2

8

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 Act 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, 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. 57; 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.

Story, J., whether or not, the power to regulate commerce authorized an extension of the admiralty jurisdiction to the inland lakes, but, in The Genessee Chief v. Fitzhugh, Taney, C. J., showed clearly that the judicial power being defined by the Constitution could not be extended by legislation under the guise of a regulation of commerce, the legislative regulation of any subjectmitter of jurisdiction being in its nature essentially distinct from the creation of a tribunal, and the vesting in that tribunal of jurisdiction over any particular subjectmatter. The admiralty jurisdiction is, therefore, limited on inland waters to vessels engaged in and to maritime contracts and torts concerned with, or growing out of, interstate transportation. Therefore, contracts of affreightment between ports of the same state on an inland lake, and contracts for supplies furnished to vessels engaged in such trade" are matters of local jurisdiction, and not of admiralty jurisdiction in the courts of the United States.

32. Before the Revolution, the title to navigable waters and to the soil under them was vested in the crown, or in its grantees. After the Revolution, the people became sovereign, and thenceforth the title to navigable waters within the jurisdiction of a riparian state and to the soil under them became vested in that state for the public use of its citizens." After the adoption of the Constitution, as before, the title to navi

1 The Thomas Jefferson, 10 Wheat. 428.

2 12 How. 443, 452.

3 The Genessee Chief, 12 How. 443; Allen v. Newberry, 21 id. 244; Maguire v. Card, ibid. 248; The Belfast, 7 Wall. 624.

Allen v. Newberry, 21 How. 244.

5 McGuire v. Card, 21 How. 248.

Martin v. Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426; Smith v. Maryland, 18 id. 71; Weber v. Harbor Commissioners, 18 Wall. 57; Rundle v. D. &. R. C. Co., 14 How. 807; Jones v. Soulard, 24 How. 41; St. P. & P. R. R. v. Schurmeier, 7 Wall. 272.

1

gable waters and to the soil under them and the right to fish therein remained in the riparian state, its proprietary title extending in the case of inland waters constituting its boundary from ordinary high-water mark ad medium file, and in the case of the sea and its bays, to the distance that the international jurisdiction of the United States extended; and by force of the Constitution, the United States acquired only the right to exercise over navigable waters its power of regulating commerce, and states which were admitted to the Union subsequently to the adoption of the Constitution have, of course, in this respect the same rights of sovereignty and jurisdiction as the original thirteen. states. The distinction between rights of navigation over waters and the rights to the soil under them is illustrated by two cases. In Smith v. Maryland," the facts were, that the state of Maryland, having enacted a statute prohibiting the taking of oysters in its waters in a certain manner under pain of forfeiting to the state the vessel employed for that purpose, the sloop Volant, owned by the plaintiff in error, and duly licensed as a coasting vessel under the statutes of the United States, was seized under the state statute and condemned to forfeiture in a regular proceeding in a state court. The Supreme Court of the United States affirmed the judgment of the state court, holding that the title to the soil under navigable waters within its jurisdiction being vested in the riparian state, that state could rightfully regulate the exercise of rights of fishing therein, and enforce by judicial proceedings a forfeiture of vessels whose navigators should fail to conform to

1 Barney v. Keokuk, 94 U. S. 324.

2 Pollard v. Hagan, 3 How. 212; Weber v. Harbor Commissioners, 18 Wall. 57.

$ 18 How. 71.,

the regulations so prescribed, and that a license to navigate granted by the United States confers "no immunity from the operation of valid laws of a state." The court, however, expressly declined to give any opinion as to the limits of the trust under which riparian states hold the soil under their navigable waters, or to decide whether rights of fishing in such waters could be enjoyed only by the citizens of the state, or by all citizens of the United States in common. The next case, McCready v. Virginia, not only followed in the line of Smith v. Maryland, but also put at rest the question undetermined in that case. The facts were that, under a statute of Virginia similar in terms to the statute of Maryland, save that it also imposed a pecuniary fine upon the offender, McCready, a citizen of Maryland, was indicted, convicted, and fined in a state court, and the Supreme Court of the United States affirmed the conviction, holding that the riparian state is a trustee, not for all the citizens of the United States, but only for its own citizens as to the soil under its navigable waters, and the rights of fishing in such waters, and that, as Waite, C. J., said, "the right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined," and "it is, in fact, a property right and not a mere privilege or immunity of citizenship," and, therefore, a right which does not, by force of the Constitution, vest in the citizens of other states. It has likewise been held, that the grant to the United States of jurisdiction in admiralty does not carry with it a cession of navigable waters, or of general jurisdiction over them, and, therefore, the case of a murder committed on board a vessel of the navy of the United States, while at anchor in navigable waters within the 2 p. 395.

1 94 U. S. 391.