Majority
p. 383*Thomas Gibbons, appellant, against Aaron Ogden, respondent.
Headnote
The several acts of the legislature of this slate, granting ami securing to certain persons, the sole and exclusive right of using and navigating boats or vessels, by steam or fire, in the waters oí’ this slate, íbr a certain term of years, are constitutional ami valid acts; and an injunction may he issued by the Court of Chancery to restrain tiie citizens of another state from navigating the waters of this state, by vessels propelled by steam, although such vessels may have been duly-enrolled and licensed, under the laws of the United States, as coasting vessels.APPEAL from the Court of Chancery, Aaron Ogden filed his bill in the Court of Chancery on the 21st of October, 1818, against Thomas Gibbons, stating that on the 19th of March, 1787, the legislature granted to John Fitch the exclusive right of using, for a limited time, a steam-boat, &c. That on the 27th of March, 1788, the legislature repealed the act so made in favor of Fitch, and passed an act granting a similar right to Robert R. Livingston for twenty years ; and on the 5th of April, 1803, granted the like right to Robert It. Livingston, and Robert Fulton, for twenty years. That on the 6th of April, 1807, the legislature passed another act in favor of L. and F. extending the time for giving the proof required by the former act. That on the 11th of April, 1808, L. and F. having given the requisite proof of their having built a boat impelled by steam at the rate of more than four miles an hour, &c. the legislature passed another act, giving to L. and F. and their associates, an extension of five years of the exclusive right to navigate the waters of this state, by boats or vessels moved by steam, for every additional boat which they might build, so that the whole term should not exceed thirty years from the time of passing that act; and declaring that no person or persons, without their licenses, should set in motion, or navigate, upon the waters of this state, or within the jurisdiction thereof, any boat or vessel moved by steam or fire, under the penalty of forfeiting to the said L. and Id, and their associates, such boat or vessel, &c. That, by another act, passed the 9th of April, 1811, it was declared, among other things, that the several forfeitures mentioned in the act of the 1 ] th of April, 1808, should be deemed to accrue on the day on which any boat moved by steam or fire, not navigating under the license of L. and F. or their associates, shall navigate any of the waters of this state, or #those within its jurisdiction, in contravention of the said act, and that L. and F. and their associates, might thereupon have the same remedy in law and equity, to recover such boats, &c. as if the same had been wrongfully taken out of their possession, &c. The bill further stated, that the said L, and F. having, in all things, complied with, and fulfilled the terms and conditions expressed in the said laws, became entitled to the exclusive right and privilege to navigate the waters of this state, by boats moved by steam or fire. That on the 20th of August, 1808, R. R. L. and F., by indenture, granted to John II. Livingston and his assigns, “ all the right which the said R. R. L. and F. possessed under
p. 384
the laws of the state, exclusively to navigate from any place within the city of New- York, lying to the south of the state prison, to certain places in the said indenture specified, and lying to the south of Poudes-Hook ferry, and particularly to Staten Island, Elizabeth-town Point, Perth, and South Amboy, and the river Raritan up to New-Brunswick, &c. That on the 5th of May, 1815, J. R. L. by articles of agreement, agreed to permit the plain tiff to run a steam-boat or steam-boats, between Elizabeth-town Point and the city of New- York for ten years, from the first of March, 1815, in as full and ample a manner as he, the said J. li. L. had then a right to run the same by virtue of the grant to him from R. R. L. and R. F.; and that the said J. R. L. further agreed with the plaintiff, that he would not run, nor grant any license to run a boat or boats, during the ten years, to and from Elizabeth-town, and Elizabeth-town Point. That R. li. L. died in February, 1813, and R. / in March, 1815, and that the legal representatives of R. R. L. and R. F., on the 29th of December, 1815, covenanted with the plaintiff and Thomas Morris, among other things, to release and confirm to the present owners, or their assigns, of any steam-boat or boats, run by them, or any of them, on the Hudson river, on the sound between New-York Island and Long Island, or between New-York and Elizabeth-toum Point, or Elizabeth-toum, to the whole extent of the township, all their right, title, or titles respectively, to every patent or other right holden by them, &c. That when this last mentioned deed was executed, the plaintiff *was owner of a steam-boat then running on the waters of the state between New-York and Elizabeth-toum Point, or Elizabeth-toum; and the plaintiff claimed the exclusive right of navigating the waters of the state of New-York by boats moved by steam or fire, between New- York and Elizabeth-town, in virtue of the two deeds last mentioned. That the plaintiff has lately built, and runs a steam-boat called the Atalanta, by virtue of his said exclusive right, between Elizabeth-toum Point and the city of New- York. That the defendant, T. Gibbons, of Elizabeth-town, in the state of New-Jersey, is owner of two boats impelled by steam, one called the Stoudinger, and the other the Bellona ; and in contravention of the exclusive right and privilege of the plaintiff, and without, any license from the plaintiff, or R. R. L. and R. F., or their representatives, the defendant had set in motion the said two boats moved by steam or fire, and employed them in the transportation of passengers between the city of New-York and Elizabeth-town, and that those boats now actually navigate between New-York and Elizabeth-toum, &c., to the great loss and prejudice of the plaintiff. Prayer for an injunction to restrain the defendant, his agents, &c. from using, employing, and navigating the said two steam-boats, or either of them, or any other steam-boat by him purchased or built, as aforesaid, on the waters of this state lying between Elizabeth-town, or
p. 385
any place within the bounds of the township, and the city of New-York, &e. A writ of injunction was granted on the 01st of October, 1818, according to the prayer of the bill.
