1800. J HASTINGS—POLICE POWER OF THE STATE. 367 
the opinion that the act was unconstitutional and an infringement 
on the power of Congress. 
In the opinion, Judge Barbour quotes Marshall’s words in Brown 
vs. Maryland, as follows: 
1“ The court admits the power of a state to direct the removal of gun- 
powder as a branch of the police power which unquestionably remains 
and ought to remain with the state.”’ 
Judge Thompson in his concurring opinion says: 
2«Can anything fall more directly within the police power and internal 
regulation of the state than that which concerns the care and manage- 
ment of paupers or convicts or any other class or description of persons 
that may be thrown into the country and likely to endanger its safety or 
become chargeable for maintenance ?”’ 
Just above this he, too, quotes from Brown vs. Maryland the 
remark that control of the removal of gunpowder is a branch of 
the police power of the state. 
That the phrase was not yet the recognized and accredited repre- 
sentative of the idea or ideas involved is shown clearly enough by 
these two opinions. It occurs only in the connection given, and it 
evidently occurs there only because of the dead chief justice hav- 
ing used it in Brown vs. Maryland. Elsewhere throughout the 
two opinions Justices Barbour and Thompson both use the phrases 
of Blackstone and Zhe Federalist—‘‘ Power of state to regulate its 
police,’’ ‘‘ Internal police of the state,’’ ‘‘ Power to regulate in- 
ternal police,’’ ‘‘ Powers to enact such laws for her internal police 
as it deems best,’’ ‘‘ Purely internal affairs whether of trading or 
police,’’? and the law is styled ‘‘A mere regulation of internal 
police.’”? The conclusion is announced that ‘‘The act is not a 
regulation of commerce but of police.’? These are all phrases 
drawn apparently through Blackstone, Zhe Federalist, and James 
Wilson from Montesquieu.® 
The test of the distinction between regulations of commerce and 
those of police is sought in the end proposed by the legislature and the 
means used. The end is found to be to prevent the commonwealth 
of New York from being burdened by the influx of an undesirable 
population from foreign countries or other states. The means for 
UTD Pet. KAZ: 
3 Td, , 148. 
8 LZ’ Esprit des Lois, Book 20, chap. 14; Book 26, chap. 24; Book 26, chap. II. 
