merces, has greatly increased since the early days of the Constitution. "The commerce clause of the Federal Constitution presents the remarkable instance of a national power which was comparatively unimportant for eighty years, and which in the last thirty years has been so developed that it is now, in its nationalizing tendency, perhaps the most important and conspicuous power possessed by the Federal Government. "The fact is more remarkable because the deficiency in the Articles of Confederation most felt was the lack of this very power, and because the Convention which framed the Federal Constitution was immediately brought about by the recognized necessity of an uniform system in the commercial regulations of the several states."1 Before the year 1840, the construction of this clause had been involved in but five cases submitted to the Supreme Court of the United States. In 1860 the number of cases in that Court involving its construction had increased to seventy-seven; in 1890 it was one hundred and forty-eight; while at the present time it is over two hundred. An equally rapid increase is to be seen in the number of cases of this character in the Supreme courts of the States and in the United States circuit and district courts. Up to the year 1840, this clause had been involved in these courts in forty-eight cases, by 1860 in one hundred and sixty-four, by 1890 in eight hundred and by the close of the nineteenth century in nearly fifteen hundred; while the number of cases on some phase or other of this subject is yearly increasing." 1 "Commerce Clause of the Con stitution," Prentice and Egan ⚫ Id., pp. 14-15. Congress having the power to regulate commerce has the power entirely to prohibit it. Congress once undertook to prohibit foreign commerce. This was in 1807 when the Embargo Act was passed prohibiting commerce with all foreign countries; the non-intercourse act of 1809 modified this so that it only applied to commerce with France and England. These acts were attacked as unconstitutional on the ground that their object was to destroy commerce, not to regulate it. Their constitutionality was upheld, however, in a district court of the United States, and the question never was brought before the Supreme Court. That Congress has such power can hardly be doubted. The power to regulate is unlimited, and the prohibition of commerce is but one kind of regulation. It has been held that Congress can prohibit trade with the Indians, unless carried on under a license, and it is but a step from this point to the prohibition of such trade altogether. The power to regulate foreign and interstate commerce necessarily involves the control of navigable waters, over which so large a portion of such commerce must go. The proposition laid down in Gibbons vs. Ogden, that the laws of Congress regulating commerce must act within the limits of the individual states, carries with it the corollary that Congress must have the right of control over the great highways of interstate commerce which run through the states. In Pennsylvania vs. Wheeling Bridge Company it was held that the Ohio River, being a navigable stream, was subject to the control of Congress, and that therefore, if a bridge was so erected across it as to obstruct • United States vs. The William, American Law Journal, 255. 5 United States vs. Cisha, 1 Mc- • 12 Howard, 518. The navigation, it was a nuisance, and that an act of the Legislature of Virginia authorizing its construction, afforded no justification to the bridge company. power of Congress to regulate commerce comprehends the control for that purpose, of all the navigable waters of the United States which are accessible from a State other than that in which they lie, and it is for Congress to determine whether its full powers will be brought into activity, and as to the regulations it will adopt. The authority of the United States includes not only the power to improve the navigation of navigable waters,' but also to regulate their use as a highway. Congress may authorize the erection of railroad bridges across navigable waters for the purpose of preventing trammels to commerce across the states. But if a river is not, of itself, a highway of commerce with other states or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States, and the act of Congress for the enrollment and license of vessels does not apply.10 This power of Congress to regulate commerce gives the general government authority to provide for the punishment of crimes connected with such commerce," and also to make laws relative to maritime torts.12 • Gilman vs. Philadelphia, 3 Wal- Works vs. Junction Ry. Co., 5 Rich • Railroad Company vs. 11 United States vs. Coombs, 12 12 Lord vs. Steamship Co., 102 U. S., 541. SECTION 68. WHAT COMMERCE INCLUDES. Commerce, of course, includes the purchase, sale and exchange of commodities.13 The definition of commerce as "an exchange of commodities" is, however, too narrow. Something more is included in the term. The Supreme Court of the United States has always given a liberal interpretation to the meaning of the word commerce, just as it has given a broad interpretation to the power of Congress over the same. In the famous case of Gibbons vs. Ogden, the following definition of the meaning of the word commerce is to be found: con "The words are: 'Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes'. The subject to be regulated is commerce; and our stitution 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 and 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 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 Addyston Pipe, etc., Co. vs. U. S., 175 U. S. 241; Gloucester Vol. II-9. Ferry Co. vs. Pennsylvania, 114 U S., 203. the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter. "If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word 'commerce' to comprehend navigation. It was so understood, and must have been so understood when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense because all have understood it in that sense; and the attempt to restrict it comes too late. "If the opinion that 'commerce,' as the word is used is in the Constitution, comprehends navigation also, requires any additional confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself. It is a rule of construction, acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted-that which the words of the grant could not comprehend. If, then, there are in the Constitution plain exceptions from the power over |