trade or commerce, and the fact, as we have seen, that trade or commerce might be indirectly affected was not enough to entitle complainants to a decree. The subject-matter of the sale was shares of manufacturing stock, and the relief sought was the surrender of property which had already passed and the suppression of the alleged monopoly in manufacture by the restoration of the status quo before the transfers; yet the act of Congress only authorized the Circuit Courts to proceed by way of preventing and restraining violations. of the act in respect of contracts, combinations, or conspiracies in restraint of interstate or international trade or commerce.

The Circuit Court declined, upon the pleadings and proofs, to grant the relief prayed, and dismissed the bill, and we are of opinion that the Circuit Court of Appeals did not err in affirming that decree. Decree affirmed.1

UNITED STATES v. HOLLIDAY.

SAME v. HAAS.

3 Wallace, 407. 1865.

THESE were indictments, independent of each other, for violations of the act of Congress of February 13, 1862, 12 Stat. at Large, 339, which declares that if any person shall sell any spirituous liquors "to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, he shall, on conviction thereof before the proper District Court of the United States," be fined and imprisoned.

This act of 1862 was amendatory of an act of June 30, 1834, 4 Stat. at Large, 732, declaring that if any person sold liquor to an Indian in the Indian country he should forfeit five hundred dollars.

These indictments were both in District Courts of the United States the one against Haas in the District Court for Minnesota (there not being at the time of the indictment any Circuit Court as yet established in Minnesota), and that against Holliday in the District Court for Michigan, and under the act of August 8, 1846, 9 id. 73, authorizing the remission of indictments from the District to the Circuit Courts, they were both removed into the Circuit Courts; the case of Haas, after he had been convicted of the offence charged and while a motion in arrest of judgment was pending and undetermined in the District Court.

In Haas's Case, the indictment charged that the defendant had sold the liquor to a Winnebago Indian, in the State of Minnesota, under the charge of an Indian agent of the United States; but it

1 MR. JUSTICE HARLAN delivered a dissenting opinion.

did not allege that the locus in quo was within the reservation belonging to the Winnebago tribe, or within any Indian reservation, or within the Indian country.

Upon this indictment the judges of the Circuit Court were divided in opinion on the questions:

1. Whether, under the act of February 13, 1862, the offence for which the defendant is indicted was one of which the Circuit Court could have original jurisdiction?

2. Whether, under the facts above stated, any court of the United States had jurisdiction of the offence?

MR. JUSTICE MILLER delivered the opinion of the court.

The second question in that [the Haas] case is this: whether, under the facts above stated, any court of the United States had jurisdiction of the offence?

The facts referred to are, concisely, that spirituous liquor was sold within the territorial limits of the State of Minnesota and without any Indian reservation, to an Indian of the Winnebago tribe, under the charge of the United States Indian agent for said tribe.

It is denied by the defendant that the act of Congress was intended to apply to such a case; and, if it was, it is denied that it can be so applied under the Constitution of the United States. On the first proposition the ground taken is, that the policy of the act, and its reasonable construction, limit its operation to the Indian country, or to reservations inhabited by Indian tribes. The policy of the act is the protection of those Indians who are, by treaty or otherwise, under the pupilage of the government, from the debasing influence of the use of spirits; and it is not easy to perceive why that policy should not require their preservation from this, to them, destructive poison, when they are outside of a reservation, as well as within it. The evil effects are the same in both cases.

But the act of 1862 is an amendment to the 20th section of the act of June 30, 1834, and, if we observe what the amendment is, all doubt on this question is removed. The first act declared that if any person sold spirituous liquor to an Indian in the Indian country he should forfeit five hundred dollars. The amended act punishes any person who shall sell to an Indian under charge of an Indian agent, or superintendent, appointed by the United States. The limitation to the Indian country is stricken out, and that requiring the Indian to be under charge of an agent or superintendent is substituted. It cannot be doubted that the purpose of the amendment was to remove the restriction of the act to the Indian country, and to make parties liable if they sold to Indians under the charge of a superintendent or agent, wherever they might be.

It is next asserted that if the act be so construed it is without any constitutional authority in its application to the case before us.

