.

was broad enough to justify the inference that the power to build bridges is, like that to construct the highways which they connect, primarily in the States, subject to the controlling hand of Congress. Such, also, was the drift of the argument in Escanaba v. Chicago, although the conclusion was narrower than the premises, and confined to "bridges over navigable streams which are entirely within the limits of the State." The question raised in The Wheeling Bridge Case is, therefore, still at large, and should seemingly depend, not on whether the river flows through one or many States, but on how far it is navigable, the size and number of the vessels which pass up and down the channel, and the kind and value of their cargoes. If the regulation of the Schuylkill may safely be left to the local authorities, and the Hudson is exclusively under the control of Congress, it is not because the entire course of the former river is in the State of Pennsylvania, while the latter divides New York from New Jersey, but because the traffic on the Hudson much exceeds that on the Schuylkill. A river flowing through two or more States may be so far common property that no one of them can sanction any structure that will obstruct the channel; but if, as we may infer from Gilman v. Philadelphia, a State may bridge rivers which, like the Penobscot, are important avenues of commerce, because they are exclusively within her borders, there would seem to be no sufficient reason why New York and New Jersey should not unite in throwing a bridge across the Hudson. The test seemingly should be, Is the river of such importance to interstate and foreign commerce that it should be exclusively regulated by the General Government, and cannot safely be trusted to local legislation, subject to the intervention of Congress? and the question whether the entire course of the stream is in the State, is a circumstance that may deserve attentive consideration, but is not of itself conclusive. A river which has its source in one State and its mouth in another, is, so far as its course through the former is concerned, as entirely local as if it did not enter the latter; and the Hudson above Newburgh should therefore be as much under the control of New York as is the Schuylkill

of Pennsylvania, especially if the latter be viewed in its true aspect as a branch of the Delaware.

The question arose in The People v. The Saratoga R. R. Co.,1 under an information filed by the Attorney-General of New York against the defendants for the erection of a bridge across the Hudson River from the city of Troy to a point on the opposite bank. The defendants relied on an authority from the legislature as a justification, and the plea was held valid on demurrer. The court said that the Hudson, from the ocean to the city of Troy, and above it as far as the village of Waterford, was an arm of the sea where the tide ebbed and flowed, and had long been used in carrying on commerce under the laws of the United States.

The place, therefore, was one where vessels registered and licensed as coasters under the act of Congress of February, 1793, had a right to pass, and where any obstruction entirely preventing or materially impeding navigation would be unlawful. The entire control over the waters of the States resided in Congress and the several States. This power was originally in the State legislatures, and had not been surrendered to Congress except so far as was necessary to secure a free navigation. A free navigation did not mean a navigation free from such obstacles and impediments as the best interests of society might demand. A vessel arriving at the port of New York from a foreign port, which had sailed and was navigated in pursuance of the laws passed by Congress, might be confronted at the quarantine ground, not by a bridge with a draw which could be passed in half an hour, but with a mandate from the State authorities requiring her to lie at anchor without communication with the shore for weeks, or, if the case required it, for a longer period. Yet no one contended that such detention was unconstitutional.

Chief-Justice Marshall had, on the contrary, enumerated quarantine laws and ferries as among the component parts of the mass of legislation that might be most advantageously exercised by the States. The word ferries was followed by an "etc.," implying that there were other subjects of a like kind; 1 15 Wend. 113.

and nothing was more analogous to ferries than the bridges for which ferries were but substitutes. Sovereignty was

divided between the States and the General Government; and as the right to build bridges was not delegated to the latter, nor denied to the former, it might be exercised by the State legislatures in any way that did not injuriously obstruct navigation. A bridge with a draw that might be opened free of expense for every passing vessel, fulfilled these conditions. It was held in the case of Blackbird Creek that the power of Congress had not been so exercised as to affect the question; and although it was not easy to see how that could be said of vessels navigating under a coasting license, if this was true of Blackbird Creek, the Hudson was indisputably a public navigable river, subject to the navigation laws of Congress. The defendants could not, therefore, have closed it by an impassable dam, but they might well construct a bridge with a draw, which facilitated intercourse by land without materially interfering with that which passed up and down the river.

We may infer from this decision, when read in connection with the language held in Gilman v. Philadelphia,' that the Federal courts should not enjoin a bridge which has been authorized by the State legislature, unless the injurious consequences to navigation are manifest and such as do not admit of the delay requisite for the intervention of Congress, which is the ultimate and appropriate tribunal for the decision of a question depending on circumstances that are beyond the scope of a judicial inquiry, and should be left to the legislature.

The power of Congress to regulate commerce, and the power of the President and Senate over the same subjectmatter through the treaties made with foreign nations, may obviously clash; and it seems to be well settled that when such a result ensues, the act of Congress will, if subsequent, prevail. A treaty is a law, but it has, so far as the courts are concerned, no higher claim, and may as concluded by two branches of the government, have less weight than a statute

13 Wallace, 713, 726.

REGULATION BY TREATY.

503

to which all have given their assent. It consequently falls within the rule that, as between two opposite enactments, that which is the latest declaration of the national will shall prevail. Whether the compact is or is not broken by such a course, is a political question beyond the scope of the judiciary, and must be left to the other departments of the government for settlement by negotiation or through

a recourse to arms.

1 Head-money Cases, 112 U. S. 588, 599; Chew Heong v. The United States, Id. 536, 562; Taylor v. Morton, 2 Curtis, 454, 459.

LECTURE XXIV.

Amendments to the Constitution. - The First Eleven intended to Limit the Powers of the Federal Government. The Constitutional Prohibitions apply exclusively to the United States, unless they are so worded as to include the States. A Prohibition addressed to the United States cannot be enforced as against the States, nor a Prohibition to the States as against Individuals. - The Police Power generally confined to the States, and insusceptible of being enforced or exercised by Congress. - The Fourteenth Amendment a restraint only on the States. State Citizenship, and Citizenship of the United

States. The Fifteenth Amendment addressed to the States and the United States. - The Thirteenth binding on the United States, the States, and the People. - A Statute unconstitutional in any Part is void in all, unless what is valid can stand alone. — Civil Rights Bill. What constitutes Involuntary Servitude.

THE Constitution of the United States was regarded by the statesmen who sat in the Federal Convention as so essentially limited as to require no express restraints beyond the few that were imposed in terms. The powers which it gave, were confined to certain necessary objects, and therefore plenary so far as these were concerned; but they were to be exercised by a chief magistrate and representatives chosen by the people, who were not likely to deal hardly with their constituents, and who might be impeached while in office, and held to a strict account when their terms expired. The purpose, as declared in the preamble, was to secure the blessings of liberty to the people of the United States and their posterity; and it was inconceivable that an instrument planned for such an end would be employed as an engine of arbitrary power. It did not confer an absolute authority, and was, on the contrary, a grant of enumerated powers

1 See The Federalist, art. 84; Story on the Constitution, sections 185, 206, 305, 1907.