Hughes v. Edwards (Chancery. Mortgage) 489 Peyton v. Robertson (Jurisdiction) 527 556 573 579 9 Wh Correction of Errors, which is the highest court | cient in a most important and interesting par- Mr. Webster, for the appellant, admitted that there was a very respectable weight of authority in favor of the decision, which was sought to be reversed. The laws in question, he knew, had been deliberately re-enacted by the legislature of New York; and they had also received the sanction, at different times, of all her judicial tribunals, than which there were few, if any, in the country, more justly entitled to respect and deference. The disposition of the court would be, undoubtedly, to support, if it could, laws so passed and so sanctioned. He admitted, therefore, that it was justly expected of him that he should make out a clear case; and unless he did so, he did not hope for a reversal. It should be remembered, however, that the whole of this branch of power, as exercised by this court, was a power of revision. The question must be decided by the state courts, and decided in a particular manner, before it could be brought here at all. Such decisions alone gave the court jurisdiction; and therefore, while they are to be 4*] respected as the judgments of learned judges, they are yet in the condition of all decisions from which the law allows an appeal. It would not be a waste of time to advert to the existing state of the facts connected with the subject of this litigation. The use of steamboats on the coasts, and in the bays and rivers of the country, had become very general. The intercourse of its different parts essentially depended upon this mode of conveyance and transportation. Rivers and bays, in many cases, form the divisions between states, and thence it was obvious that if the states should make regulations for the navigation of these waters, and such regulations should be repugnant and hostile, embarrassment would necessarily happen to the general intercourse of the community. Such events had actually occurred, and had created the existing state of things. By the law of New York, no one can navigate the bay of New York, the North River, the Sound, the lakes, or any of the waters of that state, by steam vessels, without a license from the grantees of New York, under penalty of forfeiture of the vessel. By the law of the neighboring state of Connecticut, no one can enter her waters with a steam vessel having such license. By the law of New Jersey, if any citizen of that state shall be restrained, under the New York law, from using steamboats between the ancient shores of New Jersey and New York, he shall be entitled to an action for damages, in 5*] *New Jersey, with treble costs against the party who thus restrains or impedes him under the law of New York. This act of New Jersey is called an act of retortion against the illegal and oppressive legislation of New York; and seems to be defended on those grounds of public law which justify reprisals between independent states. It would hardly be contended that all these acts were consistent with the laws and constitution of the United States. If there were no power in the general government to control this extreme belligerent legislation of the states, the powers of the government were essentially defi It would be necessary to avert more particularly to the laws of New York, as they were stated in the record. The first was passed March 19th, 1787. By this act, a sole and exclusive right was granted to John Fitch, of making and using every kind of boat or vessel impelled by steam, in all creeks, rivers, bays and waters, within the territory and jurisdiction of New York, for fourteen years. On the 27th of March, 1798, an act was passed, on the suggestion that Fitch was dead, or had withdrawn from the state without having made *any attempt to use his privilege, [*6 repealing the grant to him, and conferring similar privileges on Robert R. Livingston, for the term of twenty years, on a suggestion made by him that he was possessor of a mode of applying the steam-engine to propel a boat, on new and advantageous principles. On the 5th of April, 1803, another act was passed, by which it was declared that the rights and privileges granted to R. R. Livingston, by the last act, should be extended to him and Robert Fulton, for twenty years from the passing of this act. Then there is the act of April 11th, 1808, purporting to extend the monopoly, in point of time, five years for every additional boat, the whole duration, however, not to exceed thirty years; and forbidding any and all persons to navigate the waters of the state, with any steamboat or vessel, without the license of Livingston and Fulton, under penalty of forfeiture of the boat or vessel. And lastly, comes the act of April 9th, 1811, for enforcing the provisions of the last-mentioned act, and declaring that the forfeiture of the boat or vessel found navigating against the provisions of the previous acts, shall be deemed to accrue on the day on which such boat or vessel should navigate the waters of the state; and that Livingston and Fulton might immediately have an action for such boat or vessel, in like manner as if they themselves had been dispossessed thereof by force; and that on bringing any such suit, the defendant therein should be prohibited, by injunction, from removing the boat or vessel out of the state, or using it within the state. There were * one or two other acts mentioned in the [*7 pleadings which principally respected the time allowed for complying with the condition of the grant, and were not material to the discussion of the case. By these acts, then, an exclusive right is given to Livingston and Fulton, to use steam navigation on all the waters of New York, for thirty years from 1808. It is not necessary to recite the several conveyances and agreements, stated in the record, by which Ogden, the plaintiff below, derives title under Livingston and