merce.

Congress has a right, not only to authorize importation, but to authorize the importer to sell."

§ 342. States cannot interfere with the Importer's right to Sell. -The Chief Justice further proceeds: 1"What would be the language of a foreign government which should be informed that its merchants, after importing according to law, were forbidden to sell the merchandise imported? What answer would the United States give to the complaints and just reproaches to which such an extraordinary circumstance would expose them? No apology could be received or even offered. Such a state of things would break up commerce. It will not meet this argument to say that this state of things will never be produced, that the good sense of the states is a sufficient security against it. The Constitution has not confided this subject to that good sense; it is placed elsewhere. The question is, Where does the power reside? not, how far will it probably be abused. The power claimed by the state is, in its nature, in conflict with that given to Congress; and the greater or less extent in which it may be exercised, does not enter into the inquiry concerning its existence. We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation as an inseparable incident, is inevitable. If the principles we have stated be correct, the result to which they conduct us cannot be mistaken. Any penalty inflicted on the importer for selling the article in his character of importer, must be in opposition to the act of Congress, which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate commerce; since an essential part of that regulation, and principal object of it, is to prescribe the regular means for accomplishing that introduction and incorporation."

The judgment of the Maryland court was reversed; the state statute was declared unconstitutional and void. From this decision Mr. Justice Thompson dissented.

§ 343. The case of Brown v. Maryland reaffirms in the most

1 12 Wheaton's R. 447.

emphatic manner, the several propositions stated in § 338. For here the acts of Congress regulating, and therefore permitting importation, were held to be so complete an exercise of the power granted to the national legislature, as to preclude the states from interfering with the sale of the goods by the importer. It should be noticed that the laws of Congress were entirely silent upon the subject of sale.

§ 344. Wilson v. Blackbird Creek Company: Facts and Question at issue. The next case in order of time (1829), was that of Wilson v. Blackbird Creek Company.1 The case, though not elaborately considered by the court, is important, and has been made the precedent for subsequent decisions involving matters of more intrinsic magnitude. It came up from the highest court of Delaware. The company had been incorporated by a statute of that state, and were the owners of marsh land bordering upon the Blackbird Creek, a small stream connecting with the ocean, and in which the tide ebbed and flowed. They were authorized to make a dam across the creek, and to embank the marsh, the design being to reclaim the land. They proceeded to construct the dam by which the navigation of the stream was interrupted. Wilson, being owner of a sloop licensed and enrolled under United States statutes, broke and injured the dam, and was sued by the company for damages. Wilson justified his trespass by setting up his license and enrolment, and his right to navigate the creek, and that the dam was an unlawful obstruction to his right which he might and did remove. To his defence the company demurred, and the only question arising was as to the validity of the state statute. The court of Delaware held the statute valid, and overruled the defence. Wilson, thereupon, carried the case to the Supreme Court of the United States.

§ 345. Opinion of the Court. The opinion of the court was delivered by C. J. Marshall. He says: 2 "The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks passing through a deep, level marsh adjoining the Delaware, up

1 2 Peters' R. 245.

2 Ibid. 250.

which the tide flows for some distance. The 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 abridgment, 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 cognizance. The 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 af firmed; 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 can

not 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. Instead of

1 3 Wallace's R. 743.

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. Miln,1 (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 was argued twice. After the first argument, and before

1 11 Peters' R. 102.