Gibbons v. Ogden 22 U.S. 1 (1824)

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The acts of the Legislature of the State of New-York, granting to Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the constitution of the United States, which authorizes Congress to regulate commerce, so far as the said acts prohibit vessels licensed, according to the laws of the United States, for carrying on the coasting trade, from navigating the said waters by means of fire or steam.

APPEAL from the Court for the Trial of Impeachments and Correction of Errors of the State of New-York. Aaron Ogden filed his bill in the Court of Chancery of that State, against Thomas Gibbons, setting forth the several acts of the Legislature thereof, enacted for the purpose of securing to Robert R. Livingston and Robert Fulton, the [ Gibbons v. Ogden 22 U.S. 1 (1824)

exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years which has not yet expired; and authorizing the Chancellor to award an injunction, restraining any person whatever from navigating those waters with boats of that description. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places in New-Jersey, and the city of New-York; and that Gibbons, the defendant below, was in possession of two steam boats, called the Stoudinger and the Bellona, which were actually employed in running between New-York and Elizabethtown, in violation of the exclusive privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New-York. The injunction having been awarded, the answer of Gibbons was filed; in which he stated, that the boats employed by him were duly enrolled and licensed, to be employed in carrying on the coasting trade, under the act of Congress, passed the 18th of February, 1793, c. 3. entitled, 'An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same.' And the defendant insisted on his right, in virtue of such licenses, to navigate the waters between Elizabethtown and the city of New-York, the said acts of the Legislature of the [22 U.S. 1, 3]   State of New-York to the contrary notwithstanding. At the hearing, the Chancellor perpetuated the injunction, being of the opinion, that the said acts were not repugnant to the constitution and laws of the United States, and were valid. This decree was affirmed in the Court for the Trial of Impeachments and Correction of Errors, which is the highest Court of law and equity in the State, before which the cause could be carried, and it was thereupon brought to this Court by appeal.

Principles of interpretation. The power of regulating commerce extends to the regulation of navigation. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreiga nations, and among the several States. It dees not stop at the external boundary of a State. But it does not extend to a commerce which is completely internal. The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself. The power to regulate commerce, so far as it extends, is exclusively vested in Congress, and no part of it can be exercised by a State. State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. The laws of N. Y. granting to R.R.L. and R. F. the exclusive right of navigating the waters of that State with steam boarts, are in collision with the acts of Congress regulating the coasting trade, which being made in pursuance of the constitution, are supreme, and the State laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the States. A license under the acts of Congress for regulating the coasting trade, gives a permission to carry on that trade. The license is not merely intended to confer the national character. The power of regulating commerce extends to navigation carried on by vessels exclusively employed in transporting passengers. The power of regulating commerce extends to vessels propelled by steam or fire, as well as to those navigated by the instrument ality of wind and sails.

Feb. 4th, 5th, and 6th. Mr. Webster, for the appellant, admitted, that there was a very respectable weight of authority in favour of the decision, which was sought to be reversed. The laws in question, he knew, had been deliberately re-enacted by the Legislature of New-York; and they had also received the sanction, at different times, of all her judicial tribunals, than which there were few, if any, in the country, more justly entitled to respect and deference. The disposition of the Court would be, undoubtedly, to support, if it could, laws so passed and so sanctioned. He admitted, therefore, that it was justly expected of him that he should make out a clear case; and unless he did so, he did not hope for a reversal. It should be remembered, however, that the whole of this branch of power, as exercised by this Court, was a power of revision. The question must be decided by the State Courts, and decided in a particular manner, before it could be brought here at all. Such decisions alone gave the Court jurisdiction; and therefore, while they are to be respected [22 U.S. 1, 4]   as the judgments of learned Judges, they are yet in the condition of all decisions from which the law allows an appeal.

It would not be a waste of time to advert to the existing state of the facts connected with the subject of this litigation. The use of steam boats, on the coasts, and in the bays and rivers of the country, had become very general. The intercourse of its different parts essentially depended upon this mode of conveyance and transportation. Rivers and bays, in many cases, form the divisions between States; and thence it was obvious, that if the States should make regulations for the navigation of these waters, and such regulations should be repugnant and hostile, embarrassment would necessarily happen to the general intercourse of the community. Such events had actually occurred, and had created the existing state of things.

By the law of New-York, no one can navigate the bay of New-York, the North River, the Sound, the lakes, or any of the waters of that State, by steam vessels, without a license from the grantees of New-York, under penalty of forfeiture of the vessel.

By the law of the neighbouring State of Connecticut, no one can enter her waters with a steam vessel having such license.

By the law of New-Jersey, if any citizen of that State shall be restrained, under the New-York law, from using steam boats between the ancient shores of New-Jersey and New-York, he shall be entitled to an action for damages, in [22 U.S. 1, 5]   New-Jersey, with treble costs against the party who thus restrains or impedes him under the law of New-York! This act of New-Jersey is called an act of retortion against the illegal and oppressive legislation of New- York; and seems to be defended on those grounds of public law which justify reprisals between independent States.

It would hardly be contended, that all these acts were consistent with the laws and constitution of the United States. If there were no power in the general government, to control this extreme belligerent legislation of the States, the powers of the government were essentially deficient, in a most important and interesting particular. The present controversy respected the earliest of these State laws, those of New-York. On those, this Court was now to pronounce; and if they should be declared to be valid and operative, he hoped somebody would point out where the State right stopped, and on what grounds the acts of other States were to be held inoperative and void.

It would be necessary to advert more particularly to the laws of New- York, as they were stated in the record. The first was passed March 19th, 1787. By this act, a sale and exclusive right was granted to John Fitch, of making and using every kind of boat or vessel impelled by steam, in all creeks, rivers, bays, and waters, within the territory and jurisdiction of New-York, for fourteen years.

On the 27th of March, 1798, an act was passed, on the suggestion that Fitch was dead, or had withdrawn from the State, without having made [22 U.S. 1, 6]   any attempt to use his privilege, repealing the grant to him, and conferring similar privileges on Robert R. Liringston, for the term of twenty years, on a suggestion, made by him, that he was possessor of a mode of applying the steam engine to propel a boat, on new and advantageous principles. On the 5th of April, 1803, another act was passed, by which it was declared, that the rights and privileges granted to R. R. Livingston, by the last act, should be extended to him and Robert Fulton, for twenty years, from the passing of this act. Then there is the act of April 11, 1808 purporting to extend the monopoly, in point of time, five years for every additional boat, the whole duration, however, not to exceed thirty years; and forbidding any and all persons to navigate the waters of the State, with any steam boat or 11, 1808, purporting of Livingston and Fulton, under penalty of forfeiture of the boat or vessel. And, lastly, comes the act of April 9, 1811, for enforcing the provisions of the last mentioned act, and declaring, that the forfeiture of the boat or vessel, found navigating against the provisions of the previous acts, shall be deemed to accrue on the day on which such boat or vessel should navigate the waters of the State; and that Livingston and Fulton might immediately have an action for such boat or vessel, in like manner as if they themselves had been dispossessed thereof by force; and that on bringing any such suit, the defendant therein should be prohibited, by injunction, from removing the boat or vessel out of the State, or using it within the State. There were [22 U.S. 1, 7]   one or two other acts mentioned in the pleadings, which principally respected the time allowed for complying with the condition of the grant, and were not material to the discussion of the case.

By these acts, then, an exclusive right is given to Livingston and Fulton, to use steam navigation on all the waters of New-York, for thirty years from 1808.

It is not necessary to recite the several conveyances and agreements, stated in the record, by which Ogden, the plaintiff below, derives title under Livingston and Fulton, to the exclusive use of part of these waters.

The appellant being owner of a steam-boat, and being found navigating the waters between New-Jersey and the city of New-York, over which waters Ogden, the plaintiff below, claimed an exclusive right, under Livingston and Fulton, this bill was filed against him by Ogden, in October, 1818, and an injunction granted, restraining him from such use of his boat. This injunction was made perpetual, on the final hearing of the cause, in the Court of Chancery; and the decree of the Chancellor has been duly affirmed in the Court of Errors. The right, therefore, which the plaintiff below asserts to have and maintain his injunction, depends obviously on the general validity of the New-York laws, and, especially, on their force and operation as against the right set up by the defendant. This right he states, in his answer, to be, that he is a citizen of New-Jersey, and owner of the steam-boat in question; that the boat was a vessel of more than twenty [22 U.S. 1, 8]   tons burden, duly enrolled and licensed for carrying on the coasting trade, and intended to be employed by him, in that trade, between Elizabethtown, in New-Jersey, and the city of New-York; and was actually employed in navigating between those places, at the time of, and until notice of the injunction from the Court of Chancery was served on him.

On these pleadings the substantial question is raised: Are these laws such as the Legislature of New-York had a right to pass? If so, do they, secondly, in their operation, interfere with any right enjoyed under the constitution and laws of the United States, and are they, therefore, void, as far as such interference extends?

It may be well to state again their general purport and effect, and the purport and effect of the other State laws, which have been enacted by way of retaliation.

A steam vessel, of any description, going to New-York, is forefeited to the representatives of Livingston and Fulton, unless she have their license.

Going from New-York, or elsewhere, to Connecticut, she is prohibited from entering the waters of the State, if she have such license.

If the representatives of Livingston and Fulton, in New-York, carry into effect, by judicial process, the provision of the New-York laws, against any citizen of New-Jersey, they expose themselves to a statute action, in New-Jersey, for all damages, and treble costs.

The New-York laws extend to all steam vessels; [22 U.S. 1, 9]   to steam frigates, steam ferry-boats, and all intermediate classes.

They extend to public as well as private ships; and to vessels employed in foreign commerce, as well as to those employed in the coasting trade.

The remedy is as summary as the grant itself is ample; for immediate confiscation, without seizure, trial, or judgment, is the penalty of infringement.

In regard to these acts, he should contend, in the first place, that they exceeded the power of the Legislature; and, secondly, that if they could be considered valid, for any purpose, they were void, still, as against any right enjoyed under the laws of the United States, with which they came in collision; and that, in this case, they were found interfering with such rights.

