1900. ] HASTINGS—POLICE POWER OF THE STATE. 585 
merce—or, in other words, is not a commercial article—then the 
state power may exclude its introduction. As an incident to this 
power, the state may use means to ascertain the fact, and here is 
the limit between the sovereign power of the state and federal 
power. 
‘‘What, then, is the assumption of the state court? Undoubtedly in 
effect that the state had power to declare what should be an article of 
fawful commerce in the state, and having declared that ardent spirits 
and wines were deleterious to morals and health, they ceased to be 
commercial commodities there, and that then the police power attached 
and consequently the powers of Congress could not interfere. The 
exclusive state power is made to rest not on the fact of the state or con- 
dition of the article, nor that it is property usually passing by sale from 
hand to hand, but on the declaration found in the state laws and as- 
serted as a state policy that it shall be excluded from commerce. By 
this means the sovereign jurisdiction in the state is attempted to be 
created where it did not before exist.” 
As Judge Catron adds, if the state can do this at pleasure, the 
power of Congress over commerce is gone. For that reason he 
thought the New Hampshire case could not be held to depend upon 
the police power, considered as a sovereign reserve power in the 
state and beyond all control of Congress. If the law is to be sus- 
tained, it must be held to have passed in the exercise of a subordi- 
nate power over commerce not forbidden to the states either im- 
pliedly by the constitution nor expressly by Congressional legisla- 
tion. He then follows over the ground occupied by the chief 
justice, * citing ? Hamilton in Zhe Federalist. 
Judge Daniel attacks the doctrine of Brown vs. Maryland as 
energetically as the chief justice upholds it. Judge Daniel declines 
to allow that the commercial power of Congress extends into the 
states and accompanies imported articles to their destinations 
within state boundaries. He declares, 
3 Tt is wholly otherwise under our system of confederated sovereigns.” 
Justice Wocdbury finds the cases satisfactorily disposed of in 
the opinions already given, and the most of the points raised he 
thought not material. He, however, like Justice Daniel, is unable 
to ‘put his conscience into commission ” where the relations of 
the state are concerned. 
15 How., 607. 2 Federalist, No. 32. 8 5 How., 615, 
