e. They
assumed a supreme function which can only be compared to the Dispensing
Power claimed by the Stuarts, or to the authority which, according to
the Council of Constance, inheres in the Church, to "grant indulgences
for reasonable causes." I suppose nothing in modern judicial history has
ever resembled this assumption; and yet, when we examine it, we find it
to be not only the logical, but the inevitable, effect of those
mechanical causes which constrain mankind to move along the lines of
least resistance.

Marshall, in a series of decisions, laid down a general principle which
had been proved to be sound when applied by ordinary courts, dealing
with ordinary social forces, and operating under the corrective power of
either a legislature or a praetor, but which had a different aspect
under the American constitutional system. He held that the fundamental
law, embodied in the Constitution, commanded that all contracts should
be sacred. Therefore he, as a judge, had but two questions to resolve:
First, whether, in the case before him, a contract had been proved to
exist. Second, admitting that a contract had been proved, whether it had
also been shown to have been impaired.

Within ten years after these decisions it had been found in practice
that public opinion would not sustain so rigid an administration of the
law. No legislature could intervene, and a pressure was brought to bear
which the judges could not withstand; therefore, the Court yielded,
declaring that if impairing a contract were, on the whole, for the
public welfare, the Constitution, as Marshall interpreted it, should be
suspended in favor of the legislation which impaired it. They called
this suspension the operation of the "Police Power." It followed, as the
"Police Power" could only come into operation at the discretion of the
Court, that, therefore, within the limits of judicial discretion,
confiscation, however arbitrary and to whatever extent, might go on. In
the energetic language of the Supreme Court of Maine: "This duty and
consequent power override all statute or contract exemptions. The state
cannot free any person or corporation from subjection to this power.
All personal, as well as property rights must be held subject to the
Police Power of the state."[22]

Once the theory of the Police Power was established it became desirable
to define the limits of judicial discretion, but that proved to be
impossible. It could not be determined in