He should contend, that the power of Congress to regulate commerce, was complete and entire, and, to a certain extent, necessarily exclusive; that the acts in question were regulations of commerce, in a most important particular; and affecting it in those respects, in which it was under the exclusive authority of Congress. He stated this first proposition guardedly. He did not mean to say that all regulations which might, in their operation, affect commerce, were exclusively in the power of Congress; but that suck power as had been exercised in this case, did not remain with the States. Nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than commercial regulation. Almost all the business and intercourse of [22 U.S. 1, 10]   life may be connected, incidentally, more or less, with commercial regulations. But it was only necessary to apply to this part of the constitution the well settled rules of construction. Some powers are holden to be exclusive in Congress, from the use of exclusive words in the grant; others, from the prohibitions on the States to exercise similar powers; and others, again, from the nature of the powers themselves. It has been by this mode of reasoning that the Court has adjudicated on many important questions; and the same mode is proper here. And, as some powers have been holden exclusive, and others not so, under the same form of expression, from the nature of the different powers respectively; so, where the power, on any one subject, is given in general words, like the power to regulate commerce, the true method of construction would be, to consider of what parts the grant is composed, and which of those, from the nature of the thing, ought to be considered exclusive. The right set up in this case, under the laws of New-York, is a monopoly. Now, he thought it very reasonable to say, that the constitution never intended to leave with the States the power of granting monopolies, either of trade or of navigation; and, therefore, that as to this, the commercial power was exclusive in Congress.

It was in vain to look for a precise and exact definition of the powers of Congress, on several subjects. The constitution did not undertake the task of making such exact definitions. In confering powers, it proceeded in the way of enumeration, [22 U.S. 1, 11]   stating the powers conferred, one after another, in few words; and, where the power was general, or complex in its nature, the extent of the grant must necessarily be judged of, and limited, by its object, and by the nature of the power.

Few things were better known, than the immediate causes which led to the adoption of the present constitution; and he thought nothing clearer, than that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law. The great objects were commerce and revenue; and they were objects indissolubly connected. By the confederation, divers restrictions had been imposed on the States; but these had not been found sufficient. No State, it was true, could send or receive an embassy; nor make any treaty; nor enter into any compact with another State, or with a foreign power; nor lay duties, interfering with treaties which had been entered into by Congress. But all these were found to be far short of what the actual condition of the country regulate The States could still, each for itself, regulate commerce, and the consequence was, a perpetual jarring and hostility of commercial regulation.

In the history of the times, it was accordingly found, that the great topic, urged on all occasions, as showing the necessity of a new and different government, was the state of trade and commerce. To. benefit and improve these, was a great object in itself: and it became greater when it was regarded [22 U.S. 1, 12]   as the only means of enabling the country to pay the public debt, and to do justice to those who had most effectually laboured for its independence. The leading state papers of the time are full of this topic. The New- Jersey resolutions1 complain, that the regulation of trade was in the power of the several States, within their separate jurisdiction, in such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion, that the sole and exclusive power of regulating trade with foreign States, ought to be in Congress. Mr. Witherspoon's motion in Congress, in 1781, is of the same general character; and the report of a committee of that body, in 1785, is still more emphatic. It declares that Congress ought to possess the sole and exclusive power of regulating trade, as well with foreign nations, as between the States. 2 The resolutions of Virginia, in January, 1786, which were the immediate cause of the convention, put forth this same great object. Indeed, it is the only object stated in those resolutions. There is not another idea in the whole document. The entire purpose for which the delegates assembled at Annapolis, was to devise means for the uniform regulation of trade. They found no means, but in a general government; and they recommended a convention to accomplish that purpose. Over whatever other interests of the country this government may diffuse its benefits, and its blessings, it [22 U.S. 1, 13]   will always be true, as matter of historical fact, that it had its immediate origin in the necessities of commerce; and, for its immediate object, the relief of those necessities, by removing their causes, and by establishing a uniform and steady system. It would be easy to show, by reference to the discussions in the several State conventions, the prevalence of the same general topics; and if any one would look to the proceedings of several of the States, especially to those of Massachusetts and New-York, he would see, very plainly, by the recorded lists of votes, that wherever this commercial necessity was most strongly felt, there the proposed new constitution had most friends. In the New-York convention, the argument arising from this consideration was strongly pressed, by the distinguished person whose name is connected with the present question.

We do not find, in the history of the formation and adoption of the constitution, that any man speaks of a general concurrent power, in the regulation of foreign and domestic trade, as still residing in the States. The very object intended, more than any other, was to take away such power. If it had not so provided, the constitution would not have been worth accepting.

He contended, therefore, that the people intended, in establishing the constitution, to transfer, from the several States to a general government, those high and important powers over commerce, which, in their exercise, were to maintain an uniform and general system. From the very nature of the case, these powers must be exclusive; [22 U.S. 1, 14]   that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be an unit; and the system by which it was to exist and be governed, must necessarily be complete, entire, and uniform. Its character was to be described in the flag which waved over it, EPLURIBUS UNUM. Now, how could individual States assert a right of concurrent legislation, in a case of this sort, without manifest encroachment and confusion? It should be repeated, that the words used in the constitution, 'to regulate commerce,' are so very general and extensive, that they might be construed to cover a vast field of legislation, part of which has always been occupied by State laws; and, therefore, the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress, so far, and so far only, as the nature of the power requires. And he insisted, that the nature of the case, and of the power, did imperiously require, that such important authority as that of granting monopolies of trade and navigation, should not be considered as still retained by the States.

It is apparent, from the prohibitions on the power of the States, that the general concurrent power was not supposed to be left with them. And the exception, out of these prohibitions, of the inspection laws, proves this still more clearly. Which most concerns the commerce of this country, [22 U.S. 1, 15]   that New-York and Virginia should have an uncontrolled power to establish their inspection for flour and tobacco, or that they should have an uncontrolled power of granting either a monopoly of trade in their own ports, or a monopoly of navigation over all the waters leading to those ports? Yet, the argument on the other side must be, that, although the constitution has sedulously guarded and limited the first of these powers, it has left the last wholly unlimited and uncontrolled.

But, although much had been said, in the discussion on former occasions, about this supposed concurrent power in the States, he found great difficulty in understanding what was meant by it. It was generally qualified, by saying, that it was a power, by which the States could pass laws on the subjects of commercial regulation, which would be valid, until Congress should pass other laws controlling them, or inconsistent with them, and that then the State laws must yield. What sort of concurrent powers were these, which could not exist together? Indeed, the very reading of the clause in the constitution must put to flight this notion of a general concurrent power. The constitution was formed for all the States; and Congress was to have power to regulate commerce. Now, what is the import of this, but that Congress is to give the rule-to establish the system-to exercise the control over the subject? And, can more than one power, in cases of this sort, give the rule, establish the system, or exercise the control? As it is not contended that the power of Congress is to be exercised by a supervision [22 U.S. 1, 16]   of State legislation; and, as it is clear, that Congress is to give the general rule, he contended, that this power of giving the general rule was transferred, by the constitution, from the States to Congress, to be exercised as that body might see fit. And, consequently, that all those high exercises of power, which might be considered as giving the rule, or establishing the system, in regard to great commercial interests, were necessarily left with Congress alone. Of this character he considered monopolies of trade or navigation; embargoes; the system of navigation laws; the countervailing laws, as against foreign states; and other important enactments respecting our connexion with such states. It appeared to him a most reasonable construction, to say, that in these respects, the power of Congress is exclusive, from the nature of the power. If it be not so, where is the limit, or who shall fix a boundary for the exercise of the power of the States? Can a State grant a monopoly of trade? Can New-York shut her ports to all but her own citizens? Can she refuse admission to ships of particular nations? The argument on the other side is, and must be, that she might do all these things, until Congress should revoke her enactments. And this is called concurrent legislation. What confusion such notions lead to, is obvious enough. A power in the States to do anything, and every thing, in regard to commerce, till Congress shall undo it, would suppose a state of of things, at least as bad as that which existed before the present constitution. It is the true wisdom of these governments [22 U.S. 1, 17]   to keep their action as distinct as possible. The general government should not seek to operate where the States can operate with more advantage to the community; nor should the States encroach on ground, which the public good, as well as the constitution, refers to the exclusive control of Congress.

If the present state of things-these laws of New-York, the laws of Connecticut, and the laws of New-Jersey, had been all presented, in the convention of New-York, to the eminent person whose name is on this record, and who acted, on that occasion, so important a part; if he had been told, that, after all he had said in favour of the new government, and of its salutary effects on commercial regulations, the time should yet come, when the North River would be shut up by a monopoly from New York; the Sound interdicted by a penal law of Connecticut; reprisals authorized by New- Jersey, against citizens of New-York; and when one could not cross a ferry, without transhipment; does any one suppose he would have admitted all this, as compatible with the government which he was recommending?

This doctrine of a general concurrent power in the States, is insidious and dangerous. If it be admitted, no one can say where it will stop. The States may legislate, it is said, wherever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? Congress has acted on this power; it has done all that it deemed wise; and are the States now to do whatever [22 U.S. 1, 18]   Congress has left undone? Congress makes such rules as, in its judgment, the case requires; and those rules, whatever they are, constitute the system.

All useful regulation does not consist in restraint; and that which Congress sees fit to leave free, is a part of its regulation, as much as the rest.

He thought the practice under the constitution sufficiently evinced, that this portion of the commercial power was exclusive in Congress. When, before this instance, have the States granted monopolies? When, until now, have they interfered with the navigation of the country? The pilot laws, the health laws, or quarantine laws; and various regulations of that class, which have been recognised by Congress, are no arguments to prove, even if they are to be called commercial regulations, (which they are not,) that other regulations, more directly and strictly commercial, are not solely within the power of Congress. There was a singular fallacy, as he humbly ventured to think, in the argument of very learned and most respectable persons, on this subject. That argument alleges, that the States have a concurrent power with Congress, of regulating commerce; and its proof of this position is, that the States have, without any question of their right, passed acts respecting turnpike roads, toll bridges, and ferries. These are declared to be acts of commercial regulation, affecting not only the interior commerce of the State itself, but also commerce between different States. Therefore, [22 U.S. 1, 19]   as all these are commercial regulations, and are yet acknowledged to be rightfully established by the States, it follows, as is supposed, that the States must have a concurrent power to regulate commerce.

