North River Steam Boat Co. v. Livingston

3 Cow. 713

• Court: New York Supreme Court
• Decided: April 15, 1824
• Status: Published

Opinion

Woodworth, J.

The appellants are entitled to all the interest and property, which Robert R. Livingston and Robert Fulton had, to the exclusive right and privilege of navigating steam-boats on that part of the waters of the Hudson River, between At to - York and Troy. This right has frequently been questioned in the Courts of this state. Every objection that the ingenuity of counsel could suggest, has heretofore been presented for consideration, and overruled by our highest Court of justice.

It would be a waste of time minutely to review those de» cisions. They must be considered as of binding authority, until a higher tribunal shall have pronounced them erroneous. On this point, there is probably no difference of opinion. Wretched, indeed, would be the state of the community, if it were otherwise. Individual rights would depend on the fluctuating opinions of different men, sitting in the same courts—what is declared to be law to-day, might not be law to-morrow. The evils growing out of such a system are too apparent to require comment. It must, however, be understood, that this doctrine is not to be carried so far as to sanction error. It will sometimes happen, that the principle upon which a cause ought to be decided, has been overlooked, or mistaken—sometimes the rule, as settled by former adjudications, has been misapplied. In these and sim-.. ilar cases, it is undoubtedly proper to review and correct; but it is always expected that manifest error be pointed out. If precisely the same questions have been before decider!, and the same arguments considered, they have the highest claim to conclusiveness in the Courts where they were pronounced.

Decisions of the Stat£toed States, upon laws.team b0at

The latter their full effeet;

That the decisions on the exclusive right of Livingston and Fulton, are of this character, is abundantly manifest. In the cause of Livingston v. Van Ingen, (9 John. 507) the severa^ ac*;s °f the legislature granting this monopoly, are decided to be constitutional and valid. It is true, that the effect of a license under the United States, for carrying on the coasting trade, was not then drawn in question—the respondents had not obtained any such license ; but it was objected, that the state laws interfered with the power given to congress, “ to regulate commerce with foreign nations and among the several states, and with the Indian tribes.” It was held, that all the internal commerce of the state, by land and water, remained entirely and exclusively within the scope of the original sovereignty. In the case of Ogden v. Gibbons, (4 John. Ch. Rep. 150) it was decided, that these acts were constitutional, and that the license gave the vessel an American character, while the right of the individual procuring the license, to use the vessel, as against another individual, setting up a distinct and exclusive right, remain-, ed. precisely as it did before. The decree was affirmed by this Court. (17 John. 488.) The Supreme Court of the United Stales reversed that decree, and it is contended, that the reversal was upon the grounds litigated in the cause now before us. If this be so, it becomes our duty to give that decisión its full effect, as proceeding from a Court of paramount and controlingjurisdiction.

But should he confined to the case under consideration.

Before I proceed to discuss this point, it is proper to observe, 1 , r , i . . . . r , r „ that the extent ot the decision in the case oí Gibbons v. Ugden, ¡s t0 be limited, as it was in Sturges v. Crowninshield, (4 Wheat. 122.) The Court tjhere say, that their opinion is confined to the case actually under consideration. In the case of Mather v. Bush, (16 John. 248) the Supreme Court óf this state proceeded on that ground, and held, that between that case, and Sturges v. Crowninshield, there was a material and manifest distinction; that a full and fair effect to the decision in Sturges v. Crowninshield, ought to be given, so far, and so far-only, as that Court had actually decided ; that it would be unfit and irregular, to analyse the reasoning and illustrations in the opinion delivered, any farther than to show, that the point then presented was not intended to be decided; and that we were not called upon to take a step in advance of the Supreme Court of the United States. To the opinion delivered in Mather v. Bush, I fullyassented, both as to the result and the reasons assigned. On further reflection, I see no cause to recede from the ground then taken. I proceed to inquire—

Importance of decisis.

First, What was the precise point in issue, in the case of Gibbons v. Ogden, and what was decided ?

Points.

Secondly, Does the case before us present the same question ?

Thirdly, If the respondent has the right to navigate his steam boat from Mew-Jersey to Mew-York, under a license to carry on the coasting trade, is he in the fair exercise of that right, by proceeding from Mew-York to Mew-Jersey, and from thence to Albany, unless the voyage shall be for the purpose of carrying on such trade bona fide, and not for the purpose of evading the state grant ?

The bill of Ogden alleged, that by virtue of his exclusive right, he run a steam-boat, called the Atalanta, between the city of Mew-York and Elizabethtown Point ; that the defendant, Gibbons, was the owner of two boats impelled by steam, and in contravention of the exclusive right of the plaintiff, had set in motion the said boats, and employed them in the trasportation of passengers, between the city of Mew-York and Elizabethtown; and that they then actually navigated between those places. An injunction was granted, restraining the defendant from navigating his boats on the waters of this state, between Elizabethtown and Mew-York. The answer admitted, that the boats were intended to navigate between Mew-York and Halsted^s Point, in Mero-Jersey / and that they did run, and continue so to do, until restrained by the injunction. The defendant averred, that his boats were duly enrolled, and licensed under the laws of the United States, to be employed in carrying on the coasting trade ; and insisted, that under the license, they might lawfully be employed in the coasting trade, between parts of the same state, or of different states, and could not be excluded or restrained therein, by any law or grant of a particular state, on any pretence to an exclusive right to navigate the waters of any particular state by steam-boats. The residue of the answer presents a distinct ground of defence, not connected with the present inquiry.

What was the issue in Gibbons v. Ogden, (9 Wheat. 1.)

Not the right to navigate between two points in this state.

An answer does not put in issue any thing not applicable to the bill, tho’ it be more extensive than the bill.

The preceding is a concise statement of the pleadings, ok which the Supreme Court of the United States adjudicated. What, then, was in issue between these parties ? Certainly not whether the license conferred a right to navigate between two points in this state, when the vayoge is not a continuation of a passage to or from another state. The reasons in support of this proposition appear to me conclusive, Ogden claimed no right to a navigation of that description. He merely claimed the right to run his boat from Elizabeth-town to New-York. His purchase extended no farther. The' bill complained oí the invasion of this right solely. If the answer sets up a right more extensive than that asserted in the bill, it puts in issue only so much as applies to the case made by the bill. What goes beyond, may or may not be well-founded. Let it be either, it seems necessarily to follow, that the plaintiff is not called on to admit or deny it. As to him, it may be considered as irrelevant matter, unless the whole case made by the answer depends on one and the same principle. The answer alleges a right, under the license, to navigate steam-boats from New-York to Elizabeth-town. This meets the case made by the bill. If it also claims a right, under the license, to navigate from New-York to Albany, without reference to the commencement or termination of the Voyage in New-Jersey, in this respect it goes beyond the bill, and is not matter in issue between the parties, unless the decision of the first necessarily decides the second. If the two questions are not precisely the same ; if there are well-founded doubts whether the establishment of the right to navigate between New- York and New- Jersey, proves the right to navigate the whole extent of the Hudson ; and more especially, if there are substantial grounds of argument to resist the right claimed, in the latter cáse, which do not apply to the other, it can not safely be said, that a decision on one controls the other. It requires a clear and explicit adjudication of the higher tribunal, on the point, before the respondent is entitled to rest on the ground of authority.

