Majority
p. 507Robert R. Livingston and Robert Fulton, Appellants, against James Van Ingen, H. Boyd and twenty others, Respondents.Headnote
`Ihe several acts of the le~ gislature of ~he 97th March, 1798, (sess. 91. 55.) of the 5th .JIpril, 1803, (sess. 26. C. 94.) of the 6th. ./lpril, 1807, (sess. SO. c~ 165.) of the Uth april, 1808, (sess 31. e. F295.) and of the 9th .Jipril, 1811, (sess.34. e. 200.) grant. ing and seca~ ring the sole and exclusive right of using and navigating boats 4~j steam, &c. in the wa~ ters of this state, to eer~ tale persons therein nani~ ed, for a cer tale term of years, are Con stitutional and valid; and the party in pos session of the right, under those statutes, is entitled to an injutiction, to restrain others frem infringing that right; ~lth& the statute dc dared that the boats, sac. used in viola tine of the right of the grantees should befor fritedto them and an action of detinue wac brought by virtue of the act, to recover the boats, &c. so forfeited tu the grantees.THE appellants filed their bill against the respondents, in the court of chancery~ on the 14th of Sep teniber3 1811. The bill stated:
That on the 19th of March, 1787, the legislature of the state of New-York passed an act, entitled "An act for granting ~nd securing to Johr~ Fitch the sole right and advantage of making and employing for a limited time, the steam-boat by him lately invented;" which act recited: That whereas John~ Fitch, of Bucks county, in the state of Pennsqlvsnia, had represented to the legislature `of this state, that he had constructed an easy and expeditious method of impelling boats through the water, by the force of steam; and praying that an act might be passed, granting to him, hi~ executors, administrators and assigns, the sole and ex~ clusive right of making, employing and navigating, all boats impelled by the force of steam or tire Wherefore, in order to promote and encourage so useful an improvement, it was, by the same act, enacted, that the said Johm Fitch, his heirs, administra~ ~ors a~d assigns, shonid be, and they were thereby vested with the sole and ex~i~siv~ right and privilege of constructing, making, ~.tsing, ci plo~ji~g arid navigating, all and evei~.j species or kinds of boats, or water craft, which might be urged or impelled ~hrough Me n'ater, b~ the force of'fire or steam, ir~ all creeks, ri.~ ~ers, ba~je and waters whatsoever, within the ter-ri1or~y and jurisdiction of this stale, fbr and during the full end and term offourteen ~jears from and after the then present session of the 1egisla~ it~ure; that if any person or persons whomsoever, without being properly authorized by him the said John Fitch, his hefrs, execukors or administrators, should make, use, employ or navigate, any boat or water craft, which should or might be urged, impelled, forced or driven through the water, by- the force, power or agen~y, of fire or ateam, as aforesaid, within the territory or jurisilicfion of this state, every person so offending against the tenor, true ~tent ar~d meaning of the mid act, for each ai~d every sucb ofFence ~shou!~1 forfeit and pay unto the said John, Fitch, hi~ heirs~
p. 508executors or administrators, or to such other person or persons, as he, his heirs or assigns, should authorize and empower, for that purpose the sum, of one hundred pounds, to be recovered by ac~ tion of debt, in any court of record within the state wherein the same might be cognisable, with costs of suit; and should also forfeit to him, the said John Fitch, his heirs or assigns, all such boats or water craft, together with the steam engine, and all the appurtenances thereof, to be recovered in manner aforesaid, with costs-of suit. That neither the said act, nor any clause, matter or thing therein contained, should be taken, deemed or construed, to prohibit or prevent any person or persons from making, using, employing or navigating within this state, any kind of boat or water craft, theretofore invented, or thereafter to be invented, on any other principles, construction or mode, which might be urged, impelled, or driven along through the water by any other power, force, agency or means, except fire or steam :
That Robert R. Livingston having bestowed much time and attention on the subject of applying the force of fire and steam to the purposes of navigation; and, after a variety of experiments, made at a very great expense, ascertained, as he conceived, a mode of applying the steam engine to propel a boat on new and advantageous principles; but being unwilling to run the risk and hazard of making a practical experiment of his plans, which could not be done but at a very great expense, unless he was encouraged to do so, by having an exclusive right and privilege secured to him by law, in case his plan should be found to answer his expectations, represented to the legislature his willingness and desire to incur the expense of an experiment which might prove so useful and beneficial to the community, if the legislature would guaranty to him such an exclusive privilege as, in the event of such success in his experiments, should be some remuneration for his hazard and expense, and some compensatipn as an equivalent for the benefit that would result to the public from his efforts on that subject:
That notwithstanding the above-mentioned law passed in favour of John Fitch, he never, to the knowledge or belief of the appellants, made any attempt to employ or navigate, on any of the waters of this state, any kind of boat or craft, urged or impelled through the water by the force of fire or steam, or in any manner to avail himself of the privilege granted to him by the law:
That in consequence of the above-mentioned representation
p. 509aiade to the legislature of this state, and of the failure of John Fitch to employ or navigate on any of the waters of this state, any kind of boat, urged or impelled through the water by the forOe of fire or steam, or in any manner to avail himself of the privilege granted to him, as aforesaid : and the proposed experiment of liohert R. Livingston appearing to the legislature of this state to be laudable, and deserving of encouragement, a law was passed by the legislature, on the 27th of March, 1798, entitled “An act repealing an act, entitled An act for granting and securing to John Fitch the sole right and advantage of making and employing the steam-boat by him lately invented, and for other purposes;’” which act recited, “that whereas it had been suggested to the people of this state, represented in senate and assembly, that Robert R. Livingston was the possessor of a mode of applying the steam engine, to propel a boat on new and advantageous principles; but that he was deterred from carrying the same into effect, by the existence of the law first above mentioned, as well as by the uncertainty and hazard of a very expensive experiment, unless he could be assured of the exclusive advantage of the same, if on trial it should be found to succeed;” and further reciting, “ that whereas, it was further suggested, that John Fitch was either dead or had withdrawn himself from this state, without having made any attempt, in the space of more than ten years, of executing the plan for which he so obtained the exclusive privilege, whereby the same was justly forfeited;” it was, therefore, enacted, that the act first above mentioned should be, and was thereby, repealed; and to the end that Robert R. Livingston might be induced to proceed in an experiment which, if successful, promised important advantages to the state, it was, in and by the same act, further enacted, that privileges similar to those granted to John Fitch in and by the act before first mentioned, should be, and were, thereby extended to, Robert R. Livingston, for the term of twenty years from the passing of the act of the 27th of March, 1798 : Provided, nevertheless, that Robert R. Livingston should, within twelve months from the passing of the act, give such proof as should satisfy the governor, the lieutenant-governor and the surveyor-general of this state, or a majority of them, of his having built a boat of at least twenty tons’ capacity, which should be propelled by steam, and the mean of whose progress through the water, with and against the ordinary current of the Hudson’s river, taken together, should not be less than four
p. 510miles an hour, and should, at no time, omit, for the space of one year, to have a boat of such construction plying between the Clt,es °f New-York and Albany:
That from the time of the passing of the last-mentioned act, until the month of April, 1803, Robert R. Livingston was engage in effor(s fo accomplish the object specified in the last-mentioned act, and for that purpose had made divers experiments, at a very great expense, which, though they proved ineffectual, convinced him of the practicability of his scheme: and that Robert Fulton having also, for a length of time, turned his attention to the same subject, and made many efforts and experiments to accomplish the same object; and having discovered certain principles and improvements for the application of the steam engine to the purpose of navigation; and the appellants having agreed to combine their efforts to apply the power of steam to propelling boats, and their interests in what might be the result of their endeavours; the appellants, about the time last mentioned, caused to be made an application to the legislature of this state, in consequence of which, the legislature, on the Stli of April, 1803, passed a law, entitled “An act relative to a steam-boat.” By which it was enacted, that the rights, privileges and advantages granted to Robert R. Livingston, in and by an act, entitléd “ An act repealing an act for granting and securing to John Fitch the sole right and advantage of making and employing the steam-boat, by him lately invented, and for other purposes,” passed the 27th of March, 1798, should be extended to Robert* jR. Livingston and Robert Fulton, for the term of twenty years from the passing of the act of the 5th of April, 1803; that the term for giving the necessary proof of the practicability of a boat of twenty tons’ capacity, being propelled by steam through the water, with and against the ordinary current of Hudson’s river, taken together, four miles an hour, should be, and the same was, thereby éxtended to two_years from the passing of that act
That by a law, passed on the 6th of April, 1807, entitled . “ An act to revive an act, entitled. An act relative to a steamboat,’ it was enacted, that the act entitled ‘ An act relative to a steam-boat,’ ” passed the 5th of April, 1803, should be, and the same was thereby extended for the term of two years, from the 6th of April, 1807, to exhibit the proofs required by the act, passed on the 5th of April, 1803:
That within two years from the passing of the last-mention
p. 511ed act, and previously to the month of April, 1808, the appellants, by their joint efforts, and at their joint expense, built a boat of more than twenty tons’ capacity, which was propelled by steam through the water, with and against the ordinary current of Hudson’s river, taken together, more than four miles an hour; which boat had ever since been constantly plying (except when the navigation of the river was interrupted by ice) between the cities of New-York and Albany, and that the appellants did give such proofs as satisfied the governor, the lieutenant-governor and the-surveyor-general of this state, or a majority of them, that the appellants had built a boat of at least twenty tons’ capacity, which was propelled by steam, and the mean of whose progress through the water, with and against the current of Hudson’s river, taken together, was not less than four miles an hour, as by the before-mentioned laws was required: as by a certificate, under the hands of Daniel D. Tompkins, Governor, John Broome, Lieutenant-Governor, and Simeon De Witt, Surveyor-General, bearing date the 28th of July, 1808, in the possession of the appellants, might appear :
That the appellants having established their boat, as aforesaid, by a law, passed on the 11th of April, 1808, entitled “ An act for the further encouragement of steam-boats in the waters of this state, and for other purposes,” it was, among other things, enacted, that whenever Robert R. Livingston and Robert Fulton, and such persons as they may associate with them, should establish one or more steam-boats or vessels, other than that then already established, they should, for each and every such additional boat, be entitled to five years’ prolongation of their grant or contract with this state: Provided, nevertheless, that the whole term of their exclusive privileges should not exceed thirty years after the passing of that act; that no person or persons, without the license of the persons entitled to the exclusive right to navigate the waters of this state by boats moved by steam or fire, or those holding a major part of the interest of such privilege, 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; and the person or persons so navigating with boats or vessels moved by steam or fire, in contravention of the exclusive right of the appellants, and their associates and legal representatives, should forfeit such boat or boats and vessels, together with the en
p. 512gines, tackle and apparel thereof, to the appellants and their associates:
That the appellants, having, in all respects, complied with, and fulfilled, the terms and conditions expressed in the before-mentioned laws, became entitled to the exclusive right and, privilege to navigate the waters of this state by boats moved by steam or fire :
That the appellants have ever since held, And yet hold, and were entitled to all such exclusive right or privilege, having never parted with or assigned any part of the same, nor had they any associates in that business; and well hoped that, they would be left in the uninterrupted enjoyment of their exclusive right and privilege, the "more especially, as the same was considered by the legislature of this state, as well as by the appellants, as a contract with the people of this state, the benefit of which they were to enjoy, as a"consideration for their exertions in establishing so useful an improvement in the art of navigation, for the hazard they had run in making their experiments, and for the great sums of money which they expended in carrying their plans into successful operation :
That the respondents, in contravention of the grant, or contract, made to and with the appellants, and the exclusive right or privilege to navigate the waters of this state with boats moved by steam or fire, vested in the appellants, without any license from the appellants, had set in motion in the waters of this state, and within the jurisdiction thereof, that is to say, on the waters of the Hudson’s river, a certain boat or vessel, moved by steam or fire,, called the Hope, which boat had, for a long time past, been employed, and as the appellants believed, and as the • respondents publicly avowed, was intended to be employed, in navigating and carrying passengers on Hudson’s river, between the cities of New-York and Albany; whereby such boat or vessel, together with the engine, tackle and apparel thereof, had become forfeited to, and were then justly and rightfully the property of, the appellants :
That the appellants had ¡demanded the boat of the respondents, and required them to give her up to them, as being forfeited to and belonging to them; but that the respondents had refused so to do, insisting upon holding the same, and on their right to navigate the waters of this state therewith:
That the respondents actually retained the possession of
p. 513the boat, and were employing her, against the will of the appellants, in carrying passengers for hire between the cities of New-York and Albany, and receiving, and appropriating to their own use, the emoluments arising from such unlawful use of such boat; pretending that no such laws as are above mentioned or recited have been passed; or, if they had been passed, that the appellants had not complied with the terms and conditions thereof.
The bill prayed that the respondents might be enjoined from using or employing the boat called the Hope in navigating the waters of this state, without the permission, and in contravention of the rights of the appellants; that the appellants might have such other and further relief as the nature, of their case should require; and that process of subpoena should issue against the respondents.
On presenting the bill to the chancellor, he refused to grant the injunction, on the ex parte application of the appellants; but directed, on filing the bill, an order to be entered that the respondents show cause by the first day of the next term, why an injunction should not issue, according to the prayer of the appellants.
