection of the lives, limbs, health and quiet of persons, 
and for the security of all property . . . fall within 
the general power of government.”—47 Me., 211. 
“The police power of a state is co-extensive with self¬ 
protection, and is applicably termed the law of overruling 
necessity. It is the internal and plenary power of the state 
which enables it to prohibit all things hurtful to the com¬ 
fort and welfare of society.” —70 Ill., 192. 
Therefore, it must be quite plain that police 
power is a most vital governmental function, be¬ 
cause it relates tO’ all those subjects involving 
the general welfare of the individuals and of 
organized society. Considering its present scope 
and character it would seem more appropriate 
and descriptive to term it a general welfare— 
rather than a police—power, which latter savors 
of the mace and brass buttons instead of signify¬ 
ing a parliamentary function representing the 
acme of sovereignty. 
The next question that arises is whether such 
a power is wholly reserved to the States, or 
whether it can be equally and effectively exer¬ 
cised by the States and the Nation within their 
respective limits. 
National and State Police Power Coexistent. 
No one, it seems to me, can carefully review 
and compare the many acts of Congress and the 
numerous decisions of our Federal judiciary with 
those of our States without coming to the con¬ 
clusion that, in the main, the police regulations 
enacted by our more progressive States, have 
their counterpart in the Federal statutes; and 
what is of more importance, that they seem to 
exist in perfect harmony. Such a comparison 
will prove startling, and I will endeavor here¬ 
after to append a sufficient number of parallel 
cases to establish such a statement. The real 
barrier, however, that stands in the way of a 
prompt acknowledgment of such a power, arises 
from the very natural failure of our early states¬ 
men to perceive that, in the course of time, as 
the Nation and its internal interests expanded 
beyond State lines, there would spring up a need 
of a similar power in the management and con¬ 
trol of National affairs involving our public wel¬ 
fare, whereas, on the other hand, its essential 
and immediate need by the States, in the conduct 
of their purely local administration, was- so very 
apparent, it is not at all strange, in figuring what 
Were the particular rights reserved to the States, 
that this one, among others, was promptly labeled 
for “States’ use exclusively.” But the Supreme 
Court has well said that “many powers lodged 
by the Constitution in the legislative department 
long lie dormant until the' exigency arises to in¬ 
voke them into activity.”—64 Fed. Rep. 34. 
The struggle, in the past forty years, to escape 
from a construction thus placed upon a govern¬ 
mental function has been largely devoted to 
“getting around” the barrier instead of break¬ 
ing it down. Like many instances of circumlo¬ 
cution—justifiable in the first instance—we have 
had to climb over so many other obstacles that 
it ought now to be realized that the time has 
come when it is much better to proceed directly 
instead of getting mixed up to an ever increas¬ 
ing degree with side issues. 
Perhaps the most persuasive argument that can 
be used, in an appeal for the recognition of such 
a power in behalf of the general government, is 
the one that its use is not derogatory to the State; 
and the next most effective one is, that its denial 
is unquestionably injurious to the welfare of the 
country at large; and the final one, that, by its 
full exercise, the Federal government will be able 
to so strengthen the States in their own field of 
action, .by joint co-operation, that many State 
regulations, now practically ineffective through 
lack of extra-territorial force, will be made wholly 
effective. In the face of such results what may 
be said in opposition? 
National and State Police Power Compared. 
At this juncture one must turn from promises 
to proof. Flaving reiterated to the point of re¬ 
dundancy that our general government has exer¬ 
cised a National police power in innumerable 
ways, it is only necessary to recall in connection 
therewith a former statement that familiar faces 
are often screened behind a strange mask. How¬ 
ever, the time has come when the merest novice 
can guess the identity of a figure whose general 
outlines are now too well known to be concealed 
by such a device. 
When a State places restrictions upon (he free¬ 
dom of its people in order to conserve morality, 
life and property, it does so under its general 
police power to promote the public welfare of 
the community within its boundaries; and in 
doing so it may destroy those private rights of 
the citizens otherwise inherent or especially ac¬ 
corded them under the common law. A legal 
restriction has usually embodied therein some 
penalty for a violation thereof, and hence in 
those that relate to things harmful to the com¬ 
fort and welfare of society, there has been 
given the title of “police regulations,” synony¬ 
mous with “police powers” when referred to 
generally. As a matter of fact, such a desig¬ 
nation can be wholly dropped and the same 
called according to the nature of the subject it 
relates to. Hence, when health boards are created 
and invested with the plenary power to impose 
and enforce by fine or imprisonment the in¬ 
numerable regulations necessary for the preserva¬ 
tion of public health, it is not incumbent to style 
this a “police” regulation, but it can be called a 
“health” regulation. So, when the State inter¬ 
dicts or restricts the manufacture, sale or trans¬ 
portation of adulterated or misbranded goods, 
dangerous drugs, or the vending of diseased 
meats, impure milk, etc., it imposes a restraint 
upon its local business affairs, and very properly 
this power may be called a “trade” regulation— 
though be it a police power. When a State com¬ 
pels pilots, engineers and others in charge of 
public conveyances, to pass an examination and 
take out a license, or compels common carriers 
to adopt safety appliances or regulates the rate 
of transportation charges, or prohibits combina¬ 
tion of competing railroads, or the ownership 
of products carried by said common carriers, it 
only exercises its sovereign right over “local 
commerce” by land and water—though be it a 
police power, pure and simple. When a State, 
in order to restrain the too. dangerous use of 
intoxicants, exacts a high license and imposes 
numerous restrictions upon the vendors, it is 
of course using its power in a way to conserve 
“public morals,” but it need not be called a 
police power—though it is such. When a State pro¬ 
hibits lotteries, the sale and transmission of ob¬ 
scene matter, or prohibits the corrupt use of 
money in elections, it is safeguarding “public 
welfare,” but it need not be called a police power 
—though it is such. So on ad infinitum. But how 
different when we come to the exercise of these 
very same regulatory pozuers by the National gov¬ 
ernment. 
