ese provisions of law in effect prescribe
conditions by which to determine whether any waters are public navigable
waters, subject to the authority of the Federal Government. The
conditions include all waters, whether salt or fresh, and whether of
sea, lake, or river, provided they be capable of navigation by vessels
of a certain tonnage, and for commerce either between the United States
and foreign countries or between any two or more of the States or
Territories of the Union. This excludes water wholly within any
particular State, and not used as the means of commercial communication
with any other State, and subject to be improved or obstructed at will
by the State within which it may happen to be.

The constitutionality of these provisions of statute has been called
in question. Their constitutionality has been maintained, however,
by repeated decisions of the Supreme Court of the United States, and
they are therefore the law of the land by the concurrent act of the
legislative, the executive, and the judicial departments of the
Government. Regarded as affording a criterion of what is navigable
water, and as such subject to the maritime jurisdiction of the Supreme
Court and of Congress, these acts are objectionable in this, that the
rule of navigability is an arbitrary one, that Congress may repeal
the present rule and adopt a new one, and that thus a legislative
definition will be able to restrict or enlarge the limits of
constitutional power. Yet this variableness of standard seems inherent
in the nature of things. At any rate, neither the First Congress,
composed of the statesmen of the era when the Constitution was adopted,
nor any subsequent Congress has afforded us the means of attaining
greater precision of construction as to this part of the Constitution.

This reflection may serve to relieve from undeserved reproach an
idea of one of the greatest men of the Republic--President Jackson.
He, seeking amid all the difficulties of the subject for some practical
rule of action in regard to appropriations for the improvement of rivers
and harbors, prescribed for his own official conduct the rule of
confining such appropriations to "places below the ports of entry or
delivery established by law." He saw clearly, as the authors of the
above-mentioned acts of 1789 and 1845 did, that there is no inflexible
natural line of discrimination between what is national and what local
by means of which to determine absolutely