In consequénce of this order, the respondents appeared in the court of chancery, at the October term, 1811, and, amongst other grounds, upon which an injunction was resisted, read in evidence an act of the legislature of this state, passed the 9th of April, 1811, entitled An act for the more effectual enforcement of the provisions contained in an act, entitled An act for the further encouragement of steam-boats on the waters of this state, and for other purposes;’ ” whereby it is enacted, that the several forfeitures mentioned in the act, entitled “ An act for the further encouragement of steams-boats on the waters of this state and for other purposes,” passed the 11th April, 1808, shall be deemed to accrue on the day on which any boat or boats moved by steam or fire, not navigating under the license of Robert R. Livingston and Robert Fulton, their associates or assigns, shall navigate any of the waters of this state, or those within its jurisdiction, in contravention of the act; and that Robert R. Livingston and Robert Fulton, their associates and assigns, shall and may be entitled to fhe same remedy, both in law and equity, for the recovery of the boat or engine, tackle and apparel, as if the same had been iortiously and wrongfully taken out of their possession: That when any writ, suit or action is brought for the recovery of such forfeitures, the defendant or defendants to such writ, suit or action, the cap
p. 514tain, mariners and others employed in so navigating, in contravene shall be prohibited, by writ of injunction, from navigating with or employing such boat or boats, engine or engines, or from removing the same, or any part thereof, out of the jurisdiction of the court, or to any other place than that which shall be directfi(j for j¡]e¡r safe keeping by the court, during the pendency of such suits, action or actions, or after judgment shall be obtained, if such judgment shall be against the defendants, or the master, or thing forfeited : That when the plaintiffs shall elect to sue out an injunction, the court granting the same shall impose upon them such rules as may appear just and proper, to prevent unnecessary delays in bringing such suit to issue and trial: Provided always, that nothing in that act should be deemed or construed to extend or apply to the two boats or vessels, commonly called steam-boats, belonging to Hamilton Boyd, Isaiah Townsend, Robert R. Henry, and their associates, or to the captain, mariners and others employed in navigating the same, which boats or vessels were lately launched at the city of Albany, nor to the steam-boat which, during the last summer, plied on lake Champlain, said to belong to James Wi~ nants and his associates, or to the captain, mariners, or others employed in navigating the same, but in regard to those three boats or vessels, Robert R. Livingston and Robert Fulton, and their associates or assigns should have and enjoy all the remedies heretofore provided, in and by, or resulting from, any former law or laws of this state, and the relative rights and remedies of the respective parties, in relation to the three boats or vessels above mentioned, should be and remain as if that act had not been passed.
It was admitted, by the appellants’ counsel, that an action of detinue had been commenced, and was pending in the supreme court of this state, before the filing of the appellants’ bill, for the recovery of the Hope, her tackle, apparel and furniture.
The parties having been heard by their counsel, his honour the chancellor, on the 18th November, 1811, discharged the rule to show cause, and denied the appellants’ motion for an injunction; and from the order for this purpose the present appeal was made to this court.
The reasons for this decree were thus assigned by
The Chancellor. An application was made by the complainants in this cause, upon filing the bill, for an injunction to re
p. 515strain the defendants iron using a steam-boat, called the Hope, In the navigation of Hudson's river; on which an order was, made, requiring the defendants to show cause why such an injunction should not be granted.
There are circumstances in this case which would have induced me to have availed myself of the aid of one of the judges of the supreme court, to decide on the important and novel questions which were presented, if the forms of the court, and the established modes of proceeding, had admitted of it; but that resort being beyond my reach, the duty imposed prescribed my line of conduct.
The parties were heard on the subject of this order; and, on the part of the defendants, it was objected that the complainants’ claim to an exclusive navigation of steam-boats was,
1. Contrary to the constitution of the United Stales;
2. That the statute under which the complainants claim having prescribed a remedy for violations of the exclusive right, chancery must leave them to pursue it, without its interference.
The complainants applied for an injunction, on the ground of a clear exclusive right, granted to them by an act of the legislature of this state, secured and extended by several successive acts.
Prior to the adoption of the constitution of the United States, the respective states possessed an absolute sovereignty; but the exercise of some of their powers of sovereignty was devolved upon congress, by the legislatures of the particular states. The residuum remained unimpaired with the several states. The congress was undeniably a representation of federative states, and represented their sovereignty collectively, in their foreign relations and the domestic objects appropriately within those powers.
None of the restrictions imposed by the confederation could have been applied to the present case, but the 4th article, which in less comprehensive general terms, but more in detail than the new constitution, secured to the citizens of the United States common privileges and immunities.
The constitution, in the 8th section of the 1st article, confers on congress the power “ to regulate commerce with foreign nations, and among the several states. To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.”
The 2d section of the 4th article declares, “that the citizens
p. 519ration from him, in a subject, yet that the jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners, in peace with the kingdom, are interested, by reason of commerce, tiade and intercourse; “and this public right consists, among other things, principally in that they ought to be free aud open for subjects and foreigners, to come and go with their merchandise;” that “they ought to be preserved from impediments and nuisances that may binder or annoy the access, abode or recess of ships,” &c.
Navigable rivers, in which the tide ebbs and flows, are within the same reason, and subject to the same distinctions. They admit of private interests in them; but they must all be subservient to the public interest, to promote and protect which, in England, the king has a general conservancy; but whenever he makes a grant of the soil or franchise of a port, or of a navigable river, the legal construction is, that it must be in subserviency to the public rights, and the common use of all the subjects of the realm, and even of foreigners.
None of the books I have consulted on the-subject, and none of those cited in argument, have shown a case in which a grant of a navigable river or port vested in the grantor a right to the exclusive enjoyment of its use. The construction of wharves and other lateral erections, calculated to give facility to commerce and navigation, and to promote public convenience, have been authorized, in numerous instances, by acts of parliament, in Great Britain, and by acts of the legislature here. The opening of waters not navigable, or such as were imperfectly so, have sometimes given rise to the imposition of tolls, both here and in Great Britain. But no exclusive right of navigating has been granted to particular persons, or to vessels of a particular construction, or possessing certain properties, in either country; and it would seem that it was considered contrary to the jus publicum, that such a grant should be made.
The erection of bridges, and the establishment of ferries, across navigable rivers, are modifications of the jus publicum. They all directed to the same object, the accommodation and convenience of the public. They, however, have no foundation in | the law of nature; they are the effects of the invention and labour of man.
If by the common law of England, navigable rivers, in which the tide ebbs and flows, were deemed consecrated to the common
p. 520use of all, as of common right, if no impediment or obstruction was to be admitted to impede the navigation, if a grant, which, by ^s terms, in all other cases, would have passed a fee, usque ad ccelum, was, by the established construction of law, to glance from the surface of a navigable river, or attach to its bottom, and give only an exclusive right to the grantee, to catch the swimming fish, while within the bounds of his grant, if the common law Was the law of all the states in the union, at the time the constitution was adopted, as it certainly was in this, it may be a question of very serious import, how far a particular state may detract from privi- / leges and immunities, at common law incapable of annihilation or restraint, common to^all, at the time the constitution was adopted, and regulated by principles which shielded them from every species of private appropriation.
The claim of the complainants is not founded on original invention. The mode of generating steam and its properties, were known as early as the seventeenth century; a patent for a steam-engine was granted in jEngland, late in that century. Projects for propelling boats by steam have been under the public eye for near twenty-five years, as appears from the complainants’ bill and the laws of the state, and the first act on the subject recognises the invention of a steam-boat by John Fitch. The combination of machinery, and the application of the power to give it effect, have been happily adapted to the propelling of vessels, it is a matter of public notoriety that they are now in a train of successful operation; and whenever the exertion of the ingenuity and perseverance which perfected them to the point at which they have now arrived, can become the legitimate object of judicial cognisance, the incalculable utility and convenience which the public experience from the invention, merit every consideration in favour of the inventors, which a court can possibly yield to, consistent with the correct administration of justice; but here they were not brought into view, and could have no weight.
The laws of the state alluded to have granted the exclusive right of using vessels impelled by steam, in the navigable waters of this state, to the complainants. Suppose this grant valid; if the legislature of this state could make an exclusive grant of that nature, could they not have extended it to vessels impelled by the minds or by oars, and to vessels of every other description, ca- } pable of floating ? If they cannot, where is the line of distinction to be drawn between what has been granted, and what is un
p. 521susceptible of grant ? If carried to this extent, would it not be an| abridgment of common rights ? Could it comport with the constitutional provision, that the citizens of all the states are to have like privileges and immunities with the citizens of the several states ? With whom are they to be ranked ? With the class who hold exclusive rights in the state, or with the excluded class of citizens ? If the most favoured citizens are not to give the test, what proportion of the collective number of the citizens of this state are to constitute it? If a numerical calculation is to be admitted, are a tenth, a hundredth or a thousandth part to afford such test? Would it consist with the intent of the constitution of the United States, that any portion of the citizens of an individual state, described by their age, their occupations, or estates, should have the exclusive right of using the navigable waters of such state ? Can the constitution be so construed as to give rights to the citizens of all the states, superior to the rights of that state in which they are to be exercised ? Or was the second section of the fourth article intended to secure equal rights to all ? And should the grant in this case partake of the nature of a contract, could its consideration be legally carved out of the jus publicum of the citizens of the United States ?
These are questions which, at the first blush, must appear of much moment; certainly too much so to admit of being determined without the fullest investigation. Without meaning to decide 1 upon any, the mere propounding them must carry conviction to every mind, that the subject is involved in much doubt and difficulty, and that, from its novelty, its importance and perplexity, it ¡ constitutes a case incapable of being considered so clear and plain as not to admit of doubt, which is the only ground upon which an injunction could have been then granted on the bill of the complainants.
The acts recited in the complainants’ bill show that the grant under which they claim, and the penalty prescribed for violating their exclusive right, were coeval; the same act which granted the one having created the other. There was no pre-existing common law right, at the time those acts were passed to which the statute remedy might be deemed accumulative.
