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 v. Ogden, that the laws of Congress regulating commerce must act within the limits of the individual States, carries with the corollary that Congress must have the right of control over the great highways of interstate commerce which run through the States. In Pennsylvania v. 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 navigation, it was a nuisance, and that an act of the legislature of Virginia authorizing its construction, afforded no justification to the bridge company. The 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 provide. 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.10. 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." This power of Congress to regulate commerce gives the general government authority to provide for the punishment of crimes connected with such commerce,12 and also to make laws relative to maritime torts.13

14

§ 254. What is commerce?-Commerce, of course, includes the purchase, sale and exchange of commodities. 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 v. Ogden the following opinion as to the meaning of the word commerce is to be found:

"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 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 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 the admission of the vessels

"The Montello, 11 Wallace, 411. See also the Daniel Ball, 10 Wallace, 557.

12 United States v. Coombs, 12 Peters, 72.

Lord v. Goodall Steamship Co., 102 U. S. 541.

14

Addyston Pipe, etc., Co. v. U. S., 175 U. S. 241; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203.

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 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 expect from a granted power that which was not grantedthat which the words of the grant could not comprehend. If, then, there are in the Constitution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted.

"The ninth section of the first article declares that 'no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.' This clause cannot be understood as applicable to those laws only which are passed for the purpose of revenue, because it is expressly applied to commercial regulations, and the most obvious preference which

can be given one port over anoher, in regulating commerce, relates to navigation. But the subsequent part of the sentence is still more explicit. It is, 'nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.' These words have a direct reference to navigation.

"The universally acknowledged power of the government to impose embargoes must also be considered as showing that all America is united in that construction which comprehends navigation in the word 'commerce.' Gentlemen have said, in argument, that this is a breach of the war-making power, and that an embargo is an instrument of war, not a regulation of trade. That it may be, and often is, used as an instrument of war, cannot be denied. An embargo may be imposed for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a military instrument, and partakes of the nature of war. But all embargoes are not of this description. They are sometimes resorted to without a view to war, and with a single view to comIn such case an embargo is no more a war measure than a merchantman is a ship of war, because both are vessels which navigate the ocean with sails and seamen."

merce.

Transportation not only is commerce, but it is the essential element always to be found in cases of interstate commerce. Transportation is the means by which commerce is carried on; without transportation there could be no commerce between nations or among the States.

In every case which has been held to be within the Constitution, all grant to Congress actual transportation, either of persons or property, or appears to be the characteristic of foreign commerce and of commerce among the States.15

In a later case than Gibbons v. Ogden the Supreme Court said:

15 Prentice and Egan's Commerce Clause of the Federal Constitution, eiting Steamship Co. v. Pennsylvania, 122 U. S. 326-339; Von Holst, Constitutional Law of U. S.,

p. 138; United States v. E. C. Knight Co., 156 U. S. 1; Philadel phia, etc., S. S. Co. v. Pennsylvania, 122 U. S. 339; Railroad Co. v. Husen, 96 U. S. 455, 470.

"Transportation for others, as an independent business, is commerce, irrespective of the purpose to sell or retain the goods which the owner may entertain with regard to them after they shall have been delivered."16

The control of Congress over transportation gives to it a like power of regulation over those appliances or instrumentalities by which transportation is effected. The early cases on this point were mainly concerned with regulations affecting steamboats," but in the later case it has mainly been railroads whose regulation was attempted. 18 As an incident to their control over railroads it has been held that Congress has the power to authorize the construction of a railroad,19 or to grant a right of way to a railroad.20

Telegraph lines are so intimately connected with commerce in their use, that their regulation is held to be a regulation of commerce, and as such to be within the power of Congress." The same rule applies to telephone lines according to State decisions, there being as yet no Federal adjudication of the question."

22

The handling and slaughtering of animals is commerce.23

24

In their regulation of commerce Congress has the same power over corporations that it has over individuals. This necessarily results from the fact that the United States Constitution makes no acknowledgment of corporations as artificial persons, and under it they can only be regarded, at least in theory, as aggregations of individuals.

16

Hawley v. Kansas City Southern R. Co., 187 U. S. 619.

See Gibbons v. Ogden, supra. See Reading R. R. Co. v. Pennsylvania, 15 Wallace, 284; Chicago and Northwestern Railroad Co. v. Fuller, 17-18 Wallace, 560, 568. 19 California v. Central Pacific R. Co., 127 U. S. 1, 39.

20 Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 642. "Lelamp v. Port of Mobile, 127

U. S. 640, 645; Western Union Telegraph Co. v. Garnes, 162 U. S. 634; Western Union Telegraph Co. v. Alabama State Bank of Alabama, 132 U. S. 473.

22 Central Union Telegraph Co. v. State, 118 Ind. 207.

2 Hopkins v. United States, 171 U. S. 578.

Crutcher v. Kentucky, 141 U. S. 57; Paul v. Virginia, 8 Wallace, 162, 168.