368 BURR— THE TREATY-MAKING POWER [April 20. 



gress to regulate commerce, and so was a part of the police power 

 ceded by the States to the Federal govermnent. The moment one 

 defines the police power as equivalent to internal police, that moment 

 the question of the constitutionality of a State statute becomes, not : 

 Is the statute an exercise of the State police power? but: Does the 

 exercise of the police power involve a conflict with powers given by 

 the Constitution to the Federal government? 



A portion of the opinion of Mr. Justice Baldwin in Holmes vs. 

 Jennison has been quoted.'*^^ That case followed New York vs. 

 Miln and contains as full and complete enunciation of the doctrine 

 of the inviolability of State police power as exists. The action arose 

 on the attempt made by the governor of \'ermont to extradite the 

 defendant to Canada. No treaty covered the case. The writ of 

 error was dismissed for want of jurisdiction by a divided Court. 

 But the difficulty with insisting on the validity of the views of Mr. 

 Justice Baldwin therein contained as to the inviolability of State 

 police powers, is that the opinion of Mr. Chief Justice Taney, and 

 of the other justices who differed with Mr. Justice Baldwin,-^*' has 

 been the opinion to prevail in the history of constitutional law in the 

 United States. To this efifect was the decision in l^'nited States vs. 

 Rauscher,^*^" decided in 1886. Certainly, Mr. Justice Baldwin was 

 right in thinking the act of the Governor of A^emiont an exercise of 

 State police power. But it was none the less violative of the Consti- 

 tution. The true solution is that the police powers of a State are. 

 like all other of its powers, subject to the controlling influence of 

 all acts done in pursuance of the Federal Constitution. One cannot 

 return too often to the language of ]\Ir. Chief Justice Marshall in 

 Gibbons vs. Ogden, where he said : 



" In argument, however, it has been contended, that if a law passed by a 

 State, in the exercise of its acknowledged sovereignty, comes into conflict 

 with a law, passed by Congress in pursuance of the Constitution, they affect 

 the subject, and each other, like equal opposing powers. But the framers of 



'"^ Supra, pp. 167-169. 



-""A careful analysis of this case will demonstrate that Mr. Justice 

 Baldwin's views were opposed to those of the majority of the court. On this 

 ground, the Supreme Court of Vermont subsequently ordered the release of 

 the prisoner — Bx parte Holmes, 12 Vermont. 631 (1840). 



=" 119 U. S., 407 (1886), supra, pp. 73-74- 