The authorities cited to this point were chiefly criminal cases; but the analogy between those and civil cases is strong, and so re-, cognised in some of the cases as to this point; and I inclined to the opinion that the sanctions prescribed by the acts could not be exceeded. The first point, however, operating against the granting an
p. 523have a right to the like interposition in case the respondents were m possession of any other property of the appellants, and were using it, to the prejudice of the appellants, as well as from the wear and danger to which the boat is liable, while it is permitted to navigate:3. That in every government there must be a supreme or sovereign power, which has the entire authority of shutting up and regulating rivers and roads. This supreme power has never been ceded to congress, and must, therefore, of course, remain in the state, which alone is the judge of the expediency of exercising it:4. That the waters within the territory of the respective states are the property of the states, and that the legislature of this state has as great power over its territory as an individual has over his property; and has as much right to regulate or restrain the use of an invention, in the territory of the state, as an individual would have to prohibit the use on his own property:5. That the grant to the appellants is a solemn contract made between them and the state, by which the state, for a valuable consideration, bound themselves to give the appellants the exclusive privilege which they claim. The appellants have faithfully performed the contract on their part, at very great expense and hazard, and are, therefore, entitled to the benefit promised them by the state:
6. That the subject of their grant or contract, with the state, is such as is capable of being granted, or respecting which a contract may be made:7. That even were it possible to suppose the title doubtful, still, according to the invariable practice of the court, the appellants are entitled to an injunction, to quiet a possession taken by virtue of a statute, (or, indeed, of any matter of record,) till by a trial at law, or an issue directed by the court of equity, the opinion of the judges is had thereon:3. That the rule in equity is to protect a possession, held even without a title, till a better right is shown, by a trial at law, if the possession has been for three years or upwards; a title being, In such case, presumed:9. That in the case of the appellants, their title under the law is not disputed by the court or the parties, but the doubt raised by ihe chancellor is on the validity of the laws, or the right of the
p. 524state to make the same. The possession, in such case, must revert back to the time when the state first exercised the right to grant exclusive privileges, in its waters, of a similar nature, which, (without noticing other exercises of this power, at a very early congnjng ft ft, steam-boats, is as far back as the grant to j0jm ¡Pitch, a period of such length as would protect a possession, even at law, against an ejectment, and entitle any possessor to an injunction on the mere possession :10. Because, even if the power of invalidating the right of the state lay with congress, or the citizens of other states, the defendants, being citizens of this state, could not avail themselves of this pretence for disturbing the possession of the appellants : neither the courts of law nor equity permitting the title of a stranger to be of any avail, except to those who deduce a title under such stranger:
11. Because, whatever may be the common law, relative to navigable waters, and the rights of citizens of other states therein, in virtue of the federal constitution, the law was altered in this state, and in several others, relative to steam-boats; the exclusive Use of which was vested in John Filch, before steam-boats were in existence for the common law to operate upon, and several months before the federal constitution was adopted:12. Because, the court of chancery has founded its doubts upon an erroneous construction of the privileges supposed to be granted by the confederation, or the present federal constitution, to the citizens of the respective states, in the waters of the state, and which, even if correct, would not apply to the case of the defendants, who are citizens of this state:13. Because the legislature represents the people of the state, as the constitution and the very style of the laws declare; that the defendants are, therefore, parties to the law, and have, as such, participated in the advantages, that both the law and the court of chancery declare have been derived to the people of the state, from the contract made in their behalf by their representatives, and have no right to nullify their own act: and upon this ground the appellants are entitled to the aid of the court of equity to enforce a specific pe rformance of their agreement :14. Because the law forfeiting the boat, vests the property as soon as it has begun to navigate, and is a compensation for the first offence only .* and for all subsequent injuries, by a continuance of the wrong, the appellants have no remedy but an injunction to stop the repetition of them:
p. 52515. Because, even if the appellants might recover damages at law, which is very doubtful, yet it could only be by a multiplicity of e. \ suits; (every trip of the boat affording ground for a new suit;) and it is the established practice of the courts of equity to grant .. . . , ..... injunctions m order to prevent a multiplicity of suits:16. Because it is the practice of courts of equity to prevent damages, and not leave a party first to be injured, and then send him to seek a compensation at law:17. Because it is the practice of the courts of equity to control the operation of forfeitures or penalties, where they do not make the object of the contract, but are held up in terrorem, and to inquire into the intention of the parties, and enforce the agreement according to such intention, and more particularly where the forfeiture is inadequate, or does not extend to the whole offence :18. That an injunction, by the established law and practice of the courts of chancery, ought to be granted in each of the following cases; 1. Where the complainant has a clear legal right, or an equitable one, founded on the particular merits of his case; 2. When he claims by record, or under an act of the legislature; 3. Where, without an injunction, he might sustain an irreparable injury ; 4. Where the party has been any time in the enjoyment of the right he claims ; 5. Where he claims a specific remedy; 6. When the legal remedy is inadequate, if he has one; 7. Where he has no remedy at law but a multiplicity of suits; 8. Where the equity is clear, but the chancellor has doubts as to the legal title. In such case, it is the invariable rule to quiet the possession till the doubt is cleared up by an issue at law, under the direction of the court.In the present case all these claims upon the court for an injunction are united. The appellants have a clear right: they claim under an act of the legislature: they sustain irreparable mischief, while their right is violated, and the boat, to which they are entitled, is withheld from them: they have been, for a length of time, in possession: they claim a specific perform* aneé of a contract: they require the aid of the court to prevent a multiplicity of suits: their equity is clear: they are, therefore, entitled to an injunction, till the chancellor’s doubts are cleared up at law.The respondents’ counsel, on the other hand, stated that they should insist that the order of the chancellor ought to be affirmed:1. Because, the acts of the legislature of this state, in favour of
p. 528them constitutional; and the last act, of 1811, was passed, after the question as to the constitutionality of the other acts was agitated; °, 3 . ... . . -the power vested m congress “to regulate commerce with foreign nations, and among the several states,” (art 1. s. 8.) does nQj. pj.Qjjjijij- (j)e regulation of internal commerce within the state. If it did, it would be equally applicable to the land as to water; and the legislature could not establish turnpikes, toll-bridges or ferries, &c. which might affect the commerce with neighbouring states. But if a certain description of waggons were required, for example, in the county of Rensselaer, would not the waggons coming from Vermont be bound to conform to the regulation ? So a ferry across the Hudson may be established, which may require all travellers or passengers to cross in particular boats, and all persons must submit to the regulation.The regulation of commerce with foreign nations means the estaWishing of duties of impost, tonnage, non-intercourse, embargoes, quarantine, &c. But there is nothing in the language of the constitution which gives this power exclusively to congress, in cases where it can be exercised concurrently with the states. Congress may prohibit the importation of slaves; and so may a state; and this state has prohibited their importation. The state cannot lay any duties on imports, or exports, or tonnage, because it is expressly prohibited. Vessels approaching our harbours from sea must submit to the laws of congress, relative to the custom-house; but when arrived within our jurisdiction, they are subject to our municipal law. Thus, the master of every foreign vessel is required, by statute, to report the passengers to the mayor of the city of New-York.Again, congress has the power to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.Why is not this a concurrent power with that of the several states ? Before the adoption of the constitution, the states granted these exclusive privileges; and there is nothing in the constitution which prohibits the states from granting them now. By granting a patent, congress gives the exclusive right as to the whole United States, that is, the right of property in the invention or discovery, &c.; but not an unlimited and uncontrollable power to use that right. A mere naked right of property does not imply the unlimited power of using it. Its use must be subject to the laws and under the control of the several states. The legislature restrain the use or enjoyment of property in dogs and other animals. The pro
p. 529perty of an individual may be taken for public purposes, without his consent, as for roads, fortifications, &c. The interests and policy of the different states may, and do, differ from each other. What may be deemed proper and beneficial in one state, may be thought improper and injurious in another. An author may secure a copyright in a book relative to negro slavery, the sale of which might not only be considered innocent, but meritorious in this state; while, in Virginia, it would be regarded as highly dangerous, and of the most mischievous tendency; and could not the legislature of that state prohibit the sale of it ? Has not the legislature a right to restrain or prohibit the sale of an obscene, immoral, or blasphemous boob, or a noxious medicine, within this state, though the author or inventor may have secured an exclusive right in them, under the law of congress ? An author, or a patentee, may acquire a right of property under the law of congress; but it must be used agreeably to the municipal laws of the several states.Because, in certain possible cases, such state laws may infringe or impair patent rights, we are not to declare every law of the state, relative to exclusive rights, unconstitutional and void. It will be time enough to decide upon such supposed cases when they arise. Whenever a conflict occurs between one individual claiming under the state, and another claiming under a patent right, then the question of constitutionality may be properly discussed.Every word of the constitution has its proper, precise and definite meaning. That instrument was framed by the wisest men, and with the greatest care. Every clause underwent discussion, and was subjected to the strictest and most jealous criticism.It is, moreover, declared by the 10th article of the amendments to the constitution, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.Certain powers are expressly given to congress; others are ex- ' pressly given to the states.All power not, in its own nature, exclusively vested in congress, or not expressly prohibited to the states, remains concurrent in the states. The 8th section enumerates the powers given to congress, and the 10th section those prohibited to the states. Some of the powers given to congress are necessarily exclusive; as to exercise jurisdiction over a certain district of ten miles square; to declare war; grant letters of marque and reprisal; borrow money on the creditof the United States, See. Other powers are concurrent, as
p. 531rived from works of- great public utility, because there is a latent power in congress which may hereafter be exercised on the subject? There must be somewhere a sovereign power adequate to afford the requisite encouragement to such works. If it does not reside in congress, who can grant patents only, nor in the state, where does it reside ? Can any portion of the sovereignty be in abeyance? The power does not remain in the people at large.The appellants set up no right under a power granted by the constitution to congress. The bill exhibits nothing interfering with the powers granted to the United States. The appellants do not, in their bill, pretend to any invention or discovery; but merely that they possessed the means by which boats might be propelled by steam; and they ask only to be secured in the privilege of making the experiment. . The right granted to Fitch was not a patent right. The language of the other act is to the end that R. R. Livingston may be induced to proceed with his experiment.” The court are not to look or inquire beyond the facts stated in the bill. The act has all the properties of a grant of a ferry, except that it does not oblige any person to go in the boat. Whether the passage be up and down the river, or across it, it is the same, in effect. Sloops and other vessels are as free as ever to pass to and fro, and to carry as many passengers as they can obtain. The steam-boats of the appellants merely claim the advantages of superior accommodation and greater speed. After great hazard, and immense expense, the experiment has fully succeeded; and it is that success which has given rise to the present controversy. The appellants have endured all the ridicule and contempt cast upon them, as rash and chimerical projectors; and now when they are just about to reap the fruits of their enterprise, the respondents seek to deprive them of the honour and profit of the establishment.The argument of the respondents is, that a patent may be granted with which the act would interfere. But the respondents cannot obtain a patent for their boats, for they are not the inventors. And when the constitutional question does arise, the patentee may show his right, and the act, so far as it interferes with the patent, must yield; but it will still be in force so far as it does not interfere with the patent right.No answer has been put in to the bill. Suppose an answer should be filed, stating that the appellants áre not the inventors, but had borrowed this improvement.. The question as to the con
p. 540shall legislate upon those subjects. But as soon as congress,have passed laws relative to those objects, there is an end to the state laws; they are superseded, and absorbed in the supreme law of the land. It is not necessary to an exclusive power in congress, that it should be given in express terms; it is sufficient that it is exclusive by necessary implication. The power of congress to grant copyrights and patents to authors and inventors, is given without any words of exclusion. And congress have exercised this power, and made it, in fact, exclusive. The states cannot pass laws on the subject; for if they are the same as those of congress, they are useless and nugatory, and if different, they conflict with the power of congress, and must, therefore, be void. If one state might pass a conflicting law, so might every other. If this state stood alone, as an absolute, sovereign, and independent state, no doubt it might grant monopolies and exclusive privileges, like the British parliament, which is said to be omnipotent; but as a member of the union, its power is subordinate to that of the United Slates.Congress have prescribed the manner of acquiring and enjoying the property, and its duration. There has been a plenary exercise of power on the subject. There is nothing remaining on which the states can legislate. If powers can be exercised by the states and by congress, without conflicting, then they are concurrent, otherwise not. There must be, a conflict of authority, if the several states act on the subject. Different states may pass different acts, disagreeing with those of congress, and with each other. This was one of the evils under the old confederation, and which the new constitution was intended to prevent. Every state passed law's on the same subject, and thirteen different rules or sets of regulations prevailed. The states have, by mutual consent, transferred the power to congress, to whom it necessarily, and of right, belongs. The 6th section of the act of congress relative to patents, is a legislative commentary on the constitutional power. It declares that where any state, before the adoption of the constitution, had granted an exclusive right to any invention, the party claiming that right should not be capable of obtaining an exclusive right under that act, unless he relinquished his right under the particular state ; and his obtaining an exclusive right under the act of congress, is declared to be sufficient evidence of his relinquishment of any right under the state. The constitution could not take away a right vested before its adoption. The individual might continue
p. 541to enjoy it, or exchange it for a more extensive privilege under the United States.It is said that the states may restrain or prohibit the exercise of a patent right within their several jurisdictions; and the cases of noxious drugs and seditious books have been mentioned as examples. It is not pretended that such things could be vended under any law.Every man must use his property in such a manner as not to injure another. Because a man has no right to ride over his neighbour’s field without his consent, it does not follow that his horse is not his own, and that he may not ride him on the public highway.A patent for an invention grants a property in the subject, and a right to use it coextensive with the jurisdiction of the granting power, otherwise the right is imperfect. A state cannot, in direct terms, prohibit the exercise of a patent right within its jurisdiction. It can only be restrained or prohibited, indirectly, as dangerous to the public health, policy or morals, under the municipal laws. It is admitted that the patent rights must be used in conformity to those laws ; but the total restriction of their use is a direct contravention of the authority of congress.It is said that the states may grant turnpike roads, bridges, ferries, &c.; and their right to legislate on these subjects of municipal regulation is not denied. But suppose a state law should prohibit the mail coach of the United States from passing a- toll-gate or bridge, would it not be in contravention of the power of congress, and, therefore, void ? Could a state prohibit the United States from establishing a custom-house, or sending a tax-gatherer within its jurisdiction ?It is said that the act of the legislature isa grant,, in the nature of a contract, and not a patent. But it wants all the essential features of a contract. It is gratuitous, without reciprocity or mutual obligation ; no time is limited for building the boats, nor is there any mode by which the state could compel a performance. It is a mere permission. If there was a contract with Fitch, then it could not be dissolved without his consent. The word contract, foisted into the late act, will not alter the case. The notion that' the respondents are bound by this supposed contract, as having been entered' into between the people or their representatives, on the one part, and the appellants on the other, is much too refined to be acted upon, and would lead to results the most extravagant and unjust. It is & doctrine too absurd to be sanctioned by a court of justice.
p. 542Again, it is said that although congress have the power to grant exclusive rights to authors and inventors; yet this act, not being a reward or grant to an inventor, does not interfere with the power of congress. The appellants claim only as possessors. But if the appellants had claimed to be the inventors, could this state have granted to them this exclusive privilege ? Shall they, by changing their character to that of a possessor, obtain it? Certainly not; for the whole patent power in congress might, in that way, be defeated. The state by granting such privileges to possessors, would exercise a power superior to and far more extensive than that of congress. Is the mere possessor to be preferred to the inventor ? The object of exclusive privilege is to secure to genius the fruits of its exertions, and to the public the benefits flowing from these intellectual labours.Suppose a new method should be discovered of propelling boats by steam, with tenfold velocity, and with superior convenience to those of the appellants; yet if the appellants are to prevail, so useful a discovery could not be put in practice. If the whole field is thus preoccupied, what incentive is there to men of genius to exercise their powers for the benefit of mankind ? The acts-are impolitic,- as well as unjust and unconstitutional. Congress only grant to inventors a privilege for 14 years; this legislative grant is for 30 years, and may be extended to 100 years, or for ever. It is an unjust monopoly. The appellants claim this monopoly against all the world, and the respondents, though not patentees, have a right to call their claim in question.2. These acts interfere with the power of congress to regulate commerce, &c. This power involves the subjects of commerce, as well as the mode of carrying it on. It extends over and pervades all the states. The acts give to the appellants the exclusive right to use their steam-boats on all the waters of the state. It is not confined to any particular river or stream. The state might equally have granted an exclusive right to use sail-boats or row-boats, or boats propelled by any other physical power. The acts are penal, and grant a forfeiture of steam-boats used by others to the appellants. Suppose a steam-boat from Canada is found on any of the lakes within the territory of this state; or suppose a vessel, propelled by steam, arrives from any foreign port, or from the state of New-Jersey, for the purpose of passing through the sound to Connecticut, or elsewhere,- could it be seized by the appellants, as forfeited by these acts ? - Would not this
p. 546T. A. Emmet, in reply. It has been properly admitted by one of the counsel for the respondents, that if the right of the appellants was valid, the remedy followed of course. The question involved in this cause, though of great importance, is nothing more than a question of property. This court is not called upon to examine into the wisdom or expediency of these acts of the legislature, nor as to the policy of monopolies. Such an inquiry would be altogether extrajudicial. Be the laws ever so impolitic or unwise, it is the duty of this court to pronounce upon them as they find them. Much the greater part of the arguments of the learned counsel on the other side, might, therefore, have been spared, as wholly irrelevant; and if all that has been said about the expediency of the acts, and the odious nature of monopolies, be taken away, the specious body of their argument will be reduced to a mere skeleton, without flesh or muscle. These laws, after being enacted by the different branches. of the legislature, have passed five different councils of revision, composed of the collected wisdom of the state, and when the eyes both of the legislature and the council were open to the constitutional objections which have been mentioned. If it were proper to cite such authority here, it might be said, that there had been five adjudications, by five successive sets of judges, on the very question now before the court.