I have supposed that Gibbons claimed, in his answer, the right set up by the respondent. I think it manifest, however, that he did not. A right to employ his boat in the coasting trade, between diffeient states, is all that seems to be claimed. If this protected the defendant, in running his boats from Jersey to the city of JVczo- York, against the exclusive privilege of the plaintiff, it was all the defendant desired, and all that necessarily came in question. The boats were employed in that navigation only, and for that purpose the answer alleges they were intended. To that extent the decision of the Supreme Court of the United States is definite and certain. The defendant run no boat under the circumstances presented in the case before us. It was, therefore, a mere speculative question, whether the exclusive privilege must yield to the license, in such a case. I admit .. ., , . . . It was incidental to, and in some degree, but not mseparably, connected with the right to run boats from Elizabeth-town to Mew-York. Unless, therefore, the Supreme Court of the United States, in language not to be mistaken, have considered the two cases to be the same, or that the license would equally extend to authorize a navigation between two places within the state, I am not disposed to anticipate, or go in advance of their opinion. Resort, then, must be had, in the first place, to the decree itself, and then to the reasoning upon which it is founded.

..... The question óf exclusivo ^“otty between two points within the state, was ,m°re,y. sp®c“' bonsv. Ogd-n; ¿^¿"separably s°i mai£í question.

The language of the decree is, that the license to carry on the coasting trade, gave full authority to navigate the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the state of Jtc.w York to the contrary notwithstanding. This was the point decided, and nothing more. It was all the appellant required, to obtain a reversal. Chief Justice Marshall observes, “ the coasting trade is a term well understood ; the law has defined it, and all know its meaning perfectly ; the act describes, with great minuteness, the various operations of a vessel engaged in it; and it can not be doubted, that a voyage from New Jersey to New-York, is one of those operations.” This, then, is the basis upon which the decree rests. It is a particular specification of the point decided by the Court. The remaining parts of the decree, where general terms are employed, must be understood as conforming to that specification. It is analogous to the principle which governs in the construction of other instruments. Where there is a particular recital, or enumeration of particulars, to which the instrument is to app'ly, subsequent general words shall be qualified by the particular recital. When, therefore, the Court afterwards declare, “that so much of the several laws of the state of New-York, as prohibits vessels licensed according to the laws of the United States, from navigating the waters of the state of New-York, by means of fire or steam, is repugnant to the constitution, and void,” does it authorize a navigation for carrying on a trade wholly internal, within the waters of a state ? Evidently not, unless the coasting trade is declared to extend, not only to commerce between the states, but also to internal commerce within the state. When, therefore, the decree speaks of navigating the waters of the state by fire or steam, the words, “for the purpose of carrying; on the coasting trade,” are necessarily understood. So, also, in the last clause, whfere the Court say, that the “ decree of this Court, which perpetually enjoins Gibbons from navigating the waters of this state, by steam or fire,,is erroneous,” must receive the same construction; so that the whole decree may hold an uniform language, and correcrly state the precise point involved in the decision.

Tiie aecree m that case, the^oas-tinS trade,

Unsafe to look beyond the point actually decided ; and reverse the decision of this court, because the S. C. of the U S. would, from their language, probably do this, on the question coming before. them.

But it is contended, that the opinion delivered embraces the present case, and sanctions the right claimed by the respondent. I have already suggested my views, as to the reasoning and illustrations which Courts may assign in support of their judgments, and that, generally speaking, we tread on unsafe ground, if we depart from the point actually decided.

In discussing the general nature of the power to regulate commerce among the states, and the effect of a license to carry on the coasting trade, the right of the state over its internal commerce was considered. Bat it is no where asserted, in the opinion delivered, that the license to carry on the coasting trade, extends to .he commerce of a state purely internal. If, from the reasoning, we may conjecture, or even think it probable, that the superior tribunal may, on a future occasion, carry the doctrine to that extent, we are not justified in reversing what has been solemnly and repeatedly-adjudged in our own Courts on such grounds. It must either be on the ground of an express decision by paramount authority, or that, on a consideration of the new points of view, in which the question is presented, we are satisfied the former decisions are erroneous.

The Chief Justice considers the power of regulating commerce, as extending to the regulation of navigation, and that commerce “ amang the several states,” comprehends every species of commercial intercourse ; that it can not stop at the external boundary line of each state, but may be introduced into the interior. But it was “ not intended to say, that these words comprehend commerce, which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to, or affect other states.” And, again, he observes, “ the enumeration of the particular classes of commerce to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration pre supposes something not enumerated 5 and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the state generally, but not to those which are completely within a particular state, which do- not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a stale, then, may be considered as reserved for the state itself,’5

Their language considered

Extent of the power to regulate commerce among the states.

, it does not nal'commer^ '

Commerce, then, among the states, as explained by the Supreme Court of the United States, does not include internal commerce. It is that which proceeds from one state to. another. A voyage in the prosecution of such a commerce, may be continued from port to port, and place to place, on the internal waters of the state. Thus, a voyage direct from Elizabethtown to Albany, is commerce among the states, and the vessel may touch at any intermediate port. In the opinion delivered, the question is put, “ can a trading expedition, between two adjoining states, commence and terminate out-side of each ?- And if the trading intercourse be between two states, remote from each other, must it not commence, in one, terminate in the other, and probably pass through a thiid ? Commerce among the states must, of necessity, bo commerce with the states.” This language.seems to me incapable of being mistaken. In discussing the constitutional powers of congress, under the clause to regulate “ commerce among the stalesthe Chief Justice kept steadily :o view? a commerce directly from one state to another, an,d that, so, far as that was concerned, all state regulations in collision must yield. The general expressions in the opinion, “ that the power of-congress must be exercised whenever she sqbject exists, and if it exists within the states, then the power. of congress may be exercised within a state,” are all to be, understood as qualified and limited, so as to protect the commerce from one state to another.

Where the voyage °fare both within a state, the navigatioa is not prectpowerof congress.

The whole scope of the reasoning is, to show the extent of the power of congress on this subject.; that it is, in its nature, exclusive, and consequently does not admit of participation by the states. It is conceded, in the opinion delivered, that the direct power of- congress to. regulate commerce among the states, does not operate on the internal commerce of a state, but that such internal commerce may be considered as reserved for the state itself,

I have attempted to show, what spe.cies of- commercial intercourse is intended by the words “ commerce among the " " ■ : - . states.” If I am correct in the construction put upon the reasoning of the Chief Justice, it follows, that a navigation from port to port, where, the termini of the voyage are both within a state, is not within (be direct power given to congress, but is under stale control, except in certain cases, which I will directly point out. In pursuing this subject, it must be kevi in miad, that I am not examining this as an original question, but to ascertain what ground is covered by the decision of the Supreme Court: to that extent it will receive our sanction.

