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tained in the 6th section of the act of Congress, passed on the 2d of March, 1819, viz. : “that all navigable waters within the said state shall forever remain public highways, free to the citizens of said state, and of the United States, without any tax, duty, impost, or toll therefor, imposed by said state,” conveyed no more power over the navigable waters of Alabama, to the government of the United States, than it possessed over the navigable waters of other states, under the provisions of the constitution. The United States now hold the public lands in all the new states by force of the deeds of cession and the statutes connected with them, and not by anymuni cipal sovereignty which it may be supposed they possess, or have received by compact with the new states for that particular purpose.
" To give,” says Mr. J. McKinley, who gave the opinion of the court, “to the United States the right to transfer to a citizen the title to the shores and the soil under the navigable waters, would be placing in their hands a weapon which might be wielded greatly to the injury of state sovereignty, and deprive the states of the power to exercise a numerous and important class of police powers. But in the hands of the states this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction with which the United States have been invested by the constitution. For, although the territorial limits of Alabama have extended all her sovereign power into the sea, it is there, as on the shore, but municipal power, subject to the constitution of the United States, and the laws which shall be made in pursuance thereof.” And the judgment of the supreme court of Alabama was affirmed; — Mr. J. Catron dissenting
The right of eminent domain of all the states over the tide waters and the soil under them, within their respective territorial jurisdictions, is undoubtedly subject, to a limited extent, to the power of the general government of the United States. It cannot be exercised in a manner repugnant to the constitution of the United States, in the following particulars : 1. To the eighth section of the first article, which grants to Congress the power to regulate commerce among foreign nations, and among the several states. 2. To the second section of the fourth article, which declares, that the citizens of each state shall be entitled to all the privileges of citizens in the several states. 3. To the second section of the third article, which declares, that the judicial power should extend to all cases of admiralty, and maritime jurisdiction. Commerce with foreign nations, and among the several states, means intercourse with those nations, and among those states, for purposes of trade; and this intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several states, or by a passage over land. It is this intercourse which Congress is invested with the power
regulating, and with which no state has a right to interfere. A relinquishment of this power by the states might be fairly deduced from the very act of confederation. But it was settled in the case of Gibbons v. Ogden, in the supreme court of the United States, that the acts of the legislature of the state of New York, granting to certain individuals the exclusive navigation of all the waters within the jurisdiction of that state, for a term of years, with boats moved by steam, are repugnant to the clause in the constitution of the United States, which authorizes Congress to regulate commerce, and the acts of Congress regulating the coasting trade made in pursuance of the constitution. The constitutional power of the federal government to regulate commerce, it was adjudged, also extended to navigation carried on by vessels exclusively employed in transporting passengers.?
But the power of Congress, which comprehends the use of, and passage over, the navigable waters of the several states, by no means impairs the right of
Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 371; Bennet v. Boggs, 1 Bald. (Cir. Co.) R. 60.
Gibbons v. Ogden, 9 Wheat. (U. S.) R. 1. By the decision in this case, the one made by the court of Errors in the state of New York, on appeal from the court of Chancery of that state, was reversed. See Gibbons Appellant v. Ogden Respondent, 17 Johns. (N. Y.) R. 488, and see 4 Johns. (N. Y.) Ch. R. 450, and Livingston v. Van Ingen, 9 Johns. R. 507. See Gibbons v. Ogden, recognized in Pollard's Lessee v. Hagan, 3 How. (U. S.) R. 229.
state governments to legislate upon all subjects of internal police within their territorial limits, which is not prohibited by the constitution of the United States, even although such legislation may indirectly and remotely affect commerce, provided it do not interfere with the regulations of Congress upon the same subject.
In a case in the supreme court of the United States, in 1829, the question was considered and decided, whether an act of the legislature of the state of Delaware, incorporating a certain company, was repugnant to the constitution of the United States, in so far as it authorized a dam across a salt water creek, in which there was, it was alleged, a certain common and public way, in the nature of a highway, for all the citizens both of the state of Delaware and of the United States, with sloops or other vessels, to navigate, sail, pass and repass over, at all times. It appeared, that the defendants, who were the owners of a certain sloop, licensed and enrolled according to the navigation laws of the United States, broke and injured the dam erected by the company; and that therefore an action of trespass vi et armis, was instituted against them in the supreme court of the state of Delaware, who gave judgment for the plaintiffs, which judgment was approved by the court of appeals of the state. It was then brought before the su
Cornfield v. Coryell, 4 Wash. (Cir. Co.) R. 371.
preme court of the United States by the defendants, for its review. The counsel for the plaintiffs in error insisted, that it came in conflict with the power of Congress “to regulate commerce with foreign nations, and among the several states.” The opinion of the court was delivered by Marshall, C. J., who said, “ 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 and re-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.” Had Congress, said the learned judge, “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