These laws must be considered, prima facie, valid, and their invalidity must be clearly shown by the respondents.Granting, however, to the respondents, the benefit of their propositions, the acts must be deemed valid so far as they do not interfere with patents for inventions, or the regulations of commerce. A statute may be good in part and void in part. It is void for the excess merely; and so far only as it must, of necessity, be void.1. These laws do not infringe the power of congress to grant patents for inventions. Congress can only secure, not create a benefit, and this security or exclusive right can be given only to authors and inventors. Congress can only legislate as to inventions ; and this state may legislate on subjects, concerning which congress cannot legislate.Because the appellants have not called their steam-boat an invention, the respondents have assumed that it was none, and have endeavoured to strip the appellants of all merit or claim to legislative patronage. But the appellants, if they are not inventors, have, at least, the merit of introducing a very valuable im
p. 547provement from Europe. Every civilized nation protects imported improvements. What would Great Britain have been, had she not wisely availed herself of the discoveries and improvements of other countries ? By nature, less fertile than the islands of the Mediterranean, she has by the aid of foreign genius, by securing an exclusive right to imported improvements, fertilized her soil, extended the arts, enlarged commerce, and amassed wealth and power above all the isles of the ocean, and which have enabled her to contend with the greatest nations of the earth. Can this country expect to take its eagle flight, and to reach its high destinies, by the strength of its own genius alone, without the aid of foreign invention ? If the states cannot protect and reward imported improvements, congress certainly cannot. It can only patronise inventions. But this power exists in every sovereignty. It must exist in the states. It is an attribute of sovereignty retained by them, that they might promote the welfare and happiness of the people, by conferring rewards on the authors of useful discoveries, and encouraging foreign genius to become domiciliated in the land.Monopoly is a technical term. It is a prerogative grant, in hostility to the public good. Who ever heard of a monopoly erected by act of parliament ? This legislative grant was intended to compensate genius for introducing* extending, and perfecting, the invention of others. A public benefit was contemplated; not from the pride of invention, but from the enjoyment of the ma?chine.Though the appellants do not claim as inventors, yet we contend that even a patent from congress to the respondents would not defeat this legislative grant.The power to promote science and the useful arts, by granting patents to the inventors, is a concurrent power. Instead of having to contend with the opinion of the able writer of the “ Federalist” who has been so warmly and justly eulogised by my learned friends, I hope to secure him on the side of the appellants, and avail myself of his authority to show that some of the powers granted to congress are concurrent. He regards all powers not exclusively delegated to the United States, as retained, by the states. This exclusive alienation of state sovereignty by the states, he considers as existing in three cases: 1. Where the constitution has, in express terms, granted an exclusive authority to the union *. 2. Where it is granted to the union, and the states are expressly
p. 548prohibited from exercising the like authority; and, 3. Where an authority is granted to the United States, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. The third class of cases appears wholly unnecessary, and ought to be rejected. He admits that “ it is not a mere p0SS¡hj]¡ty 0f inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existent right of sovereignty.” This opinion, on the subject of a concurrence of powers, is explicitly stated at the conclusion of the 32d number. That “ the necessity of a concurrent jurisdiction, in certain cases, results from the division; of the sovereign power: and the rule that all authorities, of which the states are not explicitly devested in favour of the union, re-, main with them in full vigour, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument.” For “ notwithstanding the affirmative grants of general authorities, there has been the most pointed care, in those cases where it was deemed improper that the like authorities should reside in the states, to insert negative clauses prohibiting the exercise of them by the states.”Is this case, then, any thing more than an accidental or occasional interference in the policy of a branch of the administration of the union ? Is it a case which necessarily implies an absolute contradiction and repugnancy to the power given to congress ?The power to lay and collect taxes, duties, imposts and excises, is stated by the author of the Federalist to be a concurrent power, except as to what is expressly prohibited, in the next section, to the several states. Would it be unconstitutional in the state of 'New-York to pay a portion of the debt of the United States, or for congress to receive such a payment ?As to providing for the common defence, can this state erect a fort or bulwark for its defence, without benefiting a neighbouring state, or the United States ?A state could not have a power to borrow money on the credit of the United States; and that is a power necessarily exclusive. z But is the power to regulate commerce with the Indian tribes exclusive ? The legislature of this state have passed acts on that subject, regulating commerce with them.The power to regulate commerce with foreign nations, and among the several states, is restricted by the prohibition to the states to make any treaties, alliance, or confederation, or to enter
p. 549into any compact or agreement with another state or foreign power.4 I , - . . . The states are expressly prohibited from coming money, and, of course, from regulating its value; but have they not a concurrent power to regulate the value of foreign coin ? But congress have acted on the subject. Is not the standard of weights and measures regulated by a law of this state ?The establishment of post-offices and post-roads is also concurrent. For if congress had neglected to establish them, might not this state have provided for the enjoyment of so great a public convenience by its citizens ?The power to establish a judiciary could not have been before possessed by the states, and is, therefore, necessarily exclusive.The power to define and punish piracies and felonies committed on the high seas, was not vested, in right of sovereignty, in the states, but had always been exercised by congress.To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water, are powers expressly denied to the states.Though congress have power to raise armies, provide and maintain a navy, and make rules for the regulation of the land and naval forces, may not the executive of this state call out the militia to support the laws, suppress insurrection, or repel invasion? Is the state government palsied, and incapable of self defence, because congress has the supreme legislative power ? Has not the state a right to regulate the conduct of the militia or troops of the United States, while within its jurisdiction, though it cannot order or direct them as to their service ?The only section in which the term exclusive is used, is that which gives to congress the “ exercise of exclusive legislation, in all cases,” over a district of ten miles square, and over places purchased by consent of the states, for the erection of forts, &c.It has been inferred from the language used in the Federalist, (No. 43.) in speaking of the power to promote the progress of science and useful arts, by “securingfor a limited time to authors and inventors the exclusive right to their respective writings and discoveries,” that “ the states cannot effectually make provision for either of the cases,” that the author considered the power exclusive. But that is clearly not a reason for taking away the power from the states. They may make the best provision in
p. 553the law of the state. Congress have not power to confer a boon or reward. Its power is merely to secure a right for a limited time. The merit or demerit of the subject is not examined. The act of congress makes only a general and indiscriminate regulation; ° J -C ...... , , it does not reward genius. It makes no distinction between the inventor of a steam engine and one who invents a smoke-jack. The state grants and creates an estate, and rewards the inventor. The patent merely secures the property to the inventor for a certain time. It proceeds as to authors, on the common law notion; as to inventors, on natural rights. In England, the exclusive privilege was enlarged to Harris 8c Bolton, by act of parliament. The patent law only makes the book or machine tangible property, by clothing the productions of the mind with the attributes of personal property. It puts the author or inventor in possession of the production of his mind, which, after being disclosed, would become the property of the public. It puts it on the footing of a chattel. It gives no remedy for obstructing the exercise of the right. This shows that it was meant to secure the mere property only; and leave it to the several states to regulate the enjoyment or use of it, in the same manner as every other right of property. A state may prohibit or take away the enjoyment of real or personal property, whenever it deems it necessary to the public good. The patent right is to be enjoyed fully and amply, so far as it does not contravene the laws of the several states. Suppose a patent should be granted under the United States to Mr. Fulton, for his torpedoes, a dreadful instrument of destruction, could not this state prohibit him from planting them in the harbour of New-York, to the danger of every vessel that might touch them P What, then, becomes of the doctrine, that patent inventions may force themselves into our fields and habitations, and stride over the land as a blessing or a pestilence, while the states must bow in homage, or reverential horror, to the potent and pestilential patent ?Admit that the states might combine by their laws against the patent invention. Can a state make no law for fear of such a possible combination ? But every state may, in defence of the morals of its citizens, prevent the sale of splendid and seducing pictures, though they are patent property. Georgia permits the importation of slaves. But may not all the other states enter into a hallowed combination against this immoral and detestable commerce ? Each state may regulate the introduction or úse of property within
p. 554its jurisdiction, whether it be patent property or not. The consti- j tution of the United States does not prevent this state from filling/ up the mouth of the Hudson, so as to prevent the navigation alto-1, gether. If such a thing should be done, however we might de- Í plore the madness or folly of the measure, it would be an act ofj sovereignty to which all must submit. The only control or check to such an exercise of power must be the good sense of the' legislature, the interests of the people, and the force of public opinion.If the public good should require it, might not the legislature prohibit the navigation of the Hudson by vessels Of a particular' size or construction ?Suppose a bar in the river; over which vessels only of a certain tonnage could pass, and a person should invent a mode of removing the bar, could not the legislature reward the genius of the inventor, by requiring all vessels of a larger size to pay him a certain foil ? Would not the legislature of Pennsylvania grant an exclusive privilege, as. to navigating above the first falls of the Delaware, to the genius who should be able to remove that obstruction, and thereby confer so great and lasting a benefit on the state ? Has not the steam-boat cleared the Hudson of the bar of ignorance and prejudice, and conferred an equal benefit on the public? The steam-boats do not hinder or prevent the ancient mode of navigating the Hudson. All vessels and boats with sails are as free to pass as before. All existing rights are left unimpaired.How do these acts interfere with the regulation of foreign com- 1 merce ? The boats do not transport merchandise ; they carry passengers only. If they did, in part, interfere with the law of the United States, they would still be valid for the residue; for it is not denied, that .where there is an actual collision with the law of congress, the state law must yield. But this interference must be pointed out.If the power of congress to regulate foreign commerce is absolutely exclusive, so must be the power to regulate the trade with the Indians, and between the different states. The construction contended for by the respondents would break down our tóll-gates and bridges, ruin our canals, destroy our ferries and every other arrangement for the accommodation of the public, and the convenience of social intercourse. In how many instances does our statute book exhibit regulations as to foreign commerce ? From the 1st of June to the 1st of November, no foreign vessel
p. 558tam action, under the peculiar words of the statute which gave the right to no one; and it was, essentially, a criminal case.Again, here was an executory contract, and the condition having been performed by the appellants, it would be an act of perfidy in the state not to perform the contract on their part. Such a breach of good faith would level genius, public honour and integrity in the dust.This is an appeal from an order of the court of chancery, refusing to grant an injunction.
The appellants claim an exclusive right to navigate the waters of this state, by steam, for a limited time, grounded upon several statutes of this state, by which this right is granted, and intended to be protected and secured to them.
The respondents contend that the laws are void, as repugnant to the constitution and laws of the United States, and, therefore, give no right to the appellants upon which the relief, or injunction sought by their bill, could be founded. Two questions, consequently, arise.
1. As to the constitutionality of the laws:
2. Admitting their validity, whether the appellants are entitled to enjoin the respondents, according to the prayer of their bill, or to any other remedy than that prescribed by the legislature.
The importance of this decision must be evident to every one that hears me; no question has, perhaps, ever presented itself to this court of greater magnitude, involving principles so highly interesting to the community. In making up my opinion, therefore, I have endeavoured to bestow the strictest attention, in order to bring my mind to a satisfactory and correct conclusion on the subject.
The first law, passed in March, 1798, recited, that whereas it had been suggested to the people of this state, represented in senate and assembly, that Robert R. Livingston was the possessor of a mode of applying the .steam engine, to propel a boat on new and advantageous principles, but that he was deterred from carrying the same into effect, by the existence of a law granting and securing to John Fitch the sole right of making and employing the steam-boat by him invented; that Fitch was either dead, or had withdrawn himself from the state, without having made any ■attempt, in the space of more than ten years, to execute the plan for which he obtained the exclusive privilege, whereby the same was justly forfeited. By this act privileges similar to those be-
p. 5598>re granted to
Fitch were granted to Mr. Livingston,‘ for twenty years, on Ms satisfying the governor, lieutenant-governor and the surveyor-general of this state, of his having built a boat, of at least twenty tons’ capacity, which should be propelled by steam, and the mean of whose progress through the water, with and against the ordinary current of
Hudson river, taken together, should not be less than four miles an hour; and that he should, at no time, omit, for the space of one year, to have a boat of such construction plying between the cities of
Nem-York and
Albany. The same privilege was granted, in
April, 1803, to Messrs.
Livingston and
Fulton, the present appellants. In 1807, the act was extended for two years, within which time it was not contended but that the provisions in the first act were complied with, the boat being built, and the experiment proving successful. In
April, 1808, an act passed for the further encouragement of steam-boats in the waters of this state, and for other purposes. This law enacted, that when - ever
Robert R. Livingston and
Robert Fulton, and such persons as they might associate with them, should establish one or more steam-boats, or vessels other than that already established, they should, for each and every such additional boat, be entitled to five years prolongation of their grant or contract with this state; provided, nevertheless, that the whole term of their exclusive privileges should not exceed thirty years after the passing of that act; that no person or persons, without the license of the persons entitled to the exclusive right to navigate the waters of this state by boats moved by steam or fire, or those holding the major part of the interest of such privilege, 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; and the person or persons, so navigating with boats or vessels moved by steam or fire, in contravention of the exclusive right of the appellants, and their associates and legal representatives, should forfeit
such boat or boats and vessels, together with the engines, tackle and apparel thereof, to the appellants and their associates.After the most minute examination of those statutes, I cannot find that Mr. Livingston, originally, nor Mr. Fulton, subsequently, pretended tobe the inventors of their steam-boats; on the contrary, by the recital in the law of 1798, Livingston represents himself to be the possessor of a mode of applying the steam engine to propel a boat on new and advantageous principles.
