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RULES OF COURT.

1. No certiorari for diminution of the record hereafter' be allowed to be taken to the admisshall be hereafter awarded in any cause unless sibility of any deposition, deed, grant, or other a motion therefore shall be made in writing, exhibit found in the record, as evidence, unless and the facts on which the same is founded objection was taken thereto in the court below, shall, if not admitted by the other party, be and entered of record; but the same shall otherverified by affidavit. And all motions for such wise be deemed to have been admitted by concertiorari shall be made at the first term of sent. the entry of the cause; otherwise the same 3. On Saturday of each week during the sitshall not be granted, unless upon special cause ting of the court, motions, in cases not required shown to the court, accounting satisfactorily by the rules of court to be put upon the docket for the delay.

shall be entitled to preference, if such motions 2. In all cases of equity and admiralty juris- shall be made before the court shall have entered diction heard in this court, no objection shal! upon the hearing of a cause upon the docket.

MEMORANDUM.

The case of Ogden v. Saunders, and the the rising of the court at the next term, and causes involving the question of the validity of in anticipation of the annual publication of the the State bankrupt or insolvent laws, which reports. were argued at the present term by Mr. Clay, It is also his intention to commence with the Mr. D. B. Ogden and Mr. Haines, for the valid- next term a new series of the reports, and to ity, and by Mr. Webster and Mr. Wheaton, reduce the size of the type, so as to give room against it, were continued to the next term for for the matter produced by the increased busiadvisement. It is the intention of the editor ness of the court, without swelling the volume to publish a separate account of these cases, on to an inconvenient bulk.

ATTORNEY AT LAW

490 Louisiana Avs, WASHINGTON, D, C,

REPORTS OF THE DECISIONS

OF THE

Supreme Court of the United States.

FEBRUARY TERM, 1824.

[*CONSTITUTIONAL LAW ]

right to navigate the waters between Elizabeth

town, and other places in New Jersey, and the GIBBONS, Appellant, 1. OGDEN, Respondent. city of New York; and that Gibbons, the de

fendant below, was in possession of two steamThe acts of the Legislature of the State of New boats, called the Stoudinger and the Bellona, York, granting to Robert R. Livingston and Robert which were actually employed in running beFulton the exclusive navigation of all the waters tween New York and Elizabethtown, in violawithin the jurisdiction of that State, with boats tion of the exclusive privilege conferred on the pugnant to that clause of the Constitution of the complainant, and praying an injunction to resUnited States which authorizes Congress to regu- train the said Gibbons from using the said boats, late commerce. so far as the said acts prohibit yessels licensed, according to the laws of the United

or any other propelled by fire or steam, in naviStates, for carrying on the coasting trade, from gating the waters within the territory of New navigating the said waters by means of fire or steam. York. The injunction having been awarded,

| the answer of Gibbons was filed, in which he A

PPEAL from the Court for the Trial of Im- stated that the boats einployed by him were

peachments and Correction of Errors of the duly enrolled and licensed to be employed in State of New York.

carrying on the coasting trade, under the act of Aaron Ogden filed his bill in the Court of Congress, passed the 18th of February, 1793, c. Chancery of that state, against Thomas Gib.' 8, entitled," An act for enrolling and licensing bons, setting forth the several acts of the Leg. ships and vessels to be employed in the coasting islature thereof, enacted for the purpose of se- trade and fisheries, and for regulating the same. curing to Robert R. Livingston and Robert Ful. And the defendant insisted on his right, in vir2*] ton the *exclusive navigation of all the tue of such licenses, to navigate the waters be. waters within the jurisdiction of that state, with 'tween Elizabethtown and the city of New York, boats moved by fire or steam, for a term of the said acts of the legislature of the *state [*3 years which has not yet expired; and authoriz- of New York to the contrary notwithstanding. ing the chancellor to award an injunction, res-' At the hearing, the chancellor perpetuated the training any person whatever from navigating injunction, being of the opinion that the said those waters with boats of that description. acts were not repugnant to the constitution and The bill stated an assignment from Livingston laws of the United States, and were valid. This and Fulton to one Jolin R. Livingston, and decree was affirmed in the Court for the Trial from him to the complainant, Ogden, of the of Impeachments and Correction of Errors,

