364 BURR— THE TREATY-MAKING POWER [April 20, 



Attempts at defining the term police power have been many. 

 We should not, however, be here tempted to essay it; for our object 

 rather is to understand how the term has been used by others, and 

 diversely indeed has it been used. In order to carry in mind, while 

 reviewing the language of the courts, the various significations at- 

 tached to the term, it will be well to indicate several. From one 

 point of view — a view sanctioned by the etymological and probably 

 historical origin of the term — the meaning given is equivalent to 

 that of municipal laiv; all that body of law which we have come to 

 regard as local, in contradistinction to what we conceive is properly 

 national or international law. Again, viewing the subject from the 

 peculiar point of view of the constitutional student, the term has 

 been used, sometimes by members of the judiciary, to comprise no 

 more and no less than the reserved powers of the States. The diffi- 

 culty with this view is that it affords no means whatever of identi- 

 fying those powers, but only gives to them a new name. Thirdly, 

 the police power is said to be that power which provides for the 

 public safety and welfare. This is perhaps the most popular view, 

 but the difficulty is that almost any measure appropriate to be 

 adopted, can be justified as intended to further the public welfare. 



Examining into the development of the use of the term, one 

 notes in the Federal Constitutional Convention that a resolution was 

 proposed and rejected giving to Congress the power "to make laws 

 binding on the people " of the United States " in all cases which may 

 concern the common interests of the Union ; but not to interfere 

 with the government of the individual States in any matters of 

 internal police which respect the government of such States only, 

 and wherein the general welfare of the United States is not con- 

 cerned."-^^ Again, on the day when the Convention adjourned, a 

 motion was made and defeated to insert in the Constitution a pro- 

 viso " that no State shall, without its consent, be affected in its in- 

 ternal police, or deprived of its equal suffrage in the Senate."-''* In 

 1824, the great constitutional case of Gibbons zx Ogden'-"''' was 



"^Farrand, Vol. II., p. 21. 



-^ibid., p. 630. 



===9 Wheat., I (1824). 



