served to the states, to be exercised by them with the same freedom and to the same extent as it might have been if they had never become members of the Union. The extent to which the power of congress to regulate navigation has been conferred, and to which it may be exclusively exercised, is ascertainable by ascertaining the simple fact, whether a vessel can be navigated from a port or place within the United States to a port or place within a foreign country.

The second branch confers the power to regulate navigation "among the several states." This power may also be exercised by congress within the jurisdiction of the states, and upon fresh as well as upon tide waters, with respect to vessels which can carry on commerce among the states. Those vessels, and those only, can be employed in such commerce which can be navigated from some port or place within one state to some port or place within another state. If they can not be so navigated, they can not be employed in commerce among the states. Congress may regulate the navigation of a vessel in all waters without regard to their distinguishing character, in which a vessel can be navigated from a place in one state to a place in another state; and this may include the navigation in waters between different ports or places in the same state, because such waters can be used for purposes of navigation among the states. Navigation upon the waters of a state, which can not be thus used, is not comprehended by the terms in which the power is confided to the United States. It is subject to regulation only by the laws of the state in which it is employed.

These rules are subject to a single exception: when a river, pond, or small lake, incapable of use for general purposes of navigation, constitutes the boundary, in whole or in part, between the United States and a foreign country, or between different states of the Union, the passage of ferry-boats and rowboats, from bank to bank, above falls or rapids which wholly obstruct the passage of vessels by them down the current, will afford no evidence that the navigation upon these waters can be subject to regulation by the power of congress.

No judicial decision has been noticed which denies to a state the right to regulate the navigation upon its interior waters which can not be navigated, in the manner before stated, for purposes of commerce with foreign nations or among the several states. On the contrary, that right has been admitted in those judicial opinions which have been considered to advance the

most extensive claims to the regulation of commerce and navigation by the United States.

In the case of Gibbons v. Ogden, 9 Wheat. 194, Marshall, C. J., observes: "Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state." When speaking of the proper legislation of the states, the opinion states: "Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state," are parts of the mass. Again: "If congress license vessels to sail from one port to another in the same state, the act is supposed to be necessarily incident to the power expressly granted to congress, and implies no claim of a direct power to regulate the purely internal commerce of a state."

With all deference it is submitted, that the power last named need not be claimed, and that it does not accrue as an incidental or implied power, that it is expressly granted by being necessarily included within the limits, to which the right of the United States to regulate commerce extends by the terms of the grant; and excluded from the limits, to which the right of a state to regulate its internal commerce may extend.

Mr. Justice McLean observes, in his opinion in the passenger cases, Norris v. City of Boston, 7 How. 283: "Over the navigable waters of a state congress can exercise no commercial power, except as regards an intercourse with other states of the Union or foreign countries." "All commercial action within the limits of a state, and which does not extend to any other state or foreign country, is exclusively under state regulation. Congress can have no more power to control this, than a state has to regulate commerce with foreign nations and among the several states." Mr. Justice Wayne, in his opinion in those cases, observes: "Those regulations which affect only the commerce carried on within one state, or which refer only to subjects of internal police, are within the powers reserved. To congress

is granted the power to regulate commerce with the Indian tribes.' No judicial opinion is known to have determined, that this branch of commerce included navigation. It was not the subject of examination in those cases which decided that commerce did include navigation." The admission that commerce includes navigation, is not intended to include commerce with the Indian tribes. The language must have been used with reference to such commerce with them as was known to have existed. The treaties made with them before the union, and the ordinances made by congress under the confederation, recognize and provided for trade or traffic with them.

But no national, conventional, or statute law or ordinance is known to have recognized or authorized navigation to be carried on with any Indian tribe. No vessel, it is believed, had then or has since entered or cleared as arriving from or proceeding to the territory of any such tribe. The grant was made to regulate a commerce, which had at the time a well-known character. Hence Chief Justice Marshall, while presenting reasons for the conclusion that the commerce, of which he was speaking, included navigation, observes: "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." Let the same rule be applied to ascertain the meaning of commerce with the Indian tribes, and it will not be found to include navigation, but to include trade or traffic in goods and merchandise between those tribes and other persons.

Whatever may be the extent of the power, it can not be construed to authorize congress to regulate navigation upon the waters of a state, which can not be used for purposes of commerce with foreign nations, or among the several states, without overruling the uniform regulations contained in the opinions of the supreme court of the United States, that the power to regulate commerce does not authorize the regulation of navigation on waters which can not be used for such purposes.

