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 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, All these therefore be regu

merchandise lated.2

or persons.

may

1 But in a recent case, Lord v. Steamship Co. 102 U. S. 541, — it was held that Congress had power to regulate commerce on the high seas, though only between ports of the same state. It was said by Waite, C. J.: "The single question presented is, whether Congress has power to regulate the liability of the owners of vessels navigating the high seas, but engaged only in the transportation of goods and passengers between ports and places in the same state. It is conceded that while the Ventura carried goods from place to place in California, her voyages were always ocean voyages. The contracts sued on in the present case, to carry goods from San Francisco to San Diego, Cal., could not be performed except by going not only out of California, but out of the United States as well. Commerce includes intercourse, navigation, and not traffic alone. Navigation on the high seas is necessarily national in its character. It must, therefore, be subject to the national gov

ernment." ED.

2 See County of Mobile v. Kimball, 102 U. S. 691; Lord v. Steamship Co. 102 U. S. 541. ED.

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. 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. one has, as yet, questioned the authority of Congress to enact such laws.

The

No

§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 fast 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 Lessee, the Supreme Court held that Congress could not establish or regulate ferries.

§383. (3.) The subject-matter of Commerce. Under this head would properly fall all regulations touching the importation and exportation of particular articles and persons. It is true that Congress has done little under this branch of its authority, except in its revenue laws, which have a double relation to commerce and to taxation. There are some other illustrations of this kind of regulation. A statute is in existence controlling the importation of adulterated drugs, and providing for the inspection of medicines brought from abroad. Another law forbids the importation of immoral books, pictures, and the like.

§ 384. (4.) Statutes relating to the liabilities of ship-owners and others engaged in commerce, either declaring, alter

1 1 Black, 603.

ing, or supplementing the rules of the Common Law, or general Law Merchant. Congress has assumed to enact laws. of this description, and having this effect. In 1851 it passed a statute entitled, "An act to limit the liability of shipowners,' etc. This act provides in substance, among other things, that no owners of vessels shall be liable for any damage to goods and merchandise caused by fire on board the vessel in which the commodities are laden, unless the fire were caused by the design or neglect of the owner himself. Provisions of the same law modify the liability resulting from collisions and other negligent or wrongful acts. Here is a plain and most material change in the rules of the common law; for, under that law, the common carrier is an insurer against all loss and damage, except that caused by the act God or of the public enemies.

The question whether this statute is valid, has never been directly presented to the Supreme Court; but it has been brought before that tribunal in such a way that their silence was as emphatic in favor of the validity as a positive and formal judgment. In Moore v. American Transportation Company,' the defendants ran a vessel on Lake Erie, duly enrolled and licensed as a coaster. Moore sued them for the loss of goods on board the vessel by fire. The defence was based on this statute. At the Common Law the company would plainly have been liable. The statute contains a proviso that it is not to apply to the "internal navigation" of the country. The only question discussed and decided was, whether the navigation of the great lakes was inland navigation. The court held that it was not, and that the company was free from liability. Even Mr. Justice Daniel, who dissented, and who, as we have seen, was so eager to scent any invalidity in an act of Congress, and who would so much limit the powers of that body, placed his dissent entirely upon the ground that the great lakes do constitute a part of the "inland navigation " of the country. As the unconstitutionality of the statute would have been a complete answer to the defence set up, and as neither Bar nor Bench suggested its invalidity, we

1 24 How. 1.