AN ARGUMENT MADE IN THE CASE OF GIBBONS AND OGDEN IN THE SUPREME COURT
OF THE UNITED STATES, FEBRUARY TERM, 1824.
[This was an 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
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 had
not then 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 steamboats, 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, ch. 8, 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 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 of New York before which the cause could be carried, and it
was thereupon carried up to the Supreme Court of the United States by
appeal.
The following argument was made by Mr. Webster, for the plaintiff in
error.]
It is admitted, that there is a very respectable weight of authority in
favor of the decision which is sought to be reversed. The laws in
question, I am aware, have been deliberately re-enacted by the
legislature of New York; and they have also received the sanction, at
different times, of all her judicial tribunals, than which there are
few, if any, in the country, more justly entitled to respect and
deference. The disposition of the court will be, undoubtedly, to
support, if it can, laws so passed and so sanctioned. I admit,
therefore, that it is justly expected of us that we should make out a
clear case; and unless we do so, we cannot hope for a reversal. It
should be remembered, however, that the whole of this branch of power,
as exercised by this court, is a power of revision. The question must be
decided by the State courts, and decided in a particular manner, before
it can be brought here at all. Such decisions alone give this court
jurisdiction; and therefore, while they are to be respected as the
judgments of learned judges, they are yet in the condition of all
decisions from which the law allows an appeal.
It will 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
steamboats on the coasts and in the bays and rivers of the country, has
become very general. The intercourse of its different parts essentially
depends upon this mode of conveyance and transportation. Rivers and
bays, in many cases, form the divisions between States; and thence it is
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 be caused to the general intercourse of
the community. Such events have actually occurred, and have 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 neighboring 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 steamboats between the
ancient shores of New Jersey and New York, he shall be entitled to an
action for damages, in 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 will hardly be contended, that all these acts are consistent with the
laws and Constitution of the United States. If there is no power in the
general government to control this extreme belligerent legislation of
the States, the powers of the government are essentially deficient in a
most important and interesting particular. The present controversy
respects the earliest of these State laws, those of New York. On these,
this court is now to pronounce; and if they should be declared to be
valid and operative, I hope somebody will point out where the State
right stops, and on what grounds the acts of other States are to be held
inoperative and void.
It will be necessary to advert more particularly to the laws of New
York, as they are stated in the record. The first was passed March 19th,
1787. By this act, a sole 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 any
attempt to use his privilege, repealing the grant to him, and conferring
similar privileges on Robert R. Livingston, 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 Robert R.
Livingston by the last act should be extended to him and Robert Fulton,
for twenty years from the passing of the 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 vessel, without the
license 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 are one or
two other acts mentioned in the pleadings, which principally respect the
time allowed for complying with the condition of the grant, and are 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
for steam navigation.
The appellant being owner of a steamboat, and being found navigating the
waters between New Jersey and the city of New York, over which waters
Ogden, the plaintiff below, claims 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 steamboat in question; that the
boat is a vessel of more than twenty 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 that it 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 has 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 forfeited 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 that 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; 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, I shall contend, in the first place, that they
exceed the power of the legislature; and, secondly, that, if they could
be considered valid for any purpose, they are void still, as against any
right enjoyed under the laws of the United States with which they come
in collision; and that in this case they are found interfering with such
rights.
I shall contend that the power of Congress to regulate commerce is
complete and entire, and, to a certain extent, necessarily exclusive;
that the acts in question are regulations of commerce, in a most
important particular, affecting it in those respects in which it is
under the exclusive authority of Congress. I state this first
proposition guardedly. I do not mean to say, that all regulations which
may, in their operation, affect commerce, are exclusively in the power
of Congress; but that such power as has been exercised in this case does
not remain with the States. Nothing is more complex than commerce; and
in such an age as this, no words embrace a wider field than _commercial
regulation_. Almost all the business and intercourse of life may be
connected incidentally, more or less, with commercial regulations. But
it is only necessary to apply to this part of the Constitution the
well-settled rules of construction. Some powers are held 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 many important
questions; and the same mode is proper here. And, as some powers have
been held to be 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 will 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 I think
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 is
exclusive in Congress.
It is in vain to look for a precise and exact _definition_ of the powers
of Congress on several subjects. The Constitution does not undertake the
task of making such exact definitions. In conferring powers, it proceeds
by the way of _enumeration_, stating the powers conferred, one after
another, in few words and where the power is 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 are better known than the immediate causes which led to the
adoption of the present Constitution; and there is nothing, as I think,
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 is 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
required. 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 is 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 as the only means of enabling the country to pay
the public debt, and to do justice to those who had most effectually
labored for its independence. The leading state papers of the time are
full of this topic. The New Jersey resolutions[1] complain that the
regulation of trade was in the power of the several States, within their
separate jurisdiction, to 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
sole 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 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 will 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[3] 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.