This power of granting exclusive privileges, must necesssarily
p. 560exist somewhere, as the legitimate source from whence the encouragement and extension of useful improvements is derived; and from its nature, it is generally exercised by the sovereign authority of every civilized country; and in no government can it be placed in safer hands to ensure those important advantages than |n 0Hr 0WD) where the sovereignly is in the representatives of the people. Before the adoption of the constitution of the
United States, every state in the union, unquestionably, possessed the uncontrolled exercise of this power within its own territory, and most of them exercised it, as will appear on an examination of the laws passed by the legislatures of some of the states, several of which have been stated to this court. This, however, is so plain and evident a proposition, that a recurrence to those laws cannot be necessary to establish it.
The laws granting and securing this exclusive right, it is contended, are unconstitutional:
1. Because they interfere with the powers of congress to regulate patents.
2. Because they interfere with the regulation of commerce.
I do not think it necessary, on this occasion, to enter generally into the discussion of the powers granted to congress, and which are to be considered as exclusive, or which ought to be deemed concurrent. It cannot now be questioned, particularly since the amendments to the constitution of the United States were adopted, that according to the 10th article of those amendments, “ the powers not delegated to the United States by the constitution, nor-prohibited by it to the states, are reserved to the states respectively, or to the people.” By the 8th section of the constitution, among the powers granted to congress, it is stated, that they shall have power “ to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” Thus it appears, in the exercise of this power, they are limited to authors and inventors only; this clause, therefore, never can admit of so extensive a construction, as to prohibit the respective states from exercising the power of securing to persons introducing useful inventions (without being the authors or inventors) the exclusive benefit of such inventions, for a limited time; a power no less instrumental in promoting the progress of science and the useful arts, and, consequently, equally essential to the prosperity of the country. The beneficial effects experienced by other countries,
p. 561particularly
England, sufficiently show the policy and propriety of passing laws for the encouragement of imported inventions. • This power, then, evidently necessary and useful, is not granted to congress by the clause as to authors and inventors, and as it is , , y, , „ „ ,. . . „ not taken away by any other part ot the constitution, it must, of course, be retained by the respective states, to be exercised by them, until it interferes with the laws of the
United States, passed to secure the author or inventor. It is not probable that such collision will take place. Whenever it does occur, it remains exclusively with the courts of the
United States to interpose; and no doubt can be entertained, but that the person claiming a right by patent, as inventor, would prevail, and the state law would give way to the superior power of congress.
The laws granting this exclusive privilege to the appellants cannot interfere with the regulation of commerce. It never could have been intended that the navigable waters within the territory of the respective states, should not be subject to their municipal regulations. Such a construction might, with equal propriety, be applied to turnpike roads, ferries, bridges and various other local objects, and thus, in the vortex of this construction, almost all subjects of legislation would be swallowed up, and it might, eventually, lead to the total prostration of internal improvements.
To all municipal regulations, therefore, in relation to the navigable waters of the state, according to the true construction of the constitution, to which the citizens of this state are subject, the citizens of other states, when within the state territory, are equally subjected; and until a discrimination is made, no constitutional barrier does exist. The constitution of the United States intends that the same immunities and privileges shall be extended to all the citizens equally, for the wise purpose of preventing local jealousies which discriminations (always deemed odious) might otherwise produce. As this constitution, then, according to my view, does not prevent the operation of those laws granting this exclusive privilege to the appellants, they are entitled to the full benefit of them.
By the law of 1808, the boats, together with the engine, tackle and apparel thereof, are forfeited to the appellants; and a question is raised here, whether they are entitled to any other remedy than that prescribed by the legislature.
This right being claimed under an express grant by the statute, creating the forfeiture, and no doubt remaining of the existence of
p. 562the boats, the presumption was irresistible that they navigated contrary to the statute, and that the property was in the appellants. The injunction, therefore, on those grounds, might well have been ordered. I cannot discover what injury could arise, by preventing such acts as might create the forfeiture afterwards; it could only operate as a prohibition to navigating contrary to the statute.
Most of the cases cited by the respondents, where injunctions had been refused, in the first instance, are cases of prerogative, or where the right was doubtful, and the granting of the injunction might create irreparable mischief. I do not think they can apply to this case.
In the case of Gyles v. Wilcox and others, (2 Atk. 141.) a bill was brought for an injunction to stay the printing of a book, and the question was, whether it had been borrowed from another book, contrary to the statute of Anne, also creating a forfeiture. Lord Hardwicke said it was not a case proper for law, as it would be absurd for a judge to sit and hear both books read over, which was necessary, where one is only a copy; and that the court was not under an indispensable obligation to send all facts to a jury, and continued the injunction, until arbitrators had awarded as to the fact. If this be so, might not the propriety of refusing this injunction to try a fact at law of such public notoriety, as to their navigating or not, be questioned ? There is scarcely a citizen not conusant of the fact. And ought this injury, then, to be permitted, in the present case, by an inflexible adherence to what was not deemed indispensable in the case just cited ? I should think not.
In the case of Blackwell v. Harper, (2 Atk. 92.) the remedy was by injunction; and where the right is matter of record, injunctions are granted. (1 Ves. 476.) So in 3 Ves. 140. an injunction was granted, that the validity of a patent might be tried at law ; and in Harmer v. Plane, (14 Ves. 130.) an injunction was granted where the right was doubtful, the party being in possession. The cases in 6 Ves. 707. and in 1 Bro. 451. are to the same point.
From these and numerous other cases, no doubt can exist that the injunction, in this instance, ought to have issued. My opinion, therefore, is, that the order of his honour the chancellor ought to be reversed, and that the cause should be sent back with directions to enjoin the respondents.
p. 563Van Ness, J. was of the same opinion, and gave his reasons.
Spencer, J. being related to some of the parties concerned, declined giving any opinion.
In examining the questions which have been presented in this case, I shall pursue the order adopted on the argument; by first inquiring into the right claimed by the appellants ; and, secondly, whether, if the right be established in them, they are entitled to an injunction to restrain the respondents from, an infringement of that right.
In considering the first branch of this subject, I deem it unnecessary to go into a particular inquiry as to the constitutional power and authority of the legislature to grant exclusive privileges upon the navigable waters within this state. All objections heretofore raised against the laws in question on this ground, have been, in a great measure, abandoned by the respondents’ counsel. I would observe, however, generally, that viewing this state as an independent sovereignty, not having surrendered any of its constitutional powers to the government of the United Slates, I am at a loss to discover any reasons why this power should be denied to the legislature. There is certainly no express prohibition in our constitution; nor do I see any reasons, growing out of the nature and principles of our government, for denying to it this act of sovereignty. It appears to me a necessary and indispensable power, which, under a wise and discreet exercise of it, will be productive of very beneficial effects. The power of granting exclusive privileges upon land, has not been, in the least degree, questioned; and the same reasons, both of principle and policy, will allow to the government the exercise of analogous powers upon the waters within the jurisdiction of the state. No distinction appears to have been recognised in the practice of our government. Grants of land under the water, the exclusive right of ferriage, and the regulation of the fisheries in the Hudson river, as well as canals, turnpike roads, and exclusive privileges of running stage-waggons, have all been occasionally subjects of legislative bounty and provision.
All the arguments which have been urged against the policy or expediency of granting exclusive privileges in general, or the particular privilege which forms the present subject of- inquiry»,
p. 564have been addressed to the wrong forum. They are arguments for legislative, not for judicial consideration. We are called upon to pronounce what the law is, not what it ought to be. In a legislative capacity, considerations of policy and expediency are entitled to their due weight, to convince the judgment or guide the discretion. But in a judicial capacity, no such latitudinary power is given; we are under the solemnity of an oath to decide the rights and claims of parties, according to existing law. Unless, therefore, we are prepared to pronounce the appellants’ claim, as set up, to be absolutely void, their right must be considered fixed and established.
I shall not stop to examine whether it be competent for the courts of justice in this state, to disregard acts of the legislature, and declare them unconstitutional and void. The counsel for the appellants have not put their cause upon that ground. But admitting such a power in the judiciary, it ought to be exercised with great caution and circumspection, and in extreme cases only. It certainly afíbrds a strong and powerful argument in favour of the constitutionality of a law, that it has passed not only that branch of the legislature which constitutes the greater portion of our court of dernier resort, but also the council of revision, which is composed of the governor and the two highest judicial tribunals of the state, (next to this court,) and whose peculiar province it is to examine and make all constitutional objections to bills, before they become laws. If this affords ground of argument in favour of a single law, which might have passed hastily and without due consideration, how strong and cogent is it in favour of a series of laws, on the same subject, from time to time, enlarging and strengthening the same right or claim ; and more especially, as one of those laws has been passed since the present controversy has arisen, and after the attention of the several branches of the legislature must have been called to the objections now raised against them. With such a weight of prima facie evidence in favour of the constitutionality of these laws, I should not have boldness enough to pronounce them void, without the most clear, satisfactory and unanswerable reasons. I shall proceed, however, to examine the force of the objections which have been raised against the constitutionality of the laws, giving to the appellants the exclusive right to navigate the waters of the state by steam, uninfluenced by any presumption in favour of their validity.
These objections grow out of that part of the constitution of
p. 565the United States which gives to congress, 1st. The power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries; and, 2dly. The power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. (Art. 1. s. 8.) it is an undeniable rule of construction, applicable to the constitution of the United States, that all powers and rights of sovereignty, possessed and enjoyed by the several states, as independent governments, before the adoption of the constitution, and which are not either expressly, or by necessary implication, delegated to the general government, are retained by the states. This has been the uniform understanding of the ablest jurists, ever since the formation of that government; and it is a rule, indispensably necessary, in order to preserve harmony in the administration of the different governments, and prevent that collision which a partial consolidation is peculiarly calculated to produce. This was the object contemplated and intended to be secured by the 10th article of the amendments of the constitution, which declares, that the powers not delegated to the United Slates by the constitution, nor prohibited by it, to the states, are reserved to the states respectively, or to the people. If, then, the grant of the right or privilege claimed by the appellants, would, before the adoption of the constitution, have been a legitimate exercise of state sovereignty, it would, I think, under the rule of construction which I have suggested, be a strained interpretation of that instrument, to say such sovereignty has been thereby surrendered by the state. This power is certainly not denied to the states, nor exclusively granted to the union, by express terms: and those powers which are exclusive, by necessary implication, must be such as are created by the constitution, and which did not antecedently form a part of state sovereignty, or the objects of which, from their nature, are beyond the reach and control of the state governments. An express prohibition to the states, against the exercise of powers of that description, would have been useless and absurd. I might go through the various powers given to congress, and illustrate the truth of the position I have laid down, but shall refer only to one or two. Congress have power to borrow 'money on the credit of the United Slates. This is an exclusive power by necessary implication. It is a power created by the constitution. No prohibition to the states was necessary, and indeed would have been absurd; be
p. 566cause this never was, before the adoption of the constitution# within the scope of state power: no state being able to pledge credit of the
United States for the repayment of the money borrowed. The power to constitute tribunals, inferior to the supreme court, falls under the same class.
^ is obvious that the mere grant of a power to congress dices not necessarily vest it exclusively in that body. Congress has power to lay and collect taxes. But this does not preclude the states from the exercise of a like power, except so far as they are expressly restrained, in relation to duties on imports and exports. Thus we see that there are subjects upon which the United States and the individual states must, of necessity, have concurrent jurisdiction ; and all the fears and apprehensions of collision in the exercise of these powers, which have been urged in argument, are unfounded. The constitution has guarded against such an event, by providing that the laws of the United States shall be the supreme law of the land, any thing in the constitution of any state to the contrary notwithstanding. In case of collision, therefore, the state laws must yield to the superior authority of the United States.
The power given to congress to promote the progress of science and useful arts is restricted to the rights of authors and inventors, and their rights are only to be secured for a limited time. Whatever power the states had over these subjects prior to the adoption of the constitution, and which have not been granted to the general government, and which are not within the scope and purview of its authority, must, beyond all possible doubt, be retained by .the states. The appellants do not, in the case before us, claim as inventors, but only as possessors of a mode of applying the steam-engine to propel boats on new and advantageous principles. The right, therefore, claimed by them, as granted by the laws of this state, was beyond the reach of congressional authority; and the idea ought not for a moment to be indulged that, even admitting this to be a foreign and imported improvement, it is not worthy of legislative patronage and protection. The power given to congress on this subject was intended for the benefit of authors and inventors, and to secure their rights throughout the United States. The state government could only give this security within its own jurisdiction. It was, therefore, a wise and useful provision in the constitution, calculated to encourage the arts and sciences, which ought to be a favourite ob
p. 567ject with every enlightened government. But because the states have delegated to congress this power, in a limited degree, shall it be denied to them to lend their aid in protecting and patronising useful improvements in any way they may think proper, not repugnant to the right secured under the authority of congress ? Such a doctrine appears to me degrading to state sovereignty, and unnecessarily relinquishing a power not contemplated by the constitution. For the purpose of the present suit, the appellants are to be considered as the
possessors only of the invention, and in that point of view I cannot discover the remotest doubt as to the constitutionality of the laws, the subject matter of them not being within the purview of any power given to congress.