The opinion clearly maintains, that although the states have the power of legislating on the subject of their internal commence, and no direct.power is given to congress on this gvh'ect ; yet that a collision may sometimes lake place, and p('.n,i!’U(-ritiy that the law of congress, if within their delegated "ovt-rrs, being the supreme law of the land, must prevail. h:s r. dhsion did exist in the case of Ogden v. Gibbons f -r ahii mgh it be admitted that the state has a right to -- • >' ve its internal commerce, the power is subject to this .Mi/ahon, that whenever that regulation interferes with the power of congress, so far as it interferes, it is inoperative and void. The Supreme Court considered the steam boat monopoly as the exercise of a right strictly commercial, and that therefore it must yield to a paramount law of congress, made in pursuance of the constitution. By the license under that ¡aw, Gibbons was authorized to navigate from New Jersey to any port or place in this state. To that extent the state law is in collision, and to that only has the decree reference in the following sentence: “ that so much of the several laws of the slate of New York as prohibits vessels licensed, according to the laws of the United States,from navigating the waters of the state of New-York by means of fire or steam, is repugnant to the constitution and void.” It was argued that a construction put on the words, “ com merce among the states,” like that which obtained the sanction of the Supreme Court, would subvert state inspection laws, health laws, turnpike roads and ferries. But it was answered, as to these, that although having a considerable influence on commerce, the right to pass them was not derived from the power to regulate it, but formed a portion of that xnass of legislation within a state, not surrendered to the general government. Certain it is, that according to the cxplanation given by the Court, of the terms “ commerce u v - 7 among the states,” they can not be defended as commercial regulations. It is because they are not so considered, that they are not affected by a law of congress. On this ground Gibbons could not set up a ferry between the city of Jersey. and New York ;■ it would not he a commerce within the mean’ng of the constitution, and consequently the state grant of the ferry would be valid. These points I consider as dec'ded, and do not feel myself at liberty to question them.

Yet a collision between a U. S. & state law may sometimes the sta-.e law must yieM*

Inspeetion laws, health laws, turnpike roads and ferries remain subject to state legislation.

Gibbons could ferry between the cities of New-Yark.^

If congress have an mcidental or conove^themternal commerce they have not ■exercised it.

The opinion delivered, supposes that the subjects of in1 . . ‘ 1 ternal state regulation may be also atFectedin another way ^7 general government. The proposition is thus laid down: “If the legislative power of the union can reach them, it must b.e for national purposes ; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power expressly given.” (9 Wheaton, 203, 204.) It is here proper to remark, that the act of congress for licensing vessels to be employed in the coasting trade, must be considered as an act passed in the exer-' cise of their express powers ; i;t is to give effect to those powers exclusively. It does not profess to call in aid of the express power," any incidental power, nor can it- be collected from the act, whether congress claim the right of interfer-. ing with the purely internal commerce of the state, in consequence of any incidental power. Admitting that congress may, on this principle, support the right to,pass laws, in collision with the internal regulations of a state, the only consequence is, that so far, and to. that extent, the general and; state governments have concurrent powers; and no question can arise upon them, until they come in conflict. There is nothing, then,in the principle which bears upon the. present question ; for congress have not yet attempted to exercise any incidental power, at variance with the state right to regulate its internal commerce.

©pinion of seéms‘to’admit that if the M^inddentai, not a direct power m congress,

The example given by the Chief Justice, as to the manner *n which, the incidental power may be exercised, as I understand it, has an important bearing upon the principal question, what is commerce among the states ? He says* page 204, “ If congress license vessels to sail from, one poní 1 ° ■ " ... zr to another in the same state, the act is supposed to he necessarily incidental to the power expressly granted to congress, and implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police.” The case put, seems to be the very case under consideration, “a vessel sailing from one port to another in the same state.” This is an implied admission, that it does not fall within the express power of congress to regulate commerce among the states, and could only be reached, if reached at all, by the ekercise of what is called a power incidental to the power expressly given.

According to the view I have taken, the question to be decided is narrowed down to a single proposition: Does the direct power of congress to regulate commerce among the states, include the right of regulating commerce between two points in the same state, when there is no voyage to or from another state 1 I have endeavored to show that it does notand that if there is an incidental power, which, when called into action, might bear on internal state legislation, the answer is, it is not exclusive, and no such power has yet been exercised : when it is, it will be time enough to consider its validity.

The ques= lion here is narrowed to-the single proposition, whether con* gress have a direct power to regulate T““yrce’ be tween two same^state»*”0

It does not seem to me that the- law of congress, or the license granted under that law, can make any difference, according to the view taken by the Supreme Court; for it necessarily results, that if congress have the exclusive power to regulate commerce among the states, (and so it is held,) the states have no power at all to legislate on the subject Their acts must be void, whether congress had passed any law regulating the coasting trade or not The right, it is true, to carry on the coasting trade, is held to be derived from the license; but if it were not so, the same conse11 V 11 ml • quences would result as respects the appellants. Them claim for an injunction would then rest on a law, inoperative and void, so far as it comes in collision with the constitutional power of congress. It could not be supported, whether the license gave a right to the respondent, or was only evidence of the character of the vessel. The whole question depends on this : what is meant by the expression, “ commerce among tJje states ?”

The right to meroe^mon» the states is congress, and touched* by*» state, whethev actecTov hno7 The license cay ference^ and “ this 1.Tley’ the question is, what is meant among^The states P

But the act licensearema1 terial as fortistructioif C°of the powers of

is a plenary exerpower as to watS?r°e by

But the act of congress, and the license under it, may, I apprehend, be advantageously considered, for the purpose of fortifying the construction given to the powers of congress on this subject.

^ consider the act regulating the coasting trade, as a plenary exercise of (he powers of congress under the constitu*'oni 80 far as navigation, or a commerce by water,, is concerned. The act has given no definition as to the extent 0Jfthis right. The sense of congress seems to be, that the “ coasting trade” is coextensive with the direct power “ to regulate commerce among the states.” It does not assert any other or greater right. Does, then, the coasting trade, within its legitimate meaning, apply to a commerce carried on by a citizen of a state, exclusively on the internal Waters 0f the same state ?

