v. Olmstead, 1 Root, 217; Carson v. Blazer, 2 Binn. 475; Wilson v. Forbes, 2 Dev. 30; Cox v. The State, 3 Blackf. 193; Bullock v. Wilsor., 2 Port. 436.

The common law accorded to the sovereign power the "care, supervision, and protection" of this common right of navigation in navigable waters, whether fresh or salt: Hale, De Jure Maris, c. 4, prop. 3. This treatise has been received with approbation in most of the states as a correct exhibition of the law on those subjects of which it treats. The power which has the "care, supervision, and protection" of a common right, is bound to regulate its use in such manner that it may be safe and convenient. The duty to make the use safe and convenient involves the right to remove obstructions, to improve or to render more safe and convenient the waters for the purposes of navigation. The right to improve navigable waters is therefore accorded to and it exists in the sovereign power, which is entitled to regulate the use of such waters for the purposes of navigation. The common law conceded to the sovereign power the care, supervision, protection, regulation, and improvement of navigable waters, that no one might be molested in the enjoyment of the use of them, or debarred of the exercise of his common right. Without regulation or without improvement the enjoyment might be unsafe, inconvenient, or useless.

When several of the states of this Union, formerly subject to the British sovereignty, severed the ties that bound them to it, their respective citizens became possessed of the sovereign power in their states, and entitled to exercise the rights over navigable waters, which were formerly vested in the British crown. This they could not well do without a delegation of these rights to some form of government. Having formed a state government, they yielded the exercise of these rights to it, and the state governments thus became rightfully entitled to the care, supervision, protection, regulation, and improvement of the navigable waters within the states respectively, in a manner not inconsistent with the provisions of their respective constitutions. These rights, or this power, they still retain so far as it has not been granted or delegated to the government of the United States. This state has therefore the right to make improvements in its navigable rivers and waters for the more safe, convenient, and useful enjoyment of the common right of navigation in them.

When the people are in the enjoyment of that common right in several different modes, their rights or privileges are

not necessarily in any degree impaired or abridged by the introduction of another and new mode of using the waters for passage and transportation. The use of the waters in the accustomed modes may be rendered more safe and convenient by the improvements required for the introduction of the new mode. If the state may rightfully permit or restrain the introduction of a new and particular mode of navigation without prejudice to the common right of use in the accustomed manner, it may do so upon such terms and conditions as it may judge to be expedient. And may therefore encourage its introduction, by a grant of the exclusive use of the waters in that mode for a term of years, as a compensation for the skill, expense, and risk required for its introduction. This it may do without an infringement upon or a diminution of the common right of navigation existing at the time.

The agreed statement of facts does not show that the navigation of the Penobscot river, in the accustomed manner, must necessarily be injured, or that it has in fact been injured, or that the rights of the defendants or of any other citizen to such use have been impaired or abridged, by the introduction of a new mode of navigation by the act, by boats moved by steam. It does not therefore appear that any existing rights have been invaded or diminished by the passage of the act.

The right of the state, however, to impair and diminish the common right of passage and of transportation, in the accustomed manner, for the purpose of increasing the facilities for its more safe, convenient, and useful exercise in another manner, has been asserted and exercised in most of the states; and in many of them, with the sanction of the highest judicial tribunals.

Permission has been given to erect dams which impeded the navigation of rivers, to increase the facilities for their navigation by means of canals and locks, and for the use of their waters to feed canals not useful for their own navigation. To place booms in and across navigable rivers, to facilitate the floating of logs and lumber. To change the channel of rivers, by which the navigation of them, as formerly enjoyed, has been entirely destroyed, to facilitate it in a new channel.

Permission has also been given to erect dams, bridges, causeways, and other obstructions impeding the navigation, not for the purpose of giving greater facilities in another mode, but for the promotion of a common benefit, in a manner entirely disconnected with navigation; such as dams, to create a water-power for

different manufacturing purposes, and to control and withdraw the water to supply aqueducts; and bridges and causeways, to facilitate intercourse by land: Spring v. Russell, 7 Greenl. 273; Proprietors of Side Booms v. Haskell, Id. 474; Cottrill v. Myrick, 12 Me. 222; Parker v. The Cutler Milldam Co., 20 Id. 353 [37 Am. Dec. 56]; Lebanon v. Olcott, 1 N. H. 339; Woods v. The Nashua Manufacturing Co., 4 Id. 527; Commonwealth v. Breed, 4 Pick. 460; Charles River Bridge v. Warren Bridge, 7 Id. 445; Boston Mill Dam v. Newman, 12 Id. 467 [23 Am. Dec. 622]; Mayor of Charlestown v. County Commissioners of Middlesex, 3 Met. 202; Kellogg v. Union Com., 12 Conn. 7; Enfield Toll Bridge Co. v. The Hartford & New Haven R. R. Co., 17 Id. 40 [42 Am. Dec. 716]; Lansing v. Smith, 8 Cow. 146; The People v. The Rensselaer & Saratoga R. R. Co., 15 Wend. 113 [30 Am. Dec. 33]; Zimmerman v. The Union Canal Co., 1 Watts & S. 346; Susquehanna Canal Co. v. Wright, 9 Id. 9 [42 Am. Dec. 312]; Commonwealth v. Fisher, 1 Pen. & W. 462; Monongahela Navigation Co. v. Coons, 6 Watts & S. 101; Gavit v. Chambers, 3 Ohio, 495; Hogg v. Zanesville Canal and Man. Co., 5 Id. 410; Willson v. The Blackbird Creek Marsh Co., 2 Pet. 245; The City of Georgetown v. The Alexandria Canal Co., 12 Id. 91; United States v. The New Bedford Bridge, 1 Wood. & M. 401.

