zance.

value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cogniThe counsel for the plaintiff in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations and among the several states. If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over these small navigable creeks into which the tide. flows, we should not feel much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question. We do not think that the act empowering the company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." This is the entire opinion. The judgment was affirmed; and the state statute held valid.

§ 346. A consequence and effect have been attributed to this short case, which Chief Justice Marshall probably never dreamed of; for, as will be seen in the sequel, some of the judges have claimed that it formally overrules Gibbons v. Ogden, and Brown v. Maryland, and abandons the principles of interpretation settled by those celebrated judgments. It

cannot be denied that much of the language of C. J. Marshall here used can with difficulty be reconciled, not only to particular expressions, but to the whole course of his argument in those former decisions. The difficulty is not, that he rejects either the first or the second of the propositions stated by me in § 338; both are included in his opinion; but he seems to greatly modify the third. He now requires that Congress should have legislated in respect to this creek, or the class of streams to which it belongs, in order that the authority of the state over the same subject should be destroyed; it is not sufficient now that Congress should have legislated upon the general subject of navigation. Compare this case with that of Gibbons v. Ogden. In both, the persons attacking the state law were owners of a vessel licensed for the coasting trade; in both, the place affected by the state legislation was a navigable stream, lying within the state territory, in one case a great affluent of the ocean, in the other an insignificant tidal creek; in both, the states attempted to interfere with the free navigation of these streams, the one by imposing further conditions upon the navigator, the other by cutting off all access whatever. Yet in Gibbons v. Ogden, the general legislation touching the navigation of the coast was deemed enough to oust the jurisdiction of the state; while in Wilson v. The Blackbird Creek Company, legislation touching the stream itself seems to be required. I repeat that it is difficult to reconcile these cases; and it is just as difficult to suppose that Chief Justice Marshall would have swept away the doctrines he had elaborated with such a wealth and cogency of reasoning, without so much as a passing reference, even, to the former decisions.

Probably the best explanation of the Blackbird Creek case is that given by Mr. Justice Clifford, in Gilman v. Philadelphia. He says of it: "Judgment was rendered in that case by the same court which gave judgment in the case of Gibbons v. Ogden; and there is not a man living, I suppose, who has any reason, to conclude that the constitutional views of the court had at that time undergone any change. 1 3 Wall. 743.

Instead of overruling that case, it will be seen that the Chief Justice, who gave the opinion, did not even allude to it, although, as a sound exposition of the Constitution of the United States, it is second in importance to no one which that great magistrate ever delivered. Evidently he had no occasion to refer to it or to any of its doctrines, as he spoke of the creek mentioned in the case as a low, sluggish water, of little or no consequence, and treated the erection of the dam as one adapted to reclaim the adjacent marshes and as essential to the public health; and sustained the constitutionality of the law authorizing the erection, upon the ground that it was within the reserved police powers of the state."

This explanation removes all appearance of conflict from these three decisions of C. J. Marshall; without it they cannot fairly be reconciled.

§ 347. New York v. Miln: Facts and Question at issue. — Following the chronological order, the next case which we meet is The City of New York v. Miln1 (1837). This case is very important, as it fully considers what police regulations are within the jurisdiction of the states to adopt, although they may have connection with commerce. The action was brought in the Circuit Court of the United States held in New York. That state had passed a law providing, among other things, that every master of a vessel arriving at New York city from a foreign country, or from a port in another state, should, within twenty-four hours, make a report in writing, containing the names, ages, and last place of settlement of every passenger; and in default thereof should be liable to certain penalties to be sued for by the city of New York. The defendant, Miln, was the master of the ship Emily, and having arrived with passengers, and having failed to make the required report, was sued by the city of New York. Miln defended the suit on the ground that the statute of New York assumed to regulate commerce between the port of New York and foreign ports, and was unconstitutional and void. This was the sole question brought before the Supreme Court for decision. The cause 1 11 Pet. 102.

was argued twice. After the first argument, and before the decision, Chief Justice Marshall died, and his place was supplied by the appointment of Chief Justice Taney. A second argument was thereupon had.

§ 348. Opinion of the Court: Police Powers of the States. -The opinion of the court was delivered by Mr. Justice Barbour. He says: "It is contended by the counsel for the defendant that the act in question is a regulation of commerce; that the power to regulate commerce is, by the Constitution of the United States, granted to Congress; that this power is exclusive, and that consequently the act is a violation of the Constitution. . . . The plaintiffs deny that it is a regulation of commerce; on the contrary, they assert that it is a mere regulation of internal police, a power over which is not granted to Congress, and which, therefore, as well upon a true construction of the Constitution as by force of the tenth amendment to that instrument, is reserved to, and resides in, the several states. We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the states, because the opinion we have formed renders it unnecessary. In other words, we are of opinion that the act is not a regulation of commerce, but of police; and that, being thus considered, it was passed in the exercise of a power rightfully belonging to the states."

§ 349. Nature of Police Powers. The court continue: 2 "If, as we think, it be a regulation, not of commerce, but of police, then it is not taken from the states. To decide this, let us examine its purpose, the end to be attained, and the means of its attainment. It is apparent from the whole scope of the law, that the object of the legislature was to prevent New York from being burdened by an influx of persons brought thither in ships, either from foreign countries, or from any other of the states; and for that purpose a report was required of the names, places of birth, etc., of all passengers, that the necessary steps might be taken by the city authorities to prevent them from becoming chargeable

1 11 Pet. 131.

2 Ibid. 132.

as paupers. Now, we hold that both the end and the means here used are within the competency of the states." The justice then discusses the application of Gibbons v. Ogden, and Brown v. Maryland, to the present case. The conclusion arrived at was, that they had no applicability.1 In commenting on the case of Brown v. Maryland, the learned justice said, speaking of the principles therein laid down by Chief Justice Marshall: 2" But how can this apply to persons? They are not the subject of commerce; and not being imported goods, cannot fall within a train of reasoning founded upon a construction of a power given to Congress to regulate commerce, and the prohibition of the states from imposing duties on imports." The argument of the court is finally summed up: "But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a state has the same undeniable, unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States: that, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to those ends, where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated: that all these powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive."

The New York statute was declared valid. From this decision Mr. Justice Story very earnestly and emphatically. dissented. With his opinion he stated that Chief Justice Marshall had agreed.

§ 350. In my opinion, the decision of the court upon the

1 11 Pet. 133-136.

2 Ibid. 136.

8 Ibid. 138.