XOTE - The power to regulate commerce, as laid | 79; Jolly v. Terre Haute Co., 6 McLean, 237; Coldown in this case, is considered and approved in umbus Ins. (o. v. Peoria Bridge ('o., 6 McLean, 70 ; Brown v. State of Maryland (12 Wheat. 419, 446, 452,) Willson y. Blackbird C. M.('0., 2 Pet. 245; Pennsyland in the Passenger cases (How. 283, 394, 400, 405, vania v. Wheeling Bridge Co., 13 How. 518; Gilman 133, 137, 462). In United States v. Peters, 12 Pet. 72, v. Philadelphia, 3 Wall. 713; Veazie v. Moore, 14 78, the court say, per Story, J.: "The power to regu- How. 578; Withers v. Buckley, 20 How. 84; U. S. v. late commerce includes the power to regulate navi- The James Morrison, 1 Newb. 241; U.S. v. William gation is connected with foreign nations and among | Pope, 1 Newb. 236; U. S. v. Railroad Bridge Co., 3 the states. It was so held and decided by this Court, McLean, 517; Woodburn v. Kilburn (0., I Abb. [. in the case of Gibbons v. Ogden, 9 Wheat. 189 to 198. S. 158; Woodman v. Kilburn Man. Co., 1 Bill. 546 ; It does not stop at the mere boundary line of a State, The Vancouver, 18 Int. Rev. Rec. 103; S. C.2 Sawy. nor is it confined to acts done on the water, or in 381; Mason v. Rhinelander, 8 Ben. 163; L. S. v. the necessary course of the navigation thereof. It Coombs, 12 Pet. 72; Heerman v. Beef Man. Co., 1 extends to such acts done on land, which interfere Fed. Rep. 145; Sinnott v. Davenport, 22 How. 227 ; with, obstruct or prevent the due exercise of the U.S. v. Morrison, 4 N. Y. Leg. Obs. 333; Halderman power to regulate commerce and navigation with v. Beckwith, 4 McLean, 286; U.S. v. Jackson, 4 N. Y. foreign states and among the States."

Leg. Obs, 450. This case is also discussed and commented on in As to the requirements by State on vessels licensed regard to the constitutionality of state license laws, for coasting trade. Foster v. Davenport, 22 How. in the License Cases, 5 How. 504, 581-584, 588, 600-603. 214.

As to the power of Congress to regulate "com-As to conflict between laws of the United States merce among the several States," see as to navigable and laws of the States. Amis v. Smith, 16 Pet. 303 ; rivers, obstructions, bridges over same, &c. Smit Dobbins v. Erie Co., 16 Pet. 435; Barbarie v. Eslava, 9 5. Davenport, 22 How. 227; Haldeman v. Beckwith, How, 421; Barbarie v. Mayor of Mo 9 How. 451; 4 McLean, 286; Devoe v. Bridge Co., 3 Am. Law Reg. McGuire v. Commonwealth, 3 Wall. 387.

which is the highest court of law and equity in cient in a most important and interesting parthe state, before which the cause could be car- ticular. The present controversy respected the ried, and it was thereupon brought to this court earliest of these state laws, those of New York. by appeal,

On those, this Court was now to pronounce; Mr. Webster, for the appellant, admitted that and if they should be declared to be valid and there was a very respectable weight of authority operative, he hoped somebody would point out in favor of the decision, which was sought to be where the state right stopped, and on what reversed. The laws in question, he knew, had grounds the acts of other States were to be held been deliberately re-enacted by the legislature inoperative and void. of New York; and they had also received the It would be necessary to avert more particusanction, at different times, of all her judicial larly to the laws of New York, as they were tribunals, than which there were few, if any, in stated in the record. The first was passed the country, more justly entitled to respect and March 19th, 1787. By this act, a sole and exdeference. The disposition of the court would clusive right was granted to John Fitch, of be, undoubtedly, to support, if it could, laws so making and using every kind of boat or vessel passed and so sanctioned. He admitted, there impelled by steam, in all creeks, rivers, bays fore, that it was justly expected of him that he and waters, within the territory and jurisdicshould make out a clear case; and unless he did tion of New York, for fourteen years. so, he did not hope for a reversal. It should be On the 27th of March, 1798, an act was pass. remembered, however, that the whole of this ed, on the suggestion that Fitch was dead, or branch of power, as exercised by this court, had withdrawn from the state without having was a power of revision. The question must made *any attempt to use his privilege, (*6 be decided by the state courts, and decided in repealing the grant to him, and conferring sima particular manner, before it could be brought ilar privileges on Robert R. Livingston, for the here at all. Such decisions alone gave the court term of twenty years, on a suggestion made by jurisdiction; and therefore, while they are to be him that he was possessor of a mode of apply. 4*) respected *as the judgments of learned | ing the steam-engine to propel a boat, on new judges, they are yet in the condition of all de- and advantageous principles. On the 5th of cisions from which the law allows an appeal. April, 1803, another act was passed, by which

