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Subject Area: Law
Topic: The American Revolution and Constitution

PREFACE. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Entered according to Act of Congress, in the year 1900, by

C. G. TIEDEMAN,

In the Office of the Librarian of Congress, at Washington.

St. Louis, Mo.:

Press of Nixon-Jones Printing Co.

these pages are affectionately inscribed to my wife, HELEN SEYMOUR TIEDEMAN, whose scrupulous regard for the rights of others, and tender sympathy for their weaknesses, have been my guide and inspiration.

PREFACE.

In the days when popular government was unknown, and the maxim Quod principi placuit, legis habet vigorem, seemed to be the fundamental theory of all law, it would have been idle to speak of limitations upon the police power of government; for there were none, except those which are imposed by the finite character of all things natural. Absolutism existed in its most repulsive form. The king ruled by divine right, and obtaining his authority from above he acknowledged no natural rights in the individual. If it was his pleasure to give to his people a wide room for individual activity, the subject had no occasion for complaint. But he could not raise any effective opposition to the pleasure of the ruler, if he should see fit to impose numerous restrictions, all tending to oppress the weaker for the benefit of the stronger.

But the divine right of kings began to be questioned, and its hold on the public mind was gradually weakened, until, finally, it was repudiated altogether, and the opposite principle substituted, that all governmental power is derived from the people; and instead of the king being the vicegerent of God, and the people subjects of the king, the king and other officers of the government were the servants of the people, and the people became the real sovereign through the officials. Vox populi, vox Dei, became the popular answer to all complaints of the individual against the encroachments of popular government upon his rights and his liberty. Since the memories of the oppressions of the privileged classes under the reign of kings and nobles were still fresh in the minds of individuals for many years after popular government was established in the English-speaking world, content with the enjoyment of their own liberties, there was no marked disposition manifested by the majority to interfere with the like liberties of the minority. On the contrary the sphere of governmental activity was confined within the smallest limits by the popularization of the so-called laissez-faire doctrine, which denies to government the power to do more than to provide for the public order and personal security by the prevention and punishment of crimes and trespasses. Under the influence of this doctrine, the encroachments of government upon the rights and liberties of the individual have for the past century been comparatively few. But the political pendulum is again swinging in the opposite direction, and the doctrine of governmental inactivity in economical matters is attacked daily with increasing vehemence. Governmental interference is proclaimed and demanded everywhere as a sufficient panacea for every social evil which threaten the prosperity of society. Socialism, Communism, and Anarchism are rampant throughout the civilized world. The State is called on to protect the weak against the shrewdness of the stronger, to determine what wages a workman shall receive for his labor, and how many hours daily he shall labor. Many trades and occupations are being prohibited because some are damaged incidentally by their prosecution, and many ordinary pursuits are made government monopolies. The demands of the Socialists and Communists vary in degree and in detail, and the most extreme of them insist upon the assumption by government of the paternal character altogether, abolishing all private property in land, and making the State the sole possessor of the working capital of the nation.

Contemplating these extraordinary demands of the great army of discontents, and their apparent power, with the growth and development of universal suffrage, to enforce their views of civil polity upon the civilized world, the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man, the absolutism of a democratic majority.

The principal object of the present work is to demonstrate, by a detailed discussion of the constitutional limitations upon the police power in the United States, that under the written constitutions, Federal and State, democratic absolutism is impossible in this country, as long as the popular reverence for the constitutions, in their restrictions upon governmental activity, is nourished and sustained by a prompt avoidance by the courts of any violations of their provisions, in word or in spirit. The substantial rights of the minority are shown to be free from all lawful control or interference by the majority, except so far as such control or interference may be necessary to prevent injury to others in the enjoyment of their rights. The police power of the government is shown to be confined to the detailed enforcement of the legal maxim, sic utere tuo, ut alienum non lædas.

If the author succeeds in any measure in his attempt to awaken the public mind to a full appreciation of the power of constitutional limitations to protect private rights against the radical experimentations of social reformers, he will feel that he has been amply requited for his labors in the cause of social order and personal liberty.

C. G. T.

  • University of the State of Missouri, Columbia, Mo.,

November 1, 1886.