On the 19th of August, 1819, the defendant tiled his answer to the bill, in which he admitted the several acts of the legislature, and the deeds, <fcc. set forth in the plaintiff s bill, but denied the exclusive right claimed by the plaintiff under them. He admitted, that lie was the owner of the two steam-boats described in the bill, and which were intended to navigate by steam between the city of New-York, and the wharf of the defendant in New-Jcrsey, at a place usually called Halsted’s Point, which is within the bounds of the township of Elizabeth-town, but separated from Elizabeth-town Point, by a large and navigable creek ; that the *said boats did run between New-York and the said wharf of the defendant, which is a short distance from Elizabeth-town Point, the place from which the plaintiff's boat runs to New-York; and that the said boats of the defendant continued so to run, &c. until restrained by the injunction issued in this cause. But he denied that the said boats ever run from Elizabeth-town Point. The defendant averred, that his two boats are vessels above the burthen of twenty tons, and were duly enrolled and licensed under the laws of the United States, to be employed in carrying on the coasting trade, according to the laws of the United States. That the Stoudinger was enrolled at Perth Amboy, in New-Jersey, on the 23d of October, 1817, and licensed for one year, which license was renewed on the 20th of October, 1818, for one year, by the collector of the port of Perth Amboy, in the form prescribed by law, in pursuance of an act of Congress, entitled, t; An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same.” And the defendant insisted that the Stoudinger, under this license, may be lawfully employed and navigated in the coasting trade between parts of the same state, or of different states, and cannot be excluded or restricted therein by any law or grant of any particular state, on any pretence to an exclusive right to navigate the waters of any particular state by steam-boats, &c. That the steam-boat Bellona was in like manner enrolled and licensed on the 20th of October, 1818, &c. That the representatives of R. R. L. and F., claiming to be entitled to certain patent rights for improvements in steam navigation, and, also, an exclusive right to navigate the waters of the state of New-York, with boats or vessels propelled by steam or fire, on the 14th of September, 1816, by deed, sold to D. D. Tompkins, Adam Brown and Noah Brown, and their assigns, “ the right, liberty, and privilege of navigating, for all purposes whatsoever, boats or vessels of all kinds whatsoever propelled by the force of fire or steam, upon, over, and across the waters of the bay of Neiv- York, Staten Island sound, the outward harbor, including Prince’s
p. 386
and Gravesend bays, and a part of the Atlantic ocean, and Jamaica bay; and, also, a right, privilege and liberty, with all #such boats so propelled, to touch, stop, and land passengers, and discharge cargoes, to depart from, and arrive at the city of New-York, or any part thereof; and, also, the sole and exclusive right, privilege and liberty of navigating, with all such boats to and from the city of New- York, and to and from the points and places in the said deed particularly mentioned and specified, to wit: “ Shrewsbury Bay and rivers in Ncw-Jerscy, Sandy Hook, Spermaceti Cove, and the waters and shores adjacent thereto, to the southward of Sandy Hook, Fort Diamond, and the shores of Long Island, with liberty to touch at any point or place on the easterly and southerly side of Staten Island, and any point on the said shores, at which the grantors may lawfully touch, consistently with their grants to others.” That Adam Brown afterwards died, and his executors, on the 4th of December, 1818, by a deed, reciting that all the rights and privileges under the last mentioned deed, had been released to D. D. Tompkins, and as respected Shrewsbury, and all the shores of Shrewsbury bay and rivers, to Noah Brown; and they, the said executors of A. B., sold to the defendant and his assigns, all the rest, residue and remainder of the right of A. B., derived under the said deed of the 14th of September, 1816. That I). D. Tompkins and Noah Brown, on the 7th of December, 1818, by deed, sold and conveyed to the defendant a right of navigating with steamboats, upon, over, and across the waters of the bay of New-York, Staten Island sound, the outward harbor, the Atlantic ocean, and all the waters specified in the deed of the representatives of R. R. L. and F. to them, and to touch and land passengers, and take or discharge cargoes, and to depart from, and arrive at, and navigate to, from, and between the city of New- York, or any part thereof, and to, from, and between any place or places, point or points whatsoever, in the state of New- York, or in the state of New- Jersey, or elsewhere, other than, and except Staten Island, and all the points and places on the shores of the state of New- Jersey, between the, point of Sandy Hook and .the east end of the division line between Monmouth and, Middlesex counties in the stale of New-Jersey.” And the defendant insisted, that if R. R. L. and F, or either of them, had any exclusive right to navigate by *steam-boats, (which, however, the defendant did not admit) he, the defendant, had a right, under the deeds above mentioned, to navigate the waters of the state of New- York, between the city of New-York and Elizabeth-town, or Elizabeth-town Point, or any place or point in the creek called Elizabeth-town Creek, in the township of Elizabeth-town, in the state of New-Jersey, with boats or vessels moved by steam or fire. And the defendant denied the right of the plaintiff, if the matters set forth in his bill were true, to prosecute alone, as, by his own showing, he
p. 387
was assignee of a part only of the exclusive right claimed by him; and he prayed that he might have the benefit of this defence, equally as if he had demurred to the bill, or pleaded it.