Now, what was the inevitable consequence of this mode of reasoning? Does it not admit the power of Congress, at once, upon all these minor objects of legislation? If all these be regulations of commerce, within the meaning of the constitution, then, certainly, Congress having a concurrent power to regulate commerce, may establish ferries, turnpikes, bridges, &c. and provide for all this detail of interior legislation. To sustain the interference of the State, in a high concern of maritime commerce, the argument adopts a principle which acknowledges the right of Congress, over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted, that when Congress and the States have power to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and, therefore, the consequence would seem to follow, from the argument, that all State legislation, over such subjects as have been mentioned, is, at all times, liable to the superior power of Congress; a consequence, which no one would admit for a moment. The truth was, he thought, that all these things were, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term. A road, indeed, [22 U.S. 1, 20]   might be a matter of great commercial concern. In many cases it is so; and when it is so, he thought there was no doubt of the power of Congress to make it. But, generally speaking, roads, and bridges, and ferries, though, of course, they affect commerce and intercourse, do not obtain that importance and elevation, as to be deemed commercial regulations. A reasonable construction must be given to the constitution; and such construction is as necessary to the just power of the States, as to the authority of Congress. Quarantine laws, for example, may be considered as affecting commerce; yet they are, in their nature, health laws. In England, we speak of the power of regulating commerce, as in Parliament, or the King, as arbiter of commerce; yet the city of London enacts health laws. Would any one infer from that circumstance, that the city of London had concurrent power with Parliament or the Crown to regulate commerce? or, that it might grant a monopoly of the navigation of the Thames? While a health law is reasonable, it is a health law; but if, under colour of it, enactments should be made for other purposes, such enactments might be void.

In the discussion in the New-York Courts, no small reliance was placed on the law of that State Prohibiting the importation of slaves, as an example of a commercial regulation, enacted by State authority. That law may or may not be constitutional and valid. It has been referred to generally, but its particular provisions have not [22 U.S. 1, 21]   been stated. When they are more clearly seen, its character may be better determined.

It might further be argued, that the power of Congress over these high branches of commerce was exclusive, from the consideration that Congress possessed an exclusive admiralty jurisdiction. That it did possess such exclusive jurisdiction, would hardly be contested. No State pretended to exercise any jurisdiction of that kind. The States had abolished their Courts of Admiralty, when the constitution went into operation. Over these waters, therefore, or, at least, some of them, which are the subject of this monopoly, New-York has no jurisdiction whatever. They are a part of the high sea, and not within the body of any county. The authorities of that State could not punish for a murder, committed on board one of these boats, in some places within the range of this exclusive grant. This restraining of the States from all jurisdiction, out of the bodies of their own counties, shows plainly enough, that navigation on the high seas, was understood to be a matter to be regulated only by Congress. It is not unreasonable to say, that what are called the waters of New-York, are, to purposes of navigation and commercial regulation, the waters of the United States. There is no cession, indeed, of the waters themselves, but their use, for those purposes, seemed to be entrusted to the exclusive power of Congress. Several States have enacted laws, which would appear to imply their conviction of the power of Congress, over navigable waters, to a greater extent. [22 U.S. 1, 22]   If there be a concurrent power of regulating commerce on the high seas, there must be a concurrent admiralty jurisdiction, and a concurrent control of the waters. It is a common principle, that arms of the sea, including navigable rivers, belong to the sovereign, so far as navigation is concerned. Their use is navigation. The United States possess the general power over navigation, and, of course, ought to control, in general, the use of navigable waters. If it be admitted, that for purposes of trade and navigation, the North River, and its bay, are the river and bay of New-York, and the Chesapeake the bay of Virginia, very great inconveniences and much confusion might be the result.

It might now be well to take a nearer view of these laws, to see more exactly what their provisions were, what consequences have followed from them, and what would and might follow from other similar laws.

The first grant to John Fitch, gave him the sole and exclusive right of making, employing, and navigating, all boats impelled by fire or steam, ' in all creeks, rivers, bays, and waters, within the territory and jurisdiction of the State.' Any other person, navigating such boat, was to forfeit it, and to pay a penalty of a hundred pounds. The subsequent acts repeal this, and grant similar privileges to Livingston and Fulton: and the act of 1811 provides the extraordinary and summary remedy, which has been already stated. The river, the bay, and the marine league along the shore, are all within the scope of this grant. [22 U.S. 1, 23]   Any vessel, therefore, of this description, coming into any of those waters, without a license, whether from another State, or from abroad, whether it be a public or private vessel, is instantly forfeited to the grantees of the monopoly.

Now, it must be remembered, that this grant is made as an exercise of sovereign political power. It is not an inspection law, nor a health law, nor passed by any derivative authority; it is professedly an act of sovereign power. Of course, there is no limit to the power, to be derived from the purpose for which it is exercised. If exercised for one purpose, it may be also for another. No one can inquire into the motives which influence sovereign authority. It is enough, that such power manifests its will. The motive alleged in this case is, to remunerate the grantees for a benefit conferred by them on the public. But there is no necessary connexion between that benefit and this mode of rewarding it; and if the State could grant this monopoly for that purpose, it could also grant it for any other purpose. It could make the grant for money; and so make the monopoly of navigation over those waters a direct source of revenue. When this monopoly shall expire, in 1838, the State may continue it, for any pecuniary consideration which the holders may see fit to offer, and the State to receive.

If the State may grant this monopoly, it may also grant another, for other descriptions of vessels; for instance, for all sloops.

If it can grant these exclusive privileges to a few, it may grant them to many; that is, it may [22 U.S. 1, 24]   grant them to all its own citizens, to the exclusion of every body else.

But the waters of New-York are no more the subject of exclusive grants by that State, than the waters of other States are subjects of such grants by those other States. Virginia may well exercise, over the entrance of the Chesapeake, all the power that New-York can exercise over the bay of New-York, and the waters on the shore. The Chesapeake, therefore, upon the principle of these laws, may be the subject of State monopoly; and so may the bay of Massachusetts. But this is not all. It requires no greater power, to grant a monopoly of trade, than a monopoly of navigation. Of course, New-York, if these acts can be maintained, may give an exclusive right of entry of vessels into her ports. And the other States may do the same. These are not extreme cases. We have only to suppose that other States should do what New-York has already done, and that the power should be carried to its full extent.

To all this, there is no answer to be given except this, that the concurrent power of the States, concurrent though it be, is yet subordinate to the legislation of Congress; and that, therefore, Congress may, when it pleases, annul the State legislation; but, until it does so annul it, the State legislation is valid and effectual. What is there to recommend a construction which leads to a result like this? Here would be a perpetual hostility; one Legislature enacting laws, till another Legislature should repeal them; one sovereign power giving the rule, till another sovereign power should [22 U.S. 1, 25]   abrogate it; and all this under the idea of concurrent legislation!

But further; under this concurrent power, the State does that which Congress cannot do; that is, it gives preferences to the citizens of some States over those of others. I do not mean here the advantages conferred by the grant on the grantees; but the disadvantages to which it subjects all the other citizens of New-York. To impose an extraordinary tax on steam navigation visiting the ports of New-York, and leaving it free every where else, is giving a preference to the citizens of other States over those of New-York. This Congress could not do; and yet the State does it: so that this power, at first subordinate, then concurrent, now becomes paramount.

The people of New-York have a right to be protected against this monopoly. It is one of the objects for which they agreed to this constitution, that they should stand on an equality in commercial regulations; and if the government should not insure them that, the promises made to them, in its behalf, would not be performed.

He contended, therefore, in conclusion on this point, that the power of Congress over these high branches of commercial regulation, was shown to be exclusive, by considering what was wished and intended to be done, when the convention, for forming the constitution, was called; by what was understood, in the State conventions, to have been accomplished by the instrument; by the prohibitions on the States, and the express exception relative to inspection laws; by the nature of the [22 U.S. 1, 26]   power itself; by the terms used, as connected with the nature of the power; by the subsequent understanding and practice, both of Congress and the States; by the grant of exclusive admiralty jurisdiction to the federal government; by the manifest danger of the opposite doctrine, and the ruinous consequences to which it directly leads.

It required little now to be said, to prove that this exclusive grant is a law regulating commerce; although, in some of the discussions elsewhere, it had been called a law of police. If it be not a regulation of commerce, then it follows, against the constant admission on the other side, that Congress, even by an express act, could not annul or control it. For if it be not a regulation of commerce, Congress has no concern with it. But the granting of monopolies of this kind is always referred to the power over commerce. It was as arbiter of commerce that the King formerly granted such monopolies. 3 This is a law regulating commerce, inasmuch as it imposes new conditions and terms on the coasting trade, on foreign trade generally, and on foreign trade as regulated by treaties; and inasmuch as it interferes with the free navigation of navigable waters.

If, then, the power of commercial regulation, possessed by Congress, be, in regard to the great branches of it, exclusive; and if this grant of New-York be a commercial regulation, effecting commerce, in respect to these great branches, then [22 U.S. 1, 27]   the grant is void, whether any case of actual collision had happened or not.

But, he contended, in the second place, that whether the grant were to be regarded as wholly void or not, it must, at least, be inoperative, when the rights claimed under it came in collision with other rights, enjoyed and secured under the laws of the United States; and such collision, he maintained, clearly existed in this case. It would not be denied that the law of Congress was paramount. The constitution has expressly provided for that. So that the only question in this part of the case is, whether the two rights be inconsistent with each other. The appellant had a right to go from New-Jersey to New-York, in a vessel, owned by himself, of the proper legal description, and enrolled and licensed according to law. This right belonged to him as a citizen of the United States. It was derived under the laws of the United States, and no act of the Legislature of New-York can deprive him of it, any more than such act could deprive him of the right of holding lands in that State, or of suing in its Courts. It appears from the record, that the boat in question was regularly enrolled, at Perth Amboy, and properly licensed for carrying on the coasting trade. Under this enrolment, and with this license, she was proceeding to New-York, when she was stopped by the injunction of the Chancellor, on the application of the New-York grantees. There can be no doubt that here is a collision, in fact; that which the appellant claimed as a right, the respondent resisted; and there remains nothing [22 U.S. 1, 28]   now but to determine, whether the appellant had, as he contends, a right to navigate these waters; because, if he had such right, it must prevail. Now, this right was expressly conferred by the laws of the United States. The first section of the act of February, 1793, c. 8. regulating the coasting trade and fisheries, declares, that all ships and vessels, enrolled and licensed as that act provides, 'and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries.' The fourth section of the same declares, 'that in order to the licensing of any ship or vessel, for carrying on the coasting trade or fisheries,' bond shall be given &c. according to the provisions of the act. And the same section declares, that the owner having complied with the requisites of the law, 'it shall be the duty of the Collector to grant a license for carrying on the coasting trade;' and the act proceeds to give the form and words of the license, which is, therefore, of course, to be received as a part of the act; and the words of the license, after the necessary recitals, are, 'license is hereby granted for the said vessel to be employed in carrying on the coasting trade.'

Words could not make this authority more express.

