John J. (John Joseph) Lalor.

Cyclopædia of political science, political economy, and of the political history of the United States online

. (page 55 of 290)
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these exceptions belong the unnatural crimes of
sodomy, etc. Leaving these exceptions out of
consideration, the state proceeds against sexual
incontinence, which does not violate a legally
protected right, such as the freedom and honor of
the person, the family, etc., only from motives of
order. But moral police reasons are not here the
only controlling ones. It is well known that syph-
ilis, which preys on the very marrow of nations,
has been propagated chiefly by sexual profligacy.
Even if it be no concern of the state to protect
individuals against the injurious consequences of

t In the middle ages the church used to punish every kind
of unchastity as an ecclesiastic transgression, but It is
known how widespread sexual profligacy was in the middle
ages among the clergy and laity, and how openly it was
practiced. Loose women were not only tolerated, but public
brothels were considered necessary institutions in a city.
They frequently were the property of the lords of the coun-
try or city; they were leased out by them, or kept for them
by brothel masters or mistresses whom they appointed.
Private brothels were licensed, and stood under the protec-
tion of public authority, but had to pay certain taxes. In
most German cities brothels had to be tolerated under
police supervision, and the laws against simple prostitution,
as a rule, remained void of effect.

% In Germany it was mainly the work of Cella on crimes
and transgressions in the matter of unchastity (1786), that
paved the way for the opinion that simple incontinence,
which appears only as vice, without offending the rights oi
others, or creating public scandal, is not punishable.



POLICE.



211



immorality, it must be remembered that syphilis
•does not confine its ravages to those who have
brought it upon themselves by their profligacy.
It may be transmitted in various other ways
(particularly through wet-nurses to infants) and
by inheritance it bequeaths destruction to future
generations. Here, public moral police must go
hand in hand with sanitary police. — The state
should see to it, that the moral sense of the peo-
ple, and public decorum, are not outraged by in-
decent public exhibitions. The following, there-
fore, should be punished: 1, persons who cause
public scandal by indecent acts; 3, persons sell-
ing indecent writings, pictures or drawings, who
■distribute them, or who exhibit or affix them in
places frequented by fhe public; 3, fornication,
when it causes a public scandal. The state should
punish, not only treacherous inducements to in-
continence or to unchastity when accompanied
by the violation of particular duties, and the se-
duction of minors, or girls under sixteen, but also
seduction when it assumes a character dangerous
to the interests of the community. It is not the
duty of the statrf to make the individual moral,
■or to protect her against temptations to immor-
. ality; but it should endeavor to prevent all acts
of immorality calculated to poison family life
■and the life of the nation. The law, therefore,
rightly punishes procurers or panders, that is, the
intentional enticement of others to uijchastity.
■Still, it is very questionable, to what extent the
■state should declare panders punishable. In this
matter the provisions of law in different countries
are very different. In Francd (Code penal, art.
334), habitual panderage is punished only when
it facilitates the seduction of minors; but, accord-
ing to the penal code of the German empire,
those persons are punished for panderage who,
habitually or from motives of gain, through
their mediation, or through the affording of oppor-
tunities, promote unchastity. A.ccording to this,
the keeping of loose women in brothels for pur-
poses of prostitution is punishable. But it is
questionable whether this prohibition can be rec-
onciled with the requirements of sanitary police.
Sanitary police, which must prevent the spread
of syphilis, can only perform this task by subject-
ing to a strict control all women who carry on
prostitution as a trade. This control is unques-
tionably facilitated when ordinary prostitution, in
the larger cities at least, is confined to relatively
few brothels, and when the police seek to sup-
press all prostitution outside of these houses. I|^
is not proper to assume that the state acts contrary
to duty when it tolerates houses of prostitution,
for it has not to combat vice as such, but only to
react against the spread of incontinpnce as a com-
mon danger.* By the toleration of brothels the
state does not lend support to vice, but it leaves the
temptation to vice unpunished, only because from
its suppression there would result greater disad-