We are not furnished with any argument by either of the defendants on this branch of the subject, and may not therefore be able to state with entire accuracy the position assumed. But we understand it to be substantially this: that so far as the act is intended to operate as a police regulation to enforce good morals within the limits of a State of the Union, that power belongs exclusively to the State, and there is no warrant in the Constitution for its exercise by Congress. If it is an attempt to regulate commerce, then the commerce here regulated is a commerce wholly within the State, among its own inhabitants or citizens, and is not within the powers conferred on Congress by the commercial clause.

The act in question, although it may partake of some of the qualities of those acts passed by State legislatures, which have been referred to the police powers of the States, is, we think, still more clearly entitled to be called a regulation of commerce. "Commerce," says Chief Justice Marshall, in the opinion in Gibbons v. Ogden, to which we so often turn with profit when this clause of the Constitution is under consideration, "commerce undoubtedly is traffic, but it is something more; it is intercourse." The law before us professes to regulate traffic and intercourse with the Indian tribes. It manifestly does both. It relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.

If the act under consideration is a regulation of commerce, as it undoubtedly is, does it regulate that kind of commerce which is placed within the control of Congress by the Constitution? The words of that instrument are: "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Commerce with foreign nations, without doubt, means commerce between citizens of the United States and citizens or subjects of foreign governments, as individuals. And so commerce with the Indian tribes means commerce with the individuals composing those tribes. The act before us describes this precise kind of traffic or commerce, and, therefore, comes within the terms of the constitutional provision.

Is there anything in the fact that this power is to be exercised within the limits of a State, which renders the act regulating it unconstitutional?

In the same opinion to which we have just before referred, Judge Marshall, in speaking of the power to regulate commerce with foreign States, says, "The power does not stop at the jurisdictional limits of the several States. It would be a very useless power if it could not pass those lines." "If Congress has power to regulate it, that power must be exercised wherever the subject exists." It follows from these propositions, which seem to be incontrovertible, that

if commerce, or traffic, or intercourse, is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by Congress, although within the limits of a State. The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on. It is not, however, intended by these remarks to imply that this clause of the Constitution authorizes Congress to regulate any other commerce, originated and ended within the limits of a single State, than commerce with the Indian tribes.

b. Validity of State Regulations.

1. Local Provisions; Control of Harbors, Bridges, Dams,
and Ferries.

WILLSON v. BLACKBIRD CREEK MARSH COMPANY.

2 Peters, 245; 8 Curtis, 105. 1829.

ERROR to the High Court of Errors and Appeals of Delaware. The defendants, having been incorporated by the General Assembly of Delaware, and empowered to hold and improve certain marsh lands, were authorized for that purpose to make a dam across the Blackbird Marsh Creek. They did so, and the plaintiffs, being the owners of a sloop, regularly licensed and enrolled for the coasting trade, broke down the dam, and the defendants sued them in trespass. The plaintiffs pleaded, in substance, that the place where the supposed trespass is alleged to have been committed, was, and still is, part and parcel of said Blackbird Creek, a public and common. navigable creek, in the nature of a highway, in which the tides have always flowed and reflowed; in which there was, and of fight ought to have been, a certain common and public way, in the nature of highway, for all the citizens of the State of Delaware and of the United States, with sloops or other vessels to navigate, sail, pass, and repass, into, over, through, in, and upon the same, at all times of the year, at their own free will and pleasure.

Therefore, the said defendants, being citizens of the State of Delaware and of the United States, with the said sloop, sailed in and upon the said creek, in which, &c., as they lawfully might for the cause aforesaid; and because the said gum piles, &c., bank and dam,

in the said declaration mentioned, &c., had been wrongfully erected, and were there wrongfully continued standing, and being in and across said navigable creek, and obstructing the same, so that without pulling up, cutting, breaking and destroying the said gum piles, &c., bank and dam respectively, the said defendants could not pass and repass with the said sloop, into, through, over, and along the said navigable creek. And that the defendants, in order to remove the said obstructions, pulled up, cut, broke, &c., as in the said declaration mentioned, doing no unnecessary damage to the said Blackbird Creek Marsh Company; which is the same supposed trespass, &c. The highest court of the State having rendered a judgment in favor of plaintiffs below, this writ of error was brought.

MARSHALL, C. J., delivered the opinion of the court.

The jurisdiction of the court being established, the more doubtful question is to be considered, whether the act incorporating the Blackbird Creek Marsh Company is repugnant to the Constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows.

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 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.

The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States "to regulate commerce with foreign nations and among the several States."

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 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