Fulton, to the exclusive use of part of these waters. The appellant being owner of a steamboat, and being found navigating the waters between New Jersey and the city of New York, over ular; and affecting it in those respects in which it was under the exclusive authority of Congress. He stated this first proposition guardedly. He did not mean to say that all regulations which might, in their operation, affect commerce, were exclusively in the power of Congress; but that such power as had been exercised in this case did not remain with the states. Nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than commercial regulation. Almost all the business and intercourse of life may be connected, incidentally, [*10 more or less, with commercial regulations. But it was only necessary to apply to this part of the constitution the well-settled rules of construction. which waters Ogden, the plaintiff below, clusive; that the acts in question were regulaclaimed an exclusive right, under Livingston tions of commerce, in a most important particand Fulton, this bill was filed against him by Ogden, in October, 1818, and an injunction granted, restraining him from such use of his boat. This injunction was made perpetual, on the final hearing of the cause, in the Court of Chancery; and the decree of the chancellor has been duly affirmed in the Court of Errors. The right, therefore, which the plaintiff below asserts to have and maintain his injunction, depends obviously on the general validity of the New York laws, and, especially, on their force and operation as against the right set up by the defendant. This right he states in his answer to be, that he is a citizen of New Jersey, and owner of the steamboat in question; that the boat was a vessel of more than twenty tons 8*] *burden, duly enrolled and licensed for carrying on the coasting trade, and intended to be employed by him, in that trade, between Elizabethtown, in New Jersey, and the city of New York; and was actually employed in navigating between those places, at the time of, and until notice of the injunction from the Court of Chancery was served on him. On these pleadings the substantial question is raised: Are these laws such as the legislature of New York had a right to pass? If so, do they, secondly, in their operation, interfere with any right enjoyed under the constitution and laws of the United States, and are they, therefore, void as far as such interference extends? It may be well to state again their general purpose and effect, and the purport and effect of the other state laws which have been enacted by way of retaliation. A steam vessel, of any description, going to New York, is forfeited to the representatives of Livingston and Fulton, unless she have their license. Going from New York, or elsewhere, to Connecticut, she is prohibited from entering the waters of that state, if she have such license. If the representatives of Livingston and Fulton, in New York, carry into effect, by judicial process, the provision of the New York laws against any citizen of New Jersey, they expose themselves to a statute action, in New Jersey, for all damages, and treble costs. The New York laws extend to all steam ves**] sels; *to steam frigates, steam ferry-boats, and all intermediate classes. Some powers are holden to be exclusive in Congress, from the use of exclusive words in the grant; others, from the prohibitions on the states to exercise similar power; and others, again, from the nature of the powers themselves. It has been by this mode of reasoning that the court has adjudicated on many important questions; and the same mode is proper here. And as some powers have been holden exclusive, and others not so, under the same form of expression, from the nature of the different powers respectively, so, where the power, on any one subject, is given in general words, like the power to regulate commerce, the true method of construction would be to consider on what parts the grant is composed, and which of those, from the nature of the thing, ought to be considered exclusive. The right set up in this case, under the laws of New York, is a monopoly. Now, he thought it very reasonable to say that the constitution never intended to leave with the states the power of granting monopolies, either of trade or of navigation; and therefore, that as to this, the commercial power was exclusive in Congress. It was in vain to look for a precise and exact definition of the powers of Congress, on several subjects. The constitution did not undertake the task of making such exact definitions. In conferring powers, it proceeded in the way of enumeration, *stating the powers con- [*11 ferred, one after another, in few words; and where the power was general, or complex in its nature, the extent of the grant must necessarily be judged of, and limited by, its object, and by the nature of the power. They extend to public as well as private ships; and to vessels employed in foreign com- Few things were better known than the immerce as well as to those employed in the coast-mediate courses which led to the adoption of the ing trade. The remedy is as summary as the grant itself is ample; for immediate confiscation, without seizure, trial or judgment, is the penalty of infringement. In regard to these acts, he should contend, in the first place, that they exceeded the power of the legislature; and second, that if they could be considered valid, for any purpose, they were void still, as against any right enjoyed under the laws of the United States with which they came in collision; and that, in this case, they were found interfering with such rights. He should contend that the power of Congress to regulate commerce was complete and entire, and to a certain extent necessarily ex present constitution; and he thought nothing No 9 Wh of what the actual condition of the country re- the constitution would not have been worth accepting. He contended, therefore, that