* For this reason, Mohl, on principle, advocates the tol-
eration of brothels. V. Oettingen (Moral Statistik, p. 171,
■etc.) agrees with him in this.



vantages than advantages to the community. —
There is no need here of closely examining the
question, whether or not sanitary police requires
the toleration and strict supervision of brothels;
but, if it does, there exists in principle no objection
against it, from the point of view of the police
of public morality.f Simple sexual incontinence
may not be forbidden by the state, but the state
should oppose the trade in unchastity by loose
women; for there result therefrom great dangers
both to health and public morality. — Prostitu-
tion as a trade leads easily to seduction, which
is socially dangerous, and to the causing of pub-
lic scandal ; and, on the other hand, it favors
the spread of syphilis. The penal code of the
German empire therefore forbids the trade of pros-
titution to women who are not subject to police
supervision, and punishes prostitutes under police
supervision if they neglect the regulations of the
police that have been made in the interest of health,
of public order and public decorum. — The task
of the police regulations in the interest of public
morality is, accordingly, to suppress all prostitu-
tion that seeks to escape police supervision, and,
through proper police regulations and their en-
forcement, to bring it about that vice should
not escape the obscurity which alone beseems
it. The task of sanitary police, while seeking
to prevent the spread of syphilis through pros-
titution, is more difficult. Dancing "saloons"
should also be subjected to special police super-
vision, as they frequently lead to seduction and
incontinence, and to the disturbance of public
peace and order. — IV. Gruelty to Animals. The
state interferes to prevent cruelty to animals, in
order to prevent the moral sense of the people
being shocked by such cruelty perpetrated on
animals, and to afford a protection to the animals
themselves against any unnecessary, and hence
immoral, cruelty of that nature. In France this
protection extends only to domestic animals (ani-
maux domestiques). The law of July 2, 1850,
threatens with punishment any one who publicly
unseemingly (abusivement) maltreats domestic ani-
mals. In England, as early as the year 1823,
a law was passed against cruelty to animals.
The laws in force there at present are those of
1850 and 1855 (12 and 13 Vict., ch. 92; 17 and 18
Vict., chap. 60): they threaten all ill treatment of
domestic animals wjth punishment. Under the
influence of an unhealthy sentimental movement,
a law was also passed, in 1870, against scien-
tific experiments on live animals (vivisection;
39 and 40 Vict., ch. 77). According to this law,
any painful experiments on live animals are per^
mitted only to persons who have received an au-
thorization from the minister, which, however,

t Where hrothels are tolerated, they should be subjected
to strict supervision, not only in the interest of sanitary
police, but, above all, to prevent their becoming hot-beds ol
vice. It is desirable to give prostitutes the possibility of
emancipating themselves from the control of panders and
brothel-keepers. The strongest objection against the toler-
ation of brothels consists in this, that in most cases the
return to a good life is rendered impossible to their inmates.



212



POLICE POWER OF A STATE.



may at any time be revoked. Vivisection can
only be practiced under the conditions imposed by
the law. In granting the license the minister may
also add any other conditions at will. The efforts
to prevent scientific investigations by a law of this
kind have hitherto proved vain in Germany.

Edgar Loening.