Many other cases might be cited, as well, if not better, suited to illustrate and establish the rightful exercise of such a power. The provision contained in the constitution that the legislature "shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state, not repugnant to this constitution, nor to that of the United States," is especially relied upon. The argument attempts to prove that the act is not a reasonable one; that it is not for the benefit of the people; and that it is the right and duty of this court to judge of it in both those respects.

The legislature must of necessity judge of these matters in the first instance. This court is not authorized to decide whether an enactment of the legislature, which by the constitution it is clearly entitled to make, is reasonable or for the benefit of the people. The legislature is expressly authorized to establish inferior courts. It does establish one. This court can not decide that it was not reasonable, or for the benefit of the people, that such a court or one of such a character should be established. To do so would be to violate the constitution and cause a conflict between these two departments of the government. When the legislature decides that an act is reasonable and for the benefit

of the people, as it does by making the enactment under the sanction of an oath to support the constitution, that decision must be conclusive, if the enactment be not repugnant to any provision of the constitution, and be not made colorably to effect one purpose under the appearance of affecting another.

If the legislature should authorize private property to be taken ostensibly for public use, when it is apparent by the enactment itself that it was intended to be taken for private uses only, it would be the duty of this court, in a case properly presented, to examine and decide upon its character; and it would not be bound by any declaration of the legislature, that the property was taken for public use. But when the question is one of expediency merely, the decision of the legislature, that it is reasonable and for the benefit of the people, is conclusive: Spring v. Russell, 7 Greenl. 273; Parker v. The Cutler Milldam 30., 20 Me. 353 [37 Am. Dec. 56]; Commonwealth v. Breed, 4 Pick. 460; The People v. The Rensselaer & Saratoga R. R. Co., 15 Wend. 132 [30 Am. Dec. 33]. The cases cited by the counsel for the defendants do not authorize a different conclusion. The remark referred to in the case of The City of Boston v. Shaw, 1 Met. 135, was made respecting a by-law, and not respecting a legislative enactment.

Whether it was expedient, and in that sense reasonable and for the benefit of the people, to grant for so long a period the exclusive navigation by boats moved by the power of steam, of that part of the Penobscot river, to induce persons of skill to incur the risk to be anticipated by their introduction and use, is a question which this court is not authorized to entertain and decide. It does not find any provision of the act to be repugnant to any of the provisions of the constitution of this state.

5. The provisions of the act are alleged to be repugnant to that clause of the constitution of the United States which declares, congress shall have power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." In the consideration of this question, it will be admitted that commerce includes navigation, and that the regulation of it includes the regulation of navigation without regard to the kind of vessel employed, or the kind of waters in which it is floated, or the kind of power by which it is moved. And without intimating any opinion upon the controverted question, whether congress has the exclusive power to regulate commerce to the extent of the grant, its exclusive power to do so will be admitted for the consideration of this case. That part of the

power of congress to regulate commerce will only be considered which authorizes it to regulate navigation. The inquiry, therefore, will be limited to the extent of the power of congress to regulate navigation. The three different branches of the power to regulate commerce will be separately considered so far only as that power extends to the regulation of navigation.

The first gives the power to regulate navigation with foreign nations. The exercise of this power is not limited by the bounds of any state. Vessels may be authorized to navigate waters within the bounds of a state, and to pass through a state, if it be practicable to do so while employed in this class of commerce. The power was conferred without regard to the jurisdiction of the states. The limits of a state do not constitute any portion of the elements, by which the extent of the power is to be ascertained and determined; nor does the kind of waters in which the vessel is navigated. The exercise of the power is not restricted to waters in which the tide ebbs and flows. There may be commerce and navigation of this class upon fresh-water lakes and rivers, and to the regulation of such navigation the power will extend.

This exercise of power is, however, restricted in these and in all other waters to the regulation of such navigation as can be employed in commerce with foreign nations. It is restricted by the natural limitation existing upon the practical and possible use of the waters for purposes of commerce with foreign nations. If a vessel can not be navigated from waters within a state to a foreign port, the right to regulate the navigation upon such waters is not embraced by the terms by which the power is granted. On the other hand, when a vessel can be navigated from a port or place, within any of the states of the Union, to a foreign port or place, the United States may authorize it to navigate those waters, and no law of a state can prevent it. From whatever ports or places within any of the states situate, on tide-waters, or on fresh-water rivers, or on fresh-water lakes, a vessel can be navigated to a foreign port or place, there the laws of the United States may reach to secure and to protect her right to that navigation. Beyond this, such laws can not reach for such a purpose. Upon waters not included within such limits, whether they be salt or fresh, vessels may be navigated without submission to the laws of the United States. To their regulation her laws do not and can not extend. Their regulation is one of those rights not by this branch of the power conferred upon the United States, but is one of those re