In this case it was held that the grant by the State of New York to an individual of an exclusive right to navigate its waters with steam vessels had no constitutional validity in so far as interstate or foreign commerce was affected. In support of this judgment, Marshall, in his opinion, laid down in general terms the doctrine that by the commerce clause, the Federal Government is granted an exclusive control of commerce between the States, and with foreign countries, and that, therefore, it is beyond the constitutional power of the States to grant, or to withhold, interstate or foreign commercial privileges.

In support of the doctrine that the grant to the Federal Government of the power to regulate interstate and foreign commerce did not exclude the States from a regulative power within the same field, it was argued by the counsel that this was the accepted doctrine with reference to the taxing power. As to this, Marshall, however, replied: "Taxation is the simple operation of taking small portions from a perpetually accumulating mass, susceptible of almost infinite division; and a power in one to take what is necessary for certain purposes, is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defense and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments; nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for state purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State .proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce."

42 9 Wh. 1; 6 L. ed. 23.

As to the enactment by the States of quarantine, health, and inspection laws, the validity of which had not been questioned, Marshall pointed out that these fall within the police powers of the States and do not evidence the possession by them of regulative authority over interstate and foreign commerce.

The precise point actually decided in Gibbons v. Ogden was that the federal authority over foreign and interstate commerce is exclusive in so far as that commerce is carried on by water. Interstate commerce upon land was not involved, and it would appear that general contemporaneous construction of the easel limited its operation to commerce by water.43 that the States may not in any way or to any substantial extent directly interfere with, or attempt the regulation of. commerce between the States by whatever agency that commerce may be carried on.44

To a certain degree, also, the doctrine laid down by Marshall was obiter in that it was held that the state action which was complained of was in violation of existing acts of Congress, and, therefore, was void whether the federal power over interstate commerce was held conclusive or only concurrent. But however this may be, the language of Marshall, and that of Justice Johnson in a concurring opinion, is much broader, and the case has since come to be the leading authority cited in support of the principle

43 This is quite clearly shown by Mr. Prentice. "There was nothing new," says Prentice, "in the establishment of the rule which to most modern readers seems the great achievement of the case, that federal power over commerce is exclusive. To the extent under consideration, it had always been so regarded. . . . That the federal power was exclusive seems, . . . as the subject was then regarded, to have had little relation to monopolies of transportation, and no relation whatever to land transportation and ferriage." Federal Control over Carriers and Corporations, p. 68.

A review of the cases which followed Gibbons v. Ogden will show, however, that the doctrine of the Supreme Court as to the exclusiveness of federal authority over commerce lias not been a uniform one. "Without abandoning the doctrine that the States are constitutionally disqualified from directly interfering with the regulation of commerce, the Supreme Court has at times upheld state acts which have in fact amounted to substantial interferences with interstate and foreign commerce. And, indeed, the language of the court, and even of Marshall himself in certain cases, has implied the adoption of the doctrine that the constitutionality of a state law in regulation of, or interfering with, the freedom of interstate and foreign commerce is to be tested rather by the existence of a conflicting federal statute, than by the exclusiveness of the federal jurisdiction.

In Brown v. Maryland,45 decided three rears after Gibbons v. Ogden, the court held void an act of a State requiring importers of foreign goods and persons selling the same to take out a license for which they were to pay fifty dollars. The act was held void not only as in violation of the constitutional provision forbidding the States to levy duties on imports, but as repugnant to the commerce clause, and also in conflict with the acts of Congress authorizing importation. Strictly speaking, therefore, the case did not necessarily involve the question of the exclusiveness of the federal power over interstate and foreign commerce. In the opinion which Marshall rendered that doctrine appears, however, to be accepted. "Any charge," he says, " 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." And again, "We cannot admit that [the States' power of taxation] may be used so as to obstruct the free course of a power given to Congress."46

44 Justice Johnson, in a concurring opinion, argued that the judgment of the court should be based upon an emphatic statement of the exclusiveness of the federal authority over commerce. He said: " The power of a sovereign state over commerce . . . amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain un-restrained. it follows that the power must be exclusive; it can reside in but one potentate; hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon."

45 12 Wh. 419; 6 L. ed. 678.

In Wilson v. Blackbird Creek Co.,47 decided in 1829, we find a much less Strict interpretation of the exclusiveness of the federal commercial power. In this case was upheld a state law authorizing the construction of a damon a navigable stream. It being contended that navigation and, therefore, commerce was interfered with, Marshall, apparently accepting a doctrine of concurrent power, held that inasmuch as Congress had not legislated upon the subject, the law authorizing the dam was valid. He said: "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 coining in conflict with such act would be void. But Congress has passed no such act." And, later on: "We do not think that the act can, under all circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, as being in conflict with any law on the subject."

It is difficult to harmonize this language with that used only a few years before in Gibbons v. Ogden and Brown v. Maryland or, indeed, with that employed in cases decided a few years later. Neither in the Blackbird Creek case itself nor in the later cases does Marshall indicate that he intends or had intended to declare a doctrine different from that earlier asserted. It would seem, therefore, that, though not so expressed, Marshall held that the damming of the creek, the purpose of which was to reclaim certain marsh lands was a legitimate exercise by the State of a police

46 A dissenting opinion was filed by Justice Thompson. 47 2 Pet. 245; 7 L. ed. 412. power which, in the absence of express congressional prohibition, might be justified even though navigation were to some extent evidently affected.