POLICE POWER OF A STATE. The police
power of the state is an authority conferred by
the American constitutional system upon the in-
dividual states, through which they are enabled
to establish a special department of police; adopt
such regulations as tend to prevent the commis-
sion of fraud, violence, or other offenses against
the state; aid in the an-est of criminals, and se-
cure generally the comfort, health and prosperity
of the state, by preserving the public order, pre-
venting a conflict of rights in the common inter-
course of the citizen, and insuring to each an
uninterrupted enjoyment of all the privileges con-
ferred upon him by the laws of his country. The
organization of a state police, which shall fulfill
its functions effectively, and yet leave to the in-
dividual unimpaired freedom under the liberal
laws of a republican form of government, is one
of the most delicate tasks ever intrusted to the
lawgiver. — Blackstone defines the system to be
"the due regulation and domestic order of the
kingdom, whereby the inhabitants of a state, like
members of a well-governed family, are bound
to conform their general behavior to the rules of
propriety, good neighborhood and good manners,
and to be decent, industrious and inoffensive in
their respective stations." (4 Bl. Com., 162.) —
Jeremy Bentham, in his " General View of Public
Offenses," defines it to be a system of precaution
for the prevention of crimes or of calamities. —
With regard to its effect upon the use and enjoy-
ment of property, the object being to exhibit the
universality of its presence, and to define the
limits which settled principles of constitutional
law assign to its interference. Chief Justice Shaw
declares it to be a settled principle (Commonwealth
««. Alger, 7 Gushing, 84), that every holder of
property, however absolute may be his title, holds
it under an implied liability that its use shall not
be injurious to the equal rights of another in the
enjoyment of his property; nor injurious to the
rights of the people of a community. And the
right to adopt regulations necessary to enforce
this limitation by legislative enactments under the
controlling power vested in them by the national
constitution, differs from the right of emimnt
domain, which only permits a government to pos-
sess itself of private property whenever the pub-
lic needs require it, on the condition of granting
a reasonable compensation therefor. It is less
difficult to conceive of the existence and sources
of this power which permits the adoption of vari-
ous laws, statutes and ordinances for the good
and welfare of the community, than to define its
limits and lay down the rules for its exercise. —
It is a recognized principle that the national gov-



ernment can not, through any of its departments,
invade the reserved rights of the states, and as-
sume the power of supervising their police regula-
tions, when they do not conflict with the national
sovereignty and the exercise of federal authority
conferred by the constitution. Nevertheless, the
powers of the states may be so employed as to
conflict with the jurisdiction of the national gov-
ernment, and serious questions have arisen be-
tween the police power of the state and the
authority conferred upon congress by the consti-
tution. , To prevent the state from operating
within the sphere of the national government, in
the exercise of this conferred power, its limits can
be extended no further than a just regulation of
its rights demands for th'e protection of the citi-
zen of the state in the enjoyment of life, liberty,
health and properly. Says Cooley (Con. Lira.,
574), "This subject has of ten been considered in
its bearings upon the clause of the constitution of
the United States, which forbids the states pass-
ing any laws violating the obligations of con-
tracts ; and invariablj' it has been held that this
clause does not so far remove from state control
the rights and properties which depend for their
existence on enforcement of contracts, as to re- ,
lieve them from the operation of such general
regulations for the good government of the state
and the protection of the rights of individuals as
may be ^eemed important. All contracts and all
rights, it is held, are subject to this power; and
regulations which affect them may not only be
established by the state, but must also be sub-
ject to change from time to time, with reference
to the general well-being of the community, as
circumstances change, or as experience demon-
strates the necessity." — Perhaps the most striking
illustration of the principle here stated, will be
found among the judicial decisions which hold
that the rights insured to private corporations by
their charters, and the manner of their exercise,
are subject to such new regulations as from time
to time may be made by the state, with a view to
the public protection, health and safety, and to
properly guard the rights of other individuals
and corporations. Although these charters are
considered as contracts, and their rights held in-
violable, it does not follow that they are removed
from state regulation. Nevertheless, there must
be a limit to the exercise of the police power of
the state. The regulating ordinances must have
reference to the comfort, safety or welfare of so-
ciety; they must not conflict with any provisions
of the charter, nor take from the corporation any
of the essential rights and privileges which the
charter confers. They must, in fact, be police reg-
ulations, and not amendments to the charter itself,
as, where a corporation was chartered with the
right to exact toll from passengers, a subsequent
statute authorizing a certain class of passengers
to travel free over the road was held to be void.
(Pingrey m. Washburn, 1 Aiken, 268.) The rule
has been further held, that, while the corporate
charter itself contained a provision empowering a



POLICE POWER OP A STATE.