On this answer, the defendant below moved to dissolve the injunction, which motion, after being argued by counsel, was denied by the chancellor; who, on the 6th of October, 1819, made the following order: “It is ordered and decreed, that the motion be denied, and that the question of costs upon the said motion be reserved; and it is further ordered and decreed, that the injunction heretofore issued in this cause, be confirmed in its operation to the whole of the waters in the bay of New-York, on the passage or route between the city of New-York and Elizabeth-town Point, or Elizabeth-town, or any part thereof, and that it be understood not to apply to the waters of the sound that lie between Staten Island and the state of New-Jersey, so long as the boat or boats of the defendant do not enter the bay oí New-York.”
From this order the defendant below appealed to this court.
The Chancellor assigned his reasons for the decretal order made by him, as follows : The motion to dissolve the injunction was founded upon the matter contained in the answer.
The defendant set up two grounds of right to navigate with steam-boats between the city of New-York, and Halsted’s Point, within the township of Elizabeth-town, in New-Jersey: (1) A license to carry on the coasting trade #granted under the laws of the United States, and (2) a license under the representatives of Livingston and Fulton.
1. The act of Congress (passed 18th February, 1793, ch. 8.) referred to in the answer, provides for the enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries. Without being enrolled and licensed, they are not entitled to the privileges of American vessels, but must pay the same fees and tonnage as foreign vessels, and if they have on board articles of foreign growth or manufacture, or distilled spirits, they are liable to forfeiture. I do not perceive that t.his act confers any right incompatible with an exclusive right, in Livingston and Fulton, to navigate steam-boats upon the waters of this state; the right of the legislature to pass the laws mentioned in the pleadings, was not attempted to be made a question of, upon the motion before me. That right has been settled (as far as the courts of this state can settle it) by the decision of the Court of Errors, in Livingston v. Van Ingen, (9 Johnson, 507.) and if those laws are to be deemed, in the first instance, and per se, valid and constitutional, and as conferring valid legal rights, a coasting license cannot surely have any effect in controlling their operation. The act of
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Congress referred to never meant to determine the right of property, or the use or enjoyment of it, under the laws of the states. Any person in the assumed character of owner, may obtain the enrolment and license required, but it will still remain for the laws and courts of the several states to determine the right and title of such assumed owner, or of some other person, to navigate the vessel. The license only gives to 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, remains precisely as it did before. It is neither enlarged nor diminished by means of the license ; the act of the collector does not decide the right of property. He has no jurisdiction over such a question. Nor do I think it would alter the case, in respect to the force and effect of the laws before us, if the license of the collector was evidence of property. However unquestionable the right and title to a specific chattel may be, and from whatever source that title *may be derived, the use and employment of it must, as a general rule, be subject to the laws and regulations of the state. If an individual be, for instance, in possession of any duly patented vehicle, or machine, or vessel, or medicine, or book, must not such property be held, used, and enjoyed, subject to the general laws of the land, such as laws establishing turnpike roads and toll bridges, or the exclusive right to a ferry, or laws for preventing and removing nuisances ? Must it not be subject to all other regulations touching the use and employment of property, which the legislature of the state may deem just and expedient ? It appears to me that these questions must be answered in the affirmative. The only limitation upon such a general discretion and power of control, is the occurrence of the case when the exercise of it would impede or defeat the operation of some lawful measure, or be absolutely repugnant to some constitutional law of the Union. When laws become repugnant to each other, the supreme or paramount law must and wall prevail. There can be no doubt of the fitness and necessity of this result, in every mind that entertains a just sense of its duty and loyalty. Suppose there was a provision in the act of Congress that all vessels, duly licensed, should be at liberty to navigate, for the purpose of trade and commerce, over all the navigable bays, harbors, rivers and lakes within the several states, any law of the states creating particular privileges as to any particular class of vessels to the contrary notwithstanding, the only question that could arise in such a case would be, whether the law was constitutional. If that was to be granted or decided in favor of the validity of the law, it would certainly, in all courts and places, overrule and set aside the state grant. But at present we have no such case, and there is no ground to infer any such supremacy or intention from the act regulating the coasting trade. There is no collision between the act of Con
p. 389
gress and the acts of this state creating the steam-boat monopoly. The one requires all vessels to be licensed, to entitle them to the privileges of American vessels, and the others confer on particular individuals the exclusive right to navigate steam-boats, without, however, interfering *with or questioning the requisition of the license. The license is admitted to be as essential to these boats as to any others. The only question is, Who is entitled to take and enjoy the license ? The suggestion that the laws of the two governments are repugnant to each other upon this point appears to be new, and without any foundation. The acts granting exclusive privileges to Livingston and Fulton were all passed subsequent to the act of Congress; and it must have struck every one, at the time, to have been perfectly idle to pass such laws, conferring such privileges, if a coasting license, which was to be obtained as a matter of course, and with as much facility as the flag of the United States could be procured and hoisted, was sufficient to interpose and annihilate the force and authority of those laws. If the state laws were not absolutely null’ and void from the beginning, they require a greater power than a simple coasting license/to disarm them. We must be permitted to require, at least, the presence,and clear manifestation of some constitutional law, or some judicial decision of the supreme power of the Union, acting upon those laws in direct collision and conflict, before we can retire from the support and defence of them. We must be satisfied that
Jfcptunus muros, magnoque emota tridenti Fundamenta qua-tit.
