1900.] HASTINGS—POLICE POWER OF THE STATE. 388i 
It is to be said, again, that these men were not debating about 
mere words. In the condition things then were, it mattered 
greatly whether various questions as to which the states were con- 
stantly legislating, and were certain to continue doing so, should 
be referred to a subordinate power subject to the revision of 
Congress, or to a police power which was ‘‘ complete, unqualified 
and exclusive.’’ In setting up a neutral ground, in holding that 
the states might continue to legislate in regard to a subject over 
which Congress was, by the terms of the Constitution, simply 
given power of regulation, Chief Justice Taney was not simply 
following separatist tendencies. He was, as he firmly believed, 
carrying out not only the intentions of the framers of the consti- 
tution,’ who seem to have rejected a proposition in the convention 
to make this power in terms exclusive, but Marshall’s judicial 
opinion as well. 
It is true that Story, who based his dissent in the City of New 
York vs. Miln mainly on such exclusive power of Congress, says 
he has the consolation of knowing that in this position he had the 
concurrence of the late chief justice ‘‘upon the same grounds.’’ 
But Judge Story weakens his own statement when he adds: 
“Having heard the former agument his deliberate opinion was that the 
present case fell directly within the principles established in the case of 
Gibbon ws. Ogden, 9fi Wheaton, 1, and Brown vs. State of Maryland, 
12th Wheaton, 419.” 
It is to be noted that Judge Story had also taken the position that 
the New York law in the case of City of New York vs. Miln was 
at variance with Congressional legislation; and it is as to this 
position that in his dissenting opinion he cites both these cases 
most successfully. He hardly ventures to claim them as supporting 
an exclusive power in Congress. 
It is clear that to claim the judge who in Gibbon vs. Ogden, 
while acknowleding the force of the argument for exclusive power 
in Congress over this subject pointedly declined to hold that such 
was the case, and who, in ’Wilson vs. Blackbird Creek Marsh Com- 
pany, upheld a state law relating to bridging a navigable creek dis- 
tinctly on the ground of a power remaining in the states, where no 
act of Congress intervened, to pass legislation affecting commerce 
13d Elliot's Debates, 259. 
22 Pet, 25 1—2: 
