CVS, Part III of V

Follow Progress For Westhampton Beach

By:  Progress for Westhampton Beach

Continued from CVS, Part II of V in which we ride on the Sally up the Blackbird Creek.

This part of the old story involves Thompson Willson, the State of Delaware, and the Blackbird-Creek Marsh Company.

The State of Delaware authorized the Blackbird-Creek Marsh Company to construct a dam that blocked a navigable, deep water, creek that was a tributary to the Delaware River.

Thompson Willson, being the owner of a 95 ton1)this does not refer to the weight of the ship.  This had originally been measured as the number of tuns (casks of wine) a ship could carry, but by 1720 this was calculated using the “Old Builder’s Measurement, OBM” which was a formula that used the length and beam of the ship for sailing vessels to calculate tonnage that could be carried by the ship. sloop called the Sally, was of the opinion that the dam infringed upon his right to use the navigable waterways.  Thompson Willson sailed up the creek and destroyed the dam to restore his free sailing access to Blackbird Creek.

The Blackbird-Creek Marsh Company brought an action in Delaware Supreme Court claiming that Willson had committed a trespass vi et armis2)by force of arms and sought damages of $20,000.3)$500,000 in current dollars  The Delaware State Court found for the Blackbird-Creek Marsh Company and against Willson.

Willson decided to take his case to the U.S Supreme Court, but did not enlist the services of Daniel Webster.  His counsel is reported only as “Mr. Coxe.”  Coxe argued successfully that:  even though no federal statute and no federal license had been issued to Willson like the one held by Thomas Gibbons, nonetheless, the State of Delaware had infringed on interstate commerce by authorizing the damming of Blackbird Creek.  By this time it was not disputed that navigable waterways were subject to the jurisdiction of the federal government.4)if you ever have occasion, ask Riverhead Town Justice Allen M. Smith about:  the footbridges over the Peconic River in Grangebel Park (above the waterfalls) the Army Corp. of Engineers, and navigable waterways.  Chief Justice John Marshall agreed and delivered the opinion of the Court which held that this case involved the “dormant” Commerce Clause.

Nowhere will you find the word “dormant” in the U.S. Constitution. It has now become a legal term of art.  The Marshall Court used “dormant” to describe the powers possessed by Congress with respect to interstate commerce that Congress had not yet affirmatively exercised.

Thompson Willson still went home the loser.  While the Supreme Court accepted Willson’s argument and expanded the Court’s jurisdiction over future cases involving the “dormant” Commerce Clause, it also accepted that the State of Delaware’s argument that Delaware was exercising permissible police powers.5)we will return to police powers shortlyDelaware argued it was protecting the health safety and welfare  of its residents by eliminating one of those

“sluggish reptile streams, that do not run but creep, and which,    wherever it passes, spreads its venom, and destroys the health  of all those who inhabit its marshes.”6)Times sure change, see what the EPA says today.

Willson’s counsel unsuccessfully argued that it was not the State of Delaware that was acting for the benefit of its citizens, but rather private citizens who had been authorized by the State of Delaware to act in furtherance of their own personal economic interests. Willson’s argument on this point failed and the U.S. Supreme Court affirmed the decision of the the Delaware Court.

Chief Justice John Marshall once again7)recall the 1803 case of Marbury v. Madison 5 U.S. 137 in which Justice Marshall declared that the Supreme Court provides final constitutional review of Congressional statutes. had expanded the authority of the U.S. Supreme Court and the federal government by recognizing a “dormant” Commerce Clause, while remaining deferential in this particular case to the principles of federalism and the rights reserved to the states.

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There is only a little more before we reach CVS, and Sunset Avenue in Westhampton Beach.

Tomorrow — we will come back to New York State, in the depths of the Great Depression and the Milk Wars in Part IV of V

References   [ + ]

1. this does not refer to the weight of the ship.  This had originally been measured as the number of tuns (casks of wine) a ship could carry, but by 1720 this was calculated using the “Old Builder’s Measurement, OBM” which was a formula that used the length and beam of the ship for sailing vessels to calculate tonnage that could be carried by the ship.
2. by force of arms
3. $500,000 in current dollars
4. if you ever have occasion, ask Riverhead Town Justice Allen M. Smith about:  the footbridges over the Peconic River in Grangebel Park (above the waterfalls) the Army Corp. of Engineers, and navigable waterways.
5. we will return to police powers shortly
6. Times sure change, see what the EPA says today.
7. recall the 1803 case of Marbury v. Madison 5 U.S. 137 in which Justice Marshall declared that the Supreme Court provides final constitutional review of Congressional statutes.

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