2. If the appellant has any right to navigate his steam-boats upon the waters of the state, he must have derived it under the representatives of Livingston and Fulton. But the grant he sets up was subsequent to the deed from L. and F. to John ¡I. Livingston., under whom the respondent holds his title ; and if the pretensions of the respondent under that deed are well founded, the appellant fails in his defence.
The deed to John II. Livingston conveys “ all the right which L. and F. possessed, exclusively to navigate with steam-boats from the city of New- York, south of the state prison, to Staten Hand, Elizabeth-town Point, Perth and South Amboy, and the river Raritan up to New-BrumwickJ’ The appellant says, that Halsted’s Point (between which and the city of New-York his boats navigate) is “ within the township of Elizabeth-town, but separated from Elizabeth-town * Point by a large and navigable creek.” I! That his wharf at Halsted’s Point is within a short distance of Elizabeth-town Point,” and yet he denies that he is sailing within the limits of the grant to J. R. L. Whoever is acquainted with the position of the land and waters at and adjoining Elizabeth-town Point, or will cast his eye upon a map of that country, will at once perceive, that
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upon the appellant’s construction of the deed to J. R. L., the grant to him was vain and illusory, as a beneficial exclusive privilege. If L. and F., notwithstanding that deed, retained ⅛ themselves the right to run steam-boats to and from Elizabeth-toivn and New- T orle, by starting from the opposite side of tlie small creek that runs at Elizabeth-town Point into the bay or sound, the right in J. R. L. was, in effect, no longer exclusive, but common. This is certainly not the sound construction of the deed, which gave him the right to navigate exclusively within its prescribed limits. It is to be so construed as to have value and effect as an exclusive right. For this purpose, Elizabeth-town Point must be considered as including the whole shore or navigable part of Elizabeth-town; and this appears to be the clear and necessary interpretation of the grant, when we take into consideration the situation of the ground and waters, and the nature and object of the grant. Any narrower construction in favor of the grantors would render the deed a fraud upon the grantee. It would be like granting an exclusive right of ferriage between two given points, and then setting up a rival ferry within a few rods of those very points, and within the same course and line of travel. The common law contained principles applicable to this very case, dictated by a sounder judgment and a more enlightened morality. If one had a ferry by prescription, and another erected a ferry so near it as to draw away its custom, it was a nuisance for which the injured party had his remedy by action. (Bro. action sur le case, pi. 57. tit. Nuisance, pi. 12. 2 Roll. Abr. 140. pi. 20. 3 Black. Com. 219.) The same law and remedy were applied to the case of a fair or market, in which an individual had a freehold interest, if another fair or market was erected, and used, within its vicinity. (F. N. B. 184, and notes. 2 Roll. Abr. 140. pi. 1, 2, 3. Yard v. Ford, 2 Sound. *172.) The same rale applies, in its spirit and substance, to all exclusive grants and monopolies. The grant must be so construed as to give it due effect, by excluding all contiguous and injurious competition.
The grant of an exclusive right to run steam-boats between New-York and Elizabeth-ioion Point, was intended to comprehend the entire benefit of all the travelling, and passengers going to and from Elizabeth-town and New- York. It meant to embrace the whole stream of intercourse between these two places, and Elizabeth-toum Point was used for the landing place of the town. No other landing place occurred to the parties, or it doubtless would have been inserted. The intention of the instrument is clear and palpable. It is to be deduced from the general description, and the nature of the grant as an exclusive privilege, and the particular locality of the land and waters in question. Any other construction is unreasonable, and incompatible with the object of the grant, and with the principles of the common law applicable to the
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case. An exclusive right to navigate with steam-boats between the city of New- York and Elizabeth-town Point, includes in it the use of the waters on the usual passage between those termini, in exclusion of the use of those waters on such a passage or route, by any other steam-boat. It is like the grant of an exclusive right of way, and no stranger has a right to use it. {Finch’s Law, 31.)