213



legislature to alter, modify or repeal it, such a
provision would not, on pretext of amendment or
police regulation, have the effect to appropriate
any portion of the corporate property to the pub-
lic ouse. Nr would it justify an act. requiring a
railroad company to cause a proposed new street
or highway to be taken across their track and all
labor and materials necessary for the same to be
furnished at their own expense. (Miller m. New
York & Erie R. R. Co., 31 Barb., 513.) Nor can
a corporation be held liable for the obstruction of
a river, by a subsequent amendment to a charter
granting them the right to erect a bridge over a
navigable stream, which must necessarily obstruct
the said river. Nor can the police power of a state,
in regulating the speed of railway carriages, ex-
tend further than the streets and public grounds
of a city. But it can require all railroad corpora-
tions to fence their tracks, and hold them liable
for the loss of all domestic animals killed thereon,
and for the double reason of protection to domes-
tic animals and to persons being transported in
railway carriages. Under the. common law rule,
where a corporation has failed to obey the regula-
tions adopted for its government, and injury has
resulted therefrom, such disobedience would not
make the corporation liable to the party injured,
if his own negligence aided that of the corpora-
tion in producing the injury. Nevertheless, under
the police power of the state, a legislature may
•enact such a law as shall hold the' corporation
liable for the animals thus destroyed, notwith-
standing the negligence of the party injured. The
state may likewise, under the same power, regu-
late the grade of railroads, and prescribe the way
in which railroads shall cross each other, and ap-
portion the expense of such crossings among the
•corporations owning the roads. It may also es-
tablish regulations requiring existing railroads to
ring the bell and blow the whistle of their engines
at all places on their roads where their approach
might be dangerous to travel. And it has been
held that the power may extend so far as to make
such corporations liable as insurers for the safety
of their passengers in the same manner they are
l)y law liable as common carriers. (Thorpe «s.
Rutland & Burlington R. R. Co., 37 Vt., 153.)
And those statutes of the various states which
grant an action to the representatives of persons
killed by the neglect, default or wrongful act of an-
other, may apply to corporations already chartered,
and give a remedy for a wrong which the com-
mon law fails to supply. — Another point where the
police power of the state has by some been held to
conflict with the federal constitution is, where by
statute the sale of intoxicating liquors has been
altogether prohibited. The weight of authority,
however, determines the question thus : when
these statutes merely assume to regulate and to
prohibit sales by other persons than those licensed
by public authority, there can be no question of a
conflict with constitutional power entertained, as
they are but simple police regulations of the same
character as those whicli any state or community



might adopt for the regulation of any class of trade
or employment. Those which prohibit entirely the
manufacture and sale of intoxicating liquors as a
beverage, have been attacked as subversive of fun-
damental rights, and urged to be in violation of ex-
press provisions of the federal constitution relating
to the commerce of the states. This view of the
case, however, although strongly advocated, was
not sustained by the supreme court of the United
States in the noted license cases. The majority
of the court expressed the opinion that the intro-
duction into a state of imported liquors could not
be prevented, as it would be in conflict with the
act of congress regulating commerce and levying
imposts; but it ceased to be an impost when
broken up for retail, and at once became subject
to the laws of the state, and amenable to taxation
and regulation by the state, the same as other
property; and further, that the power to regulate
commerce between the states did not exclude regu-
lations by the state save when they conflicted with
the laws of congress. — It would thus appear that
the state laws, known as prohibitory liquor laws,
are not held void, as in conflict with national
authority, in the regulation of commerce between
the states. The same laws have been sustained
when urged to be in conflict with state constitu-
tions, on th,e ground that they are police regula-
tions established by the legislature for the preven-
tion of intemperance, vagrancy and crime. The
power to declare the sale of liquor to be a nuisance
has been determined by the court, and it has been
held competent to provide legal process for its
destruction, and for the seizure and condemna-
tion of the building in which it is sold, as a
nuisance, provided the fundamental principle of
protection which surrounds persons and dwellings
relating to seizure and search shall not be invad-
ed, and that the right of trial shall be granted
before condemnation. Says Cooley (Con. Lim.,
p. 583) : " Perhaps there is no instance in which
the power of the legislature to make such reg-
ulations as may destroy the value of property
without compensation to the owner, appears in
a more striking light than in the cases of these
statutes. The trade in alcoholic drinks being
lawful, and the capital employed in it being
fully protected by law, the legislature then steps
in, and for general reasons of public utility an-
nihilates the trafiic, destroys altogether the em-
ployment, and reduces to a nominal value the
property on hand. The sale of liquor becomes a
criminal offense, and the merchant of yesterday be-
comes the criminal of to-day, and the very building
in which he lives, and conducts the business which
at that moment was lawful, becomes a nuisance,
if the statute shall so declare, and liable to be pro-
ceeded against for a forfeiture. Statutes which
can do this must be justified upon the highest
reasons of public benefit; but whether satisfactory
or not, they rest exclusively in the legislative wis-
dom." — Other matters affecting commerce, in
which the police power of the state may be in-
voked in behalf of the public interests, are quar-



