1900.] HASTINGS—POLICE POWER OF THE STATE. 409 
That the federal government, looked upon with such different 
‘feelings and intentions as it was by Federalists and by their oppo- 
nents, and expressly authorized as it was to find the state laws un- 
constitutional, would develop a counter theory of power in the 
state was a foregone conclusion, especially with the construction 
and application of the federal constitution in the hands of Judge 
Marshall. The growth of a line of decisions as to state legislative 
powers was to be expected first here. 
It was also certain that the development of the limitations upon 
state power from the other side, by insistence on the principles of 
the bills of rights, would take place. The latter might be expected 
to come more slowly, as it did. ‘Toward the middle of the cen- 
tury it began to be suggested that the development of these limita- 
tions from both sides was going to leave to the states only an 
‘‘empty shell of legislative power.’’ We have ‘seen how in decid- 
ing the Dartmouth College case Chief Justice Marshall kept in mind 
the avoidance of 
‘‘unprofitable and vexatious interference with the internal concerns of 
a state’’ and ‘‘those civil institutions which are established for pur- 
poses of internal government, and which to subserve those purposes 
ought to vary with varying circumstances.”’ 
His successor in dealing with the case of Charles River Bridge 
vs. Warren Bridge, in holding that no exclusive franchise would be 
conferred except by express terms, expressed the determination not 
to take from the States 
“any portion of that power over their own internal police and improve- 
ment which is so necessary to their well-being and prosperity.” 
In the courts generally there was little disposition to cut down too 
closely the powers of government. 
It is not strange that the application of the bills of rights as a 
test of the validity of state legislation was somewhat slow. ‘There 
was against it all the immense weight of legal precedent. In con- 
sidering the effect which any particular institution or constitutional 
provision has produced in this country, it is necessary to take into 
consideration the solid background of English common law, or 
what was accepted for it and reverenced accordingly. 
At the beginning of this consideration of the police power what 
was deemed an oversight on the part of Sir Henry Maine in not 
1 Supra, p. 627. 