The terms, Ci (iQflgfiyiO* trade” do not apply to commerce confined to the internal state.rS °f a

When words are employed, which had previously receiveda known interpretation, they are to be construed in that manner, unless a different intent is plainly indicated. When the constitution of the United States was adopted, it found the states in the possession and exercise of a coasting trade ; each state had a right of prescribing its own regulations ; the citizens of one state, when navigating the waters of another state, were obliged to conform to its regulations. Subject to to these, they might navigate from one state to another, and to any port or place within a state. This was the coasting trade as generally understood. A voyage proceeding from another state to this state, would be the coasting trade} whether the vessel terminated her voyage at the city of JVezoYork, or proceeded on her voyage to Albany. It would, within the meaning of the terms, be a coasting trade, although the internal waters of the state form no part of the coast. The trade bad reference to an intercourse between states, which might be carried into (he interior of a state, if there were navigable waters: but with respect to a trade purely internal, between different parts of the same state, I am not aware that it was ever considered within the meaning.. of those terms. It would have been novel, I apprehend, if not unintelligible language, to speak of the coasting trade on the Hudson, River. It seems therefore to my mind a fair inference, that congress never contemplated that the license gave a right to navigate the internal waters of a state, unless in the prosecution of a coasting trade from state to state, but intended to limit it to a commerce of the latter description.

The grievance in this case is, that the respondent navigates a steam boat from New-York to Albany, notwithstand ing the exclusive right of (he appellants. The injunction does not, according to the view I have taken, interfere or come in collision with the license.

llcem’e' Injunction do-s not fere with tho

But it is contended that this is a coasting trade from state to state, inasmuch as the boat of flie respondent on her voyage from New- York, stops in New Jersey, and from thence proceeds to Albany. The appellants allege that it is collusive and fraudulent, intended to evade the operation of the laws ofthis slate, and not for any bonajhh purpose of commercial intercourse. In confirmation of ih;", 'hey charge that the respondent’s sleam-boat stopped adjoining the city of Jersey, but did not land or take on board any goods, wares, merchandize, or passengers whatever. Qn this state of facts, the question recurs, what is authorized by the license ? It is a coasting trade from one state to any other port or place in another state. The law of the state excluding the entry of such vessels is in collision ; but the colli ion exists only, when the trade is carried on. The meaning of the license is, that you may enter the waters of New York for the purpose of trade; a state law can not prevent your entry. If for other purposes, the license can not be called to your aid. I think this evident from the following considerations :

Whether a collusive -topping at -He w*' Jersey varies the case.

What can not lawfully be done directly, indirectly d°ne

It is commerce only among the states that congress is authorized by the constitution to regulate. The license can not have a more extensive operation than the power from which it is derived ; consequently it can only act upon commerce. The commerce specified is the coasting trade, and to that it is confined. To say that a vessel proceeding from New-York to the wharf in the city of Jersey, without any communication with the shore, without landing or taking om board goods or passengers, is a trade within the meaning of the license, is to my mind a gratuitous assertion ; but when to this is added, that the touching at New-Jersey seems to have - been for the purpose of fraudulently evading the laws of this state, and not for any Iona fide purpose of commercial intercourse ; when it is evident, that the inducement was to bring the respondent within the decision in the case of Ogden v. Gibbons, some of the land marks of the law must be-removed, before the doctrine can be sanctioned. No prin1 ciple is better settled than this: what cannot lawfully be done directly can not be done indirectly. This circuitous voyage was in evasion of the laws of this state ; the touching at New-Jersey was colourable only. The affidavit of the respondent has not denied that it was an evasion. Indeed, the whole scope of the respondent’s argument has been directed to shew that the Chancellor’s opinion is incorrect, in considering a voyage commencing and terminating in this state as not protected by the license ; while that part which relates to touching at a port in another state, in the course of the voyage, has scarcely been urged. It may be laid down as a general principle, that whenever an act is done in fraudem legis, it can not be the basis of a suit, in the Courts of the country, whose laws are attempted to be infringed. (Jackson v. Jackson, 1 John. 435.) The fraudulent act is considered as no act; it is the same as if nothing had been done ; and although I do not think it necessary to lay any stress on the intention with which the act was done, because the facts do not constitute a coasting trade, yet I think the principle applicable, both as it respects the act of congress and the laws of this state, The attempt is to convert into a bona fide coasting trade, what is so in point of form, and colorable only; and to make it the basis on which to resist successfully the laws of this state. Neither can succeed. The respondent must abide the decision of the Court on the other grounds.

Decree of sbouldTe^reversed; and ingainst°anSindi-

My opinion is, that the decree of his honor the Chancel-l°r be reversed, and that an injunction issue restraining the respondent from navigating the stebm-boat Olive Branch in the waters between the city of New-York and Troy, when there is no voyage made to or from another state in good faith, for the purpose of carrying on the coasting trade, and jwhen no such bona fide trade or commerce shall be actually carried on.

Sutherland, J. and Crary, Haight, Lake, McMighael, Nelson, Thorn and Wilkeson, Senators, concurred.

rect and collusive voyage by way of New? Jersey.

Savage, Ch. J.

The appellants filed their bill in the Court of Chancery , charging (he respondent with a violation of their exclusive right to navigate the internal waters of this state,, by navigating on thsoe waters, from New- York to Albany, with his steam-boat, the Olive Branch, for the purpose of carrying passengers., They prayed an injunction to restrain and prevent such navigation.

charg®5What the bill

It prays an injunction.

The opposition to the motion for an injunction, rested upon a copy of the enrolment of the steam-boat Olive Branch, and a license for the coasting trade, and also the affidavit of the defendant, relying upon an intercourse with the state of New-Jersey. The plaintiffs allege, that the intercourse with the state of New-Jersey was collusive and fraudulent, and not a bona fide voyage to or from another state.

Ground of th¡s.°3ÍtÍOa tC

The Chancellor granted the injunction to restrain the defendant from navigating directly from New-York to Troy, when there is no voyage made by the steam-boat to or from another state ; but denied the injunction to prohibit the navigation to or from another state. The latter part of-the decree, only, is appealed from.

j Order of the

The respondent denies any title in the appellants, to an exclusive right of navigation with steam-hoats, in the waters of this state ; and contends, that unless their right be first established, the question of fraud or no fraud is altogether immaterial. Under this view of the rights of the respondent, the whole question has been argued by counsel before this Court. I proceed, therefore, to enquire, whether the appellants have any right to, the exclusive navigation of the waters of this state, with vessels propelled by steam ; and, particularly, whether they have such right in the waters of the Hudson River*

Whether appellants have an exclusive right in the waters of this State.

ALBANY, Feb. 1825. Steam-Boat Company v. Livingston,

The appellants have all the right which was granted to Livingston and Fulton. The validity of that grant is denied. It has been asserted by the Courts of this state ; and denied by the Supreme Court of the United States. The point o't enquiry, then, will be, whether any part of the grant is still valid ; and, if any, whether it exists as to the waters of the' Hudson River.

Upon the argument of this cause, the counsel agreed in urging upon the Court the propriety of adhering to former decisions, not overruled, upon the ground that a Court of dernier resort can not review its own decisions, and that its adjudications must remain the law, until altered by legislative authority. It will be useful, therefore, before entering into any discussion as to the constitutionality of the laws in question, to ascertain precisely what has been judicially determined, both by this Court and by the Supreme Court of the United Slates ; that while we adhere with firmness to decisions of this Court, deliberately made, we may recede, with respectful submission, from so much as has been overruled by the superior tribunal.