It would not be a waste of time to advert to it was declared that the rights and privileges the existing state of the facts connected with the granted to R. R. Livingston, by the last act, subject of this litigation. The use of steamboats should be extended to him and Robert Fulton, on the coasts, and in the bays and rivers of the for twenty years from the passing of this act. country, had become very general. The inter- Then there is the act of April 11th, 1808, purcourse of its different parts essentially depended porting to extend the monopoly,, in point of upon this mode of conveyance and transporta- time, five years for every additional boat, the tion. Rivers and bays, in many cases, form the whole duration, however, not to exceed thirty divisions between states; and thence it was ob- years; and forbidding any and all persons to vious that if the states should make regulations navigate the waters of the state, with any steamfor the navigation of these waters, and such boat or vessel, without the license of Living regulations should be repugnant and hostile, ston and Fulton, under penalty of forfeiture of embarrassment would necessarily happen to the the boat or vessel And lastly, comes the act general intercourse of the community: Such of April 9th, 1811, for enforcing the provisions events had actually occurred, and had created of the last-mentioned act, and declaring that the the existing state of things.

forfeiture of the boat or vessel found navigatBy the law of New York, no one can navigate ing against the provisions of the previous acts, the bay of New York, the North River, the shall be deemed to accrue on the day on which Sound, the lakes, or any of the waters of that such boat or vessel should navigate the waters state, by steam vessels, without a license from of the state; and that Livingston and Fulton the grantees of New York, under penalty of might immediately have an action for such forfeiture of the vessel.

boat or vessel, in like manner as if they them. By the law of the neighboring state of Con- selves had been dispossessed thereof by force; necticut, no one can enter her waters with a and that on bringing any such suit, the defendsteam vessel having such license.

ant therein should be prohibited, by injunction, By the law of New Jersey, if any citizen of from removing the boat or vessel out of the that state shall be restrained, under the New state, or using it within the state. There were York law, from using steamboats between the *one or two other acts mentioned in the [*7 ancient shores of New Jersey and New York, pleadings which principally respected the time he shall be entitled to an action for damages, in allowed for complying with the condition of the 5*] *New Jersey, with treble costs against the grant, and were not material to the discussion party who thus restrains or impedes him under of the case. the law of New York. This act of New Jersey By these acts, then, an exclusive right is given is called an-act of retortion against the illegal to Livingston and Fulton, to use steam navand oppressive legislation of New York; and igation on all the waters of New York, for seems to be defended on those grounds of pub- thirty years from 1808. lic law which justify reprisals between inde- It is not necessary to recite the several conpendent states.

veyances and agreements, stated in the record, It would hardly be contended that all these by which Ogden, the plaintiff below, derives acts were consistent with the laws and constitu- title under Livingston and Fulton, to the exclustion of the United States. If there were no ive use of part of these waters. power in the general government to control this The appellant being owner of a steamboat, extreme belligerent legislation of the states, the and being found navigating the waters between powers of the government were essentially defi- | New Jersey and the city of New York, over which waters Ogden, the plaintiff below, claim- clusive; that the acts in question were regulaed an exclusive right, under Livingston and lions of commerce, in a most important particFulton, this bill was filed against him by Og- ular: and affecting it in those respects in which den, in October, 1818, and an injunction grant. it was under the exclusive authority of Coned, restraining him from such use of his boat. gress. He stated this first proposition guardedThis injunction was made perpetual, on the ly. He did not mean to say that all regulafinal hearing of the cause, in the Court of tions which might, in their operation, affect Chancery; and the decree of the chancellor has commerce, were exclusively in the power of been duly affirmed in the Court of Errors. The Congress; but that such power as had been exright, therefore, which the plaintiff below as- ercised in this case did not remain with the serts to have and maintain his injunction, de states. Nothing was more complex than compends obviously on the general validity of the merce; and in such an age as this, no words New York laws, and, especially, on their force embraced a wider field than commercial regulaand operation as against the right set up by the tion. Almost all the business and intercourse defendant. This right he states in his answer of *life may be connected, incidentally [*10 to be, that he is a citizen of New Jersey, and more or less, with commercial regulations. But owner of the sieamboat in question; that the it was only necessary to apply to this part boat was a vessel of more than twenty tons of the constitution the well-settled rules of 8*]*burden, duly enrolled and licensed for car- construction. Some powers are holden to rying on the coasting trade, and intended to be be exclusive in Congress, from the use of exemployed by him, in that trade, between Eliza-clusive words in the grant; others, from the bethtown, in New Jersey, and the city of New prohibitions on the states to exercise similar York; and was actually employed in navigating power; and others, again, from the nature of between those places, at the time of, and until the powers themselves. It has been by this notice of the injunction from the Court of Chan mode of reasoning that the court has adjudi. cery was served on him.