In the subsequent grant from J. R. L. to the • respondent, the existence of his right under the deed of 1808, to the entire navigation between New- York and Elizabeth-town, as well as Elizabeth-town Point, was assumed. It was also provided, that an exclusive grant to navigate to the latter place, should exclude any interfering navigation to the other. There was an interval of seven years between the deed of 1808 and this latter deed, in all which time we are led to infer that J. R. L. had enjoyed the exclusive right under his deed to the extent now set up by the respondent, and that both parties to the deed of 1808 had given it that practical construction. But if the deed of 1808 was liable to doubt and difficulty upon this point, the sense of the parties was more explicitly declared in the deed of the *29th of December, 1815, which was also prior to any deed under which the appellant sets up a right. This last deed was from the representatives of L. and F. to the respondent and one T. 31., and it was a covenant with them to release and confirm to the owners of any steam-boat owned and run on the Hudson river, or on the sound between New-York find Long Island, or between New- York and Elizabeth-town Point, or Elizabeth-town, to tire whole extent of the township, all the right and title which they then held. The respondent was, at the time, owner of a steam-boat running between Elizabeth-town Point and New-York, and there was then no other subsisting grant under L. and F., relative to a navigation between New- York and Elizabeth-town, or any part of it, but the one to J. R. L. The covenant to release and confirm,'in respect to those waters, applied to that grant, and to none other, and when the representatives of L. and F. speak of running between “ Neto- York and Elizabeth-town Point, or Elizabeth-town, to the whole extent of the township,” they give a construction to the former deed, and recognize a right out of them, to the reasonable and just extent which the grant imported. They must have considered the right under J. R. L. in that broad extent, as then subsisting and held, or they would not have used such pointed and strong description when speaking of that right. The expression was evidently intended to be declaratory of the meaning and operation of the former deed. The words have no sense, or meaning, or application, in any other view; and neither the representatives of L. and F., nor those claiming under them, can now be permitted to put a narrower construction upon their former grant, and especially
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a construction injurious, if not repugnant to its end and design, as the grant of an exclusive privilege.
It is, however, an act of justice to those representatives, to observe, that no subsequent attempt appears on their part, to defeat or impair the right previously granted.
The appellant sets up a right to navigate steam-boats between Elizabeth-town and Halsted’s Point and New- Yorlc, derived under the deed from the representatives of L. and F., of the 14th of September, 1816, to Daniel D. Tompkins and Adam and Noah Brown. The extent of this grant is partly described in the appellant’s answer, and partly given by a reference to the deed. It was “ the right of navigating, for all purposes whatsoever, steam-boats upon, over, and across the waters of the bay of New- York, Staten Island Sound, the outward harbor, including Prince’s and Gravesend bays, a part of the Atlantic shore, and Jamaica bay, &,c. And also the right to stop and land passengers, and discharge cargoes, at the city of New- York, and the sole and exclusive right of navigating with steam-boats to and from the city of New- York, to and from Shrewsbury bay and rivers in the state of New-Jersey, Sandy-Hook, Spermaceti Cove, and the shores and waters adjacent thereto, lying within and to the southward of Sandy-Hook, Fort Diamond, and the shores of Long Island from Denise’s heights inclusive, southerly along Gravesend bay, &c. And the sole and exclusive right of touching at any point on the easterly and southerly side of Staten Island, and any point or place on the said shores, at which the parties of the first, part may now stop or touch, consistently with the rights heretofore granted.” This deed was not intended to interfere with the former grant to J. 11. L. and the only part of it that looks like an interference is in the expression Staten Island Sound. But we find, afterwards, in the deed, that expression explained by the liberty given (though very cautiously and at the risk of the grantees,) to stop and touch at any part on the easterly and southerly side of Staten Island. There is no liberty to stop or touch, or deliver or receive passengers or freight, at any port or place in Staten Island Sound. There is no privilege granted to navigate between New- York and Elizabeth-town, or to touch, or receive, or land passengers; and every assumption of such right, as derived from and under that deed, is manifestly groundless. If any right be given to navigate on the route to that place from New- York, it is only a water passage through Staten Island Sound; and every act in carrying passengers, as between Neiv-York and Elizabeth-town, under color of that deed, is a trespass upon the rights of the grantors or their lawful assignees.
If the grantees in that deed had no such right, they had none to impart to others, and it becomes unnecessary to examine #into the legal import and operation of the subsequent deeds from those grantees to the appellant.
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There was an objection raised in the answer to not making of Thomas Morris a party, because his name is mentioned in the deed of the 29th of December, 1819. But as it is no where averred, nor does it appear, that Mr. Morris was the owner of any boat to which the covenant in that deed applied, he had no interest in this cause, and there was no need to make him a party. .
Every branch of the right and title set up in the answer as matter of defence, appearing to be without support or solidity, the motion to dissolve the injunction was, consequently, denied. As the injunction was, however, granted before the decision on the 3d day of May last, in the cause of Livingston v. Ogden and Gibbons,[1] it might perhaps be more extensive than the doctrine laid down in that decision could warrant. I therefore so modified or explained the operation of the injunction, as to confine it to the whole of the waters in the bay of New- York⅜ on the passage or route between the city of New-York and Elizabeth-toion Point or Elizabeth-town, or any part thereof, and not to apply it to the waters of the sound that lies between Staten Island and the state of New- Jersey, so long as the boats of the appellant did not leave the sound on their passage to the city of New- York.