- The decisions steam boat que->tion conaidered,

Decisions not thoniy^exeept upon a similar ptate of facts.

The constitutionality of the laws relative to steam-boats, Vas firsf drawn in question in the case of Livingston & Fulton v. Van Ingen & others, (9 John. 507.) In that case, the , ' 7 title of the plaintiffs was substantially like that of the appellants here. The defendants were charged with violating the plaintiffs’ exclusive right, by navigating with steam boats between New- York and Albany. The defence in that case differed from this, inasmuch as no coasting license was shewn. The defence rested on the ground that, by the adoption of the constitution of the United Stales, the state had parted >vith all right to legislate on the subject, and that, therefore, the acts were unconstitutional and void. 1 his defence was unanimously overruled by the Court, on the brpad ground of the constitutionality of the laws ; hutas no decision can be con'dered absolute authority, exceptupon a state of facts-similar to those adjudicated upon, the case of Livingston v. Van Ingen an authority so far as the facts are similar; but when they differ, it is no farther authority than the reasoning of' the Judges is applicable, and then only as the opinions of learned men on the question.

In the case of Gibbons v. Ogden, (17 John. 488) Ogden, the complainant, in the Court of Chancery, charged the defendant, Gibbons, with an infringement of the exclusive grant to Livingston and Fidton, which he, Ogden, held under an assignment, by his (Gibbons’) navigating with his steamboats, the Stovdinger and the Bellona, between Neto -York and Elizabethtown Point. The defendant justified, on tjie ground that his boats were above 20 tons burthen, and had been duly enrolled and licensed under an act of congress ; and he insisted, that, under such licenses his boats might be lawfully employed and navigated in the coasting trade, between ports of the same state, or of different states, and could not be excluded or restricted by any law or grain of any particular state. This defence was ovenried by the late Chancellor, who did not consider the licence as conferring any right whatever. He held, that iho license only gave the vessel an American character, hut left the owner of the vessel precisely where be was before the license, in respect to the exclusive grant claimed b> Lvomgstan and Fulton, and their assigns. When the cause was brought in to this Court, by appeal from the decretal order of the Chancellor, Mr. Justice Platt, who delivered the unanimous opinion of the Court, agrees with the Chancellor in the opinion, that the only effect of the license is to determine the national character of the vessel, and the rate of duties which she is to pay ; and he adds, that “ such a vessel, coa- ting from one stale to another, would have exactly the same right to trade, and the same right of transit, whether she had the coasting license or notand the order of the Chancellor was affirmed, on the ground that the question had been settled in the cause of Livingston v. Van Ingen. The decree of the Chancellor, which was affirmed in this Court, declares the several acts of the legislature of of the state of Nm-Yorlc, granting the exclusive right, to be valid, notwithstanding the objections taken by the defendant ; “ and that the complainant is well entitled to the right exclusively to navigate the waters for the purpose mentioned in the said bill of complaint, with boats moved by steam or fire; and that the defendant can not lawfully navigate the same, with the steam-boats of him the said defendant, &c. under the respective enrolments and licenses, &c.”

Gibbons v.: Ogden considered. In chancery»

In this court

.In the S. C. of the U. Stales.

When this decree, and the whole proceedings, were carried into the Supreme Court of the United Slates, that Court was of opinion, that the several licenses to the steam-boats, the Stoudinger and the Bellona, to carry on the coasting trade, &c. “ give full authority to those vessels to navigate the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the state of New-York to the contrary notwithstanding ; and that so much of the several laws of the state of New-York, as prohibits vessels licensed according to the laws of the United States, from navigating the waters of the state of' New-York, by means of fire or steam, is repugnant to the said constitution, and void.” The decree was, therefore, reversed.

astoan'exclusive right in this staterShas not been direetly decided;

The facts in the two cases cited, were not similar to each other, nor to this case. In the first, that of Livingston v. Van Ingen the controversy was as to the validity of the state grant, within the bounds of the state ; but the effect of a li_ ' " , . . cense, under the act regulating the coasting trade, could not be considered, because it was not a fact in the case. In the second case, that of Ogden v. Gibbons, the effect of a coasting license was considered, both by the Court of Chancery and by this Court, and the license was adjudged to give no right whatever. In this opinion both Courts erred, as is proved by the decision of the Supreme Court of the United States ,* by which it is settled, that a steam-boat navigating with a coasting license, performing a voyage from a port of another state to a port in this state, is authorized;to navigate the waters of this state, the laws of this state toi the contrary notwithstanding.

Though it tuaiiy^eeided in Gibbons v. Ogden by *his court a“^tthe s-.Gi Slates.

But though, whether a steam-boat may, under the authority a hcense, navigate the waters of the Hudson within this state, in opposition to the grant to Livingston and Fulton, is a question which has not been decided, in terms, by this Court, or the Supreme Court of the United Stales ; yet it seems to me to have been virtually decided by both, Courts. In this Court, the only effect of the license was declared to be that of giving an American character, and that it conferred no right in a case of intercourse between this state and the state of New-Jerse.y. Of course, it could have no effect where the intercourse was entirely within the state. In the Supreme Court of the United States, the language of the decree is, that “ the several licenses to carry on the coasting trade, give full authority to those vessels to navigate the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade.” I agree, that the decision of the Court is to be considered in reference to the facts of the case, and that the facts in that case were different from this, inasmuch as there the voyage was from a port in another state. Certain points, however, were decided, which were, in a degree, necessary to the main decision given in the cause.

Some of the points decided by the Supreme Court are,

1. That the power to regulate commerce among the states is exclusive.

P°!nts decide*

2. That commerce means not only traffic, or the exchange of commodities, but also intercourse ; that it includes navigation.

3. Congress has power, of course, to regulate navigation. This regulation of commerce and navigation must take place within the states : the waters of the United States are necessarily the waters of some particular state : congress must act on the subject where it exists.

4. That though the right of intercourse does not depend on the constitution and laws of congress, yet congress has power to regulate that right, and has done so, by “ an act for enrolling and licensing ships or vessels to be employed in the coasting trade, and fisheries, and for regulating the same,” passed 18th February, 1793.

5. That this act implies, unequivocally, an authority to licensed vessels to carry on the coasting trade : the license is the language of the legislature, and transfers to the grantee all the right which the grantor can transfer.

6. That what is meant by the coasting trade is defined in the act cf 1793.

7. That steam boats are to be enrolled and licensed in the same manner as vessels propelled by wind, and are entitled to the same privileges.

It is also intimated, and an opinion expressed, though not judicially decided, that the transportation of passengers is equally a branch of the coasting trade, as the transportation Of goods ; that congress has power to license vessels to sail from one port to another in the same state ; and that this power implies no claim of a direct power -to regulate the purely internal commerce of a state, or act directly on its system of police.

