establishment on a sure and firm basis of the legislative power of the United States.

Second. The Extent of the Power.

§ 375. I am now brought to the consideration of the second division into which the whole subject was separated: The extent of the power to regulate commerce; or, what particular acts may Congress pass by virtue thereof?

The dicta, opinions, and judgments already cited partially answer this question; but we have been virtually considering what the states may do; we now ask what may Congress do? Very few cases have arisen in which this question has been directly presented to the Supreme Court, and the validity of the national legislation been passed upon. Whatever has been said by the judges, has generally been by way of argument or illustration. It is true, in Brown v. Maryland, the course of his reasoning led C. J. Marshall to examine the power of Congress to regulate the importation of goods; the Passenger cases established its power over the introduction of persons; the Wheeling Bridge case determined that it might maintain a bridge over a navigable stream flowing through or between two or more states.

1

§ 376. As an introduction to the subject under discussion, I will quote some remarks of C. J. Marshall on the extent of the power of Congress to regulate commerce, which he made in the great case of Gibbons v. Ogden. He says: "The subject to be regulated is commerce; and our Constitution being, as was aptly said at the bar, one of enumeration and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying or selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term applicable to many objects, to one of its significations. Commerce undoubtedly is traffic; but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is 19 Wheaton's R. 189.

regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of vessels of one nation into the ports of the other, and be confined to the prescribing rules for the conduct of individuals in the actual employment of buying and selling or barter."

§ 377. Again: 1 To what does this power extend? The Constitution informs us, to commerce with foreign nations, and among the several states, and with the Indian tribes. It has, we believe, been universally admitted, that these words. comprehend every species of intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other to which this power does not extend. It has been truly said, that commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it.

The subject to which the power is next applied is, to commerce among the several states. The word " among" means intermingled with. A thing which is among others is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, or which does not extend to or affect other states. Comprehensive as the word among is, it may very properly be restricted to that commerce which concerns more states than one."

§ 378. These propositions, so clearly conceived, and so forcibly stated by the great Chief Justice, have remained unanswered, a constant guide to the courts in interpreting the Constitution, and to Congress in legislating under it. What

19 Wheaton's R. 193.

laws, then, may Congress pass under this general grant of power?

The two controlling words are "commerce" and “ regulate." We are to fix the meaning of these terms, and then apply the general principle, that the grant of power includes all the means which are appropriate for making it effective.

Commerce is a word of very wide signification. It includes the fact of intercourse and of traffic, and the subject-matter of intercourse and traffic. The fact of intercourse and traffic, again, embraces all the means, instruments, and places, by and in which intercourse and traffic are carried on; and, further still, comprehends the act of carrying them on at these places, and by and with these means. The subject-matter of intercourse or traffic may be either things goods, chattels, merchandise or persons. All these may therefore be regulated.

ocean.

Intercourse and traffic need not be carried on over the ocean, or waters naturally navigable connecting with the Inland lakes and rivers, artificial canals, roads, turnpikes, and railways, are channels for intercourse and traffic; and commerce carried on by these means, growing every day in importance, if foreign or inter-state, is as much the subject of regulation by Congress as that transacted over the highway of nations.

"Regulating" means prescribing rules for carrying on the matter regulated; which rules may either place restraints and hindrances upon the free conduct of the intercourse and traffic, or may remove all restrictions upon the free enjoyment and exercise thereof. Whether Congress shall adopt one or the other of these systems, and propose to itself one or the other of these ends, is entirely a matter of policy, with which courts have no concern.

§ 379. Under this analysis we shall discover that Congress has power to pass laws regulating

(1.) Places where traffic and intercommunication with foreign nations and among the several states may be transacted; the ports at which ships may enter, discharge, load, be registered, be cleared, and the like; also laws in relation to

the improvement of harbors, the clearing out of navigable rivers, the construction of lighthouses, piers, breakwaters, levees, and all such other accessories and appendages to the mere places for carrying on commerce, by which those places. are made more fit and convenient for the purpose. I have no doubt that Congress has full power to build or repair the levees of the Mississippi River, and thus to regulate commerce among the several states. These and such measures have been adopted and carried out from the commencement of the present government; the authority of the legislature has been disputed by verbal theorists; but the acquiescence in their propriety is now universal.

§ 380. (2.) The means and instruments by which traffic and intercommunication may be carried on. Under this head are included that mass of statutes which collectively are known as the "Registry" and "Navigation" laws. The policy of such acts is to favor American shipbuilders and owners. They give the entire coasting trade to American bottoms; they prohibit the importation of foreign goods in any but American ships, except the vessel be owned by citizens of the country in which the goods were grown or manufactured, or which contains their usual place of export. To compel the observance of this policy, they require all American bottoms engaged in the foreign trade to be registered in such a manner that the maker, the owners, and the master shall distinctly appear; and those engaged in the coasting trade to be enrolled and licensed. They forbid any vessel to enter or depart from our ports without official papers showing its nationality, ownership, destination, and the object of its voyage.

§ 381. Other statutes, passed under the same exercise of legislative power, regulate the use and conduct of the ships themselves; provide for the safety of crew and passengers by prescribing rules concerning boilers, engines, medicines, bulk, ventilation, and the like; also the number of the crew, the form and nature of their contract of hiring, their rights as against masters and owners; the powers of officers, etc. The number of such statutes is great, and their particular objects

are numerous.

Some require the appointment of new classes

of official persons, such as inspectors of steamboats, etc. No one has, as yet, questioned the authority of Congress to enact such laws.

§ 382. But may Congress, under the general power to regulate commerce among the states, establish, construct, or authorize the construction of bridges, roads, canals, or railways? In the first place, it is to be remarked, that if the commerce which is to be affected or regulated by the bridge, railway, or other means of transit, be entirely within the boundaries of a state, Congress has no jurisdiction over the subject; the state authority is complete. But if that commerce be foreign or inter-state, I think the power in the national legislature exists. Indeed, we hardly yet know the scope and efficacy of our supreme organic law; the results which may be reached by applying the general principles announced by the tribunal of last resort. That court has decided that Congress may maintain a bridge erected over a navigable stream running between several states; and if it may maintain, it may also cause to be erected. The prevailing opinion in Gilman v. Philadelphia not only assumed, but plainly declared, that the legislature might provide for bridging such streams as the Schuylkill, although they may be entirely within the territory of a single state, since they are navigable from the ocean. Indeed, Congress has several times exercised this authority by authorizing bridges to be constructed over the Mississippi River.

It would seem that the same principles apply to the establishment of railways and canals. The legislature of the nation has exerted but a small portion of its power to regulate commerce among the several states. It may well be that the vast and increasing importance of this intercourse and traffic, and the evil results of partial, and, to a certain extent, antagonistic state legislation, will convince the people of the advantage and even necessity of rules as uniform as those which regulate foreign commerce. When this time arrives it will be found that Congress, by applying the principles and doctrines already settled, has ample power to accomplish the desired end. It should be stated, however, that in Conway v. Taylor's