cated on many important questions; and the On these pleadings the substantial question same mode is proper here. And as some powis raised: Are these laws such as the legislature ers have been holden exclusive, and others not of New York had a right to pass? If so, do they, so, under the same form of expression, from secondly, in their operation, interfere with any the nature of the different powers respectively, right enjoyed under the constitution and laws so, where the power, on any one subject, is of the United States, and are they, therefore, given in general words, like the power to reguvoid as far as such interference extends? late commerce, the true method of construction

It may be well to state again their general would be to consider on what parts the grant is purpose and effect, and the purport and effect composed, and which of those, from the nature of the other state laws which have been enacted of the thing, ought to be considered exclusive. by way of retaliation.

The right set up in this case, under the laws of A steam vessel, of any description, going to New York, is a monopoly. Now, he thought New York, is forfeited to the representatives of it very reasonable to say that the constitution Livingston and Fulton, unless she have their never intended to leave with the states the pow. license.

er of granting monopolies, either of trade or of Going from New York, or elsewhere, to Con navigation; and therefore, that as to this, the necticut, she is prohibited from entering the commercial power was exclusive in Congress. waters of that state, if she have such license. It was in vain to look for a precise and exact

If the representatives of Livingston and Ful- definition of the powers of Congress, on sevton, in New York, carry into effect, by judi- eral subjects. The constitution did not undercial process, the provision of the New York take the task of making such exact definitions. laws against any citizen of New Jersey, they In conferring powers, it proceeded in the way expose themselves to a statute action, in New of enumeration, *stating the powers con- (*11 Jersey, for all damages, and treble costs. ferred, one after another, in few words; and

The New York laws extend to all steam ves- where the power was general, or complex in its 9*) sels; *to steam frigates, steam ferry-boats, nature, the extent of the grant must necessarily and all intermediate classes.

be judged of, and limited by, its object, and by They extend to public as well as private ships; the nature of the power. and to vessels employed in foreign commerce Few things were better known than the imas well as to those employed in the coasting mediate causés which led to the adoption of the trade.

present constitution; and he thought nothing The remedy is as summary as the grant it- clearer than that the prevailing motive was to self is ample; for immediate confiscation, with regulate commerce; to rescue it from the emout seizure, trial or judgment, is the penalty of barrassing and destructive consequences resultinfringement.

ing from the legislation of so many different In regard to these acts, he should contend, states, and to place it under the protection of a in the first place, that they exceeded the power uniform law. The great objects were commerce of the legislature; and second, that if they and revenue; and they were objects indissolucould be considered valid, for any purpose, bly connected. By ihe confederation, divers they were void still, as against any right enjoy restrictions had been imposed on the States; ed under the laws of the United States with but these had not been found sufficient. No which they came in collision; and that, in this state, it was true, could send or receive an case, they were found interfering with such embassy; nor make any treaty; nor enter into rights.

any compact with another state, or with a forHe should contend that the power of Con eign power; nor lay duties interfering with gress to regulate commerce was complete and treaties which had been entered into by Conentire, and, to a certain extent, necessarily ex- Igress. But all these were found to be far short

9

of what the actual condition of the country re. the constitution would not have been worth quired. The states could still, each for itself, accepting. regulate commerce, and the consequence was a He contended, therefore, that the people inperpetual jarring and hostility of commercial tended, in establishing the constitution, to regulation.