From these premises it seems to me to follow, as a corollary, that vessels with a coasting license, are authorized to navigate, for the purpose of carrying on the coasting trade in all the navigable waters of the state in which the coasting trade can exist. ■ •

If I am correct in these inferences, they lead necessarily to the decision of this cause, and then the objection, that we ought not to go in advance of the Supreme Court, is altogether inapplicable. Before proceeding to apply these principles, it is proper to settle the meaning of certain words and phrases used in this controversy. What, then, do we understand by commerce among the states ? In what does the coasting trade consist ? And what is internal commerce ? Do they interfere with each other, or where is the boundary that marks the limit of each ?

What is meant By “ commerce among the states,” as used in the constitution of the United Stales.

It has been contended that commerce among the states, means a voyage from state to state, commencing in a particular state and terminating, as respects the authority of the license, at the boundary line of the state entered ; and I hat the subsequent progress of the vessel is under state regulations. If this were correct, then the vessel making a voyage from a port in one state to a port in another, must navigate subject to the regulations of the state in which she commences her voyage, until she touches the boundary line of such state ; and at the same moment when she leaves the jurisdiction of the one state, she enters the jurisdiction of the other, and then navigates subject to the vegulaiions of the state she has thus entered, until she completes her voyage. Hence she is under the control of state regulations during her whole voyage, except perhaps at the moment of passing the boundary line. By this construction, congress is ousted of its jurisdiction altogether; and that clause of the constitution which gives them power to regulate commerce among the states, becomes a dead letter. The Supreme Court says, “ commerce among the states can not stop at the boundary line of each state, but may be introduced into the interior.” Again : “ commerce among the states must, of necessity, be commerce within the states.” In the same opinion, we find as full a definition of the term as the facts of the case required, and beyond that it was not necessary to go. Accordingly, it is said, “ comprehensive as the word 1 among’ is, it may very properly be restricted to that commerce which concerns more states than one.” Again i “ the genius and character of the whole government seen! to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the stale itself.”

It is evident from these expressions, that the Supreme Court was of opinion, that over a part of the internal commerce of the ¿dates, congress has power. Precisely liow far that power extends, it did not become necessary to decide $ but from the expressions, completely internal, exclusively internal, and purely internal, it is clearly inferrible, that all that part of the internal commerce of a state which is not exclusively internal, is subject to the regulation of congress. How far, then, within the state, does that commerce extend, which is not completely internal ? If all commerce, which enters the exterior lines of a state, is internal, and exclusively so, then all commerce would be included, as well foreign as among the states, which is directly contrary to the decision, and to the constitution. The counsel for the appellants contended, if a steam vessel from another state, with a coas* ting license, has a right to enter a port in this state, that, at the exterior port, the voyage is terminated as between the states, and that she can not proceed to any other place within the state, except in subjection to the exclusive grant. His honour the Chancellor decides, that such a vessel may proceed to any port in this state, and depart from any port in this state and proceed to another, and touch at intermediate places ; and that the navigation which is subject to the state grant is that which takes place between any two points in this state, when the voyage is not a continuation of a passage to or from another state. The Supreme Court says, “ if congress license vessels to sail from one port to another, in the same state, the act is supposed to be necessarily incidental to the po'wer expressly granted to congress, and implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police.*’

It is that which may be carried on in vessels regularly licensed by congress ; or, in other words, the coasting trade.

The power of congress to license vessels to sail from one port to another in the same state, is here distinctly asserted, as incidental to the power directly granted. It seems, also, to be, impliedly at least, admitted, that this is a regulation of commerce within a state, and subject to state legislation. It is elsewhere asserted, that the power to regulate commerce with foreign nations, and among the states, is necessarily an exclusive power. From what is here said, it seems that the incidental power to regulate commerce within the state, is a concurrent power ; and if so, it is admitted, that in case of collision, the law of congress must prevail. But the opinion here seems to consider the purely internal commerce as not affected by the act of licensing vessels to sail from port to port within the state. If this be so, then (be internal commerce over which the state has exclusive control, is something existing where coasting vessels can not come, or have no right to navigate, as in the case of a ferry within the state. And hence it follows, that the commerce among the states, which congress has power to regulate, either directly or incidentally, is that commerce which may be carried on by vessels regularly licensed by the laws of congress; or, in other words, the coasting trade.

This brings me to the enquiry, what is the coasting trade ? The answer to this enquiry is to be found in the laws of congress, the first of which is entitled, “ an act for registering and clearing vessels, regulating the coasting trade, and for other purposes,” passed September 1, 1789; but more particularly in “ an act for enrolling and licensing ships or vesseis to be employed in the coasting trade and fisheries, and fox regulating the same,” passed February 18, 179.3. It can not be necessary to enter into a minute analysis of the sections of this last mentioned act; a general reference to some of its provisions being sufficient for my present purpose.

what is meant ^‘trade,”°wai appear from ^''con?r6-3 011 the Acts of Sept.

This act contains, in the first section, a prohibition to all vessels, except those authorized as is therein provided, from carrying on the coasting trade. The license then gives the authority, or the act regulates a right previously existing, (and it is, in my judgment, immaterial which, for the purpose of deciding this controversy) and particularly specifies the mode of carrying on trade in certain vessels, on the coast or a navigable river, between districts in different states, and districts in the same state, and different places in the same district. This, then, is the definition given by congress to the term, “ the coasting trade.” Chief Justice Marshall so understands it, when he says, “ The coasting trade is a term well understood. The law has defined it, and all know its meaning perfectly. The act describes, with great minuteness, the various operations of a vessel engaged in it,”

According to the definition of the coasting trade, as ex tracted from the act of congress, of February 18, 1793, it means commercial intercourse carried on between dii districts in different states, between different districts m means commercial intercourse carried on between different ¡fag same state, and between different places in the same district, on the sea coast or on a navigable river. Agreeably to this definition, a voyage in a vessel of suitable tonnage, from Mew-York to Albany, is as much a coasting voyage, as from Boston to Plymouth or Mew-Bedford. In both, the termini are in the same state, and within the navigable waters of the Vailed Slates, though in one the navigation is upon a riv? er; in the other on the ocean. The government of the United States have no jurisdiction, (the District of Golum- ^ ancj the territories excepted) where a state has not also jurisdiction for state purposes ; and f can see nothing in the nature of our governments, which excludes the authority of congress from our navigable rivers. They are arms of the sea. As well .might Louisiana shut the mouth of the Mississippi, or Virginia the Chesapeake, as JYezo York the Hudson. In corroboration of this construction, is the fact, that all vessels employed in navigating the river, take a coasting license. I am aware it is said, that the license is given, not under the power to regulate commerce, but the power to lay and collect taxes. When congress have power to do the same act by virtue of distinct powers, they may pxercise which they please ; and when they profess to act under the power to regulate commerce, as they do in this act, there is no necessity to resort to any other. I need not, therefore, enquire whether the license does not more properly emanate from the taxing power. Under whatever power it is issued, it proves that the vessel has complied with the regulations of congress respecting the coasting trade, and is entitled to all the privileges of coasting vessels. A discussion of this question is superseded by an express adjudication. The language of the Supreme Court is, “ To, the Court it seems very clear, that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies, unequivocally, an authority to licensed vessels to, carry on the coasting trade.” Again; “ The license must be understood to be what it purports to be, a legislative authority to carry on the coasting trade.”

course, carried The coasting trade is commercial interdifferenttWd!s“ tricts in differstíitos cli£° ferent districts state^and^díf ferent places in trict,Sa”on the sea coast, or on river”^2**1*

Whiit is meant pqpunerce?”nal

What, then, is internal commerce ?

