merce may be directly regulated by rules prescribing the manner in which its operations are to be conducted, or it may be indirectly regulated by the imposition of taxation upon its subjects or its instrumentalities. In Philadelphia and Southern Steamship Company v. Pennsylvania,' Bradley, J., said, "taxing is one of the forms of regulation. It is one of the principal forms." In Gibbons v. Ogden, Marshall, C. J., clearly distinguishes between the power to regulate commerce and the power to tax, and it is a legitimate conclusion from that distinction, that Congress cannot, in the exercise of the power to regulate, tax commerce, and that the states are not prohibited from taxing either the instrumentalities or the subjects of foreign or interstate commerce, provided that such taxation be imposed on those instrumentalities and subjects of commerce as component parts of the mass of property in the country, and provided also that that which is in form taxation be not in substance a regulation, or, in other words, a restraint upon, or a prohibition of, foreign or interstate commerce. Taney, C. J., said in the Passenger Cases, it has always been held that the power to regulate commerce does not give to Congress the power to tax it, nor prohibit the states from taxing it in their own ports and within their own jurisdiction. The authority of Congress to lay taxes upon it is derived from the express grant of power in the eighth section of the first article to lay and collect taxes, duties, imposts, and excises, and the inability of the states to tax it arises from the express prohibition contained in the tenth section of the same article." In the same case, McLean, J., said, "a state cannot regulate foreign commerce, but it may do many things which more 4 66 1 122 U. S. 336. 3 7 How. 479. 4 + p. 402. or less affect it. It may tax a ship or other vessel used in commerce the same as other property owned by its citizens. A state may tax the stages in which the mail is transported, but this does not regulate the conveyance of the mail any more than taxing a ship regulates commerce, and yet in both instances the tax on the property in some degree affects its use." The essential difference between taxation of commerce as property and regulation of commerce in the guise of taxation is elaborated in the judgments in Transportation Co. v. Wheeling and in Wiggins Ferry Co. v. East St. Louis and is illustrated by every case in which the Supreme Court of the United States has had to determine whether any particular tax imposed under state authority on a subject, or instrumentality, of foreign or interstate commerce be permitted, or forbidden, by the Constitution. 30. Recurring to the constitutional provisions affecting the regulations of commerce, as quoted in Sec. 27, and bearing in mind the general principles of constitutional construction, it will be observed that the constitutional provisions include: (1) an express grant to Congress of the power of regulating commerce "with foreign nations, and among the several states and with the Indian tribes;" with the expressed restriction that the United States shall not lay any tax or duty on articles exported from any state, nor give any preference, by any regulation of commerce, to the ports of one state over those of another, nor oblige vessels bound to or from one state to enter, clear, and pay duties in another; (2) an implied restraint upon state regulation of commerce, foreign, interstate, or with the Indian tribes; and (3) an expressed prohibition of state duties on imports, exports, and tonnage, save under certain defined restric 1 99 U. S. 280. 2 107 U. S. 374. tions, the most material of which restrictions is the consent of Congress. It is obvious that the power delegated to Congress is that of regulating, not all commerce, but commerce only of enumerated kinds, and under expressed restrictions. The result of the authorities, so far as they deal with the expressed grant of power to Congress, and the consequent implied restrictions upon the states, is that the internal commerce of a state, that is, that commerce which is begun, continued, and ended within a state, is exclusively a subject for the regulation of that state; and that foreign and interstate commerce, that is, that commerce, which, in its inception, or at any point of its progress, or at its conclusion, passes beyond the boundary of a state, is a subject of final regulation by Congress, but that, until Congress has regulated such commerce, the state may incidentally regulate it in points of merely local concern. The general distinction was clearly put by Marshall, C. J., when he said in Gibbons v. Ogden,1 "the genius and character of the whole government seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns, which affect the states generally, but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself." In the exercise of its power over commerce, Congress has regulated the registration and recording of the titles of ships,2 the clearance and entry of ships and steamers, the tonnage duties payable to the United States by vessels;1 navi 19 Wheat. 294. 2 Rev. Stat. Sec. 141, 31 et seq. Rev. Stat. 141, 97 et seq. 6 8 5 gation, including sailing rules, and the life-saving service,' the transportation of passengers and merchandise by sea, the shipping of sailors, and their pay and discharge; the lighthouse service; the coast survey; the improvement of rivers and harbours; and telegraphs. It has authorized the transportation of government supplies, and mails, and troops by railway, and the connection of railways of different states so as to form a continuous line,' and by the Interstate Commerce Act1o it has regulated the interstate transportation of passengers and freight by railways and it has constituted a commission to carry the statute into effect. The states have facilitated commerce by the improvement of navigation, the construction of railways, wharves, and bridges, and they have regulated it by the enactment of pilotage, quarantine, and police laws. The respective powers of the government of the United States and the governments of the states over commerce can best be illustrated by an analysis and classification of the cases in which the Supreme Court of the United States has been called upon to deal with the subject. 31. At the time of the adoption of the Constitution, commerce meant primarily the navigation of the sea and of the rivers flowing into it in the course of the transportation of goods from foreign countries, for the interstate transportation of goods, either by land or water, was then comparatively insignificant. It is natural, therefore, in considering the regulation of commerce under the Constitution to treat, first, of navigation, and, at the outset of the discussion, to determine what are, in law, navigable waters. In England navigable waters. 1 Sec. 4233. 2 Sec. 4252. 3 Sec. 4501 et seq.; Sec. 4509 et seq. • Sec 4549. 5 Sec. 4653. 6 4681. 7 Sec. 5244. 8 Sec. 5263. 9 Sec. 5258. 10 Act of Feb. 4, 1887. in the legal sense of the term, and also in actual fact, are those only in which the tide ebbs and flows.1 As the adoption of the English rule in this country would have necessarily taken the inland lakes and the rivers which are in fact navigable where there is no ebb or flow of the tide, out of the jurisdiction of admiralty and also out of the jurisdiction of Congress in the regulation of commerce, Congress by the 9th section of the Judiciary Act of 1789 constituted navigability in fact the test of navigability in law. Nevertheless, in certain of the earlier cases the English test of navigability in a legal sense was followed, although, as has been shown, the reason of the rule failed here,2 but, in the later cases, it is laid down that waters in the United States which are navigable in fact are navigable in law, and, as such, subject to the regulating power of Congress in so far as they may be waterways of foreign and interstate commerce.3 In England the admiralty jurisdiction was further restricted by the requirement that the locus in quo, though within the ebb and flow of the tide, should not be infra corpus comitatus, nor at sea infra fauces terræ, but these restrictions are not applicable in the United States. Before the court had abandoned the English test as to admiralty jurisdiction, it was questioned by 1 Genessee Chief v. Fitzhugh, 12 How. 443, 454. 2 The Thomas Jefferson, 10 Wheat. 428; The Orleans v. Phoebus, 11 Pet. 175; Peyroux v. Howard, 7 id. 324; U. S. v. Coombs, 12 id. 72; Waring v. Clarke, 5 How. 441. 3 The Genessee Chief v. Fitzhugh, 12 How. 443; The Daniel Ball, 10 Wall. 557; The Montello, 20 id. 430; Barney v. Keokuk, 94 U. S. 324. As Davis, J., said in the Montello, 20 Wall. 441, "the capability of use by the public for purposes of transportation and commerce" affords the "true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway." * Waring v. Clarke, 5 How. 441. |