impeded. The constitutionality of this act was involved in the case. It was contended on the one hand that the constitutional powers of congress to regulate commerce included navigation, and that the states were by this provision deprived of the power of obstructing a navigable river. On the other, it was contended that the power to regulate commerce, did not interfere with the rights of the state over the property within its boundaries. That while the waters of the United States belonged to the whole people of the nation, this creek continued subject to the power of the state. That it was one of those sluggish, reptile streams which destroyed the health of the inhabitants; and that the nature of the dam was to draw off the pollution. That as congress had not legislated upon the subject of this stream, the power given to it to regulate commerce did not extend to such a case. It was held, that the act of assembly by which the plaintiffs were authorized to construct their dam, showed 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, were undoubtedly within those which are reserved to the states. But, it was said, 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. To this it was replied, but

this abridgment, unless it comes in conflict with the constitution, or a law of the United States, was an affair between the government of Delaware and its citizens, of which the court could take no cognizance. The counsel for the plaintiffs in error insisted that it comes in conflict

with the power of the United States, "To regulate commerce with foreign nations, and among the several states." It was admitted that 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 fiows, and which abound throughout the lower country of the Middle and Southern states; the court would feel not 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 was 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.

§ 204. The following case has been held to be within this constitutional restriction: An act of the legislature of Maryland was passed requiring all importers of foreign goods by the bale, and package, &c., and all other persons selling the same by wholesale, bale or package, &c., to take out a license, for which they should pay fifty dollars, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties. In Brown v. The State of Maryland, (a) the constitutionality of this law came before the federal court, and it was insisted that it was repugnant to the provision of the constitution of the United States, in which it was declared, that "no state shall, without the consent of congress, lay any impost, or duty on imports or exports, except what shall be necessary for executing its inspection laws;" and also to that in which it was declared, that congress shall have power " to regulate commerce with foreign nations, among the several states, and with the In

(a) 12 Wheat. R. 419.

dian tribes." It was held, that imports or duties was a custom or tax levied on articles brought into the country, and was most usually secured before the importer was allowed to exercise his right of ownership over them. That it would not be less an impost or duty on the articles if it were levied on them after they were landed. That the policy and consequent practice of levying or securing a duty before or on entering the port, did not limit the power to that state of things, nor, consequently, the prohibition, unless the true meaning of the clause so confined it. "Imports" are things "imported;" they are the articles themselves which are brought into the country. The words taken in their literal sense were not confined to a duty levied while the article was entering the country, but they extended to a duty levied after it had entered the country.

§ 205. We had occasion in another capacity, in the case of The People v. Huntington.(a) to consider this question. We then took occasion to examine the question somewhat minutely, and then arrived at the conclusion, and remarked, that, "Antecedent to the establishment of the federal government, the colonies had full power, with the assent of the mother country, to legislate fully respecting their internal affairs, and of course to prescribe the mode and manner in which trade should be carried on in their respectivé territories, and to adopt such police regulations as each might deem expedient. Under the articles of confederation, this power to regulate internal trade and commerce and to establish police regulations, remained unimpaired with the several states. There was nothing in those articles at variance or in conflict with such state legislation over matters having reference to the internal trade of the states. Indeed the only qualification of the right of the states to lay imposts or duties was they should not

(a) 4 New York Legal Observer, p. 187.

lay any such as should interfere with any stipulations in treaties entered into by the United States, in pursuance of any treaties already proposed by congress to the courts of France and Spain. Thus it will be perceived, under the articles of confederation, there is no doubt of the power of the states down to the adoption of the federal constitution, to regulate the internal commerce of the states. It is also equally clear, that unless the power to regulate the trade of a state which is purely internal, and to establish police regulations, having relation to and bearing upon such trade, is vested in the federal government under this general power to regulate commerce, as that government is one of the delegated powers, it does not possess it, unless it is one necessarily incident to the due execution of the powers expressly given. Has this power under the general grant of power to congress been taken away from the states? In the consideration of this question we shall briefly allude to the defects existing under the articles of confederation, and the reasons which induced the framers of the constitution to clothe congress with the power to regulate commerce. Under the articles of confederation each state had power to pursue a system of commercial polity peculiar to itself, and such an one as occasioned destructive preferences and exclusions, which begat great discontent among the several states. Those states which were peculiarly favorably situated in reference to the commerce of the nation, in some instances endeavored to secure exclusive benefits to their own citizens by regulations, the infractions of which on the one side, and the efforts to repel and prevent them on the other, it was thought might lead to outrage, reprisals, and wars among the several states. It was believed that the opportunity which some states would have in rendering others tributary to them by commercial regulations, would be impatiently sub

mitted to by tributary states. A very material and essential object of this power was the relief of those states which, from their peculiar geographical position, must import and export through other states, from the improper contributions which might be levied upon them by the latter. Were the several states at liberty to regulate the trade between state and state, means might be resorted to to load the articles of import and export during their passage through their jurisdictions, with duties which would fall with peculiar severity on the citizens of the interior states, which would be a constant source of uneasiness, discontent and animosity, which would seriously interrupt the public tranquility, as it would naturally stimulate the injured parties to a spirit of resentment and retaliation which might divert the commerce of the country from the ordinary and natural channels, so as seriously to affect the commercial interest of all the states of the confederacy. The experience of the American states, during the confederacy, had evinced that such arrangements could and would be made, under the stimulating influence of local interest and the desire of undue gain. Instead of acting as a nation in regard to foreign powers, the states individually commenced a system of restraint upon each other to such an extent that the interest of foreign powers was promoted at their expense. Whenever one state imposed high duties on the goods of a foreign power, to countervail the regulation of such powers, the next adjoining state imposed lower duties to invite these articles into their ports, that they might be transmitted thence into other states, securing the duties to themselves. This contracted policy in some of the states was soon counteracted by others. Restraints were immediately laid on such commerce by the suffering states, and thus a state of affairs, disorderly and unnatural, grew up, the necessary tendency of which was to destroy the Union itself.