1900.] HASTINGS—POLICE POWER OF THE STATE. 408 
imaginary view of them,’’ it would seem to be safer, with Chief 
Justice Taney, to make a qualified admission of ‘‘ what is called 
the police power,’’ and to decline to accept zz foto the doctrine of 
an exclusive commercial power in Congress and of its essentially 
different nature from that of police power. If Judge Cooley only 
meant—as he probably would have claimed if pressed—that an 
accurate theory of the police power must include the fact that 
when it meets the paramount constitution of the United States it 
must yield, his expression does not seem a fortunate one. Conflict 
is certainly possible in all such meetings, and, in a true sense of the 
term, such a meeting of rival claimants is conflict. 
’ It seems strange that the ' ‘‘ high-toned federalists of the bench,”’ 
McLean and Wayne, should reproach the chief justice with a doc- 
trine that 
1“ degrades the states by making their legislation to the extent stated 
subject to the will of congress.” 
The essence of the federalist position, as Marshall clearly recog- 
nized, is the concurrent and subordinate position of the states and 
the paramount power of the federal government. 
In 1851 the famous case of 2 Cooley vs. Port Wardens of Phila- 
delphia was decided, and the exaction of the pilot dues in the 
harbor of that city under laws of Pennsylvania was upheld as a 
state regulation of commerce. The police power was not invoked 
to sustain it. Justices Wayne and McLean were compelled to dis- 
sent from such a recognition of ‘‘ commercial power ’’ in a state. 
The next year, 1852, the police power appeared once more in 
the federal court in * Moore vs. The People of the State of Illinois. 
This time a statute of the state of Illinois provided, under penalty 
of fine and imprisonment, that no one should harbor or secrete any 
person of color being a slave or servant, or in any way hinder an 
owner or master in retaking such. This law, unlike the Pennsyl- 
vania statute under consideration in Prigg vs. Pennsylvania, which 
made it a crime to forcibly seize a slave in the state of Pennsylvania 
without legal process, was held valid and 
“not to act on master nor slave, neither on constitutional right nor 
remedy, but solely on citizens of I]linois.”’ 
17 How., 399; Carson, Hist. of Sup. Court, quoting Story, p. 337. 
2 12 How., 299. STG LOU! U7: 