But if the appellants are considered the inventors, and entitled to a patent, or as having actually obtained one, it cannot operate as an exclusion of all legislative authority and interference, to aid and protect the rights thus obtained under the general government. If the subject matter be within the scope of state jurisdiction, and the power is exercised in harmony with, and in subordination to, the superior power of congress, it is, beyond all doubt, legitimately exercised. If any person should appear claiming under a patent, in hostility to the privilege granted by this state, that would be a paramount right, and must prevail, if set up in a court having jurisdiction of the question; though it may well be doubted, whether even a patent could be set up, in the courts of this state, against these laws, as that might involve questions arising under the laws of the United States, which belong exclusively to the courts of the United States. ( 7 Johns. Rep. 144 .) It was admitted by the respondents’ counsel, that, had not congress begun to exercise the power given by this clause in the constitution, the subject matter would have been within the scope of state jurisdiction. Why this should make any difference, I am unable to conceive, as long as the power exercised by the state is not repugnant to, or incompatible with, that exercised by congress. That the mere grant of a power to congress does not necessarily imply an exclusion of state jurisdiction, has been the practical construction of the constitution in a variety of cases. As, for instance, congress have the power to provide for the punishment of counterfeiting the current coin of the United States; yet the legislature of this state has provided for the punishment of the same offence; and numerous other instances might be mentioned, if necessary. The only restriction upon the state government, in the.
p. 568exercise of all concurrent powers is, that the state must act in ¿subordination to the general government. It is not a sufficient reason for denying to the states the exercise of a power, that it
may possibly interfere with the acts of the general government. It wj¡j time enough to surrender the power when such interference g|ja]j arjse> The framers of the constitution foresaw the possi* bility of such a state of things, and wisely provided the remedy, by making the laws of the
United States the supreme law of the land. Thus guarded, there can no possible inconvenience result from the two governments exercising legislative authority over the same subject. But for the purpose of deciding the present question, it is unnecessary to go thus far, because the laws in question extend protection to the appellants as
possessors only of the improvement, and this not being a subject within the authority of congress, there cannot arise any interference or collision of power.
/ The objection to the laws under consideration, on the ground / that they interfere with the power given to congress, “ to regulate I commerce with foreign nations, and among the several states, and j with the Indian tribes,” is less colourable than the former; for j admitting the power here granted to belong exclusively to the ge1 neral government, it does not, in any manner whatever, interfere ' with these laws, or extend to the rights and privileges which they ; are intended to secure. They neither concern foreign commerce, j nor commerce among the several states, nor with the Indian ! tribes, but only give to the appellants the exclusive privilege of j navigating all waters, within the jurisdiction of this state, by every i species of boat or water-craft, which might be impelled by force of fire or steam. If this can, in any sense, be considered a regulation of commerce, it is the internal commerce of the state, over which congress has no power; atid if the right to regulate internal commerce, or the intercourse between different parts of the. state, ever belonged to the state government, it is still retained; for it never has been, either expressly or impliedly, yielded to the gene- • ral government. To deny to the legislature this right, would be . at once striking from our statute book grants, almost innumerable, i of a similar nature; all our turnpike roads, toll-bridges, canals, ferries, and the like, more or less concern commerce, or the intercourse between different parts of the state, and must depend on the same principles with the privileges granted to the appellants. ■■ The truth, however, is, that none of them relate to commerce ' within the sense and meaning of the term as used in the constitu
p. 569tion; they are mere municipal regulations, with which congress have no concern. It can answer no valuable end, to enter into any speculative inquiry as to what would be the effect upon the appellants’ rights under these laws, should congress, in regulating commerce, interfere with them. No such interference has at yet , . arisen, and it will be time enough to consider that question when it does arise. The general and conclusive answer, however, to all such supposed collisions of powers, is what has already been mentioned, that the laws of congress are paramount, and must prevail.
I have thus noticed the principal arguments which have been urged against the constitutionality of the laws under which the appellants set up their claim, and I am satisfied that the objections are untenable; and unless these laws are absolutely void, the right of the appellants is clearly established.
The only remaining inquiry is, whether they are entitled to an injunction, to restrain the respondents from an infringement of that right; and this, it appears to me, must follow as a matter of course. - It has been contended that an injunction ought not to issue until the | appellants’ right has been first settled at law. This is, by no means, j the universal, or even the common rule of practice on the subject. Where the right is doubtful, and that doubt can only be removed by a trial at law, there is some plausibility in requiring a party to establish his right before an injunction is granted. But this is not always the course, even in doubtful cases. There are many instances in the books, where the courts have said that possession, under colour of title, is enough to enjoin and continue the injunction, until it is proved, at law, that it is only colour, and not real title. The case of Boulton v. Bull (3 Ves. jun. 140.) is one of that description. An injunction had been granted that the question as to the validity of a patent, might be tried in an action at law; and so doubtful was the right of the patentee, that the court, upon a case stated, were equally divided. Yet the lord chancellor refused to dissolve the injunction, declaring that he would not put the party to accept a compensation. So, also, in the case of The Universities of Oxford and Cambridge v. Richardson, (6 Ves. jun. 707.) Lord Eldon, in noticing what fell from Lord Mansfield, in Miller v. Taylor, “ that it was a universal rule, that if the title is not clear at law, the court will not sustain an injunction,” said, that he could not accede to that proposition, so unqualified, for that there had been many instances, within his own
p. 570memory, in which an injunction had been granted, and continued under such circumstances, until the hearing. The same doctrine is laid down in the case of
Harmer v.
Plane. (14
Ves. jun. 132.) And the ford chancellor said, there would be less inconvenience in granting the injunction, until the legal question could be tried, than in dissolving it at the hazard that the grant of the crown may, in the result, prove to have been valid. That the question was not really between the parties upon the record; for unless the injunction is granted, any person might violate the patent, and the consequence would be, that the patentee must be ruined by litigation. This last observation is entitled to great weight and consideration, and furnishes a strong and cogent reason for granting injunctions in cases of this kind. The prevention of a multiplicity of suits is one of the most salutary powers of a court of equity. These cases are sufficient to show that it is the prevailing practice in
England, even where the right is doubtful, and the case is sent to be tried at law, to send it
with an injunction, instead of denying it on that ground. But where the right is
clear, an injunction is never refused; as when the right claimed appears on record, or is founded on an act of parliament, it is matter of course to grant an injunction, without first obliging the party to establish his case at law.
(Cooper’s Eq. Pl. 157. Mitford, 129. 1
Ves. 476.)
In the case of Blanchard v. Hill, (2 Atk. 485.) Lord Hard wicke said, that in cases of monopolies, the rule that the court had governed itself by was, whether there was any act of parliament under which the restriction was founded. But the court will never establish a right of this kind, claimed under a charter only from the crown, unless there has been an action to try the right at law. This will be found, on examination, to be a governing distinction, running through the numerous cases cited on the argument. And whenever an injunction has been refused, the right was claimed under a patent from the crown, and that right considered doubtful.
Applying these principles to the case before us, there is no possible ground upon which the injunction can be denied. The claim of the appellants is founded on acts of the legislature, and if those acts are considered valid, no doubt can exist as to the right. And if any doubt should be thought to exist on that point, yet, according to the established rule in England, this is not sufficient to warrant a denial of the injunction. If it be necessary to send the cause to be tried at law, it ought to be sent with an injunction.
p. 571But where can be the necessity or propriety of sending the appellants into a court of law to establish their right ? There are no facts in dispute upon which it is requisite for a jury to decide. The right must depend upon the validity of the statutes under which it is claimed. And that question, according to the course of our courts, may be brought back again to this tribunal for ulti - mate decision. But it is said the right claimed by the appellants, being created by statute, they are entitled to no other remedy than that which the statute gives.
Without examining whether the rule of law upon which this objection is founded is not confined to criminal cases altogether, it certainly cannot be applied to the present case; for the forfeiture is not given by the same statute which created and gave the right, nor until the right was actually vested in the appellants, by a fulfilment of the terms and conditions upon which they were to be entitled to the exclusive privilege now claimed by them; and if the right was vested, all existing remedies to enforce it were also vested, and are not to be taken away by implication. The act of April, 1808, creating the forfeiture, purports to be an act for the further encouragement of the appellants’ steam-boats, which plainly shows that the remedies therein provided were intended as cumulative, and in addition to those already existing. This would be the construction in criminal cases, even where the offence is created and the penalty given by the same statute, provided they are in separate clauses. In the case of The King v. Harris, (4 Term Rep. 205.) Ashhurst, J. says, it is a clear and established principle, that where a new offence is created by an act of parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause on the ground of its being a misdemeanor.
I think it unnecessary to pursue the question as to the remedy any farther, or to notice all the cases cited on the argument. I have looked into most of them, and am fully satisfied that if the appellants have the right claimed, the remedy cannot be denied to them. I the more readily abstain from taking up any more time in this examination, because I understood the respondents’ counsel as, in a great measure, abandoning all opposition to an injunction, if the right was determined against them. Upon the whole, from a very attentive examination of the case, I entertain
p. 572a clear and decided opinion in favour of the validity of the appel^an*s’ r’ght, as granted by the acts of the legislature, and that they are entitled to the remedy asked for to protect and secure them in the enjoyment of it.
I am accordingly of opinion, that the decree of the court of cjjanceiy ought to be reversed.
The great point in this cause is, whether the several acts of the legislature which have been passed in favour of the appellants, are to be regarded as constitutional and binding.
This house, sitting in its judicial capacity as a court, has nothing to do with the policy or expediency of these laws. The only question here is, whether the legislature had authority to pass them. If we can satisfy ourselves upon this point, or, rather, unless we are fully persuaded that they are void, we are bound to obey them, and give them the requisite effect.
In the first place, the presumption must be admitted to be extremely strong in favour of their validity. There is no very obvious constitutional objection, or it would not so repeatedly have escaped the notice of the several branches of the government, when these acts were under consideration. There are, in the whole, five different statutes, passed in the years 1798, 1803, 1807, 1808 and 1811, all relating to one subject, and all granting or confirming to the appellants, or one of them, the exclusive privilege of using steam-boats upon the navigable waters of this state. The last act was passed after the 'right of the appellants was drawn into question, and made known to the legislature, and that act was, therefore, equivalent to a declaratory opinion of high authority, that the former laws were valid and constitutional. The act in the year 1798 was peculiarly calculated to awaken attention, as it was the first act that was passed upon the subject, after the adoption of the federal constitution, and it would naturally lead to a consideration of the power of the state to make such a grant. That act was, therefore, a legislative exposition given to the powers of the state governments, and there were circumstances existing at the time, which gave that exposition singular weight and importance. It was a new and original grant to one of the appellants, encouraging him, by the pledge of an exclusive privilege for twenty years, to engage, according to the language of the preamble to the statute, in the “ uncertainty and hazard of a very expensive experiment.” The legislature must
p. 574navigation, and all the use of the waters of this state which he ' before enjoyed. There was, then, no injustice, no violation of first principles, in a grant to the appellants, for a limited time, of the exclusive benefit of their own hazardous and expensive ex? periments. The first impression upon every unprejudiced mind would he, that there was justice and policy in the grant. = Clearly, then, it is valid, unless the power to make it be taken away by the constitution of the
United States.We are not called upon to say affirmatively what powers have been granted to the general government, or to xvhat extent. Those powers, whether express or implied, may be plenary and sovereign, in reference to the specified objects of them. They may even be liberally construed in furtherance of the great and essential ends of the government. To this doctrine I willingly accede. But the .question here is, not what powers are granted to I that government, but xvhat powers are retained by this, and, parti\f cularly, xvhether the states have absolutely parted with their origif Inal power of granting such an exclusive prixdlege, as the one now 1 before us. It does not follow, that because a given poxver is granted to congress, the states cannot exercise a similar poxver. We ought to bear in mind certain great rules or principles of construction peculiar to the case of a confederated government, and by attending to them in the examination of the subject, all our seeming difficulties will x'anish.
When the people create a single, entire government, they grant at once all the rights of sovereignty. The powers granted are indefinite, and incapable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a federal government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserxred to the members that is not, either in express terms, or by necessary implication, taken away from them, and vested exclusively in the federal head. This rule has not, only been acknoxvledged by the most intelligent friends to the constitution, but is plainly declared by the instrument itself. Congress have power to lay and collect taxes, duties and excises, but as these powers are not given exclusively, the states have a concurrent jurisdiction, and retain the same absolute powers of taxation whic^. they possessed before the adoption of the constitution, except ¿lie power of laying an impost, which is expressly
p. 575taken away. This very exception proves that, without it,' the states would have retained the power of laying an impost; and it further implies, that in cases not excepted, the authority of the states remains unimpaired.