S. Jones, jun., for the appellant,
contended, that the exclusive right set up by the respondent, under the laws of the state of New-York, was inconsistent with the principles and provisions of the constitution of the United States ; and that those laws, purporting to create or establish such exclusive right, were unconstitutional and void ; and that the exclusive right, therefore, claimed under them, can have no force against the appellant. The respondent claims under the acts of the legislature of this state. The appellant claims not only under the broad, natural right of every citizen freely to navigate the public waters of the United States, but under the express authority of the United States, granted by the license to his boats to carry on the coasting trade. Here, then, is a direct collision between the authority of the ^government of the United States, and that of this state; and this court need not be informed, that, in such a case, the state laws must yield to the paramount authority of the general government. The power of Congress to pass the act for enrolling and licensing ships or vessels, to be employed in the coasting trade, &c. (13 sess. 1793. 1 vol. L. U. S. 332.) is derived from the clause in the 8th section of the first article of the constitution, empowering Congress to regulate commerce with' foreign states, and among the several slates, &c. The power will not be denied, and it has been fully exercised. The right to regulate the coasting trade is solely and exclusively vested in Congress'. No state can, therefore, restrain or prohibit the exercise of that
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right. Do not the acts of the legislature of this state limit and restrain the right of trading coastwise r It prohibits all citizens of the United States, except I?. R. L. and F. and their assigns, from using or navigating the waters of this state with boats or vessels propelled by steam or fire. Might not the state have, ⅛ like manner, granted an exclusive privilege to navigate the waters of the state with vessels, moved by sails of a particular construction ? Suppose some new improvement in steam-boats or vessels, by which their capacity and velocity should be so much increased, that no vessels with sails could enter into competition with them ; would not, in that case, the whole internal trade of the United States be monopolized by these grantees and their assigns ? Again ; suppose a vessel propelled by steam, belonging to some European state in amity with the United States, should arrive at the mouth of the Hudson, with the intention of ascending the river, could any law of this state prevent her entrance into our harbors ? Might not the master of such vessel say, “ I know of no laws or regulations of a particular state in regard to trade or commerce; I claim the privilege of entering the harbor of New- York, under the laws of the United States, and the treaty of amity and commerce subsisting between them and my sovereign, and which, by your constitution, is declared to be the supreme law of the land.” Again ; suppose a patent by the United States to any individual, granting him the sole right of navigating the waters of the United States, by boats or vessels propelled by steam #or fire ; could the paten-tee be prevented by Messrs. L. and F., or their assigns, from entering the port of New- York 1 The case of Livingston v. Van Ingen, ( 9 Johns. Rep. 507 .) which, no doubt, will be cited and relied upon by the other side, is clearly distinguishable from the present case; and the appellant may humbly presume that this court will willingly avail itself of any circumstance that will distinguish this case from the one formerly decided. The suit here is between a citizen of New-Jersey, and one claiming under a citizen of this state. The appellant, moreover, claims under a law of the United States. Here, then, are two important features distinguishing this case from that of Livingston v. Van Ingen, in which stress was laid upon the fact of its being a suit between citizens of this state. In delivering his opinion in that case, the late chief justice, (ib. 568, 569.) is careful to say, that the law did not interfere with the power of Congress to regulate commerce, foreign or domestic. Again, the present chancellor, then chief justice, (ib. 582.) intimates, that possibly, before a competent tribunal, the right derived from the state would be obliged to yield to the patent right, as being founded on the paramount law; though he reserves himself on that question, which is the one now presented to the court in this case. It is manifest, then, that this case is not governed by that of Livingston v. Van Ingen. Though it may be true that, until Congress does exercise a power of legislation given by the con
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stitution, a state may exercise it ; yet when Congress does exercise the power, the power of the state, as to that object, must cease. It is to be presumed that the legislature, in passing these acts, supposed that they did not interfere with any right granted by the laws of the United States.
Again ; the appellant has acquired a right to navigate with his boats under Tompkins and Brown; but it is not necessary, at present, to urge this point further.
The counsel cited various laws of the United States relative to tonnage, duties, &c., and the treaties of amity and commerce between Great Britain, and the United States, and between Spain and the United States, and between Russia and the United States.
*Hoffman, for the respondent,
contra, admitted, that it was competent to the United States to grant to foreign states, leave to navigate the waters of the United States with steam-boats ; but lie said it was unnecessary to examine or discuss the power of Congress as to treaties, for it must be conceded, that a treaty must be paramount not only over the laws of the several states, but over those of the United States. The pleadings in this cause do not bring up any question about foreign vessels, or the effect of treaties. The defendant rests his defence upon a coasting license obtained from a collector of New-Jersey, which he does not pretend to use in the coasting trade; but merely as a cover, in order to evade the laws of this state in favor of L. and F. and their assigns. It was reserved for the ingenuity of the appellant to discover such a mode of evasion. It is too late to question the great public benefits which have been derived from the steam-boats which have been brought into operation under these laws'. The validity of the acts was not questioned at the time; but now, when the advantages to be derived from the privilege granted are established, a cry of monopoly is raised against the exclusive right.
Patents under the laws of the United States, can he granted only for new inventions and discoveries. In Great Britain, patents are granted not only for new inventions, but for improvements imported from abroad. This state has reserved to itself the precious and very important power of encouraging art and" science, by granting exclusive rights to use improvements introduced from foreign states. Congress may give to authors and proprietors of books, an exclusive right of publication and sale. But would a state, in which slaves exist, allow an author, though he had taken out a copy right, to vend a book exciting slaves to insurrection and murder ? The patent right must be subject to such laws as a state may pass for its own security.