The Court below seemed to him, with great deference, to have mistaken the object and nature of the license. It seemed to have been of opinion that the license had no other intent or effect than to ascertain the ownership and character of the [22 U.S. 1, 29]   vessel. But this was the peculiar office and object of the enrolment. That document ascertains that the regular proof of ownership and character has been given; and the license is given, to confer the right, to which the party has shown himself entitled. It is the authority which the master carries with him, to prove his right to navigate freely the waters of the United States, and to carry on the coasting trade.

In some of the discussions which had been had on this question, it had been said, that Congress had only provided for ascertaining the ownership and property of vessels, but had not prescribed to what use they might be applied. But this he thought an obvious error; the whole object of the act regulating the coasting trade, was to declare what vessels shall enjoy the benefit of being used in the coasting trade. To secure this use to certain vessels, and to deny it to others, was precisely the purpose for which the act was passed. The error, or what he humbly supposed to be the error, in the judgment of the Court below, consisted in that Court's having thought, that although Congress might act, it had not yet acted, in such a way as to confer a right on the appellant: whereas, if a right was not given by this law, it never could be given; no law could be more express. It had been admitted, that supposing there was a provision in the act of Congress, that all vessels duly licensed should be at liberty to navigate, for the purpose of trade and commerce, over all the navigable harbours, bays, rivers and lakes, within the several States, any [22 U.S. 1, 30]   law of the States, creating particular privileges as to any particular class of vessels, to the contrary notwithstanding, the only question that could arise, in such a case, would be, whether the law was constitutional; and that if that was to be granted or decided, it would certainly, in all Courts and places, overrule and set aside the State grant.

Now, he did not see that such supposed case could be distinguished from the present. We show a provision in an act of Congress, that all vessels, duly licensed, may carry on the coasting trade; nobody doubts the constitutional validity of that law; and we show that this vessel was duly licensed according to its provisions. This is all that is essential in the case supposed. The presence or absence of a non obstante clause, cannot affect the extent or operation of the act of Congress. Congress has no power of revoking State laws, as a distinct power. It legislates over subjects; and over those subjects which are within its power, its legislation is supreme, and necessarily overrules all inconsistent or repugnant State legislation. If Congress were to pass an act expressly revoking or annulling, in whole or in part, this New-York grant, such an act would be wholly useless and inoperative. If the New-York grant be opposed to, or inconsistent with, any constitutional power which Congress has exercised, then, so far as the incompatibility exists, the grant is nugatory and void, necessarily, and by reason of the supremacy of the law of Congress. But if the grant be not inconsistent with any exercise of the powers of Congress, then, certainly, Congress [22 U.S. 1, 31]   has no authority to revoke or annul it. Such an act of Congress, therefore, would be either unconstitutional or supererogatory. The laws of Congress need no non obstante clause. The constitution makes them supreme, when State laws come into opposition to them; so that in these cases there is no question except this, whether there be, or be not, a repugnancy or hostility between the law of Congress and the law of the State. Nor is it at all material, in this view, whether the law of the State be a law regulating commerce, or a law of police, or by whatever other name or character it may be designated. If its provisions be inconsistent with an act of Congress, they are void, so far as that inconsistency extends. The whole argument, therefore, is substantially and effectually given up, when it is admitted, that Congress might, by express terms, abrogate the State grant, or declare that it should not stand in the way of its own legislation; because, such express terms would add nothing to the effect and operation of an act of Congress.

He contended, therefore, upon the whole of this point, that a case of actual collision had been made out, in this case, between the State grant and the act of Congress; and as the act of Congress was entirely unexceptionable, and clearly in pursuance of its constitutional powers, the State grant must yield.

There were other provisions of the constitution of the United States, which had more or less bearing on this question: 'No State shall, without the consent of Congress, lay any duty of tonnage.' [22 U.S. 1, 32]   Under colour of grants like this, that prohibition might be wholly evaded. This grant authorizes Messrs. Livingston and Fulton to license navigation in the waters of New-York. They, of course, license it on their own terms. They may require a pecuniary consideration, ascertained by the tonnage of the vessel, or in any other manner. Probably, in fact, they govern themselves, in this respect, by the size or tonnage of the vessels, to which they grant licenses. Now, what is this but substantially a tonnage duty, under the law of the State? Or does it make any difference, whether the receipts go directly to her own treasury, or to the hands of those to whom she has made the grant?

There was, lastly, that provision of the constitution which gives Congress power to promote the progress of science and the useful arts, by securing to authors and inventors, for a limited time, an exclusive right to their own writings and discoveries. Congress had exercised this power, and made all the provisions which it deemed useful or necessary. The States might, indeed, like munificent individuals, exercise their own bounty towards authors and inventors, at their own discretion. But to confer reward by exclusive grants, even if it were but a part of the use of the writing or invention, was not supposed to be a power properly to be exercised by the States. Much less could they, under the notion of conferring rewards in such cases, grant monopolies, the enjoyment of which should be essentially incompatible with the exercise of rights holden under the laws [22 U.S. 1, 33]   of the United States. He should insist, however, the less on these points, as they were open to counsel, who would come after him, on the same side, and as he had said so much upon what appeared to him the more important and interesting part of the argument.

Mr. Oakley, for the respondent, stated, that there were some general principles applicable to this subject, which might be assumed, or which had been settled by the decisions of this Court, and which had acquired the force of maxims of political law. Among these was the principle, that the States do not derive their independence and sovereignty from the grant or concession of the British crown, but from their own act in the declaration of independence. By this act, they became 'free and independent States,' and as such, 'have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.' The State of New- York, having thus become sovereign and independent, formed a constitution, by which the 'supreme legislative power' was vested in its Legislature: and there are no restrictions on that power, which in any manner relate to the present controversy. On the other hand, the constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated. 4 This principle, [22 U.S. 1, 34]   which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature. 5  

These principles are all founded on the doctrine, that a strict rule of construction must be applied, in ascertaining the extent and object of those powers which are expressly delegated. The powers delegated are of two classes: such as are expressly granted, and such as are implied, as 'necessary and proper' to carry into execution the powers expressly enumerated. As to these implied powers, the constitution must be construed liberally, as respects their nature and extent: because the constitution implies that rule, by not undertaking to enumerate these powers, and because the grant of these powers is general and unlimited. But this rule has one exception: When the means of executing any expressly granted [22 U.S. 1, 35]   power are particularly enumerated, then no other mode of executing that power can be implied or used by Congress, since the constitution itself determines what powers are 'necessary and proper' in that given case.

These delegated powers, whether express or implied, are, (1.) those which are exclusively vested in the United States; and, (2.) those which are concurrent in the United States and the respective States.

It is perfectly settled, that an affirmative grant of power to the United States does not, of itself, devest the States of a like power. 6 The authorities cited settle this question, and it is no longer open for discussion in this Court.

The powers vested exclusively in Congress are, (1.) Those which are granted in express terms. (2.) Those which are granted to the United States, and expressly prohibited to the States. (3.) Those which are exclusive in their nature.

All powers, exclusive in their nature, may be included under two heads: (1.) Those which have their origin in the constitution, and where the object of them did not exist previous to the Union. These may be called strictly national powers. (2.) Those powers which, by other provisions in the constitution, have an effect and operation, when exercised by a State, without or beyond the territorial limits of the State. [22 U.S. 1, 36]   As examples of the first class, may be mentioned, the 'power to borrow money on the credit of the United States.' Here the object of the power, (to borrow money for the use of the United States,) and the means of executing it, (by pledging their credit,) have their origin in the Union, and did not previously exist. So as to the power 'to establish tribunals inferior to the Supreme Court,' the same remark will apply.

Of the second class, the power 'to establish an uniform rule of naturalization,' is an instance. This power was originally in the States, and was extensively exercised by them, and would now be concurrent, except for another provision in the constitution, that 'citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.' 7 It is not held to be exclusive, from the use of the term ' uniform rule.' This Court has held, that the use of an analogous term, 'uniform laws,' in respect to the associated subject of bankruptcy, does not imply an exclusive power in Congress over that subject. 8 The true reason why the power of establishing an uniform rule of naturalization is exclusive, must be, that a person becoming a citizen in one State, would thereby become a citizen of another, perhaps even contrary to its laws, and the power thus exercised would operate beyond the limits of the State.

As to concurrent powers: it is highly important [22 U.S. 1, 37]   to hold all powers concurrent, where it can be done without violating the plain letter of the constitution. All these powers are essential to State sovereignty, and are constantly exercised for the good of the State. These powers can be best exercised by the State, in relation to all its internal concerns, connected with the objects of the power. All powers, therefore, not expressly exclusive, or clearly exclusive in their nature, ought to be deemed concurrent. All implied powers are, of course, concurrent. It has never yet been contended, that powers implied as necessary and proper to carry into effect an exclusive power, are themselves exclusive. Such a doctrine would deprive the States almost entirely of sovereignty, as these implied powers must inevitably be very numerous, and must embrace a wide field of legislation. So also, all enumerated powers are to be considered concurrent, unless they clearly fall under the head of exclusive: either as being granted, in terms, exclusively to the United States, or as expressly prohibited to the States, or as being exclusive in their nature, as before explained.

A power exclusive in its nature, is said to be repugnant and contradictory to a like power in the States. This repugnancy exists only in cases where a State cannot legislate, in any manner, or under any circumstances, under a given power, without conflicting with some existing act of Congress, or with some provision of the constitution. Thus, it is laid down by the commentators on the constitution, that 'the power granted to the Union is exclusive, when the existence of a similar power [22 U.S. 1, 38]   in the States would be absolutely and totally contradictory and repugnant.' 9 'Or where an authority is granted to the Union, with which a similar authority in the State would be utterly incompatible.' 10 And again: 'It is not a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty.' 11 These strong expressions show that the repugnancy of power to power must be such, as to produce actual interference and conflict, under all circumstances, and in all cases, in which the power is exercised by the two governments: or, in other words, must be such that the States can pass no law on the subject matter of the power, without contravening the express provisions of the constitution; or without actually interfering with the operation of some statute of Congress. These terms are used by the author of the papers from which they are quoted, to distinguish those cases of absolute repugnancy from others, 'where the exercise of a concurrent jurisdiction might be productive of occasional interference in the polioy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.' 12 The same principle has been adopted by this Court on several occasions. 13   [22 U.S. 1, 39]   It appears, then, that the repugnancy which makes a power exclusive, must be clear, direct, positive, and entire. It cannot be a matter of speculation or theory, but must be practical: not a repugnancy that may arise in some exercise of the power by both governments; but one that must arise, in any exercise of such power, which is attempted by the States. To ascertain, then, whether any given power be concurrent, we must inquire, ( 1.) Whether it was possessed by the States, previous to the constitution, as appertaining to their sovereignty? (2.) Whether it is granted, in exclusive terms, to the Union? (3.) Whether it is granted to the Union, and prohibited in express terms to the States? (4.) Whether it is exclusive in its nature, either as operating, when exercised by the States, without their territorial limits, and upon other parts of the Union; or as having its origin and creation in the Union itself; or as being so entirely repugnant, that no exercise of it can take place by the States, without actual conflict with the constitution of the Union, in its practical operation and effects.