An answer to this enquiry will necessarily lead to some repetition. It is contended by the appellants# and is decided by the Chancellor, that it comprehends all that navigation where the termini of the voyage are both within the same state.' Chief Justice Marshall has said, that the word i‘ among” may properly be restricted to that commerce which concerns more states than one. Again ; “ the enumeration pre-supposes something not enumerated ; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state. , The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the pu rpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself.” What is here said, it must be admitted, conveys no definite idea of what is the completely or exclusively internal commerce alluded to. In a subsequent part of the opinion, an explanation is to be found. When speaking of inspection laws, he observes, “ They form a portion pf that immense mass of legislation which embraces every thing within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal pomm.erpe of a state, and those which respect turnpike roads, ferries, &c. are component parts of this mass. N° direct general power, over these objects, is granted to congress ; and, consequently, they remain subject to state legislation. If the legislative power of the union can reach them, it must be for national purposes; it must be when the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. It is obvious, that the government of the union, in the exercise of its express powers—that, for example, of regulating commerce with foreign nations, and among the states—may use means that may also be employed by a state, in the exercise of its acknowledged powers ; that, for example, of regulating commerce within the state. If congress license vessels to sail from one port to another in the same state, the act is supposed to be necessarily incidental 0 the power expressly granted to congress', and implies no claim of a direct power to regulate the purely internal commerce of a state ; or to act directly on its system of police.’5'

A definition of what is meant by internal commerce, appears, in part, by the above extract from the opinion of the Supreme Court. To extend it to all its various subjects, would here be entirely useless. The object of the present inquiry is completely answered, by shewing what is nqt that purely internal commerce spoken of as exclusively subject to state legislation : and I trust 1 have already shewn, that the navigation of' the Hudson, a public navigable river, is not included in such internal commerce ; but that it com-: poses a part of the coasting trade, and is, therefore, subject to the regulation and control of congress,

General extent pf the a^tettied^by Gibbons v. Og-

In my judgment, then, the case of Gibbons v. Ogden decides, that the commerce subject to the control of congress,, >s the coasting trade, which includes the transportation of passengers. That the coasting trade may lawfully be carried on by licensed vessels, in all the navigable waters of the United States, including all rivers approachable from the coasts, if this be so, then the Olive Branch was engaged in a lawful trade, and had a perfect right to the navigation of' the Hudson. I will, therefore, detain the Court but a moment, while 1 add a few general remarks.,

Tbe consti°Sto)cs should be so best to pro-objects'6 ^for -which it -was "in»the two°extremes of a construction,

Commercial defects of the federation r“" and the objects constitution.

Much difference of opinion exists, on the question of construction to be given to the constitution of the United Stales ; some contending that it should receive a liberal construction, and others that it should be construed strictly. In my judgment, it sho.uld be so construed as best to promote the great objects for which it was made. This end will be best answered by avoiding either'extreme of the rules of construction, and keeping steadily in view the purposes for which the government was instituted, “ to form a more perfect union, establish justice, ensure domestic tranquillity, provide f°r the common defence, promote the general welfare, and secure the blessings of liberty.” Under the articles of confederation, the states were sovereign and independent—too m(]ch so for the mutual safety and prosperity of the whole, The states, therefore, in adopting the federal constitution^ parted with a portion of their individual sovereignty, in order to give the head of the confederacy stronger powers, by which to draw closer together the diiTereht parts of this Widely extended government. Before that time, the several states imposed what duties they pleased, not inconsistent with public treaties, and were perfectly sovereign and independent, as to regulating all other commerce within their respective limits, subject to one restriction only, to wit, that the people of other states should enjoy therein all the privileges of trade and commerce, subject to the same duties, &c. as the inhabitants of such state, provided such restrictions did not prevent the removal of property to another state, of which the owner should be an inhabitant, and that no duties should be laid on property of the United States, or either of them.

This power of regulating commerce led to many difficulties and embarrassments, as we learn from the history of the times ; and to prevent a recurrence of those commercial difficulties, was one great and leading inducement to the adoption of the present constitution. Any power, therefore, given to congress, short of the power to regulate that commerce to which the people of the United States had access, would not have secured the object so desirable to be attained : and it never could have been intended that, within the territory of a particular state, congress should define the rights and privileges of citizens of other states, while the state legislature should define the rights and privileges of its own citizens, in relation to the same subject. The framers of the constitution never supposed that they were splitting the jurisdiction over the subject, and leaving it liable to most of the difficulties which previously existed. If the several states may still regulate commerce, within the limits of their states, to the exclusion of congress, there is nothing left for congress to act upon. If the power of congress is limited to voyages commencing in one state and terminating in another, then its jurisdiction is much abridged, and much of the act regulating the coasting trade should be repealed.

Co-temporaneous cons traction of the constitution, gresTtouctiog the coasting tratle°

To show the understanding of those who framed and adopted the constitution, we have only to look at the acts of congress immediately consequent upon its adoption. And we fin(^ that at the first session of the first congress, one of the first acts passed, is “an act for registering and clearing vessels, regulating the coasting trade, and for other purposes 33 passed 1st September. 1789. containing substantially , r . . r ’ ' ° J the provisions of the act of 1793. By this act, licensed vessels are authorised to trade from district to district. . By what authority did congress undertake to regulate the coasting trade ? The coasting trade is a term not found in the constitution. It need npt be contended to be the execution of the power to collect taxes, &c,; for it has been decided to have been an execution of the power to regulate commerce. What commerce ? Surely not foreign commerce, nor among the Indian tribes ? it must mean, then, “ commerce among the several states.” Congress, then, passed the act regulating the coasting trade, undey the power to regulate commerce among the several states. This was a contemporaneous exposition of the constitution with which all were satisfied ; and it was not then thought that state boundaries had any elfect or influence upon this kind of-navigation. It was not then thought that the coasting trade, or commerce among the states, must consist of voyages from state to state only: that was the discovery of later times. It was then thought that commerce among the states, meant among the people of the states ; that this commerce was internal as related to the government of. the United States and its citizens, and as contradistinguished from foreign commerce. It was at that time supposed that the constitution intended to guaranty to the citizens of the whole United States an equality of commercial rights and privileges. Hence the restriction on congress, that “no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of'anotherand hence, also, the subsequent provision, that “ the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” The framers of the constitution thought it unnecessary to declare the converse of the last provision, to wit, that the citizens of each state shall be entitled within their own slate, to all the privileges and immunities which citizens of other states enjoy within such state.