214



POLICE POWER OF A STATE.



antine regulations, and health laws in all forms.
These latter may be so far extended as to embrace
the destruction of private property when infected
by disease, or dangerous in other particulars. In-
spection laws may'be adopted and duties levied to
make them operative. Regulations may also be
enforced regarding the time and manner of trans-
acting business to promote trade, establish order
and prevent confusion. These regulations em-
brace the right to control the movements and sta-
tion of ships and vessels in the harbors of cities,
and streams lying within the limits of cities and
seaport towns, and the wharves thereof, and to
remove such vessels as had discharged or received
their cargoes to enable others to perform the same
essential labor; and penalties may be inflicted
upon all such as refuse to obey the directions of
the harbor masters who are vested with the au-
thority to determine such matters. (Vanderbilt
vs. Adams, 7 Cow. , 351.) Congress, however, may
establish police regulations, as well as the states,
relating to all subjects where control is given by
the constitution, but as this power can be more
satisfactorily exercised by local authority, and the
jurisdiction to arrest collision is confined to the
United States courts, congress has generally rele-
gated this power to the states. — Questions have
arisen with regard to the power of a state to enact
laws requiring importers of foreign goods to take
out a license, and in case of refusal, to inflict
penalties and forfeitures. Such acts have been
held void as not partaking of the principles of
mere police regulations such as might require the
payment of a license fee to cover expenses of en-
forcing harbor regulations, but rather of the power
of taxation to raise revenue for the state, and
therefore in conflict with the provision of the
constitution which prohibits a state from laying
imposts or levying duties, and likewise with the
provision that congress alone shall possess the
power to regulate commerce. But the police
power of a state has been sustained (City of New
York vs. Miln, 11 Peters, 102), Inflicting a penalty
upon the master of every foreign vessel who
should not report, upon arrival in port, to the
mayor or recorder of the city, an account of the
names, places of birth, business, etc. , of his pas-
sengers; this police regulation having been adopted
to prevent the city of New York from being bur-
dened by persons shipped as paupers or criminals
by foreign governments. Notwithstanding the
fact that congress can adopt all laws regulating
pilots and pilotage, a state regulation relating to the
same has been held unobjectionable, when such
power had not been exercised by that body. —
With regard to the power of a state to enact such
laws as shall compel all persons to refrain from
labor during the first day of the week, it has
been held by the courts that such laws were
not encroachments upon the religious liberty of
persons who do not regard that day as sacred,
nor in conflict with the constitution because act-
ing as a restraint upon the trade and commerce
of a community, or rendering void a contract for



Sunday services. — An important part of the
jurisdiction of a state is the control of Its high-
ways. These are constructed by the state; and
the state has full power to adopt all police regula-
tions for the public good controlling the actions of
those who use them, and to alter and change them
as the proper authorities consider best for the
general interest. This power enables a state to
determine the mode of travel; regulate the speed;
cause parties meeting to turn each to their right;
prevent a public nuisance; prohibit animals from
running at large under penalty of fine and confis-



Online LibraryJohn J. (John Joseph) LalorCyclopædia of political science, political economy, and of the political history of the United States → online text (page 55 of 290)