All concurrent powers may be divided into two classes: (1.) Those where, from their nature, when Congress has acted on the subject matter, the States cannot legislate at all in any degree. (2.) Those where the States may legislate, though Congress has previously legislated on the same subject matter.

The first class includes those instances where any act of Congress covers the whole ground of legislation, and exhausts the subjects on which it [22 U.S. 1, 40]   acts. Such is the power to fix the standard of weights and measures. Here, when the standard of any particular weight or measure is fixed by Congress, the whole power is executed as to that particular; and so far the power of the States is at an end. But, until Congress does this, it cannot be doubted that a State may act on the subject; and if the laws of Congress apply only to some weights and measures, all others are subject to State regulation. Thus, New-York has long had a law to regulate weights and measures, which establishes the English standard for that State, 'until Congress shall establish the standard for the United States.' 14 So, also, the power to regulate the value of foreign coin. An act fixing the value of any species of coin, necessarily disposes of the whole power as to that species. They are both instances in which, when Congress has acted at all, there immediately arises that entire and absolute repugnancy, and that utter incompatibility, which exclude the States from all power over the subject.

The second class of concurrent powers contains those in which, from their nature, various regulations may be made, without any actual collision in practice. These are, those where the power may be exercised on different subjects; or on the same subject, in different modes; or where the object of the power admits of various independent regulations, which may operate together. In all these cases, the State may legislate, though Congress [22 U.S. 1, 41]   has legislated under the same power. This results from the very nature of concurrent power. Each party possessing the power, may of course use it. Each being sovereign as to the power, may use it in any form, and in relation to any subject; and to guard against a conflict in practice, the law of Congress is made supreme.

The provision, that the law of Congress shall be the supreme law in such cases, is the ground of a conclusive inference, not only that there are concurrent powers, but that those powers may be exercised by both governments at the same time. One law cannot be said to be superior to another, and to control it, unless it acts in a manner inconsistent with and repugnant to that other. The question of supremacy, therefore, can never arise, unless in cases of actual conflict or interference. If the mere exercise of a power by Congress takes away all right from the State to act under that power, then any State law, under such a power, would be void; not as conflicting with the supreme law of Congress, but as being repugnant to the provisions of the constitution itself, and as being passed by the State, in the first instance, without authority. If this doctrine were true, then the provision that the laws of Congress should be supreme, was entirely idle. It would have been sufficient to have said merely, that the constitution should be supreme. 15 These positions [22 U.S. 1, 42]   are all supported by the judgments of this Court, and of other Courts whose authority deserves to be respected.

From this mass of authority, and the reasons on which it is founded, it results, (1.) That a State may legislate in all cases of concurrent power, though Congress has acted under the same power and upon the same subject matter. (2.) That the question of supremacy cannot arise, except in the case of actual and practical collision. (3.) That such collision must be direct and positive, and the State law must operate to limit, restrict, or defeat, the effect of a statute of Congress. (4.) That in such case, the State law yields in those particulars, in which such actual collision arises, but remains valid in all other respects.

The States have, accordingly, acted upon this construction to a great extent. Thus, the power to lay and collect taxes, is admitted on all hands to be concurrent. It is constantly exercised by the States, in every form, and both real and personal estate have frequently been taxed by the national and local governments, at the same time. So, under the power to lay and collect excises, the same article has frequently been taxed by both governments. And the power to lay imposts, or duties on exports, and imports, and tonnage, is also concurrent, except that no State can lay any duty on imports and exports, or duty of tonnage, unless such as are absolutely necessary for executing its inspection laws. So, also, the power to provide for the punishment of counterfeiting the securities and current coin of the United States, is a power [22 U.S. 1, 43]   which may be exercised by the States. A State may make it an offence to counterfeit the coin of any foreign country within its territory. Thus, New-York has provided for the punishment of counterfeiting 'any of the species of gold or silver coins, now current, or hereafter to be current in this State.' 16 And Congress has provided for the punishment of counterfeiting 'any gold or silver coin of the United States,' or of any 'foreign gold or silver coins, which, by law, now are, or hereafter shall be made current, or be in actual use and circulation as money, within the United States.' 17 New-York has punished the counterfeiting of 'any promissory note, for the payment of money,' including notes made by any body corporate;18 and under this the counterfeiting of the notes of the bank of the United States is punished. Congress has punished the same offence in the law incorporating the bank of the United States. 19 In all these acts of Congress, relating to coins and bank notes, it is provided, 'that nothing in them contained shall be so construed as to deprive the Courts of the individual States of jurisdiction, under the laws of the several States, over any offence made punishable by these acts.' This shows that Congress considered the power to punish these offences as concurrent, and that it could be exercised by the States on the [22 U.S. 1, 44]   ground of their own inherent authority, as it is held that Congress cannot delegate any part of the criminal jurisdiction of the United States to the State tribunals. 20 Again: the power to provide for organizing, arming, and disciplining the militia, is a concurrent power, according to the same principles. 21 But the States have been in the constant habit of superadding to the regulations of Congress, additional provisions, suited to their own views and local circumstances. 22 These instances, which might be greatly multiplied, show the practical construction put, both by Congress and the State Legislatures, upon these concurrent powers.

The learned counsel here recapitulated the principles laid down, and proceeded to apply them to the discussion of the cause, which he divided into two branches. (1.) The supposed repugnancy of the laws of New-York to the power of Congress on the subject of patents and copy-rights. (2.) Their supposed conflict with the power of Congress to regulate commerce.

As to the first, the words of the constitution are, 'Congress shall have power to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.' [22 U.S. 1, 45]   This power is concurrent, according to all the principles before laid down. It is clearly a power appertaining to sovereignty, and, as such, vested in the Legislature of New-York, before the formation of the United States' constitution. A power to promote science and the useful arts, is highly important to every civilized society. It embraces all the means of education, and all kinds of mechanical labour and improvements. It is constantly exercised by all governments, as a sovereign authority, by laws for the promotion of education in all its branches, by bounties for the encouragement of discoveries and new methods of business, and by the grant of exclusive rights and privileges for the same end. It has frequently been exercised by the State of New-York, and by other States, before the adoption of the constitution. It is not granted exclusively to Congress. No exclusive terms are used. The grant is affirmative and general, like all the other powers. There is no express prohibition upon the States against the exercise of it. Nor is it exclusive in its nature. It does not owe its existence or creation to the Union. When exercised by a State, it does not operate in any manner beyond the territorial jurisdiction of that State. From its nature, it admits of a great variety of regulations, both by local and general laws, which may exist harmoniously together. Being thus a concurrent power, it follows, according to the principles already established, that the State may exercise it at all times, and in every mode, until an actual and practical conflict arises between a right exercised [22 U.S. 1, 46]   under a statute of Congress, and the same right claimed to be exercised under the State.

The power, as granted in the constitution, is a limited power. It is a clear principle, that when the means of executing any given power are specified in the grant, Congress cannot take, by implication, any other means, as being necessary and proper to carry that power into execution. This power, then, is limited: (1.) As to the persons and the objects in regard to which it may be exercised: these are, 'authors and inventors, writings and discoveries.' This enumeration excludes all right in Congress to legislate on the subject of any improvement, which is not an 'invention,' either domestic or foreign. It excludes also all right to legislate for the benefit of any person who is not himself the 'inventor.' (2.) As to the means of executing the power, and the time during which those means may be exercised. They are by 'securing the exclusive right for limited times.'

The power, considered in itself, is supreme, unlimited, and plenary. No part of any sovereign power can be annihilated. Whatever portion, then, of this power, was not granted to Congress, remains in the States. Consequently, the States have exclusive authority to promote science and the arts, by all other modes than those specified in the constitution, without limitation as to time, person, or object; and the Legislature is the sole judge of the expediency of any law on the subject.

But this power, though limited in Congress, [22 U.S. 1, 47]   is still (as has been seen) concurrent in the States. It follows, then, from all the principles before laid down relative to the exercise of concurrent powers, that a State may exercise it by the same means, and towards the same persons and objects with Congress. A State may, therefore, grant patents and copy-rights, which would secure to the inventors and authors, the benefit of their discoveries and writings, within the limits of the State. In such cases, the citizens of other States might use the invention, or publish the book at pleasure. But if a patent or copy-right should be obtained under the law of Congress, the right under the State grant would cease as against that of the United States. Suppose the author or inventor does not apply for a patent or copy-right from the United States, or is willing to secure the exclusive right within any one State only, and leave the invention common in every other part of the Union; may not that one State secure the right within its own territory? This question may be answered by seeing how far Congress has exercised the power. An examination of the different patent laws will show, that Congress has, in various particulars, omitted to exercise the entire power given to them by the constitution. Thus, by several of these laws, the right of obtaining a patent is confined to citizens, and, consequently, the power of granting patents to aliens, is left to the States. The whole power is inoperative, until Congress acts under it by legislating: and the a patent. In every case, therefore, the power is [22 U.S. 1, 48]   unexecuted until a patent is actually granted. The State may consequently act in all cases.

But Congress has confined its statutes to cases of invention, as the constitution directs. Where then is the power to reward or encourage the introduction of useful machines or inventions from abroad? or, the establishment of any art, when invented at home, and the discoverer does not apply for a patent? or, where the invention is given to the public, and great expense must be incurred to put it into use? All these things appertain to sovereignty. Congress has no power over them. The power, being sovereign, must exist somewhere, and is, therefore, exclusively in the States. If the nature of the power which is given to Congress be examined, it will be found that it confers no authority to create or grant any right or property. It is clearly founded on the presumption, that the right or property may exist, independent of the power. Thus, one of the commentators on the constitution says, 'The copy-right of authors has been solemnly adjudged, in Great Britain, to be a right at common law. The right to useful inventions seems, with equal reason, to belong to the inventor.' 23 The adjudication here referred to, is that of Millar v. Taylor,24 where it was held, that the author of any book has the sole right of first printing and publishing it, but that the right was controlled by the provisions of the stat. 8 Ann, relative to copy-rights. [22 U.S. 1, 49]   But, the common law of England was the law of New-York, at the adoption of the national constitution. There was no statute of New-York similar to that of Ann, and, of course, the right existed there, without the security for its enjoyment, provided by that statute. The right, also, was local, and confined to the territorial jurisdiction of the State. The policy and object of the constitution was, to secure the right co-extensively with the Union. Its exercise in any one State, might be affected in its operation by the pirating of books and inventions in the adjoining States, and that evil could only be corrected by the national Legislature. The right, therefore, in any one State, was imperfect only as to the security and the means of enjoyment.

