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Page:Harvard Law Review Volume 2.djvu/313

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In Willson v. The Black Bird Creek Marsh Co., the Legislature of Delaware had authorized a company to reclaim a marsh by constructing a dam across a small navigable creek in which the tide ebbed and flowed. Willson and the other defendants, the owners of a sloop regularly licensed under the United States navi- gation laws, had broken and injured the dam in order to effect a passage. In defence to an action of trespass brought by the company, the defendants contended that the statute authorizing the dam was an unconstitutional regulation of commerce, relying on Gibbons z/. Ogden. The Supreme Court, speaking through Chief Justice Marshall, unanimously held the statute constitutional. They pointed out that the legislation improved the value of the property, and probably the health of the inhabitants, near the marsh, adding : " 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 re- served to the States.** Upon the point of regulating commerce, on account of the controversy to which this case has given rise, I quote the language of the court entire ; *' 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, and which abound throughout the lower country of the Middle and Southern States, — we should 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 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 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 case is interesting as the first in which the court passed upon the constitutionality of a law which they treated as a police regulation, claimed to be in conflict with the power of Congress to regulate commerce. The case has been a source of continual

1 2 Pet. 252.