1900.] HASTINGS-—POLICE POWER OF THE STATE, 405 
And the distinction is to be sought in the nature of a power exer- 
cised in each case. Is this following ‘‘the real nature of things 
rather than an imaginary view of them”’ ? 
In following thus carefully, and perhaps tediously, these earlier 
cases in the court where the police power was first named, and the 
conception of it developed and discussed under that appellation, it 
was hoped that an exact apprehension might be reached as to just 
what was that conception. It is evidently, so far at least, Madi- 
son’s ‘‘ residuary sovereignty of the states.” Evidently, too, it is 
not usuaily thought of by the court as including familiar forms of 
the exercise of such sovereignty, to which definite names had already 
attached, such as ‘‘eminent domain,’’ ‘‘ taxation,’’ ‘‘ administra- 
tion of justice,’’ etc. When analyzed by the judges, however, it is 
recognized to embrace them, or rather as not to be separable from 
them. 
At the same time we find the phrase constantly used, even by 
judges of the Supreme Court of the United States, as if it denoted 
something absolutely definite and distinct, and always, if not 
easily, distinguishable from any other function of government. As 
we have seen, it is talked of by them as if furnishing one of the 
criteria between state and federal powers. It is clear, however, 
that it was rightly characterized by Marshall himself as a ‘‘ mass 
of legislation,’’ and that it is obtained as a residuum after taking 
away from the general powers of government, first, such powers as the 
convention of 1787 found it necessary to bestow upon the general 
government, and, second, such other powers ordinarily regarded as 
sovereign as had already acquired distinct recognition. 
That such residuum is, and must remain, an indefinite ‘‘ mass ”’ 
seems clear if it is a remainder after carving away a part of sover- 
eignty, and the latter is 
1 ‘an indefinite supremacy over all persons and things, so far as they 
are objects of lawful government,” 
as Madison thought and Hamilton proved. 
Political sovereignty must be made equal to the exigencies of the 
state. These are indefinite, unknown and unpredictable. To 
make anything adjustable to an unknown variant is certainly to 
make it indefinite. This is not to say that it has nolimits. It may 
easily have, in some direction, a barrier which it cannot overleap. 
1 Federalist, No. 39, Lodge ed., p, 238. 