It appears, then, that the power is founded on the basis of a pre- existing right of property, from the nature and origin of the right, as before stated, and from the terms in which the power itself is granted. The word 'secure,' implies the existence of something to be secured. It does not purport to create or give any new right, but only to secure and provide remedies to enforce a preexisting right throughout the Union. This power differs essentially from the sovereign power to create and grant an exclusive right. It has been adjudged, under the English stat. 21 Jac. I. c. 3. that a grant may be made for any invention which is new in England, though known abroad. 25 That statute, therefore, authorizes the creation of a right [22 U.S. 1, 50]   of property in a thing imported, in which no right of property, under the laws of England, before existed. But the patent laws of the United States merely extend to inventions actually made in the United States, and not to any imported invention. The whole extent of the sovereign power, exercised by the British Parliament, on this subject, was vested in the Legislature of New-York. A part only was given to Congress, and all the residue remains in the State exclusively.

What then is the effect of a patent? It creates no new right. In secures the patentee, for a limited time, the exclusive right to his invention; so that he has the same exclusive right in it, that he has in any other kind of property. His right, however, is secured more extensively than any State law could secure it. But, within the limits of the State, a patent under the local law would be just as effectual. What is the situation of the right, after the expiration of a patent? The right under the common law of the State, may be considered as perpetual. It was so ruled by the Judges in Millar v. Taylor; but it was determined in the House of Lords, that the perpetuity of the right was controlled and limited by the statute of Ann. There is no such statute in New-York, and, therefore, the right remains as at common law. The act of Congress cannot destroy the perpetuity of a right held under the law of New-York, and which the act of Congress has only secured for a certain time, to a greater extent, and by means of more, effectual remedies. The right, then, remains, at the expiration of the [22 U.S. 1, 51]   patent, in the same condition as at its commencement, so far as regards the laws of New-York, and within the territorial limits of that State, but cannot be asserted in other States. Even if this were not so, and it should be considered that the right becomes common, at the expiration of the patent, then it is like all other common rights, subject to the control of the municipal laws of the State. It is of the essence of sovereignty to control and regulate all common rights. The Legislature, possessing 'supreme legislative power,' may destroy a common right, either by abolishing it, and prohibiting the use of it altogether, or by convering it into an exclusive right. Thus, a right of way may be common, either by land or water, and it may be shut up by law, and the use of it prohibited. So, a right of fishery, in navigable waters, is common, and it may be prohibited altogether, or converted into a several fishery. In the same manner, as to patent rights and literary productions: if, after a patent or copy-right has expired, the right to use or publish becomes common, it may be controlled by law, and turned into a private right. So that a State law may continue or extend a patent-right at pleasure.

Thus, it follows, that whether the right of the patentee remains in him, after the expiration of his patent, at common law, or whether its use becomes common to all, it is subject to the State law, in the same manner, and to the same extent, as all other rights, and may, consequently, be controlled, limited, extended, or prohibited, at the pleasure of the Legislature. [22 U.S. 1, 52]   But the State may control or prohibit the use of any patented thing, during the existence of the patent. If an inventor do not apply for a patent for the invention, no other man can. The right of the inventor, in such a case, remains as at common law. Every right or kind of property, created by the laws of the State, is subject to be controlled and regulated by the supreme legislative power of the State. It cannot then be doubted, that before a patent is obtained, the State may prohibit the use of the thing invented; either on the ground that it is mischievous in itself, or from motives of general policy, that it is inexpedient to permit it. As, if it interferes with any general interest, as a labour saving machine, which might deprive great numbers of their ordinary means of subsistence: or, if it should effect any great change in the course of business, which the Legislature might deem injurious, as it relates to the community. Of these questions of general policy, and of the expediency of any such prohibition, the Legislature must, of course, be the sole judge. Thus, in the act of New-York, to incorporate the North River Steam-boat Company, the corporation is prohibited from using any of its boats for the purpose of carrying freight. This was done to protect the great shipping interest employed in the navigation of the Hudson River. Would this exercise of power be affected by the obtaining of a patent? The object and effect of a patent is, (as we have seen,) to secure a pre-existing right, imperfect as to its means of enjoyment and its extent. The patentee obtains nothing by his grant, except an [22 U.S. 1, 53]   exclusive right, as it relates to the Union, instead of a right limited to the State, together with more complete and certain remedies to protect and enforce that right. If, therefore, he could not use the thing invented, against the State law, before it is patented, neither can he thus use it after it is patented, for his grant conveys no greater right than before existed. It is the undoubted attribute of all sovereignty, to regulate and control the use of all property. A thing patented, when made and put in use, is nothing more than property; and, like all other property, is subject to the control of the sovereign power, as to the right to use it. There can be no doubt that it may sometimes become important or necessary to the welfare of society, to regulate or prohibit the use of a thing patented. Congress cannot do this, or, at least, it has not done it. After the patent is granted, the power of Congress over the subject matter is exhausted. Patented things may be dangerous or noxious, either universally so in every part of the country, or locally; or, they may be useful at one time, and mischievous and noxious at another. Patented manufactures may be injurious to the public health, though highly useful as manufactures; or they may be nuisances to private individuals and neighbourhoods, though extremely useful to the public. Can Congress provide by its laws for the abatement of a public nuisance? or give a right of action to an individual for a private nuisance? If not, these powers must reside in the States. The right to use all property, must be subject to modification by municipal law. Sic [22 U.S. 1, 54]   utere tuo ut alienum non loedas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour. Can a patent give rights, by which a patentee may infringe the vested rights of others? Can a patented boat be used on a ferry, the exclusive use of which has been granted by a State law?

This argument may be illustrated by the power to secure to authors the exclusive right to their works. This power is founded on the same reasons with the other, and gives the author the same rights as the inventor. Can the author, by virtue of his copy-right, publish against the prohibition of State law? A book may be libellous, or blasphemous, or obscene. Cannot the author be indicted and punished for it? May not a citizen maintain an action for the libel? If so, it cannot be lawful by virtue of the copy-right. If the State can punish the act of publishing, it may entirely prohibit the publication. It may regulate and restrain the press, so far as it is not prohibited by its own constitution.

The laws of Congress are framed on the supposition that the power to prohibit remains in the States. By the existing statute, they have not provided that any inquiry shall be made as to the utility of the supposed invention, when the patent is applied for. There is no authority to refuse a patent, on the ground of the inutility of the invention, and in practice, no inquiry is ever made, and patents issue, of course, on making the oaths and paying the fees, even for things the most [22 U.S. 1, 55]   trifling, absurd, and injurious. There is no provision for the repeal of a patent, on the ground of its noxious or useless character. The law does not purport, in its terms, to give a right to use the thing patented, against the provisions of any State law. The act provides, (s. 1.) that if any person shall present a petition, 'signifying a desire of obtaining an exclusive property,' &c. then a patent shall issue, granting to the petitioner 'the full and exclusive right and liberty of making, constructing, using, and vending to others to be used,' the thing patented. The 'exclusive property' spoken of, is only the same property that exists in any thing else, and, of itself, gives no right to use the thing against the State law, any more than in the case of any other property. The words 'using, and vending to others to be used,' are inserted to make the description of that 'exclusive property' complete. The words 'making, constructing, and vending,' would not have constituted entire property in the thing, as one might make and vend, and all the world might use. The patentee's right of property might thus be greatly invaded, and he would be left without remedy, except against the 'maker.' The word 'using,' in the act, must receive this limited construction, or the law of Congress goes beyond the power in the constitution. That was only to 'secure' a right, and meant nothing more than that a patentee should enjoy it alone, if any body was permitted to enjoy it. But it was never intended that the patentee should set the State laws at defiance. The acts relative to copy- rights, strongly [22 U.S. 1, 56]   support this position. These acts contain no provision to ascertain the character of the books or engravings to be published, and whether they be such as may be safely permitted, consistently with the good order of society and public morals. They grant the same right to the author, as the patent grants to the inventor. In both cases, they depend on the same constitutional right, and only convey a right to prevent others from using or publishing without his consent, but not to enable him to use or publish without restraint.

If a State can thus control a right to use a thing patented, directly, it may do it indirectly. If by a positive law, then, through the agency of the Courts, by injunction or otherwise. Or, the right to prohibit the use of it may be delegated to individuals, either acting as public agents, or in their own behalf, to protect some other right vested in them; and may forbid the use of the thing patented, or the publication of the book, the copy-right of which has been secured, without their license. So that if an exclusive grant be made by a State law to an individual, with a provision that the thing granted shall not be used in the State, without license of the grantee, and there be a patent under the act of Congress for the same thing, the consequence would be, that the State grantee could not use it, because it would be a violation of the patent, and the patentee could not, without the license of the State grante, because the State law prohibited him. Thus, the State law would be inoperative, so far as it granted the exclusive right; but valid, so far as it prohibited the use of the thing patented. [22 U.S. 1, 57]   These principles may be applied to the law now in question, which gives an exclusive right, and forbids any person to use the thing which is the subject of the right, without the license of the persons in whom it is vested. It contains a granting clause, and a prohibiting clause. The injunction is founded on the prohibition, and may be enforced, though the grantees might not use their right. Let it be supposed that, from reasons of public policy, the laws of New-York had prohibited the use of steam boats entirely, and had directed the Court of Chancery to restrain them by injunction, would not the prohibition have been a valid one? and if so, may not the State determine that it is against the public interest, that steam boats should be built or navigated, unless under the direction, or with the license, of an individual, who may be thought particularly skilful in that business? It might, therefore, be contended, that this injunction is to be sustained, whatever might become of the respondent's exclusive right.

A State may prohibit the use of a thing patented, by virtue of its power over the public domain. A patented thing cannot be used on the private property of an individual, without his consent. The power of the State over the public property, is, at least, equal to that of an individual over his own; and particularly so, as to the navigable rivers in the State, which are, emphatically, the property of the people of the State, and subject to their authority, acting through the local Legislature.

