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line in Boston Harbor, beyond which no private structure could be built. The law aimed to preserve the free use of the harbor as “a common and public right.” A Boston jury found Cyrus Alger guilty of breaking the law by building a pier, on his own property, that extended beyond the line. On appeal, the Supreme Judicial Court upheld the law in a resounding defense of the police power. Shaw wrote:We think it is a settled principle, growing out of the nature of a well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. . . . Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law[.] The power we allude to is . . . the police power; the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth.... It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise.43

The police power enjoyed the sanction of the state and federal constitutions, but it did not originate there; it flowed from the wellspring of sovereignty itself. The concept of “police” had deep roots in English and European traditions of governance. Its scope far exceeded the law enforcement function of municipal police forces, which first appeared on the streets of New York, Philadelphia, and Boston during the 1840s and ’50s. When considering the almost indeterminate scope of the police power, nineteenth-century American jurists referred to two great common law maxims: sic utere tuo ut alienum non laedas (use your own so as not to injure another) and salus populi suprema lex est (the welfare of the people is the supreme law). In “well-ordered societies,” state governments and municipalities served the people’s welfare in ways too numerous to list: they upheld public morals by policing saloons and brothels, ensured public safety through fire and crime prevention, governed the marketplace through price regulations and licensing, and protected the public health by policing noxious trades and enforcing quarantines to check contagious diseases.44

As significant as Shaw’s expansive meditation on legislative power was his parsimonious discussion of individual rights. Later generations of Americans would imagine the nineteenth century as the epoch of rugged individualism and laissez-faire. But the century’s preeminent state judge recognized a very different reality. Individual rights—even rights as elementary to American law and politics as property—were “social” and “conventional,” not natural entities inherent in human beings. As citizens like Cyrus Alger learned time and again, in the name of the common good state and local governments trod heavily on property rights and personal liberties, with no obligation to compensate private parties for their losses. Like other American judges, Shaw recognized certain constitutional restraints on police power, but they were few. Laws must apply equally to all under like circumstances, to avoid creating an undue advantage for particular individuals. (Sadly, Shaw found room enough in this “equality” principle to permit the Boston schools committee to require African American children to attend separate schools.) In addition, “ex post facto laws” were forbidden. Finally, government interferences with individual rights must be “reasonable”—they must have a clear relation to some legitimate legislative purpose. Beyond those outer limits, until the