How is this fact under the principle contended for by the appeliants 1 Citizens of other states, coming from a port in their own state, have a right to navigate freely with their steam boats, in our waters and from port to port, while our own citizens are excluded from such navigation from port to port, unless the voyage extends out of the state. I mention this as an inconsistency growing out of the construction contended for. One leading object of the constitution was to secure an equality of commercial rights to the citizens of the general government, in whatever state they might reside. We ought not to forget that we are the citizens of two distinct, yet connected governments. Each has its proper sphere of action. The powers given to the general government are to be first satisfied. Some of these powers are exclusive, and some concurrent; but when concurrent, the provisions of the general government are paramount, Whether powers are exclusive or concurrent, is to be determined more by the nature of the power itself, than by the , , „ , . _T 1 , 11 - 'i phraseology of the constitution. Under the old confederation, the states retained the character of independent and sovereign states : under the present constitution, for certain specified purposes, the distinction of states is partially lost, and we become a single consolidated government. It is in . . , . this character that congress executes its powers ; and having, in this character, power to regulate commerce among the states, that power must necessarily reach the subject wliere it exists; and so far as navigation is concerned, it exists where the coasting trade exists, and is therefore subject to the regulations of congress.

,^e t^owt^ general gov-b™'first Tatisfled. Some of elusive, concurrent, in which last case, the pro-^”“^1 °fgovemment are

certain purposes the general government is a 0™ens°ll~ In this characecuiesfbpowel"3-

We are told that there is great danger of encroachment by the general government, and that the state governments will be swallowed up by it; and therefore that the state laws should be supported. My answer is, if such danger exists, the states should not provoke a termination of their existence. by encroachments on their part; nor should they submit to usurpation. There is no difficulty in harmonizing, if each government will be content with the powers possessed by it. But why should we more apprehend an abuse of power; or an act of usurpation, by the general than by the state governments ? Both are constituted by the representatives of the people. Every member of the national legislature is a citizen of some -state and of course feels bis state partialities and perhaps jealousies ; and should be presumed, in the absence of proof to the contrary, equally jealous of the rights of his.constituents, as the members of our state legislatures. I am fully sensible of the propriety of preserving the state governments, with all their rights and powers : but this is by no means inconsistent with conceding to the general government its appropriate powers.

Congress have no right, un.der their power to regulate commerce, to interfere with the ferries of the state, except so far as they are used for carrying on the coasting trade;

We were cautioned upon the argument, to beware how we admit the authority of congress to. regulate navigation within the waters of the Hudson, as we should thereby abandon the right to license ferries and receive tolls on our canals. The Supreme Court expressly disavows any authority in congress to interfere with the purely internal commerce or police of a state. Ferries may be subject to the acts of congress, so far as they are used for carrying on the coasting trade; but those ferries which are the subjects of state grant, if they can be called commercial regulations at all, belong clearly to the internal commerce of the states. We are told that the grant to the plaintiffs is only a ferry from Albany to Nezo York. If the exclusive grant be really a right of ferry, the plaintiffs may occupy with their boats every ferry in the state, and thus destroy the rights of all others. But there is no pretence for denominating their grant a ferry. To speak of a ferry from New York to Albany, is as great an abuse of terms, as to talk of a ferry from NewOrleans to St. Louis or Pittsburgh, or even from New York to Liverpool. Those ferries over which the state exercises its appropriate authority, are not connected with the coasting trade ; they are not, in the constitutional sense, commercial regulations. But if they were, they belong to that exclusively internal commerce-over which congress has no control. Our right te regulate navigation upon our canals rests upon a still firmer basis. They are no part of the navigable waters of the United Stales within the act regulating the coasting trade, or the constitution. Congress may, indeed, under the taxing power, impose taxes upon canal boats, as they may upon every species of property within the states ; but that gives them no direct power to regulate the navigation upon our canals, or upon our inland lakes and rivers. The authority of congress to regulate navigation is confined to our coasts, bays and navigable rivers.

If I am correct in the views which ! have taken of this subject, an injunction can not be granted, whether the respondent carried on what has been denominated a fraudulent intercourse with New-Jersey or not. I forbear, therefore, an examination of that part of the decree of his honor the Chancellor, which relates to such intercourse.

Nor can they interfere with the navigation upon our canals ; for they are not navigable waters, within the meaning of the constitution, &c. So of our inland lakes & rivers.

But congress may, under their taxing power, tax canal boats, or any other property.

The authority of congress to regulate navigation is confined to our coasts, bays, & navigable rivers.

But even if the conclusions which I have drawn from established premises, be not admitted as absolutely correct and conclusive, is there no doubt on the subject ? After the highest judicial tribunal in our country has said, that “ so much of the several laws of the state of New-York as prohibits vessels, licensed according to the laws of the United States from navigating the waters of the state of New-York by means of fire or steam, is repugnant to the said constitution and void,” can it be pretended that the claim of the appellants is no longer doubtful 1 The plea in the case of Gibbons v. Ogden distinctly asserted the right to navigate between different places in the same state. This was part of the issue ; yet the Court broadly assert the right of licensed vessels “ to navigate the waters of the United States by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the state of New-York to the contrary notwithstanding.” In Livingston v. Van Ingen, the late Chancellor Kent says, “ injunctions are always granted to secure the enjoyment of statute privileges, of which the party is in the actual possession, Unless the right be doubtful.” This is undoubtedly the correct rule, and the true result of an examination of the adjudged cases.

An injunction should not be granted to secure a claim to statute privileges if the right be doubtful.

If any thing were wanting, in addition to the express and unequivocal language of the Supreme Court of the United States to shew that the appellants have not a clear right, free from doubt, it is found in the peculiar situation in which an injunction will place the citizens of this state. They are forbidden rights, which are open to, and may be enjoyed freely by all the world beside. If the injunction is granted, it can not secure to the appellants their monopoly. The citizens of other states, with their steam boats, have full right to navigate our waters and carry on a profitable business, commencing or terminating their voyage in their own state ; while our own citizens must stand with their arms folded and look on, Unless they, too, terminate their voyages without the state. If this deplorable state of things necessarily results from the constitution and laws of our country, it must be submitted to, with what grace we can ; but is it not a powerful argument to prove that the reasoning which leads to such a result is unsound ?

For these reasons, I am of opinion that an injunction ought not to be granted ; and that that part of the decree of his honor the Chancellor, refusing an injunction, be affirmed.

For affirmrevemMb*1

Bowman, BrAYTON, BuRROWS, BuRT, CLARK, CRAMER, Dudley, Earll, Ellsworth, Gardiner, Keyes, Lefferts, Lynde, Mallory, McCall, McIntyre, Morgan, Redfield, Ward, Wooster, Wright, Senators, concurred.

Ogden, Senator, gave no opinion.

A majority of the Court concurring wjth the Chief Justice, it was thereupon ordered, adjudged, and decreed, that that part of the decree of his honor the Chancellor, appealed from be affirmed, with costs, &c.