866 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
furnish, and such as abound in Zhe Federalist. Indeed, John C. 
Calhoun in his famous resolution of 1837’ does not yet use the 
combined phrase. He claims for the states ‘‘ the exclusive and 
sole right over their own and domestic institutions and police.”’ 
But it was in these times of exciting discussion as to the nature of 
the Union that the phrase did become current. After remaining 
buried for ten years in the official report of the case of Brown vs. 
Maryland, and when its author had gone tv his last sleep, it was 
brought forth in 1837 once more, and was not soon to go to rest 
again. 
The case of the Mayor of the City of New York vs. Miln? had 
been argued before the court in Marshall’s lifetime, in 1834. The 
chief justice had announced that, excepting in cases of absolute 
necessity, decisions on constitutional questions would not be ren- 
dered unless four judges, then a majority of the court, should con- 
cur. In this case there had not been such a concurrence, and it 
was ordered to be reargued. In 1836, Taney had succeeded Mar- 
shall. Before that Wayne had taken Johnson’s place, and shortly 
after Barbour was to take Duvall’s. Johnson had died in 1834. - 
Taney had been nominated to Johnson’s place, and the influence of 
Clay and Webster combined had prevented the confirmation, 
although Marshall had done all that he thought consistent with the 
position of chief justice of the court to procure the confirmation. 
After Marshall’s death in 1835 Taney was appointed chief justice 
and his appointment this time confirmed, and with the court thus 
completed the case of the Mayor of New York vs. Miln was again 
argued and the opinion rendered in 1837 by Judge Barbour. 
The question was whether an act of the state of New York 
requiring the master of every vessel arriving at that port to render 
to the city authorities within twenty-four hours after such arrival a 
statement of the name, place of birth, legal settlement, age and 
occupation of every passenger coming from a foreign country or 
other state, and fixing a penalty of twenty-five dollars upon master, 
owners and consignee for each passenger not so reported, was a 
valid law, or was void as being repugnant*to the power of Congress 
to regulate foreign and interstate commerce and to acts passed in 
pursuance of such power. The court found the act valid. Judge 
Story dissented, and declared that the late chief justice had held 
1 Calhoun’s works, Vol. iii, p. 140. 
AN Clea LO2N (OBZ) 