Again; it is said the appellant’s boats had coasting licenses granted under the laws of the United States, and may, therefore, navigate freely the waters of the state. But the act for enrolling and licensing vessels in the coasting trade is intended
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merely to give a character to the vessels so employed, and for ^e purposes of revenue. The object is to #prevent smuggling, by regulating the coasting trade. Vessels under twenty tons are licensed. Vessels above that burthen are enrolled and licensed. The enrolment and license confers no new right or power; but only exempts the vessels so licensed from paying foreign duties. These vessels had as much a right to navigate the waters of the United States, before obtaining the license, as after. It merely marks the national character of the vessel, exempts her from the payment of foreign duties, and guards against frauds on the revenue. If a coasting license, obtained from a collector in New-Jersey, would protect a vessel from the operation of the laws of this state, so would a license granted by a collector in New-York, and thus all the wholesome and salutary regulations of the state would be evaded. Could not this state, in time of war, prohibit the transportation of grain from Albany to New- York ? Can it not, in case of pestilence, prevent a vessel from going from Albany to Neiv- York ? Is a vessel, having a coasting license from the United States, to defy the laws of the state, passed for the safety of its citizens ? Is such a license to ride paramount over all the municipal laws of the state ? If so, there is an end to the laws relative to quarantine, turnpikes, ferries, against the introduction of slaves, &c. If the doctrine, now for the first time set up, as to the effect of a coasting license, is to prevail, the power of the state as to the regulation of its own domestic police and concerns, must be wholly prostrated. But it is unnecessary to enlarge on this subject, as every question has, in fact, been settled in the case of Livingston v. Van Ingen, which was very fully argued, and in which we have the reasons for the decision given by three of the judges of the Supreme Court. Under the faith of the law, as pronounced by the unanimous decision of this court, in that case, the respondent, and many other persons, have purchased rights under L. and F. Will this court now abandon that decision, and sacrifice all the rights which have been acquired under it ?
This case, we supposed, was to be brought here, to be argued merely proforma, for the purpose of having the cause carried up to the Supreme Court of the United States. It is hardly to be imagined that the appellant’s counsel could #entertain any serious expectation of inducing this court to reverse its own solemn decision in Livingston v. Van Ingen.
Henry, in reply.
It is matter of surprise and regret, that any appeal should be made to state pride, or to prejudices which may exist on this subject. But if it can be demonstrated that the acts of the legislature are in collision with the laws of Congress, this court need not be reminded of its duty to support the constitution of the United States. The fallacy of the argument, on the part of the respondent, lies in taking it for
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granted, that the law of Congress for enrolling and licensing of vessels in the coasting trade, is intended merely to give a character to those vessels, and to protect the revenue; and that it does not confer any rights not before enjoyed. The whole power of regulating trade and commerce is given to Congress ; and the 10th section of the same article of the constitution imposes express restraints on the several states. A state, without the consent of Congress, cannot lay a tonnage duty, yet it is contended that a state may prohibit the entry of a vessel within its waters. Among the qualifications required by the act of Congress, nothing is said about the power by which the vessel is impelled, whether fire, steam or wind. The license permits her to trade from port to port in the United States; that is, to every port within the United States. But of what avail would be his license to trade from port to port, if a particular state can prohibit the entry into its ports of vessels of a certain description ? Every state may grant similar monopolies. What, then, is to become of the coasting trade, or right under the laws of the United States 1- A vessel having a coasting license may land part of her cargo in one port, and obtain a permit to land the residue in another port. Suppose a vessel propelled by steam, having a coasting license, proceeds from a port in New-Jersey to Philadelphia, and there lands part of her cargo, and receives from the custom house a permit to proceed to New- York with the residue, can she be seized as forfeited under the laws of this state, for a violation of the rights of L. and F. or their assigns ? If Congress have power to give *the right to trade coastwise, then every act of a state legislature, prohibiting or restraining the exercise of that right, comes in direct collision with the law of Congress. • '
As to patents, the power of a state to prohibit the introduction of noxious drugs, or of a dangerous book, does not touch the property of the owners of the drugs or books. Congress has expressly provided for the observance of the quarantine laws of the states ; and the constitution of the United States prohibits the importation of slaves. Suppose it did not, and Congress should expressly authorize the slave trade, would any particular state have power to prohibit their importation ? However unpalatable this doctrine may be to state pride, it must be the law, else there is an end to the government and authority of the United States. Tee cases which have been put, are those about which Congress have passed no law. A state passes a law that no carriage shall run- on any public road within the state, unless its" wheels are of a certain breadth. But suppose Congress should pass an act licensing carriages to pass through the United States, for the purposes of trade, with wheels of a different description, could those carriages be stopped and seized by the state officers ? The distinction is between regulation and interdiction. A noxious thing may be
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restrained or regulated. That is matter of general police. But to say that a steam-boat of another state shall not navigate the waters of this state, is interdiction. It seems to be eonced-e<B that if a steam vessel, owned by the subjects of a foreign state, with whom the United States have formed a treaty of commerce, should arrive in our waters, she could not be seized ; because the state law must yield to the treaty as the paramount law of the land. Rut is not every law of Congress made in pursuance of the constitution, also, the paramount law of the land ? By the treaty of Ghent, the port charges of the two governments were to be equalized; and higher duties haying been imposed in the port of New- Yoric, the act, on the complaint of (i. B., was repealed. We do not ask that the grant to L. and U. should be repealed, and thus far, this court may adhere to its former decision. We do not call to our #aid Neptune with his trident ; we invoke only the goddess Minerva.
