1900.] HASTINGS——POLICE POWER OF THE STATE. OLE 
slaves and their rendition. Should this right of the state to act in 
reference to the fugitive slaves within its border, in virtue of its” 
general authority to deal with subjects of government within its 
jurisdiction, be referred to a ‘‘ police power ’’ or should it be called 
something else and said to be concurrent with the power of Con- 
gress? Whenever they approached this ‘‘ police power ’’ they evi- 
dently found it something quite undefined and undefinable, and as 
evidently regarded it, when attempting to consider it by itself, as 
being identical with Madison’s ‘‘ residuary sovereignty’’ or Mar- 
shall’s ‘‘immense mass of legislation’’ left to the state and not 
touched by the federal constitution. This had at length come to 
be popularly designated as the police power, and the court had 
adopted this name of its own suggesting. 
It needs no reading between the lines to see that the real antag- 
onism was something deeper. ‘The term police power was almost as 
much a federalist and a northern expression as state sovereignty was 
anti-federalist and southern. This debate had the same cause as had 
the convention of 1787. The cause of the adoption of the federal 
constitution, as well as of the reaching of the ‘‘ unanimous ’’ conclu- 
sion in Prigg’s case, was the too well-grounded apprehension of 
bloody collision between contending sections. Webster’s spectre of 
States ‘‘ discordant, dissevered, belligerent ’’ was raised as soon as 
the first steps toward the confederation of the colonies were taken. 
It would not down at Webster’s voice. Neither statesman nor 
judge could exorcise it. 
It almost provokes a smile to read Sir Henry Maine’s suggestion 
that it is wrong to charge the federal government with failure to 
furnish a peaceful solution of the slavery question, that its princi- 
ples were never applied to the task, and that its framers wrongly 
shrunk from attempting what there is reason to suppose the machine 
they devised might have accomplished if set to the work. Is it not 
honor enough to have been alone among the nations in devising a 
central government solely out of the fear of disunion and without 
the welding influence of outer pressure? Where would have been 
the Union that in 1787, or even fifty years later, had dared to offer 
a solution of the slavery problem along the lines of the Declaration 
of Independence? The police power under that name comes into 
and takes its place in our jurisprudence as one of the judicial expedi- 
ents not to lay but to pacify this disturbing spirit of slavery. 
The fact that most of the discussions involving the police power 
