By far the greatest mass of legislation relating to property is concerned with the police power and modern extensions thereof.  It is also by far the most dangerous to property rights, and this for several reasons:  firstly, it involves the destruction of property without any compensation whatever, not upon payment of damages, as in the ease of eminent domain; secondly, on account of the extraordinary extension by our modern legislation of this power to matters not hitherto deemed necessary for the safety, health, or even the well-being of the public, vague as the legal application of the last word is; thirdly, and perhaps most important, because the police power is usually exercised without any common-law guarantees, without process of law or jury trial, but by the arbitrary ruling of some board, or even single commissioner, and often, so far as the statute is concerned, without a jury or even an appeal from the commissioner’s ruling to any court of law.

I believe this to be the most dangerous tendency that now confronts the American people—­government by commission, tenfold more dangerous than “government by injunction.”  Not only is there no liberty, no appeal to common right and the courts, but all permanent “boards” tend to become narrow and pedantic or, worse, to be controlled by the works they are created to control.[1] The constitutionality of such boards is, of course, always questionable, but the tendency to create them is perhaps the most striking thing in modern American legislation.  Not only do we find them in enormously increased numbers in all the States, but even a late President of the United States seriously recommended that the contracts and affairs of all corporations at least (and the bulk of modern business is done in corporate form) should be so submitted to the control or dictation, or even the nullification, of such an administrative board or commission, and this again with no appeal to the courts.  So audacious an upsetting of all Anglo-Saxon ideas of the right to law, it may be said without exaggeration, has never been attempted in the history of the English people, not even by the Stuart kings, who were most of all disposed to interfere in such particulars.  Wiser counsels deterred the administration from insisting on this measure, but the fact that it could be brought up, and that with the approval of a large portion of the public, indicates how radical our legislation is getting to be in this particular.

[Footnote 1:  Two singular instances happened only the past year:  at common law any one may build railroads, and they are certainly for the general advantage whether profitable to the owners or not.  Yet the railroad commissions of New York and Massachusetts have recently in each State prevented the building of most important lines, by responsible applicants—­under the opposition of other railroads.]