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there is no help for the evil but a gradual solution of the problem by self-adaptation to each other, or a voluntary exodus of the weaker race. But when an altogether dissimilar race seeks admission to the country, not being citizens, the State may properly refuse them the privilege of immigration. And this is the course adopted by the American government towards the Chinese who threaten to invade and take complete possession of the Pacific coast. After making due allowance for the exaggerations of the evil, there can be no doubt that the racial problem, involved in the Chinese immigration, was sufficiently serious to justify its prohibition. The economical problem, arising from a radical difference in the manners and mode of life of the Chinese, not to consider the charges of their moral depravity, threatened to disturb the industrial and social conditions of those States, to the great injury of the native population. It was even feared that the white population, not being able to subsist on the diet of the Chinese, and consequently being unable to work for as low wages, would be forced to leave the country, and as they moved eastward, the Chinese would take their place, until finally the whole country would swarm with the almond-eyed Asiatic. Selfpreservation is the first law of nature, with States and societies, as with individuals. It can not be doubted that the act of Congress, which prohibited all future Chinese immigration, was within the constitutional powers of the United States.

The United States government have also instituted police regulations for the purpose of preventing pauper immigration, and when an immigrant is without visible means of support, the steamship company which transported him is required to take him back. The purpose of these regulations itself suggests the reasons that might be advanced in justification of them, and, therefore, no statement of them is necessary.

§ 62. The public duties of a citizen. In return for the protection guaranteed to the citizen, he is required to do whatever is reasonable and necessary in support of the government and the promotion of the public welfare. It will not be necessary to enter into details, for these duties vary with a change in public exigencies. The object of taxation is treated more particularly in a subsequent section. The ordinary public duties of an American citizen, are to assist the peace officers in preserving the public order and serving legal processes, and to obey all commands of the officers to aid in the suppression of all riots, insurrections and other breaches of the peace; to serve as jurors in the courts of justice, to perforın military service, in time of peace as well as in war. It is common for the States to require its male citizens to enroll themselves in the State militia, and receive instruction and to practice in military tactics, and in time of war there can be no doubt of the power of the government to compel a citizen to take up arms in defense of the country against the attacks of an enemy, in the same manner as it may require the citizen to aid in suppressing internal disorders.? At an earlier day, it was also a common custom to require of the citizens of a town or city the duty of assisting in the quenching of accidental fires and the prevention of conflagrations, and in some of the States

1 See post, $ 129 et seq.

2 But defensive warfare must in this connection be distinguished from offensive warfare. The duty of the citizen to repel an attack upon his country is clear, but it is certainly not considered in the United States a duty of the citizen to aid the government in the prosecution of an offensive war, instituted for the purpose of aggrandizement But the question involves the practical difficulty of determining which party in a particular war is on the defensive, and which is the attacking party. It is not necessary for the territory of one's country to be invaded, in order that the war may be offensive. Substantial and valuable international rights may be trespassed without a blow being struck or a foot of land invaded, and usually both parties claim to be on the defensive But the dificulty in answering this question of fact does not affect the accuracy of the theoretic distinction, although it does take away its practical value.


(notably South Carolina) every male citizen, between certain ages, was at one time required to be an active member of a militia or fire company.

It was also at one time the common duty of a citizen to perform, or supply at his expense, labor upon the public roads, in order to keep them in repairs. But this specific duty is each day becoming more uncommon, and the repairs are being made by employees of the State or municipal community, whose wages are paid out of the common fund. Indeed, the general tendency at the present day is to relieve the citizen of the duty of performing these public duties by the employment of individuals who are specially charged with them, and perform them as a matter of business. Even in regard to the matter of military service in time of war, this tendency is noticeable. Whenever a draft is made by the government for more men, and one whose name is found in the list desires to avoid the personal performance

of this public duty, he is permitted to procure a substitute. . The duty of acting as juror is about the only public duty,

whose performance is still required to be personal, and even that is somewhat in danger of substitutive performance. The flimsy and unreasonable excuses, too often given and received for discharge from jury duty, are fast paving the way to the appointment of professional jurymen.


1 But it is now found to be more profitable, in combating the danger of fire in municipal life, to employ men who are specially charged with the pertormance of this duty. Voluntary, or unprofessional, fire departments are now to be found, in the United States, only in the villages and small towns.

§ 62



SECTION 68. Crime and vice distinguished-their relation to Police

power. 69 Sumptuary laws. 70. Church and State - Historical synopsis. 71. Police regulation of religion - Constitutional restrictions. 72. State control of churches, and congregations. 73. Religious criticism and blasphemy distinguished. 74. Permissible limitations upon religious worship. 75. Religious discrimination in respect to admissibility of

testimony. 76. Sunday laws.

§ 68. Crime and vice distinguished Their relation to police power.- In legal technics, crime is any act which involves the violation of a public law, and which by theory of law constitutes an offense against the State. Crimes are punished by means of prosecution by State officers. When an act violates some private right, and it is either so infrequent, or so easily controlled by private or individual prosecutions, that the safety of society does not require it to be declared a crime, and the subject of a criminal prosecution, it is then denominated a trespass, or tort. The same act may be both a tort and a crime, and with the exception of those crimes which involve the violation of strictly public rights, such as treason, malfeasances in office, and the like, all crimes are likewise torts. The same act works an injury to the State or to the individual whose right is invaded, and according as we contemplate the injury to the State or to the individual, the act is a crime or a tort. The injury to the State consists in the disturbance of the public peace and order. The injury to the individual consists in the trespass upon some right. But from either standpoint the act must be considered as an infringement of a right. The act must constitute an injuria, i. e, the violation of a right.

The distinction thus given between a crime and a tort is purely technical, and proceeds from the habit of the common-law jurist to account for differences in legal rules and regulations by fictitious distinctions, which were in fact untrue. There is no essential difference between a crime and a tort, except in the remedy. No act can be properly called either a crime or a tort, unless it be a violation of some right, and with the exception of those crimes which consist in the violation of some public right, such as treason, crimes are nothing more than violations of private rights, which are made the subject of public prosecution, because individual prosecution is deemed an ineffectual remedy. The idea of an injury to the State, as the foundation for the criminal prosecution is a pure fiction, indulged in by the jurists in order to conform to the iron cast maxim, that no one but the party injured can maintain an action against the wrong-doer. A crime, then, is a trespass upon some right, public or private, and the trespass is sought to be redressed or prosecuted whether the remedy be a criminal prosecution or a private suit.

A vice, on the other hand, consists in an inordinate, and hence immoral, gratification of one's passions and desires. The primary damage is to one's self. When we contemplate the nature of a vice, we are not conscious of a trespass upon the rights of others. If the vice gives rise to any secondary or consequential damage to others we are only able to ascertain the effect after a more or less serious deliberation. An intimate acquaintance with sociology reveals the universal interdependence of individuals in the social state; no man liveth unto himself, and no man can be addicted to vices, even of the most trivial character, without doing damage to the material interests of society, and affecting each individual of the community to a greater or less degree.

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