I contend, 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 a uniform and general system. From the
very nature of the case, these powers must be exclusive; 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 a _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, E PLURIBUS 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 may 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 I insist, 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, that New York and Virginia should have an uncontrolled power to
establish their inspection of 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 has been said, in the discussion on former occasions,
about this supposed concurrent power in the States, I find great
difficulty in understanding what is meant by it. It is generally
qualified by saying, that it is a power by which the States could pass
laws on 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 are these, which cannot 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 of State legislation,
and as it is clear that Congress is to give the general rule, I contend
that this power of giving the general rule is transferred, by the
Constitution, from the States to Congress, to be exercised as that body
may 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, are necessarily left
with Congress alone. Of this character I consider monopolies of trade or
navigation; embargoes; the system of navigation laws; the countervailing
laws, as against foreign states; and other important enactments
respecting our connection with such states. It appears to me 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 any
thing, and every thing, in regard to commerce, till Congress shall undo
it, would suppose a state of things at least as bad as that which
existed before the present Constitution. It is the true wisdom of these
governments 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 favor of the new government,
and of its salutary effects on commercial regulations, the time would
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 transshipment, 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 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.
The practice under the Constitution sufficiently evinces, that this
portion of the commercial power is 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 recognized 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 is a singular fallacy, as I
venture 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 the 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, 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 is 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,
turnpike-roads, and bridges, 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 is, in my judgment, that all these things are, in
their general character, rather regulations of police than of commerce,
in the constitutional understanding of that term. A road, indeed, may be
a matter of great commercial concern. In many cases it is so; and when
it is so, there is 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 possess such 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 color 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 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 is exclusive, from the consideration that Congress
possesses an exclusive admiralty jurisdiction. That it does possess such
exclusive jurisdiction will hardly be contested. No State pretends to
exercise any jurisdiction of that kind. The States 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 seas, 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 body 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, for 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 seems to be intrusted 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.
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 may now be well to take a nearer view of these laws, to see more
exactly what their provisions are, 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. 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 connection 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 grant them to all its own citizens, to the
exclusion of everybody 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 her shores. 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, no answer is to be given but one, that the concurrent power
of the States, concurrent though it be, is yet subordinate to the
legislation of Congress; and that therefore Congress may, whenever 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 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 everywhere 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.
I contend, therefore, in conclusion on this point, that the power of
Congress over these high branches of commercial regulation is 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 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.
Little is now required to be said, to prove that this exclusive grant is
a law regulating commerce; although, in some of the discussions
elsewhere, it has 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, cannot 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.[4] 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, affecting commerce in respect to
these great branches, then the grant is void, whether any case of actual
collision has happened or not.
But I contend, 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 come in collision with other rights, enjoyed
and secured under the laws of the United States; and such collision, I
maintain, clearly exists in this case. It will not be denied that the
law of Congress is 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 has 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 belongs to him as a citizen of the United States. It is
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 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 is expressly conferred by the laws of the United States.
The first section of the act of February, 1793, ch. 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 act declares, "that, in order to the
licensing of any ship or vessel, for carrying on the coasting trade or
fisheries," bond shall be given, 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 seems to me, with great deference, to have mistaken the
object and nature of the license. It seems to have been of opinion, that
the license has no other intent or effect than to ascertain the
ownership and character of the vessel. But this is 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 have been had on this question, it has
been said, that Congress has only provided for ascertaining the
ownership and property of vessels, but has not prescribed to what use
they may be applied. But this is an obvious error. The whole object of
the act regulating the coasting trade is to declare what vessels shall
enjoy the benefit of being employed in that trade. To secure this use to
certain vessels, and to deny it to others, is precisely the purpose for
which the act was passed. The error, or what I humbly suppose to be the
error, in the judgment of the court below, consists 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 can be more
express. It has been admitted, that, supposing there is a provision in
the act of Congress, that all vessels duly licensed shall be at liberty
to navigate, for the purpose of trade and commerce, all the navigable
harbors, bays, rivers, and lakes within the several States, any 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, I do 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 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, nor by what 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.
I contend, therefore, upon the whole of this point, that a case of
actual collision has been made out between the State grant and the act
of Congress; and as the act of Congress is entirely unexceptionable, and
clearly in pursuance of its constitutional powers, the State grant must
yield.
There are other provisions of the Constitution of the United States,
which have more or less bearing on this question. "No State shall,
without the consent of Congress, lay any duty of tonnage." Under color
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 into her own treasury, or into the
hands of those to whom she has made the grant?
There is, 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 has exercised this
power, and made all the provisions which it deemed useful or necessary.
The States may, 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, is not supposed to be a power properly to
be exercised by the States. Much less can they, under the notion of
conferring rewards in such cases, grant monopolies, the enjoyment of
which is essentially incompatible with the exercise of rights possessed
under the laws of the United States. I shall insist, however, the less
on these points, as they are open to counsel who will come after me on
the same side, and as I have said so much upon what appears to me the
more important and interesting part of the argument.
[Footnote 1: 1 Laws U.S., p. 28, Bioren and Duane's ed.]
[Footnote 2: 1 Laws U.S., p. 50.]
[Footnote 3: Chancellor Livingston.]
[Footnote 4: 1 Black. Com. 273; 4 Black. Com. 160.]