As it would never do to call similar Federal 
restraints, put on the citizen of the United 
States, whether living in the States, the Terri¬ 
tories, the District of Columbia, Alaska or numer¬ 
ous colonial dependencies, by their true name, we 
have at hand a set of masks, to be donned when 
the occasion requires. 
So gradual has been the growth of National police 
legislation affecting our general welfare that at 
no time apparently, have we had the courage to 
enunciate a general principle of such far-reach¬ 
ing effect when confronted simply with a prop¬ 
osition standing alone. 
But let us look at them in the order of their 
magnitude, taking first those sovereign police 
powers of external application. 
International Police Power. 
THE MONROE DOCTRINE. 
Were we, as is sometimes contended, wholly 
limited to the four corners of the Constitution 
for the exercise of our sovereign powers, the 
“Big Stick” would become a highwayman’s 
bludgeon. Yet, if any European country by 
conquest or purchase would acquire additional 
territory on the American continent from 
Labrador to Patagonia, it would mean war in- 
stanter. Uncle Sam is policing the western 
hemisphere and no trespass is allowed. In the 
case of Cuba we intervened to save a neighbor¬ 
ing country from oppression, and now stand as 
its sponsor and guardian, under a treaty agree¬ 
ment to maintain a constitutional government 
therein. Powers like these must depend upon 
an inherent sovereignty, possessed by every 
nation. 
THE “PROTECTIVE” TARIFF. 
This is a fine example of the tax mask. In 
order to protect our early and struggling indus¬ 
tries from the competing European wares, pro¬ 
duced by low priced, skilled labor, and sent to 
this country by wealthy manufacturers, naturally 
intent on discouraging or breaking down local 
enterprises, we put on a so-called duty, suffi¬ 
ciently high to either knock out foreign com¬ 
petitors or at least equalize the difference in 
wages. It was in the nature of a fine imposed 
upon those who wanted to stifle our infant in¬ 
dustries. Had the Federal statute read, “An act 
to prohibit the entry of all foreign goods capable 
of production in the United States and pro¬ 
viding a penalty for the violation thereof,” or 
“An act to protect local industries and the wages 
of American mechanics from foreign compe¬ 
tition.” it is a practical certainty that our 
Federal judiciary, in the first instance, would 
have declared that neither under the taxing or 
commerce clauses of the Constitution was there 
authority given Congress to convert revenue 
duties into trade barriers or to so adjust the 
respective cost of production as to directly 
protect and foster home industries by a system 
of tariff protection. The right of a government 
to preserve its industrial interests from any des¬ 
tructive influence is naturally inherent, and to¬ 
day a so-called protective tariff is legally recog¬ 
nized. When we prohibit the entry of certain 
foreign wares, we collect no tax, we regulate 
no commerce, but do legislate in behalf of public 
welfare, just as plainly as when we bar skilled 
contract labor, adulterated goods, obscene matter 
or the Mongolian race; and when thus protecting 
our labor and our industries from harmful in¬ 
fluences we do so for the same reason that in¬ 
fluences a State (under its police power), in 
guarding its industries and wage-earners from 
the crushing competition of convict labor. 
IMMIGRATION LAWS. 
The right of a sovereign to preserve its in¬ 
habitants from the evils of unlimited immigra¬ 
tion is wholly independent of any express con¬ 
stitutional provisions and a good example of Na¬ 
tional police power. Under our Federal laws pau¬ 
pers, criminals, the insane and the diseased are 
denied admission to the States, irrespective of 
the laws or desires of such States. 
Just as we have passed laws operating to re¬ 
strain the entry of cheaply made wares because 
destructive to home industries, we have, for 
similar reasons, cared for the welfare of the 
wage-earners, by prohibiting the importation, 
under contract, of foreign workmen. This 
Alien Contract Labor Act was purely a police 
or preservative regulation and in no way based 
upon the personality of the immigrant, for he 
might be most acceptable, but such importation, 
in large numbers, of poorly paid skilled labor 
was deemed a menace to the maintainance of a 
regular well-paid scale of wages in this country. 
The law was passed for the conservation of our 
general welfare. In the enactment of the 
Chinese Exclusion Law we had in view a 
similar purpose and in addition thereto the ex¬ 
clusion of a race, in many ways, deemed un¬ 
desirable. These were all general welfare meas¬ 
ures, and hence police regulations within the 
meaning ordinarily given them when exercised 
by the State. 
IMPORTATION OF HARMFUL ANIMALS, PLANTS, ETC. 
For the same reasons that lead to the ex¬ 
clusion of immigrants harmful to our social or 
economic life. Congress has placed the ban upon 
the importation of those animals, birds, insects 