This is an appeal from an order of the Court of Chancery, denying a motion for dissolving an injunction, whereby the steam-boat of the appellant was restrained from running between Elizabeih-town Point in New-Jersey and the city of New- York.
The great question which arose in the case of Livingston and Fulton v. Van Ingen and others, ( 9 Johns. Rep. 507 .) whether this state had the power to grant an exclusive right of navigating its waters with steam-boats, is again raised in this cause. That question was then elaborately and profoundly discussed on appeal in this court; and after mature consider ation, this court, by a unanimous decree, decided, that the statutes of this state for granting and securing to Livingston and Fulton, and their assigns, that exclusive privilege, were constitutional and valid.
Immediately after that decision, many persons who had resisted the claim to such exclusive privilege, yielding obedience to that decree, as settling the question by the highest judicial tribunal of the state, became purchasers of that privilege under Livingston and Fulton. The respondent, Aaron Ogden, stands before this court as an assignee under them, and claims the benefit of his purchase. His right is denied by the appellant ; 1st. On the old ground, that the state had no power to grant such exclusive privilege in any case; and, 2diy, That he (the appellant) derives authority to navigate his steam-boats under the act of Congress of the 18th of February, 1793, for enrolling and licensing coasting vessels, &c.
As to the first general question, I consider it as no longer open for discussion here. It would be trifling with the rights of individuals, and highly derogatory to the character of the court, if it were now to depart from its former deliberate decision on the very same point.
As to the second ground relied on by the appellant, to wit,
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the coasting license, I am unable to discern how that can vary the merits of the question, as presented in the case of Liv Van Ingen. mgston v.
*The act of Congress for enrolling and licensing coasting ships, or vessels, (fee. enacts, that “ no ships or vessels, except such as shall be so enrolled and licensed, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries.” (sect. 1.) And the same act also declares, that every ship or vessel engaged in the coasting trade, &c., and not being so enrolled and licensed, “ shall pay the same fees and tonnage in every port of the United States at which she may arrive, as ships or vessels not belonging to a citizen or citizens of the United States ; and if she have on board any articles of foreign growth or manufacture, or distilled spirits other than sea-stores, the ship or vessel, with her tackle and lading, shall be forfeited.” (sect. 6.)
discrimmating From these provisions, and an examination of the various regulations of that statute, and from all the laws of the United States on that subject, it appears, that the only design of the federal government, in regard to the enrolling and licensing of vessels, was to establish a criterion of national character, with a view to enforce the laws which impose duties on American vessels, and those of foreign countries
The term “ license” seems not to be used in the sense imputed to it by the counsel for the appellant: that is, a permit to trade; or as giving a right of transit. Because it is perfectly clear, that such a vessel, coasting from one state to another, would have exactly the same right to trade, and the same right of transit, whether she had the coasting license or not. She does not, therefore, derive her right from the license; the only effect of which is,, to determine her national character, and the rate of duties which she is to pay.
Whatever may be the abstract right of Congress, to pass laws for regulating trade, which might come in collision, and conflict with the exclusive privilege granted by this state, it is sufficient, now, for the protection of the respondent, that the statute of the United States relied on by the appellant, is not of that character.
Whether Congress have the power to authorize the coasting trade to be carried on, in vessels propelled by steam, *so as to give a paramount right, in opposition to the special license given by this state, is a question not yet presented to us. No such act of Congress yet exists, and it will be time enough to discuss that question when it arises.
1 am decidedly of opinion, therefore, that the coasting license affords no aid or support to the title of the appellant, to run a steam-boat on our waters, in opposition to the laws of this state.
The real merits of this case fall precisely within the decision
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of this court, in the case of Livingston, &c. v. Van Ingen. As a senator, I was a party to that decision; and concurred in it, for the reasons which were then assigned by the learned judges who delivered the opinion of the court. Those reasons are before the public: and I have not the vanity to believe, that I could add anything to'their force or perspicuity. I, therefore, deem it my only remaining duty to say, that in my judgment, the decree of his honor the chancellor, in this case, ought to be affirmed.
April 27th.
This being the unanimous opinion of the court, it was thereupon ordeRed, adjudged and decreed, that the decretal order of the Court of Chancery made in this cause, on the 6th of October, 1819, and from which order the appellant in this cause has appealed to this court, be, and the same is hereby, in all things, affirmed, with costs to be taxed and paid by the appellant to the respondent; and that the record be remitted, &c.
Decree of affirmance,[1]
(a) (a) Vide Gibbons v. Ogden, 9 Wheaton's Rep. 1. The acts of the legislature of the state of New-York, granting to Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that state, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the constitution of the United States, which authorizes Congress to regulate commerce, so far &s the said acts prohibit vessels licensed, according to the laws of the United States, for carrying on the coasting trade, from navigating the said waters, by means of fire and steam.