The question has hitherto been discussed, as if [22 U.S. 1, 58]   the exclusive right claimed by the respondents, was the right to an invention, for which a patent may have been, or may yet be obtained. But in truth, his right is not to the use of any invention, or of any thing for which a patent can be granted. Livingston and Fulton do not, on the face of the acts granting or securing the right, claim to be the inventors of any thing. In the act of 1798, c. 55. s. 21. it is recited, that R. R. L. 'is the possessor of a mode of applying the steam engine to the propelling of vessels, on new and advantageous principles.' It is not alleged or pretended, that he was the discoverer of that mode, or of the principles of its application; or that the mode, or the principles, were secret or unknown to the rest of the world. His right, therefore, is to the use of an improvement, introduced (perhaps) from a foreign country, and, consequently, not the subject of a patent, and in respect to which Congress has no power to legislate at all. On the other hand, it does not appear, that the appellant has a patent for any thing connected with the subject of steam boats, or for any thing belonging to the steam engine, which can be used in navigation by steam. He can, therefore, claim no right, in this case, under the patent laws; and there is no question as to any actual conflict between the State right and a patent right. He is, consequently, compelled to rely upon the broad ground, that the State has no power to legislate at all, for the encouragement of any art or science, or for any improvement connected therewith, because Congress has legislated under a power which is partial in its extent, both as to objects and time. [22 U.S. 1, 59]   The result of all that has been said, tends to establish, that the power in the constitution is strictly a concurrent power. That it is also a limited power in Congress to promote science and the arts, by particular means, and in regard to particular objects, and for limited times. That all the residue of the power, to promote science and the arts, by all other means, and towards all persons and objects, and for unlimited times, remains exclusively in the States. That the States may legislate, in pursuance of this concurrent power, in all cases, and can grant exclusive rights to any thing which may be the subject of a patent, which will be valid within their own territory until a patent is actually issued under the authority of the Union. That when a patent issues, the State has full power to prohibit or control the use of it within its territory, though it cannot grant the right to use the patented thing to others. That it may exercise the power of prohibition, partially or totally, by direct legislative acts, or through the medium of its Courts, and may delegate the right to prohibit to any of its citizens. That in the present case, the right of prohibition has been delegated to Livingston and Fulton; and the mode of exercising that right, is by injunction out of Chancery. That this right of prohibition may be valid, even though the grant of the exclusive right to use, &c., might be invalid. That the State laws are, therefore, valid, even on the supposition that the right granted by them, was to an invention which might be patented; and that they would be valid, as to their prohibitions, even were a patent issued for the same [22 U.S. 1, 60]   object. But that, in truth, the right in question, has no connection with any thing that can be the subject of a patent; and if it has, that no patent has, in fact, issued to the appellant, nor does he, in any mode, claim a right under a patent. That the question, therefore, on this branch of the cause, is reduced to the inquiry, whether the State may legislate under a power, confessedly concurrent, when Congress has not acted at all, or when no person sets up a right under any act of Congress.

But the laws of New-York, now in question, are supposed to be in conflict with the constitutional power of Congress, 'to regulate commerce with foreign nations, among the several States, and with the Indian tribes.'

That is a concurrent power, according to all the principles before laid down. It was fully possessed by the States, after the declaration of independence, and constantly exercised. It is one of the attributes of sovereignty, specially designated in that instrument, 'to establish commerce.' It is not granted, in exclusive terms, to Congress. It is not prohibited, generally, to the States. The only express restraints upon the power of the States, in this respect, are against laying any impost or duty on imports or exports, (except for the execution of their own inspection laws,) or of tonnage; against making any agreement or compact with a foreign power; and against entering into any treaty. All these prohibitions, being partial, are founded on the supposition, that the whole power resided in the States. They are, accordingly, all in restraint of State power. It is a clear [22 U.S. 1, 61]   principle of interpretation, that where a general power is given, but not in exclusive terms, and the States are restrained, in express terms, from exercising that power in particular cases, that in all other cases, the power remains in the States as a concurrent power. Thus, the commentators on the constitution, speaking of the taxing power, say, 'this restriction implies an admission that, if it were not inserted, the States would possess the power it excludes. And it implies a further admission, that, as to all other taxes, the authority of the States remains undiminished.' 26 And, again: 'In all cases in which the restriction does not apply, the States would have a concurrent power with the Union.' This doctrine applies precisely to the power to regulate commerce. Laying imposts or duties of tonnage, is a part of the power to regulate commerce; and the making of a compact or agreement with other States or nations, is the only method by which a State could make any commercial regulation, which, as it regards its own citizens, would operate boyond its territorial limits. These restrictions imply, that the general power to regulate commerce, is concurrently in the States, and that it may be exercised by the States in all cases to which these prohibitions do not extend. But, the same implication is still stronger from the nature and terms of those prohibitory clauses. The State may lay duties on imports and exports, to execute its inspection laws. That class of laws [22 U.S. 1, 62]   are, or may be, essential regulations of commerce, and they derive their authority altogether from State power. The existence of a power to pass them, is, therefore, expressly recognised by the constitution. So, also, a State may lay any duty upon imports or exports, or of tonnage, with the consent of Congress. This provision implies, that the power to lay all duties remains essentially in the States; that the exercise of the power is suspended, until Congress consent; and that, when the consent is given, the State law acts of itself, and by State authority alone. The States no where derive any powers from the constitution. All its provisions are in restraint of their authority, and the consent of Congress, in this instance only removes the restraint. A State may not enter into any treaty; but, with the consent of Congress, may enter into an agreement or compact with another State, or with a foreign power. A treaty is made with a view to the public welfare, either in perpetuity, or for a considerable length of time, and binds the whole Union. A compact or agreement is generally temporary in its nature and operation, and is executed by a single act, and binds only the State that makes it. In this sense the constitution must be understood, when it speaks of trcaties as distinguished from compacts. It follows, that general and permanent commercial regulations with foreign powers, must be made by treaty, but that particular and temporary regulations of commerce may be made by an agreement of a State with another, or with a foreign power, by the consent of Congress. But, [22 U.S. 1, 63]   in this case, the compact would derive all its efficacy from the original inherent power of the State, not from the act of consent by Congress, which would merely remove an existing restraint.

There is nothing in the nature of this power, which renders it exclusive in Congress. The power itself does not grow out of the Union, like the power 'to borrow money on the credit of the United States.' It does not operate, when exercised by a State beyond its territorial limits, like the power of naturalization. There is no necessary repugnancy between the acts of the two governments under this power, since it clearly admits of a great variety of regulations, which may operate together, without direct interference. The restraints specially imposed on the power of the State, relating to commerce, would have been unnecessary, if it were not considered as a concurrent power.

The practice of the States shows that the power has always been considered as concurrent. Thus, the State of New-York has passed numerous laws, which are regulations of commerce with foreign nations, with other States, and with the Indian tribes. 1 As to that part of the power which relates to trade with the Indian tribes, the people here referred to may be within the limits of a State. Thus, the commentators on the constitution consider it in that light, and contrast the power with that relating to the same subject in the [22 U.S. 1, 64]   old confederation, which was qualified so as 'not to infringe the legislative rights of any State within its own limits.' 2 Thus, Congress has legislated on that basis. By the act to regulate trade and intercourse with the Indian tribes, it is provided, s. 19, 'that nothing contained in the act shall be so construed as to prevent any trade with Indians, on lands surrounded by settlements of citizens, and being within the ordinary jurisdiction of any of the individual States.' But the State of New-York has also legislated on the same subject, and by the 'act relative to the different tribes and nations of Indians within this State,' prohibits the purchase of land from any Indian, without the authority of the Legislature; prohibits the sale of various articles to any Indian or tribe; makes numerous other regulations, as to trade and intercourse with them, by the citizens who surround them, so as to cover the whole ground over which Congress has declared its act should not extend. An examinatien of the laws of other States, will show that many of them have legislated, under every part of this power, to the same extent, and, in some cases, to a greater extent than New-York; and will show the havoc which must be made in the State laws, if this power is not to be considered concurrent.

This power is not only concurrent, but is limited in Congress. It does not extend to the regulation of the internal commerce of any State. This results from the terms used in the grant of power, [22 U.S. 1, 65]   'among the several States.' It results also from the effects of a contrary doctrine, on the whole mass of State power. Internal commerce must be that which is wholly carried on within the limits of a State: as where the commencement, progress, and termination of the voyage, are wholly confined to the territory of the State. This branch of power includes a vast range of State legislation, such as turnpike roads, toll bridges, exclusive rights to run stage wagons, auction licenses, licenses to retailers, and to hawkers and pedlers, ferries over navigable rivers and lakes, and all exclusive rights to carry goods and passengers, by land or water. All such laws must necessarily affect, to a great extent, the foreign trade, and that between the States, as well as the trade among the citizens of the same State. But, although these laws do thus affect trade and commerce with other States, Congress cannot interfere, as its power does not reach the regulation of internal trade, which resides exclusively in the States.

It has thus been seen, that this power is concurrent; and as such, may be exercised by the States, subject, like all other concurrent powers, to the power of Congress, when actually exercised; and that it is limited, not extending to the internal trade of a State. We contend, that the exclusive right claimed by the respondent is valid, considered either as a regulation of intercourse and trade among the several States, or as a regulation of the internal navigation of the State.

Considering it then, as a regulation of trade [22 U.S. 1, 66]   among the States, it becomes necessary to inquire into the foundation of the right of intercourse among the States, either for the purposes of commerce, or residence and travelling. From the declaration of independence, in 1776, until the establishment of the confederation, in 1781, the States were entirely and absolutely sovereign, and foreign to each other, as regarded their respective rights and powers are separate societies of men. During that period, the right of intercourse among them rested solely on the jus commune of nations. By the law of nations, the right of commerce has its foundation in the obligation resting upon all men, mutually to assist each other, and to contribute to the happiness of their fellow creatures. Right on one side, springs from obligation on the other. The right to purchase, springs from the obligation to sell. 'One nation has, therefore, a natural right to purchase of another the things which it wants, and which the other does not need.' The law of nations being only the application of the law of nature, as regulating the rights and obligations of individuals, to nations and sovereign States, this is the foundation of the right of buying. But the right of selling does not impose any obligation on another nation to buy, as that other may not want, and must be the sole judge of its own necessities. 3 It follows, then, that any State has a natural right to purchase of any other the articles which it needs, and to open a commercial intercourse for that purpose; but that every [22 U.S. 1, 67]   State, being under no obligation to purchase of another, may, at its pleasure, prohibit the introduction of any foreign merchandise. These rights of purchasing are not perfect rights, and of course connot be enforced by one nation against another; and, being thus imperfect, it depends upon the will of each nation, whether it will carry on any commerce with another, or upon what terms and under what regulations. These imperfect rights, like all other imperfect rights between nations, can become perfect only by treaty; the effect of which, is to secure to a nation rights of commerce or intercourse, which it before enjoyed at the will of another. The right of travelling, or of entering into and residing in one nation by the citizens or subjects of another, depends on the same principles of international law. But the sovereign may forbid the entrance into his territory, either to foreigners in general, or in particular cases, and under particular circumstances, or as to particular individuals, and for particular purposes. 4 And as he may prohibit the entrance altogether, he may annex what conditions he pleases to the permission to enter. In the absence of any treaty stipulation, and of any prohibitory regulations, the natural right would exist, and might be exercised and enjoyed.