transfer, from the several states to a general In the history of the times, it was accord- government, those high and important powers ingly found that the great topic urged on all oc. over commerce, which, in their exercise, were casions, as showing the necessity of a new and to maintain an uniform and general system. different government, was the state of trade and From the very nature of the case, these powers commerce. To benefit and improve these was must be exclusive; *that is, the higher (*14 a great object in itself; and it became greater branches of commercial regulation must be 12*] when it was regarded *as the only means exclusively committed to a single hand. What of enabling the country to pay the public debt, is it that is to be regulated? Not the commerce and to do justice to those who had most effect of the several states, respectively, but the comually labored for its independence. The leading merce of the United States. Henceforth, the state papers of the time are full of this topic. commerce of the states was to be an unit; and The New Jersey resolutions' complain that the the system by which it was to exist and be regulation of trade was in the power of the governed, must necessarily be complete, entire several states, within their separate jurisdiction, and uniform. Its character was to be described in such a degree as to involve many difficulties in the flag which waved over it, E Pluribus and embarrassments; and they express an earn- Unum. Now, how could individual states asest opinion that the sole and exclusive power sert a right of concurrent legislation, in a case of regulating trade with foreign states, ought of this sort, without manifest encroachment to be in Congress. Mr. Witherspoon's motion and confusion? It should be repeated, that the in ('ongress, in 1781, is of the same general words used in the constitution, "to regulate character; and the report of a committee of commerce, are so very general and extensive that body, in 1785, is still more emphatic. It that they might be construed to cover a vast declares that Congress ought to possess the sole field of legislation, part of which has always and exclusive power of regulating trade, as well been occupied by state laws; and therefore the with foreign nations as between the states.? words must have a reasonable construction, and The resolutions of Virginia, in January, 1786, the power should be considered as exclusively which were the immediate cause of the conven- vested in Congress, so far, and so far only, as tion, put forth this same great object. Indeed, the nature of the power requires. And he init is the only object stated in those resolutions. sisted that the nature of the case, and of the There is not another idea in the whole docu- power, did imperiously require that such im. ment. The entire purpose for which the dele- portant authority as that of granting monopolies gates assembled at Annapolis, was to devise of trade and navigation should noi be considmeans for the uniform regulation of trade. ered as still retained by the states. They found no means but in a general govern- It is apparent, from the prohibitions on the ment; and they recommended a convention to power of the states, that the general concurrent accomplish that purpose. Over whatever other power was not supposed to be left with them. interests of the country this government may And the exception, out of these prohibitions, of 13*] diffuse its benetits and its blessings, it *will the inspection laws, proves this still more clearalways be true, as matter of historical fact, that ly. Which most concerns the commerce of this it had its immediate origin in the necessities of country, *that New York and Virginia (*15 commerce; and, for its immediate object, the should have an uncontrolled power to establish relief of those necessities, by removing their their inspection for flour and tobacco, or that causes, and by establishing a uniform and steady they should have an uncontrolled power of system. It would be easy to show, by reference granting either a monopoly of trade in their to the discussions in the several state conven- own ports, or a monopoly of navigation over tions, the prevalence of the same general topics; all the waters leading to those ports? Yet the and if anyone would look to the proceedings argument on the other side must be, that alof several of the states, especially to those of though the constitution has sedulously guarded Massachusetts and New York, he would see and limited the first of these powers, it has left very plainly, by the recorded lists of votes, that the last wholly unlimited and uncontrolled. wherever this commercial necessity was most But, although much had been said, in the dis strongly felt, there the proposed new constitu-cussion on former occasions, about this suption had most friends. In the New York conven- posed concurrent power in the states, he found tion, the argument arising from this considera- great difficulty, in understanding what was tion was strongly pressed by the distinguished meant by it. It was generally qualified by person whose name is connected with the pres- saying that it was a power by which the states ent question.

could pass laws on the subjects of commerWe do not find, in the history of the forma- cial regulation, which would be valid, until tion and adoption of the constitution, that any Congress should pass other laws controlling man speaks of a general concurrent power, in them, or inconsistent with them, and that then the regulation of foreign and domestic trade, the state laws must yield. What sort of conas still residing in the states. The very object current powers were these, which could not intended, more than any other, was to take exist together? Indeed, the very reading of away such power. If it had not so provided, 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 1.-1 Laws U'. S.. p. 28.

Congress was to have power to regulate com

Now, what is the import of this, but

2.-Id. 50.

merce.

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