Page:Harvard Law Review Volume 1.djvu/172

 dam a small navigable tidal creek, for the purpose of reclaiming marsh land and improving the drainage of the surrounding territory. Willson, the owner of a sloop licensed as a coaster, had run into the dam with his vessel and injured it. In an action for damages for this injury, Willson set up that the law authorizing the dam was unconstitutional as infringing upon the powers of Congress to regulate foreign and interstate commerce, which, he contended, was “exclusive.” The Court held that the law was not unconstitutional. The opinion of the Court, which was very brief, was delivered by Chief-Justice Marshall. The following extract gives the substance of it: “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 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 State. 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 plaintiffs 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 those small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States, 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 Black Bird Creek Marsh