At the adoption of the Constitution each State was possessed of a separate and independent sovereignty and an exclusive jurisdiction over all streams and water courses within its territorial limits.  The Articles of Confederation in no way affected this authority or jurisdiction, and the present Constitution, adopted for the purpose of correcting the defects which existed in the original Articles, expressly reserves to the States all powers not delegated.  No such surrender of jurisdiction is made by the States to this Government by any express grant, and if it is possessed it is to be deduced from the clause in the Constitution which invests Congress with authority “to make all laws which are necessary and proper for carrying into execution” the granted powers.  There is, in my view of the subject, no pretense whatever for the claim to power which the bill now returned substantially sets up.  The inferential power, in order to be legitimate, must be clearly and plainly incidental to some granted power and necessary to its exercise.  To refer it to the head of convenience or usefulness would be to throw open the door to a boundless and unlimited discretion and to invest Congress with an unrestrained authority.  The power to remove obstructions from the water courses of the States is claimed under the granted power “to regulate commerce with foreign nations, among the several States, and with the Indian tribes;” but the plain and obvious meaning of this grant is that Congress may adopt rules and regulations prescribing the terms and conditions on which the citizens of the United States may carry on commercial operations with foreign states or kingdoms, and on which the citizens or subjects of foreign states or kingdoms may prosecute trade with the United States or either of them.  And so the power to regulate commerce among the several States no more invests Congress with jurisdiction over the water courses of the States than the first branch of the grant does over the water courses of foreign powers, which would be an absurdity.

The right of common use of the people of the United States to the navigable waters of each and every State arises from the express stipulation contained in the Constitution that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”  While, therefore, the navigation of any river in any State is by the laws of such State allowed to the citizens thereof, the same is also secured by the Constitution of the United States on the same terms and conditions to the citizens of every other State; and so of any other privilege or immunity.