United States the power of so regulating commerce as to overcome the disintegrating forces which threatened the loss of all that had been gained by the success of the Revolution.1 28. The term "commerce," therefore, as the framers of the Constitution understood it, and as Marshall, C. J., construed it in Gibbons v. Ogden,2 meant not only traffic, but also commercial intercourse in all its branches, including the purchase and sale of commodities, their transportation by sea and on land, their importation and exportation, and all that was necessarily incident to the transaction. As the Constitution is a frame of government intended to endure for all time, it follows that the term commerce" must receive a construction sufficiently elastic to comprehend not only the subjects and instrumentalities of commerce known. and used when the Constitution was framed, but also all present and future subjects of commerce and agencies of commercial intercourse.3 Yet everything that is connected with commerce is not necessarily commerce. Bills of exchange may be given in payment for goods to be imported, and yet such bills are mere personal obligations, and are not in themselves subjects of commerce. On the same principle, the issuing or negotiation of a policy of insurance against the loss by fire of any property, which is not made a subject of commerce, does not constitute a transaction of commerce.5 So 1 Gibbons v. Ogden, 9 Wheat. 11, 223; Brown v. Maryland, 12 id. 445; Cook v. Pennsylvania, 97 U. S. 574; County of Mobile v. Kimball, 102 id. 697; Chapters IV, V, VI, VII, and VIII of Mr. Bancroft's History of the Constitution. 29 Wheat. 1, 189. 3 P. Telegraph Co. v. W. U. Telegraph Co., 96 U. S. 1. Bank of Augusta v. Earle, 13 Pet. 519, 531; Sturges v. Crowninshield, 4 Wheat. 147; Nathan v. Louisiana, 8 How. 73. 5 Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; L. I. Co. v. Massachusetts, ibid. 566; P. F. Association v. New York, 119 U. S. 110. 3 also, a trade-mark, which identifies a particular article as one of a class which has as such acquired a special commercial value, is not in itself any part of commerce.1 On the other hand, bills of lading of goods sold and transported in the course of interstate commerce are, by reason of their representative character, entitled to protection as commerce, and the transmission of ideas by telegraph is commerce, for the reason that in the development of modern business methods the telegraph has become indispensable as a means of intercommunication in commercial intercourse. Would not the same reasoning apply, in the case of goods admittedly subjects of commerce, to the trade-marks on such goods, the bills of exchange drawn for the price of the goods, and the policies of insurance against the loss of the goods by fire, or by the perils of navigation? Insurance, commercial paper, and trade-marks are as certainly nearly related to, and as truly incidents of commerce, as a telegraphic inquiry as to the state of the market, or a telegraphic order for the forwarding of the goods, though unlike the bill of lading, they do not represent the goods. Of course, if the subjectmatter be in its nature commercial, it is immaterial whether the agency, by which commerce is carried on, be a natural person, or an association of natural persons, or a corporation.* 29. To regulate commerce is, as Marshall, C. J., said in Gibbons v. Ogden," "to prescribe the rule by which commerce is to be governed." It is obvious that com 1 The Trade-Mark Cases, 100 U. S. 82, 95. 2 Almy v. California, 24 How. 169; as explained by Miller, J., in Woodruff v. Parham, 8 Wall. 138. 3 P. Telegraph Co. v. W. U. Telegraph Co, 96 U. S. 1, 9. • Paul v. Virginia, 8 Wall. 168, 172; G. F. Co. v. Penna., 114 U. S. 196, 215, 217; W. F. Co. v. East St. Louis, 107 id. 374. 9 Wheat. 1, 196. 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 1 122 U. S. 336. 3 7 How. 479. 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. 230. 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, "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 ;* navi 19 Wheat. 294 2 Rev. Stat. Sec. 141, 31 et seq. 1 3 Rev. Stat. 141, 97 et seq. Rev. Stat. 4219. |