1900. | HASTINGS—POLICE POWER OF THE STATE. asl 
The discussion, however, was worth all the litigation which it 
has and may cost as the refining on this subject still goes on. The 
chief justice was certainly trying to follow! Machiavelli’s maxim, 
and 
“‘ pursue the real truth of things and not some mere imaginary theory or 
conception of them.”’ 
He gives his own matured conclusion as to the case of Brown vs. 
Maryland and its doctrines. Eulogies and compliments to Chief 
Justice Marshall have certainly not been wanting. ‘Taney’s declar- 
ation here that he had concluded that he was wrong in his conten- 
tion in that case and that Marshall was right is of them all perhaps 
the greatest and most touching. It has been said that the greatest 
victory of a disputant is not to silence but to convince his 
adversary. 
But Taney has no difficulty in holding that in the cases of Massa- 
chusetts and Rhode Island the laws acting only on the retail trade 
are out of the sphere of interstate and foreign commerce. In the 
New Hampshire case, however, he admitted that, as the law re- 
quired a license from the state before making any sale in any quan- 
tity whatever, it acted directly upon foreign commerce, and was 
void if the state had no power over such commerce. He, however, 
insists upon a suberdinate power in a state to legislate upon that 
subject so long as it does not go contrary to the legislation of Con- 
gress nor get outside of the proper functions of local government. 
That the term ‘‘ police power’’ was not fully to the mind of the 
chief justice appears when he comes to discuss that subject and the 
distinction which he seeks to formulate between true police laws, 
over which he says Congress has no control, and this subordinate 
power of legislation which Congress can annul. Speaking of the 
case of Gibbon vs. Ogden, he says: 
* “Moreover, the court on pages 205, 206 distinctly admits that a state 
may in the execution of its police and health laws make regulations of 
commerce, but which Congress may control. It is very clear that so far 
as these regulations are merely internal, and do not operate on foreign 
commerce or commerce among the states, they are altogether indepen- 
dent of the power of the general government and cannot be controlled 
by it.” 
That they are subject to control by Congress, therefore, stamps 
them as regulations of commerce in his eyes. 
1 The Prince, Chap. 15. 2 § How., 582. 
