commerce, but authorizes the agents to use its instruments on fair and equal terms. So, therefore, a tax or charge may be made upon commerce either directly by a duty upon the articles, or indirectly by a tax upon its agents or instruments.

In the consideration of questions of foreign commerce, care must be taken to distinguish between the instrument of commerce and the dealer in, or furnisher of the instrument. The ship and the bill of exchange are instruments of commerce, but that fact does not make the ship builder or the banker a merchant engaged in foreign trade, any more than it would a manufacturer of agricul tural machines, because a part of his products eventually become articles of commerce and are shipped abroad for sale. The test for the individual remains-Is his business that of importing for sale or barter, or exporting, or transporting articles of commerce arriving from or going abroad? The rule excludes bankers, exchange brokers,1 insurance companies and agents, and all persons whose

2

1" But we are of opinion, that, under the clause of the constitution giving power to Congress 'to regulate commerce with foreign nations, and among the several States,' Congress possesses the power to punish offenses of the sort which are enumerated in the 9th section of the act of 1825, now under consideration. The power to regulate commerce includes the power to regulate navigation, as connected with the commerce with foreign nations and among the States. It was so held and decided by this Court, after the most deliberate consideration, in the case of Gibbons v. Ogden, 9 Wheaton, 189 - 198. It does not stop at the mere boundary line of a State; nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It extends to such acts, done on land, which interfere with, obstruct or prevent the due exercise of the power to regulate commerce and navigation with foreign nations and among States." United States v. Coombs, 12 Peters, p. 72.

2" As an exchange broker, the defendant had a right to deal in every description of paper, and in every kind of money; but it seems his business was limited to foreign bills of exchange. Money is admitted to be an instrument of commerce, and so is a bill of exchange, and upon this ground it is insisted that a tax upon an exchange broker is a tax upon the instruments of commerce.

"What is there in the products of agriculture, of mechanical ingenuity, of

business may be that of buying and selling the instruments of commerce, just as it would persons engaged in any other enterprise. They are employed in dealing in what may become the instruments, not in the articles of commerce, and any rights or privileges enjoyed by them depend upon domestic law, comity, or some specific provision of treaty, and cannot flow from a clause providing for favors in commerce and navigation.

The test to be applied to articles of commerce is: Are they articles having an existence and value independent of the parties to them? Are they, as exports, identified as separated from the general mass of property of the State, and, as such, in the hands of the common carrier? Or, identified as imports, are they as yet unabsorbed into and unmingled with the common mass of property? An affirmative answer to these questions establishes their identity as such.

The determining factor for instruments of commerce is necessity. It is not sufficient that a thing merely aids

manufactures, which may not become the means of commerce? And is the vendor of these products exempted from State taxation, because they are thus used? Is a tax upon a ship as property, which is admitted to be an instrument of commerce, prohibited to a State? May it not tax the business of ship building, the same as the exercise of any other mechanical art? and also the traffic of ship-chandlers and others, who furnish the cargo of the ship and the necessary supplies? There can be but one answer to these questions.. No one can claim an exemption from a general tax on his business, within the State, on the ground that the products sold may be used in commerce.

"No State can tax an export or an import as such, except under the limitation of the Constitution. But before the article becomes an export, or after it ceases to be an import, by being mingled with other property in the State, it is a subject of taxation by the State. A cotton broker may be required to pay a tax upon his business by the way of license, although he may buy and sell cotton for foreign exportations.

"A bill of exchange is neither an export nor an import. It is not transmitted through the ordinary channels of commerce, but through the mail. It is a note merely ordering the payment of money, which may be negotiated by indorsement, and the liability of the names that are on it depends upon certain acts to be done by the holder, when it becomes payable. . .

or facilitates commerce; it must, in the light of surrounding conditions, be a necessity. These necessities keep pace with the progress of civilization, and what is not a necessity to-day may become so to-morrow through some invention in the mechanical arts. The sailboat has developed into the steamer, the wagon into the railroad, the messenger into the post, the telegraph and the telephone; "as the new agencies are successfully brought into use to meet the demand of increasing population and wealth."1

While the ownership or leasehold of land is of advantage to the foreign merchant in the transaction of his business, neither can rightly be claimed on the ground that it is included in the term "commerce." Land is not a commodity to be transported to a foreign country, which, separated from the mass of property of a State, can become an export; nor is it a necessary instrument of commerce. It is fixed, and any contract for its sale or lease is to be enforced within the jurisdiction where the land is situated. Comity, perhaps, may grant to all foreigners where it grants to one, but rights in real estate cannot be found in rights of commerce.