This principle might be illustrated by other instances of grants of power to congress with a prohibition to the states from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the 10th article of the amendments to the constitution. That article declares that “ the powers not delegated to the United States by thp constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The ratification of the constitution by the convention of this state, was made with the explanation and understanding, that “ every power, jurisdiction and right, which was not clearly delegated to the general government, remained to the people of the several states, or to their respective state governments.” There was a similar provision in the articles of confederation, and the principle results from the very nature of a federal government, which consists only of a defined portion of the undefined mass of sovereign power originally vested in the several members of the union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be' any interruption of the public peace, in the concurrent exercise of those powers. The powers of the two governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same object. The powers of the two governments cannot indeed be supreme over each other, for that would involve a contradiction. When those powers, therefore, come directly in contact, as when they are aimed at each other, or at one indivisible object, the power of the state is subordinate, and must yield. The legitimate exercise of the constitutional powers of the general government becomes the supreme law of the land, and the national judiciary is specially charged with the maintenance of that law, and this is the true and efficient power to preserve order, dependence and harmony in our complicated system of government. We have, then, nothing to do, in the ordinary course of legislation, with the possible contingency of a collision, nor are we to embarrass ourselves in the anticipation of theoretical difficulties, than which nothing could, in general, he more fal
p. 576lacious, Such a doctrine would be constantly taxing our sagacity, to see whether the law might not contravene some future regula*i0n commerce, or some moneyed or some military operation of the
United States. Our most simple municipal provisions would enacte¿ v^ith diffidence, for fear we might involve ourselves, our citizens and our consciences in some case of usurpation. Fortunately, for the peace and happiness of this country, we have a plainer path to follow. We do not handle a work of such hazardous consequence. We are not always walking
per ignes snppositos cineri doloso. I"Our safe rule of construction and of action is this, that if any given power was originally vested in this state, if it has not been exclusively ceded to congress, or if the exercise of it has not been prohibited to the state's, we may then go on in the exercise of the power until it comes practically in collision with the actual exercise of some congressional power. When that happens to be the case, the state authority will so far be controlled, • but it will still be good in all those respects in which it does not absolutely contravene the provision of the paramount Iaw.l
This construction of the powers of the federal compact has the authority of Mr. Hamilton, in the 32d number of the Federalist, he admits that all the authorities of which the states are not explicitly devested, remain with them in full vigour, and that in all cases in which it was deemed improper that a like authority with that granted to the union should reside in the states, there was the most pointed care in the constitution to insert negative clauses-He further states that there are only three pases of the aliena™ tion of the state sovereignty; 1. Where the grant to the general government is, in express terms, exclusive; 2. Where a like power is expressly prohibited to the states; and, 3. Where an authority in the states would be absolutely and totally contradictory and repugnant to one granted to the union; and it must be, he says, an immediate constitutional repugnancy that can, by implication, alienate and extinguish a pre-existing right of sovereignty. The same view of the powers of the federal and state governments, and the same rules of interpretation, were given by him, in the discussions which the constitution underwent in our state convention, and they seem generally, if not unanimously, to have been acquiesced in by the members of that very respectable assembly. (See the Debates of the New-York Convention, published by Francis Childs.) These opinions-may be regarded as the best evidence of the sense of the authors of that instrument, the best. test of its
p. 577"principles, and the most accurate cotemporary exposition to which we can recur. For every one acquainted with the history of those times, well knows that the principles of the constitution, in the progress of its adoption through the
United States, were discussed in the several conventions, and before the public, by men of the most powerful talents, and with the most animated zeal for the public welfare. There were many distinguished individuals, and none more so than the one to whom I have referred, who had bestowed intense thought, not only upon the science of civil government at large, but who had specially and deeply studied the history and nature, the tendency and genius of the federal system of government, of which the
European confederacies had given us imperfect examples, and to which system, as improved by more skilful artists, the destinies of this country were to be confided. Principles of consl ruction solemnly sanctioned at that day, and flowing from such sources, are to be regarded by us, and by posterity, as coming in t$ie language of truth, and with the
force of authority.
I now proceed to apply these general rules to those parts of the constitution which are supposed to have an influence on the present question.
The provision that the citizens of each state shall be entitled te all privileges and immunities of citizens in the several states, has ' nothing to do with this case. It means only that citizens of other states shall have equal rights with our own citizens, and not that they shall have different or greater rights. Their persons and property must, in all respects, be equally subject to our law. This is a very clear proposition, and the provision itself was taken from the articles of the confederation. The two paragraphs of the constitution by which it is contended that the original power in the state governments to make the grant has been withdrawn, and vested exclusively in the union, are, 1. The power to regulate commerce with foreign nations, and among the several states; and, 2. The power to secure to authors and inventors the exclusive right to their writings and discoveries.
1. As to the power to regulate commerce.
This power is not, in express terms, exclusive, and the only prohibition upon the states is, that they shall not enter into any treaty or compact with each other, or with a foreign power, nor lay any duty on tonnage, or on imports or exports, except what may be necessary for executing their inspection laws. Upon the princi
p. 578pies above laid down, the states are under no other constitutional restriction, and are, consequently, left in possession of a vast field °f commercial regulation; all the internal commerce of the state by land and water remains entirely, and I may say exclusively, within the scope of its original sovereignty. The congressional p0wer relates to external not to internal commerce, and it is confined to the regulation of that commerce. To what extent these regulations may be carried, it is not our present duty to inquire. The limits of this power seem not to be susceptible of precise definition. It may be difficult to draw an exact line between those regulations which relate to external and those which relate to internal commerce, for every regulation of the one will, directly or indirectly, affect the other. To avoid doubts, embarrassment and contention on this complicated question, the general rule of interpretation which has been mentioned, is extremely salutary., It removes all difficulty, by its simplicity and certainty. The states are under no other restrictions than those expressly specified in the constitution, and such regulations as the national government may, by treaty, and by laws, from time to time, prescribe, Subject to these restrictions, I contend, that the states are at liberty to make their own commercial regulations. There can be no other safe or practicable rule of conduct, and this, as I have already shown, is the true constitutional rule arising from the nature of our federal system. This does away all colour for the suggestion that the steam-boat grant is illegal and void under this clause in the constitution. It comes not within any prohibition upon the ■ states, and it interferes with no existing regulation. Whenever the case shall arise of an exercise of power by congress which shall be directly repugnant and destructive to the use and enjoyment of the appellants’ grant, it would fall under the cognisance of the federal courts, and they would, of course, take care that the laws of the union are duly supported. I must confess, however, that I can hardly conceive of such a case, because I do not, at present, perceive any power which congress can lawfully carry to that extent. But when there is no existing regulation which interferes - with the grant, nor any pretence of a constitutional interdict, it would be most extraordinary for us to adjudge it void, on the mere contingency of a collision with some future exercise of congressional power. Such a doctrine is a monstrous heresy. It would go, in a great degree, to annihilate the legislative power of the states. May not the legislature declare that no bank paper shall
p. 579circulate, or be given or received in payment, but what originates from some incorporated bank of our own, or that none shall circulate under the nominal value of one dollar ? But suppose congress should institute a national bank, with authority to issue and circulate throughout the union, bank notes, as well below as above that nominal value: This would so far control the state law, but it would remain valid and binding, except as to the paper of the national bank. The state law would be absolute, until the appearance of the national bank, and then it would have a qualified effect, and be good
pro tanto. So, again, the legislature may declare that it shall be unlawful to vend lottery tickets, unless they be tickets of lotteries authorized by a law of this state, and who will question the validity of the provision? But suppose congress should deem it expedient to establish a national lottery, and should authorize persons in each state to vend the tickets, this would so far control the state prohibition, and leave it in full force as to all other lotteries. The possibility that a national bank, or a national lottery, might be instituted, would be a very strange reason for holding the state laws to be absolutely null and void. It strikes me to be an equally inadmissible proposition, that the state is devested of a capacity to grant an exclusive privilege of navigating a steam-boat, within its own waters, merely because we can imagine that congress, in the plenary exercise of its power to regulate commerce, may make some regulation inconsistent with the exercise of this privilege. When such a case arises, it will provide for itself; and there is, fortunately, a paramount power in the supreme court of the
United States to guard against the mischiefs of collision.
The grant to the appellants may, then, be considered as taken subject to such future commercial regulations as congress may lawfully prescribe. Congress, indeed, has not any direct jurisdiction over our interior commerce or waters. Hudson river is the property of the people of this state, and the legislature have the same jurisdiction over it that they have over the land, or over any of our public highways, or over the waters of any of our rivers or lakes. They may, in their sound discretion, regulate and control, enlarge or abridge the use of its waters, and they are in the habitual exercise of that sovereign right. If the constitution had given to congress exclusive jurisdiction over our navigable waters, then the argument of the respondents would have applied; but the people never did, bof
p. 580ever intended, to grant such a power; and congress have concurrent jurisdiction over the navigable waters no further than may be incidental and requisite to the due regulation of commerce between the states, and with foreign nations,
What has been the uniform, practical construction of this p0Wer p £,et us examine the code of our statute laws. Our turnpike roads, our toll-bridges, the exclusive grant to ran stagewaggons, our laws relating to paupers from other states, our Sunday laws, our rights of ferriage over navigable rivers and lakes, our auction licenses, our licenses to retail spirituous liquors, the laws to restrain hawkers and pedlars; what are all these provisions but regulations of internal commerce, affecting as well the intercourse between the citizens of this and other states, as between our own citizens ? So we also exercise, to a considerable degree, a concurrent power with congress in the regulation of external. commerce. What are our inspection laws relative to the staple commodities of this state, which prohibit the exportation, except upon certain conditions, of flour, of salt provisions, of certain articles of lumber, and of pot and pearl ashes, but regulations of external commerce ? . Our health and quarantine laws, and the laws prohibiting the importation of slaves are. striking examples of the same kind. So the act relative to the poor, which requires all masters of vessels coming from abroad to report and give security to the mayor of New-York, that the passengers, being aliens, shall not . become chargeable as paupers, and in case of default, making even the ship or vessel from which the alien shall be landed liable to seizure, is another and very important regulation affecting foreign commerce.
Are we prepared to say, in the face of all these regulations, which form such a mass of evidence of the uniform construction of our powers, that a special privilege for the exclusive navigation by a steam-boat upon our waters, is void, because it may, by possibility, and in the course of events, interfere with the power granted to congress to regulate commerce ? Nothing, in my opinion, would be more preposterous and extravagant. Which of our existing regulations may not equally interfere with the power of congress? It is said that a steam-boat may become ■the vehicle of foreign commerce; and, it is asked, can then the entry of them into this state, or the use of them within it, be prohibited ? I. answer yes, equally as we may prohibit the. entry or use of
p. 581slaves, or of pernicious animals, or an obscene book, or infectious goods, or any thing else that the legislature shall deem noxious or inconvenient. Our quarantine laws amount to an occlusion of the port of
Nem-York from a portion of foreign commerce, for several * 1 . ° . months in the year; and the mayor is even authorized under those laws to stop all commercial intercourse with the ports of any neighbouring state. N o doubt these powers may be abused, or exercised in bad faith, or with such jealousy and hostility towards our neighbours, as to call for some explicit and paramount regulation of congress on the subject of foreign commerce, and of commerce between the states. Such cases may easily be supposed, but it is not logical to reason from the abuse against the lawful existence of a power; and until such congressional regulations appear* the legislative will of this state* exercised on a subject within its original jurisdiction, and not expressly prohibited to it by the constitution of the
United States, must be taken to be of valid and irresistible authority.
2. If the grant is not inconsistent with the power of congress to regulate commerce, there is as little pretence to hold it repugnant to the power to grant patents. That power only secures, for a limited time, to authors and inventors the exclusive privilege to their writings and discoveries; and as it is not granted, by exclusive words, to the United States, nor prohibited to the individual states, it is a concurrent power which may be exercised by the states, in a variety of cases, without any infringement of the congressional power. A state cannot take away from an individual his patent right, and render it common to all the citizens. This would contravene the act of congress, and would be, therefore, unlawful. But if an author or inventor, instead of resorting to the act of congress, should apply to the legislature of this state for an exclusive right to his production, I see nothing to hinder the state from granting it, and the operation of the grant would, of course, be confined to the limits of this state. Within our own jurisdiction, it would be complete and perfect. Bo a patentee under the act of congress may have the time of his monopoly extended by the legislature of any state, beyond the term of fourteen or twenty-eight years allowed by that law. Congress may secure, for a limited time, an exclusive right throughout the union; but there is nothing in the constitution to take away from the states the power to enlarge the privilege within their respective jurisdictions. The states are not entirely devested of their original sovereignty over the subject matter; and whatever power has not been clearly granted to
p. 583order to test the validity of his patent, and to seek the competent redress.
But the respondents show no patent, and the appellants have not obtained their grant, as inventors of the steam-boat, and, therefore, the privilege is totally unconnected with the patent power. It seems to be admitted that congress are authorized to grant patents only to the inventor of the useful art. The act of congress of 25th February, 1793, (Laws United States, v. 2. p. 200.) applies only to the inventor, and the applicant for the patent must make oath that he believes he is the true inventor or discoverer of the art or improvement. The act of 22d April, 1800, (Laws United States, v. 5. p. 88.) extends the benefit of the former law to aliens, after two years’ residence, on their making oath that such invention, art or discovery, hath not, to their belief, been known or used either in this or any foreign country. There cannot, then, be any aid or encouragement, by means of an exclusive right under the law of the United States, to importers from abroad of any useful invention or improvement. Such persons must resort to the patronage of the state governments, in which the power to reward their expensive and hazardous exertions was originally vested, and in which it still remains. The grant of 1798, was made to Chancellor Livingston, as “ the possessor oi a mode of applying the steam éngine to propel a boat on new and advantageous principles.” This power to encourage the importation of improvements, by the grant of an exclusive enjoyment, for a limited period, is extremely useful, and the English nation have long perceived and felt its beneficial effects. This will appear by a cursory view of the law of that country.