the people intended, in establishing the constitution, to transfer, from the several states to a general government, those high and important powers over commerce, which, in their exercise, were to maintain an uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher [*14 branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several states, respectively, but the commerce of the United States. Henceforth, the commerce of the states was to be an unit; and the system by which it was to exist, and be governed, must necessarily be complete, entire and uniform. Its character was to be described in the flag which waved over it, E Pluribus Unum. Now, how could individual states assert a right of concurrent legislation, in a case of this sort, without manifest encroachment and confusion? It should be repeated, that the words used in the constitution, "to regulate commerce," are so very general and extensive that they might be construed to cover a vast field of legislation, part of which has always been occupied by state laws; and therefore the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress, so far, and so far only, as the nature of the power requires. And he insisted that the nature of the case, and of the power, did imperiously require that such important authority as that of granting monopolies of trade and navigation should not be considered as still retained by the states. In the history of the times, it was accordingly found that the great topic urged on all occasions, as showing the necessity of a new and different government, was the state of trade and -commerce. To benefit and improve these was a great object in itself; and it became greater 12*] when it was regarded as the only means of enabling the country to pay the public debt, and to do justice to those who had most effect ually labored for its independence. The leading state papers of the time are full of this topic. The New Jersey resolutions1 complain that the regulation of trade was in the power of the several states, within their separate jurisdiction, in such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion that the sole and exclusive power of regulating trade with foreign states, ought to be in Congress. Mr. Witherspoon's motion in Congress, in 1781, is of the same general character; and the report of a committee of that body, in 1785, is still more emphatic. It declares that Congress ought to possess the sole and exclusive power of regulating trade, as well with foreign nations as between the states. The resolutions of Virginia, in January, 1786, which were the immediate cause of the convention, put forth this same great object. Indeed, it is the only object stated in those resolutions. There is not another idea in the whole document. The entire purpose for which the delegates assembled at Annapolis, was to devise means for the uniform regulation of trade. They found no means but in a gen- It is apparent, from the prohibitions on the eral government; and they recommended a conpower of the states, that the general concurrent vention to accomplish that purpose. Over what-power was not supposed to be left with them. ever other interests of the country this govern- And the exception, out of these prohibitions, of ment may diffuse its benefits and its blessings, the inspection laws, proves this still more clear13*] it will always be true, as matter of his- ly. Which most concerns the commerce of this torical fact, that it had its immediate origin in country, *that New York and Virginia [*15 the necessities of commerce; and, for its imme- should have an uncontrolled power to establish diate origin in the necessities of commerce; and, their inspection for flour and tobacco, or that for its immediate object, the relief of those ne- they should have an uncontrolled power of cessities, by removing their causes, and by estab-granting either a monopoly of trade in their lishing a uniform and steady system. It would be easy to show, by reference to the discussions in the several state conventions, the prevalence of the same general topics; and if anyone would look to the proceedings of several of the states, especially to those of Massachusetts and New York, he would see very plainly, by the recorded lists of votes, that wherever this commercial necessity was most strongly felt, there the proposed new constitution had most friends. In the New York convention, the argument arising from this consideration was strongly pressed by the distinguished person whose name is connected with the present question. We do not find, in the history of the forma tion and adoption of the constitution, that any man speaks of a general concurrent power, in the regulation of foreign and domestic trade, as still residing in the states. The very object intended, more than any other, was to take away such power. If it had not so provided, 1.-1 Laws U. 2. p. 28. own ports, or a monopoly of navigation over all the waters leading to those ports? Yet the argument on the other side must be, that although the constitution has sedulously guarded and limited the first of these powers, it has left the last wholly unlimited and uncontrolled. But, although much had been said, in the discussion on former occasions, about this supposed concurrent power in the states, he found great difficulty in understanding what was meant by it. It was generally qualified by saying that it was a power by which the states could pass laws on the subjects of commercial regulation, which would be valid, until Congress should pass other laws controlling them, or inconsistent with them, and that then the state laws must yield. What sort of concurrent powers were these, which could not exist together? Indeed, the very reading of the clause in the constitution must put to flight this notion of a general concurrent power. The constitution was formed for all the states; and Congress was to have power to regulate commerce. Now, what is the import of this, but |