"He (the bill broker) is not engaged in commerce, but in supplying an instrument of commerce. He is less connected with it than the ship builder without whose labor foreign commerce could not be carried on." Nathan v. Louisiana, 8 Howard, 73.

1"Since the case of Gibbons v. Ogden, 9 Wheaton, 1, it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of Congress. Postoffices and post-roads are established to facilitate the transmission of intelligence. Both commerce and the Postal service are placed within the power of Congress, because, being national in their operations, they should be under the protecting care of the national Government.

"The powers thus granted are not confined to the instruments of commerce, or the Postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new development of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and steamboat to the railroad, and

In Paul v. Virginia1 the Supreme Court of the United States held that the business of insurance was not commerce, nor the issuing of a policy of insurance a transaction of commerce; that the policies do not take effectare not executed contracts-until delivered by the local agent; and that they are then local transactions to be governed by local laws. The policy itself if it be marine insurance and covers the goods in transit, may be an instrument of commerce, but the issuer is not on that account engaged in commerce. On this principle it has been held by the same Court that banking or dealing in foreign bills of exchange is not commerce; it is in dealing in the instruments of commerce, not in its articles.

3

A number of instances have occurred where protection has been claimed under the most favored nation clause securing favors in commerce and navigation for patents, designs and trade-marks.2 Concerning the first two the writer has no hesitancy in saying that they are not articles or instruments of commerce. Monopolies in the manufacture of a patented article, or in the printing of designs are not granted by a State as instruments of commerce to facilitate directly international trade; they are intended to encourage inventive genius and are a reward to the inventor for his achievement and for the time and labor expended. The trade-mark, on the other hand, does not give any monopoly in the manufacture or sale of a particular class of goods. Its object is to point distinctively to the origin or ownership of the merchandise

from the railroads to the telegraph, as these new agencies are successively brought into use to meet the demand of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances." Pensacola Tel. Co. v. West

ern etc., Tel. Co., 96 U. S. p. 1.

18 Wall. p. 181.

2 Great Britain and other Powers sought such favors from Japan in 1896. 3 Trade Mark Cases, 100 U. S. S. C. p. 82.

to which it is applied. A manufacturer gaining a market for a certain class of goods, attaches to them a simple and perhaps attractive device by which they become known in the market, more widely perhaps than by the name of the maker; but is not the object of the mark to identify the goods in a simpler and more attractive manner than by the use of the maker's name? An opinion of the Supreme Court of the United States, while it left this question undecided, touched the point, and, from its comments, it would appear that the trade-mark is neither an article nor an instrument of commerce.2 In 1895, Mr. Alexander, the United States Minister to Greece was instructed and authorized to negotiate with that country a trade-mark convention, and, finding that the neces

1 "Hence the trade-mark must either by itself, or by association, point distinctively to the origin or ownership of articles to which it is applied." Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. p. 537.

2 The Attorney General's argument in the Trade Mark Cases was: “2. Trade marks are important instrumentalities, aids or appliances, by which trade, especially in modern times, is conducted. They are the means by which manufacturers and merchants identify their manufactures and merchandise. They are the symbols by which men engaged in trade 'and manufacture become known in the marts of commerce, by which their reputation and that of their goods are extended and published; and as they have become better known, the profits of their business are enhanced. Hence, the use of trade marks has become universal, and in all trades and business of any extent they are necessary auxiliaries."

The opinion of the Court gave no direct answer to the above proposition, as the question was not pertinent to the issue; but what was said is important.

"Any attempt, however, to identify the essential characteristic of a trade mark with inventions and discoveries in arts and sciences or with the writings of authors will show that the effort is surrounded with insurmountable difficulties.

"The other clause of the constitution supposed to confer the requisite authority on Congress is the third of the same section, which, read in connection with granting clause, is as follows: The Congress shall have the power to regulate commerce with the foreign nations and among the several States, and with the Indian Tribes.'"

"The argument is that the use of a trade mark-that which, alone gives it any value is to identify a particular class or quality of goods as the manufacture, produce, or property of the person who puts them in the general market for sale; that the sale of the article so distinguished is commerce;