The creation of monopolies was anciently claimed and exercised as a branch of the royal prerogative. Lord Coke (3 Inst. 181.) defines a monopoly to be “an institution or allowance by the king’s grant, for the sole using of any thing and he considers such royal grants to have been against the ancient and fundamental laws of the realm. Parliament, at last, interposed to check the abuse of these grants, which had been issued, under Elisabeth, with inconsiderate profusion; and by the statute of 21 Jac. I. c. 3. commonly called the statute of monopolies, there were due limitations placed upon the exercise of this branch of the prerogative. That statute, by a general sweeping clause, demolished all the existing monopolies that were not specially excepted; and some of I those exceptions are worthy of our particular notice. In thejjggj;f place, all grants of privileges by act of parliament were saved;»
p. 584for no one ever doubted (unless it be since the origin of this controversy) of the power of the legislature to create an exclusive privilege. The statiife"aIso allowed gráHs to bé imade" for a limited time, by the authority of the crown, for the sole working or making of any new manufacture
not before used in the realm. Upon this clause it has been held by such distinguished judges as
Holt and
Pollexfen, (2
Salk. 447.) that if the invention be new in
England, a patent may be granted, though the thing was practised beyond sea before; for the statute, as they observe, intended to encourage new devices useful to the kingdom,
and whether learned by travel or by study, it is the same thing. In the case of
Darcy v.
Allen, which arose under Elisabeth, before the statute of monopolies, (11
Co. 84.
Noy, 273.) it was admitted, in the interesting argument on the part of the defendant, as preserved in
Noy, (p. 182, 183.) that where any man, by
his own charge and industry, or by his own wit or invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade, that never was used before, and that for the good of the realm, the king might grant a monopoly patent. Thus, in 9
Elis, there was a patent granted to
Hastings for the sole making and selling for divers years, of
frisador s, in consideration that he brought in the skill of making them
as they were made in Holland. But in a suit on this patent, as it appeared that the defendant had used them before the patent, he was held not punishable for infringing the patent. So a like patent issued, in the beginning of the reign of
Elisabeth, to one
Mathey, for making certain knives with bone shafts, &c. on the suggestion that he brought the first use of them
from beyond sea, but as the suggestion was false, he, on that ground alone, lost the benefit of his patent.
These cases clearly show that the uniform opinion, in England, both before and since the statute of James, has been, that imported improvements, no, less than original inventions, ought to be encouraged by patent. And can we for a moment suppose that such a power does not exist in the several states ? We have seen that it does not belong to congress, and if it does not reside in the states, it resides nowhere, and is wholly extinguished. This would be leaving the states in a condition of singular and contemptible imbecility. The power is important in itself, and may be most benecially exercised for the encouragement of the arts; and if well nd judiciously exerted, it may ameliorate the condition of society, iy enriching and adorning the country with useful and elegant
p. 585improvements. This ground is clear of any constitutional difficulty, and renders the argument in favour of the validity of the statutes perfectly conclusive. And permit me here to add, that I think the power has been wisely applied, in the instance before us, to the creation of the privilege now in controversy. Under its auspices the experiment of navigating boats by steam has been made, and crowned with triumphant success. «Every lover of the arts, every patron of useful improvement, every friemTtohis country’s honouijjhas beheld this success withjjleasure and admiration., From this single source the improvement is progressively extending to all the navigable waters of the
United States, and it promises to become a great public blessing, by giving astonishing facility, despatch and safety, not only to travelling, but to the internal commerce of this country. It is difficult to consider even the known results of the undertaking, without feeling a sentiment of good will and gratitude towards the individuals by whom they have been procured, and who have carried on their experiment with patient industry, at great expense,.under repeated disappointments, and while constantly exposed to be held up, as dreaming projectors, to the
whips and scorns of time. So far from charging the authors of the grant with being rash and inconsiderate, or from wishing to curtail the appellants of their liberal recompense, I think the prize has been dearly earned and fairly won, and that the statutes' bear the stamp of an enlightened and munificent spirit.
If the legal right be in favour of the appellants, the remedy prayed for by their bill is a matter of course. One of the learned counsel for the respondents, with his usual frankness, seemed, in a great degree, to concede this point.
Injunctions are always granted to secure the enjoyment of sta-j tute privileges of which the party is in the actual possession, un-' less the right be doubtful. This is the uniform course of the pre-! cedents. I believe there is no case to the contrary; and the deci- $ sions in the English chancery, on this point, were the same before | as since the American revolution; and we are, consequently, \ boundby them as a branch of the common law. It appears, by the facts stated in the bill, and which we must take to be true, as they have been sworn to, and are not answered or denied, that the appellants had been, for three years, in the actual and exclusivo enjoyment of their statute privilege, when the respondents interfered to disturb that right and that enjoyment.
It will be necessary to attend, for a moment, to the most promi
p. 586nent
English cases, on the subject of injunctions; and on this point I shall be very brief.
In Gyles v. Wilcox and others, which was as early as the year 1740, (2 Atk. 141. S. C. 3 Atk. 269.) there was a bill filed for an injunction to stay the printing of a book, on suggestion, that the book, pretending to be a different work, was, in truth, an invasion of the complainant’s copyright, under the statute of Anne. The lord chancellor referred the cause, by consent, to arbitrators, to examine whether the one book was a copy from the other; and though that point was not clear, he allowed an injunction and continued it in the mean time. So, also, in the case of Blackwell v. Harper, in the year 1740, (2 Atk. 92.) a bill was exhibited to establish a right under the statute of 8 Geo. II. c. 13. for encouraging the arts of designing, engraving, &c. and to restrain the defendant from copying the complainant’s engravings of medicinal plants, and an injunction was decreed, though the statute said nothing about an injunction, and had given, as against the offender, a forfeiture of the plates and sheets engraved, and an additional penalty of 5s. for every print, to be recovered by suit at law. In another case, in the same year, 1740, before the same chancellor, (1 Ves. 476.) he admitted, that when the right appeared by matter of record, or was grounded upon an act of parliament, it was a foundation for an injunction before answer. These cases I have particularly selected, because two of them were cases of injunction, founded on a statute right, and where the statute had also given a forfeiture, and because these cases were long before our revolution, and were the decisions óf so correct and distinguished a chancellor as Lord Hardwicke.
It is impossible, in any cause, to produce cases more in point or more controlling;. and they put the authority and duty to grant an injunction, in a case of clear statute right, beyond contradiction. There are many other cases in the English chancery, to the like effect, all of which I shall not stay to examine. (Baskett v. Parsons, 1718, decided by Sir J. Jekyl, and cited in 13 Ves. 493. Smith v. Clark, Dick. 455. Hicks v. Raincock, Dick. 647. Pope v. Curl, 2 Atk. 342. Bell v. Walker and others, 1 Bro. 451.) It will be sufficient, by referring to a few of them^ to show the uniform language of the equity courts. The case of The City of London v. Pughs (3 Bro. Ch. Cas. 374.) arose as early as 1727, and as it was decided by the house of lords, upon an appeal, it merits the more attention. The ques
p. 587iion there was, on a penalty given by a lease of 100Z. an acre, for digging up the soil, and yet the court ordered that the chancellor issue an injunction until the hearing, to stay the trespass, notwithstanding the party had his remedy for the penalty. In the case of
Bolton v.
Bull, which was in chancery, as late as 1796) (3
Ves. 140.) there was a bill for an injunction against, infringing a patent right for a fire engine, and it was granted, ánd the validity of the patent was left, in the mean time, to be tried at law. It was there admitted to be the most ordinary jurisdiction of the court of chancery, not to alter the possession until the right was decided, and the party in enjoyment of his patent privilege was considered as in such possession. In a late case, before the present Lord Chancellor
Eldon, (The Universities v.
Richardson, 6
Ves. 707.) it was held, that in the case of apatentright, if the party gets his patent and puts it in execution, his possession, under colour of that title, is good enough to enjoin a disturber froin interfering, and to continue the injunction until it is proved at law that he had no title. In a still later case, (14
Ves. 130.) the court expressed itself in strong terms against the invasion of a patent right, and said, that unless the injunction was granted, any person might violate the patent, and the consequence would be, that the patentee would be harassed with litigation.
I cite these latter cases to show that the law has beeh settled, in England, for the last 70 years at least, and has been preserved in a steady, uniform course, under a succession of their ablest and wisest men. The principle is, that statute privileges, no less than common law rights, when in actual possession and exercise, will not be permitted to be disturbed, until the opponent has fairly tried them at law, and overthrown their pretension. And is not this a most excellent principle, calculated to preserve peace, and order, and morals, in the community; and if it was not the law, yet deserving to be the law, and well worthy of our encouragement and sanction ? The federal courts, in this country have thought for under the patent law of congress, they have equally pro-so; tected the right by injunction. The case of Morse v. Reid was an injunction bill filed in 1796, to restrain the defendant from reprinting Wint erbotham's History, which, the complainant alleged, was an invasion of the copyright of his American Geography. The propriety of the injunction was not questioned; it issued in the first instance. The complainant recovered 1,500 dollars,
p. 588and the injunction was made perpetual. So in the late case of
Whitney v.
Fort, which arose in Georgia, upon a violation of the complainant’s patent for a machine for cleaning cotton, an injunction was granted, in the first instance, and was afterwards made perpetual, at the circuit court, at which Judge
Johnson pregye¿¡s As far, then, as authority goes, it is in favour of the injunction, and if we are satisfied, in this case, of the appellants’ right, we cannot hesitate about the remedy. The act which the legislature passed at the last session, making it expressly the duty of the chancellor to grant an injunction as to all other boats except the two then built, proves very clearly the sense of the legislature that this was a fit and proper remedy in the case. Those two boats were excepted out of the law, merely because it was improper to interfere with a pending suit, and the statute did not impair the pre-existing remedy by injunction; it only made it more clear and peremptory thereafter; and there is no reason why the injunction should issue against one set of boats, and not against another.
It would only be productive of litigation and mischief, to allow the respondents to continue the use of their boats, if the right be against them. Their counsel admit that they must not only forfeit the boats, but must answer in damages for all the intermediate profits. If the legal right be with the appellants, this is the proper court, and this is the proper time to declare it. This court, from its peculiar constitutional structure, unites with it the highest court of common law, and nothing would be more useless than to withhold an injunction until the chancellor had sent the question to be tried at law, when the judges before whom it is to be tried, are members of this court, and have already declared their opinion. The legal question can never be tried by a jury. It is not a question of fact. The single point is the constitutionality of the statutes. That point never can be more fully and móre ably argued than it has been before this court, and if we are of opinion that the acts are constitutional, they must be obeyed. We are bound to cause them to be obeyed. . There is no escape from this duty.
If we refuse the injunction, it ought to be for some substantial reason. We must not put it upon the mere hoc volo, sic jubeo, sit pro rations voluntas. There must be some solid principle, that will correspond with the character, as well as satisfy the conscience of this court. If the laws are valid, it would be of per
p. 589nicious consequence not to arrest the further progress of their violation. It is impossible for any act to be committed which-attracts more universal notice, and if wrong and illegal, none which has a more fatal influence upon the general habits of respect and reverence for the legislative authority. The boats cannot run but in the face of day, and in the presence, as it were, of the whole people, whose laws are set at defiance, nor without seducing thousands, by the contagion of example, into an approbation and support of the trespass.
March 12th, 1812.
I am sensible that the case is calculated to excite sympathy. I feel it with others, and I sincerely wish that the respondents had brought the laws to a test, at less risk and expense; for every one who had eyes to read, or ears to hear the contents of our statute book, must have been astonished at. the boldness and rashness of the experiment. But in proportion to the respectability and strength of the combination, should be the vigour of our purpose to maintain the law. If we were to suffer the plighted faith of this state to be broken, upon a mere pretext, we should become a reproach and a by-word throughout the union. It was a saying of Euripides, and often repeated by Cæsar, that if right was ever to be violated, it was for the sake of power. We follow a purer and nobler system of morals, and one which teaches us that right is never to be violated. This principle ought to be kept steadfast in every man’s breast; and, above all, it ought to find an asylum in the sanctuary of justice.
I am accordingly of opinion, that the order of the court of chancery be reversed, and that an injunction be awarded.
Lewis, Senator, and Townsend, Senator, being related to some of the parties, declined giving any opinions.
The other senators declared their concurrence in the opinions delivered by the judges. The following order was, thereupon, unanimously adopted and directed to be entered:
“ Whereupon, after hearing counsel, as well for the appellants as for the respondents, upon the order of the court of chancery, complained of by the appellants, and considering and hereby declaring the exclusive privilege granted by the legislature of this state, to the appellants, as mentioned in their bill of complaint,
p. 590valid, and that the same ought to be enjoyed by them according to law;
"It is therefore, ordered, adjudged and decreed, and this court doth, accordingly, order, adjudge and decree, that the order of the court of chancery complained of be reversed. And y,is court doth further order, adjudge and decree, that a writ of injunction issue, restraining and prohibiting the respondents from using and employing the boat or vessel, called the Hope, in the bill mentioned, on any of the waters of this state, in contravention of the legislative grant and privilege made to, and vested in, the appellants, as in their bill set forth; and that such injunction be continued until the final hearing of the cause in the court of chancery; and that the injunction ought then to be made perpetual, so long as the exclusive right and privilege of the appellants shall continue under the acts of the legislature of this state, in the bill set forth; unless, on the final hearing of the cause, the equity contained in the appellants’ bill shall be destroyed, by the new mutter to be set forth and established by the respondents.
“ And it is further ordered, adjudged and .decreed, that the record be remitted to the court of chancery, to the end, that the order, judgment and decree, of this court, may be forthwith executed, by awarding such injunction.”
Judgment of reversal.