‘ 
1900.] HASTINGS—POLICE POWER OF THE STATE. 399 
within the limits of the state, though connected in some respects with 
foreign commerce, is rather an invitation for the states to legislate upon 
it than a circumstance nullifying, destroying every useful and ameliora- 
ting provision made by them. Such, in my view, is the true rule in re- 
spect to commercial grant of power over matters not yet regulated by 
Congress and which are obviously local. In the case of Wilson vs. 
Blackbird Creek Marsh Company, Chief Justice Marshall not only 
treated this as a true rule generally, but held it applicable to the grant 
to Congress of the power to regulate commerce.”’ 
The police power was clearly getting at least an extensive dis- 
cussion in the Supreme Court. Chief Justice Taney still refers to 
‘¢ what is called the police power’’ in New York vs. Miln, but the 
term had by this time almost entirely superseded the old circumlo- 
cutions. Whenever an attempt is made to analyze and define it, as 
here by McLean, Wayne and Woodbury, and in the License cases 
by Taney, it is still, however, invariably found to turn back into 
that ' ‘‘ indefinite supremacy ’’ which Madison found involved in 
all ideas of government. 
Possibly the judges would have done better to have recognized 
more fully what he says elsewhere : 
*« That among a people consolidated into one nation, this supremacy is - 
completely vested in one legislature. Among communities united 
for particular purposes it is vested partly in the general and partly in 
the municipal legislature.” 
It will be observed that Madison is very far from asserting any 
difference in nature between the powers exercised by the two legis- 
latures. They are in his view simply placed in different bodies by 
an arbitrary division. He finds that when thus divided the na- 
tional and the local governments each share in this indefinite 
supremacy. The writers of Zhe ederalist were concerned only in 
showing that the power of the general government must be indefi- 
nite and succeeded in doing so. As Hamilton stated it, *‘‘ of the 
same nature’’ (with the laws of mathematics) 
‘‘are those other maxims in ethics and politics that there cannot be an 
effect without a cause; that the means ought to be proportioned to the 
end; that every power ought to be commensurate with its object; that 
there ought to be no limitation of a power destined to effect a purpose 
which is itself incapable of limitation.’ 
1 Federalist, No. 39, p. 238, Lodge ed. 
2 [d., No. 31, p. 180. 
3 Jd,, No. 31, p. 180. 