"The Indian tribes" referred to were those tribes which were in a condition to determine for themselves with whom they would have commerce, or in a condition to have congress determine it for them; and not those small tribes or remnants of tribes, yet denominated tribes, which had before that time and have ever since continued to be under the control and guardianship of a state, and were without power to carry on commerce or trade, except by permission and under the regulation of the state laws.

That the Penobscot tribe of Indians were, when the constitution of the United States was framed and adopted, under the complete control of state laws, and without the power to conduct commerce or trade, except by permission of a state, will appear by a reference to state enactments.

So early as the year 1633, the general court of Massachusetts ordered, "that no person whatsoever shall henceforth buy any land of any Indian without license first had and obtained." In 1650, the French, Dutch, and other foreigners were forbidden to trade with them. In 1657, that commonwealth declared its right to all the fur trade with them, and forbid others to trade with them in furs. It had before that time forbidden the sale to them of guns, gunpowder, and other munitions of war. In 1693 an act was passed "for the better rule and government of the Indians in their several places and plantations."

The first section provided for the appointment of persons "to have the inspection and more particular care and government of the Indians in their respective plantations;" and these persons were authorized to determine pleas betwixt party and party, and to punish criminal offenses. Such a course of legislative control was, it is believed, continued until this state was separated from Massachusetts, although contracts denominated treaties were made with them by the state, for the relinquishment of their title to lands. By the act of separation, this state assumed the performance of all the obligations made by Massachusetts to the Indian tribes within her jurisdiction; and in the year 1821, passed an act for the regulation of the Penobscot and Passamaquoddy tribes of Indians.

These laws will be ascertained by a reference to the ancient charters and statutes of Massachusetts, under the title, Indians. Neither the congross under the confederation, nor the government of the United States, appear to have at any time exercised any control over, or to have made any contract or treaty with, the Indians within the jurisdiction of Massachusetts or of this Vide American State Papers, title, Indian Affairs.

state.

By the agreed statement it appears, that the Penobscot tribe of Indians "always have been, and now are, under the jurisdic tion and guardianship of this state." This tribe can not, therefore, be one of those referred to in the constitution of the United States. The conclusion must be, that commerce with the Indian tribes did not include navigation, and if it did, that the Penob scot tribe was not one of the tribes referred to in the constitution.

It appears from the agreed statement of facts, that the boat owned and navigated by the defendants was enrolled and licensed for the coasting trade at the port of Bangor. This can be of no importance, if she can not carry on that trade. The power of congress to regulate commerce can neither be enlarged nor diminished by a grant of, or by a refusal to grant, a coasting license. Such a license, when received by a vessel exclusively and necessarily employed in the waters of a state, which can not be used to carry on commerce with foreign nations or among the several states, is wholly inoperative. It would be unauthorized by the laws or constitution of the United States.

It further appears, by the agreed statement, that the act granting the exclusive navigation by steam power does not apply to any part of the Penobscot river which is within eight miles of any place, from which a vessel can be navigated to a foreign port or to a port in another state. It is limited to that part of the river from which no vessel can proceed and pass out of the limits of the state. The provisions of the act are not, therefore, repugnant to any provision of the constitution of the United States.

A decree may be drawn by counsel and entered, to prohibit by injunction the defendants from navigating by boats propelled by the power of steam, that part of the Penobscot river in which a grant is made of the exclusive right of navigation in that mode, so long as such exclusive right shall continue; and for the recovery of costs.

WHEN STOCKHOLDERS MAY MAINTAIN SUIT AGAINST OFFICERS and agents of corporations: See note to Hersey v. Veazie, 41 Am. Dec. 367, where the subject is discussed at length.

RIGHT TO USE OF NAVIGABLE STREAM IS IN THE PEOPLE Succeeding to the rights of the crown. The legislature alone can dispose of this right, and when that disposition is consistent with the law of nature and the constitution of a well-ordered society, it is valid: Attorney General v. Stevens, 22 Am. Dec. 526: Arnold v. Mundy, 10 Id. 356; Parker v. Cutler Milldam Co., 37 Id. 56 and note 58.

GRANT OF NAVIGABLE STREAMS.-The state has power only to giant lands covered by navigable waters subject to the right of fishery by the public: Brown v. Kennedy, 9 Am. Dec. 503. And for great public purposes it may so use them as to deprive the individual of his accustomed use of them: Bailey v. P., W. & B. R. R. Co., 44 Id. 593, and note.

STATE MAY IMPEDE NAVIGATION AS BY DAMS Or Bridges, etc.: See Bailey v. P., W. & B. R. R. Co., 44 Am. Dec. 593, and note 620; Susquehanna Canal Co. v. Wright, 42 Id. 312, and note, where other cases are collected.