384 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
manufacture are sold without one, and if the foreign article be injurious 
to the health or morals of the community, the state may, in the exer- 
cise of that great and conservative police power which lies at the foun- 
dation of its prosperity, prohibit the sale of it. No one doubts this in 
regard to infected goods or licentious publications.” 
This seems to be carrying the doctrine of faculties even farther 
in the theory of government than it was ever carried in metaphysics. 
He adds as a corrective: 
“Such a regulation must be made in good faith and have for its sole 
object the preservation of the health or morals of society. If a foreign 
spirit should be imported containing deleterious ingredients fatal to the 
health of those who use it, its sale may be prohibited. When in the 
appropriate exercise of these federal and state powers contingently and 
incidentally their lines of action run into each other, if the state power 
be necessary to the preservation of the moral health or safety of the 
community it must be maintained; but this exigency is not to be 
founded on any notions of commercial policy or sustained by a course 
of reasoning about that which is supposed to affect in some degree the 
public welfare.” 
With regard to the New Hampshire case, he holds the fact that all 
sales whatever without license are forbidden does not vitiate the 
law, because, as he thinks, the prohibition of tax upon imports by 
the states has reference only to imports from foreign countries. 
Justice Catron comes to the support of the chief justice, and 
thinks the giving Congress power to legislate on a given subject 
would not of itself deprive the states of such power, but only of 
all right to act contrary to the constitution or to acts of Congress 
passed in accordance with it. The assumption is that the police 
power was not touched by the constitution, but left to the states as 
the constitution found it. This is admitted; and whenever a thing 
from character or condition is of a description to be regulated by 
that power in a state, then the regulation may be made by the 
state, and Congress cannot interfere; but this must always depend 
on facts subject to legal ascertainment, so that the injured 
may have redress, and the fact must find its support in this: 
Whether the prohibited article belongs to and is a subject to 
be regulated as a part of foreign commerce or commerce among 
the states. If from its nature it does not belong to commerce, 
or if its condition from putrescence or other cause is such when 
it is about to enter the state that it no longer belongs to com- 