This being the relation subsisting between sovereign States, it follows, that before the confederation, each State enjoyed the right of intercourse with all the others, at the will of those others, both as respects the transit and residence of persons, [22 U.S. 1, 68]   and the introduction and sale of property. The confederation was a treaty between sovereign States, and 'the better to secure and perpetuate mutual friendship and intercourse among the people of the different States,' stipulated, that the free inhabitants of each State should have 'free ingress and egress to and from any other State,' and should enjoy in each State 'all the privileges of trade and commerce; subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively: provided, that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant.' This article, then, secured the right of passing from one State to another, but gave no new right of commerce as to the introduction of any goods, and not even the right of removing from the State any property purchased in it. The rights of commerce, therefore, as between the States, remained as before, subject to all the municipal laws of the State, except that those laws must be general and impartial in their application. Under the confederation, then, the States retained the whole power of regulating foreign commerce, and that between the States, except as stipulated in the treaty of confederation itself. Under it, all the trade and intercourse between any State and any foreign nation, was carried on by the law of nature and nations alone. All trade between any State and another State, as to the right of importation, &c., was carried on in the same manner. No State could make any freaty of commence [22 U.S. 1, 69]   with a foreign power, or with another State.

The inconveniences resulting from these powers of the States, gave rise to the new constitution. These inconveniences consisted principally in the impositions and taxes levied on property imported and exported by one State through another. There was no inconvenience as to the right of passing from State to State, as that was secured by the articles of confederation. The constitution applied the remedy to these evils in two ways: (1.) By express prohibitions on the States, in those particulars in which the evils had been most sensibly felt, preventing them from levying any impost or duty of tonnage, without the consent of Congress. (2.) By vesting Congress with a general power to regulate commerce with foreign nations and among the States. The constitution does not profess to give, in terms, the right of ingress and regress for commercial or any other purposes, or the right of transporting articles for trade from one State to another. It only protects the personal rights of the citizens of one State, when within the jurisdiction of another, by securing to them ' all the privileges and immunities of a citizen' of that other, which they hold subject to the laws of the State as its own citizens; and it protects their property against any duty to be imposed on its introduction. The right, then, of intercourse with a State, by the subjects of a foreign power, or by the citizens of another State, still rests on the original right, as derived from the law of nations. Suppose there [22 U.S. 1, 70]   was no treaty with a foreign power, and no act of Congress regulating intercourse with that power, but barely a state of peace; that power would enjoy the right of trade and intercourse with New-York, by the law of nations alone. But that right might be restrained, or regulated, or abolished by the law of New-York alone. Such was the situation of New-York before the adoption of the constitution, both as to foreign nations and the other States. The constitution has not abridged the power of the State in this respect. It has only subjected it to the superior power of Congress when actually exercised.

An examination of the acts of Congress on this subject will show, that, as the constitution has not given the right of intercourse and trade, so neither has Congress, in the exercise of its constitutional powers, by any law, given that right. Here the learned counsel entered into an elaborate examition of the statutes, for the purpose of establishing this position.

It would seem to follow, from this view of the constitution and the acts of Congress, that the right of transit from State to State, by land or water, for commercial or other purposes, is founded on the jus commune of nations; that the constitution does not affect that right, except in specified cases; and as to all others, leaves the right as before, with a general power in Congress to regulate and control it, so far as it may be connected with commerce; that the State has the concurrent power also, to regulate and control it, so far as it may be connected with commerce; that the State has [22 U.S. 1, 71]   the concurrent power also, to regulate and control it, in all cases where its regulations do not actually conflict with those of Congress; that Congress has made no regulations, which alter or affect the right at all, by giving any other right than was before enjoyed; that all the regulations of the State, therefore, which operate within its own limits, are binding upon all who come within its jurisdiction; and that if Congress deems such regulations to be injurious, it may control them by express provisions, operating directly upon the case.

The case has, heretofore, been considered as if the steam boat laws were regulations of commerce among the States, in the ordinary acceptation of those terms. But is the law in question any thing more than a regulation of the internal navigation of the waters of the State? In terms, it applies only to the waters within the State. It does not deny the right of entry into its waters to any vessel navigated by steam: it only forbids such vessel, when within its waters and jurisdiction, to be moved by steam; but that vessel may still navigate by all other means; and it leaves the people of other States, or of New-York, in the full possession of the right of navigation, by all the means known or used at the time of the passage of the law. It is, therefore, strictly a regulation of internal trade and navigation, which belongs to the State. This may, indeed, indirectly affect the right of commercial intercourse between the States. But so do all other laws regulating internal trade, or the right of transit from one part to another of the same State; such as quarantine laws, inspection [22 U.S. 1, 72]   laws, duties on auctions, licenses to sell goods, &c. All these laws are acknowledged to be valid. They are passed, not with a view or design to regulate commerce, but to promote some great object of public interest, within the acknowledged scope of State legislation: such as the public health, agriculture, revenue, or the encouragement of some public improvement. Being passed for these legitimate objects, they are valid as internal regulations, though they may incidentally restrict or regulate foreign trade, or that between the States. So of the laws now in question; they were passed to introduce and promote a great public improvement, clearly within the power of the State to encourage. They operate entirely within the limits of the State. They put no restraint on the right of entry into the State; but they exclude from the right of navigation on its waters in a particular mode, because they deem that mode injurious to the public interest, unless used by particular persons. How can they be distinguished in principle, from all the other laws which have been referred to? If steam boats had been pernicious in themselves, or had been deemed so as affecting injuriously other great public interests, could Congress have prohibited them on the waters of New-York, by any exercise of the power to regulate commerce? Could not the State have done it, by virtue of its general power, on its navigable waters? Suppose that steam boats were found to be unsafe, and destructive to property or lives, unless built or navigated by persons particularly skilful, could not the State prohibit the [22 U.S. 1, 73]   use of them, unless thus built and navigated? If, under any circumstances, the State may restrict the use of them to particular persons, it may do so in its own discretion, for reasons of which it alone is the judge.

All this shows that the restraint imposed by these laws, on the navigation of the waters of the State, is merely an internal regulation of the right of transit, or passage from one part of the State to another; that it is a regulation which, if even indispensable to the public safety, Congress could not make; and that the power to make it must, therefore, be in the State.

The right of a State to regulate its internal trade, applies as well to its navigable waters, as to its other territory. Its rivers are its territory and domain, as much as the land, and equally subject to its laws in all respects. The power of Congress to regulate commerce applies as well to the land as to the water. Commerce between the States, and with foreign powers, is very extensively carried on by land. Congress has accordingly adapted its revenue laws to the land, by imposing duties on goods imported in carriages, &c. When goods are brought into the State in a carriage or wagon, cannot the State prohibit the transportation of those goods from one part of the State to another, except in a particular manner, or by a particular road, or in vehicles of a particular description? Where is the difference between an exclusive right to navigate vessels by steam on the water, and an exclusive right to move carriages by steam on the land? Cannot a [22 U.S. 1, 74]   State grant an exclusive privilege to carry goods as well as passengers, in carriages or vessels, by water or by land? May it not convert all its roads leading into other States, into turnpikes, levy tolls upon them, and alter and abolish them at pleasure? All these are regulations of the internal trade of the State, but they may, and, indeed, must affect, to a great degree, the trade between the States. By virtue of the right of a State over its navigable waters, it establishes ferries, which are exclusive rights to use parts of navigable waters for particular purposes and in a particular manner; and bridges, which interrupt, and sometimes destroy the navigation of rivers: It grants the land under the water at pleasure, builds public piers, erects dams and other obstructions, and diverts the course of the waters for any purpose whatsoever. By its power over its land territory, a State establishes roads and canals, regulates the carrying of goods, and the amount of tolls upon them, grants exclusive privileges to stage wagons and others, for the carriage of goods and passengers, and performs all other acts of sovereignty in regard to these public highways.

It appears, then, that a State may exercise the same control in these respects, over both land and water, within its own jurisdiction; that the right, as to both, rests on the same foundation, that of a sovereign over his domain; and that it has uniformly been exercised over both in the same manner. What, then, is the right under which the respondent claims? It is only an internal regulation of the use of the waters of the State. This [22 U.S. 1, 75]   is clearly the case, when it applies to the case of the conveyance of passengers or goods, on the waters of the State, where the whole journey or transit is within the State, as from New-York to Albany. Is it in truth any thing more than an exclusive right of ferry over the waters of Hudson's river? It is, in substance and effect, an exclusive right to carry pasengers in boats navigated in a particular mode, on the navigable waters of the State. These waters are a public highway, like any other public road on land, and, as such, are completely subject to the control of the State laws. There are various acts of Congress which recognise the power of the States to control their navigable waters. Thus, in the act enabling the people of Louisiana to form a constitution, there is a provision, that the State convention shall 'pass an ordinance providing that the river Mississippi, and the navigable rivers and waters leading into the same, or into the gulf of Mexico, shall be common highways, and for ever free, as well to the inhabitants of the said State, as to other citizens of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State.' 5 And in the act for the admission of that State, the above provisions, as to the navigation of the Mississippi, are made one of the fundamental conditions of the admission. 6 Similar conditions were also imposed upon the admission of the States of Mississippi, Missouri, [22 U.S. 1, 76]   and Alabama;7 which strongly imply, that the new States would have had a right to control the navigation of their waters, if these provisions had not been inserted; that there is nothing in the constitution which could prevent them from doing so, when they should once have been admitted as equal members of the Union; and that Congress could pass no law, under the constitution, to prevent them from doing it.

But the power of Congress is 'to regulate commerce.' The correct definition of commerce is, the transportation and sale of commodities. It is so considered in all the regulations made by the laws of Congress. They speak generally of vessels and their cargoes, and whatever rights are given by the laws of Congress, apply to commerce strictly and properly speaking. Any person claiming to navigate the waters of the State of New- York against the State laws, under any right derived from the laws of Congress relative to commerce, must show himself qualified according to these laws, and actually exercising that right under their provisions. N