1900, ] HASTINGS—POLICE POWER OF THE STATE. 368 
not made by means of definitions, but by assigning it functions, 
and functions already waiting to be taken up, which the states, in 
adopting the constitution, recognized their own inability to per- 
form. Hence the marvel of that successful working of this 
complex machine, which Bagehot said he would have had no 
hesitation in saying beforehand was impossible.’ 
The remnant of power left in the states, after making room for 
this federal ‘‘ supreme law of the land,”’ is called by the authors of 
The Federalist the ‘‘residuary sovereignty,’’? but that name 
seems not to have obtained generally, perhaps because it served no 
one’s political needs. It is hard to find it outside of 7he Feder- 
alist. It suited those who wished to magnify the states and who 
feared the growth of power on the part of the national government 
to omit the qualifying adjective. It suited those to whom en- 
croachments and separatist tendencies on the part of the states 
were a terror not to couple the words ‘‘ States’’ and ‘‘ Sover- 
eignty’’ together, even with the qualification. So this truncated 
sovereignty remained without a name, and the powers exercised by 
the states were specially designated by various terms as ‘‘ power of 
taxation,’’ ‘‘eminent domain,’’ ‘‘ public justice,’’ and ‘‘ police 
regulations.”’ 
The introduction of the term ‘‘ Police Power’’ seems to have 
been by Chief Justice Marshall, and it came to him by degrees. In 
the Dartmouth College case itself, he seems to have clearly pre- 
figured in his mind the principle that was later to be used so 
successfully in limiting the extension of the doctrine of corporate 
inviolability contained in that decision.’ He does not, it is true, in 
terms mention the Police Power. Neither did the great lawyers 
who argued that case. He says, however,’ . 
“that the framers of the constitution did not intend to restrain the 
states in the regulation of their civil institutions adopted for internal gov- 
ernment, and that the instrument they have given us is not to be so con- 
strued may be admitted.”’ 
The Dartmouth College case, 
“that remarkable result of the disagreement of two clergymen, both of 
1 British Constitution, Chap. 8. 
2 Federalist, No. 39, p. 238, Lodge’s edition. J@, No. 43, p. 275. . /a., No. 
62, p. 386. 
3 4 Wheat., 629. 
