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I know of, was ever passed to permit a commerce, unless in consequence of its having been prohibited by some previous statute.

I speak not here of the treaty-making power, for that is not exercised under the grant now under consideration. I confine my observation to laws properly so called. And even where freedom of commercial intercourse is made a subject of stipulation in a treaty, it is generally with a view to the removal of some previous restriction; or the introduction of some new privilege, most frequently, is identified with the return to a state of peace. But another view of the subject leads directly to the same conclusion. Power to regulate foreign commerce is given in the same words, and in the same breath, as it were, with that over the commerce of the states and with the Indian tribes. But the power to regulate foreign commerce is necessarily exclusive. The states are unknown to foreign nations; their sovereignty exists only with relation to each other and the general government. Whatever regulations foreign commerce should be subjected to in the ports of the Union, the general government 229*] would be held responsible for them; and all other regulations, but those which Congress had imposed, would be regarded by foreign nations as trespasses and violations of national faith and comity.

But the language which grants the power as to one description of commerce, grants it as to all; and, in fact, if ever the exercise of a right, or acquiescence in a construction, could be inferred from contemporaneous and continued assent, it is that of the exclusive effect of this grant.

A right over the subject has never been pretended to in any instance, except as incidental to the exercise of some other unquestionable power.

The present is an instance of the assertion of that kind, as incidental to a municipal power; that of superintending the internal concerns of a state, and particularly of extending protection and patronage, in the shape of a monopoly, to genius and enterprise.

The grant to Livingston and Fulton interferes with the freedom of intercourse among the states; and on this principle its constitutionality is contested.

When speaking of the power of Congress over navigation, I do not regard it as a power incidental to that of regulating commerce; I consider it as the thing itself; inseparable from it as vital motion is from vital existence. Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; 230] the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects would not possess power to regulate

commerce.

That such was the understanding of the framers of the constitution, is conspicuous from provisions contained in that instrument.

The first clause of the 9th section not only considers the right of controlling personal in. gress or migration, as implied in the powers previously vested in Congress over commerce, but acknowledged it as a legitimate subject of revenue. And, although the leading object of this section undoubtedly was the importation of slaves, yet the words are obviously calculated to comprise persons of all descriptions, and to recognize in Congress a power to prohibit, where the states permit, although they cannot permit when the states prohibit. The treaty making power undoubtedly goes further. So the fifth clause of the same section furnishes an exposition of the sense of the convention as to the power of Congress over navigation: "nor shall vessels bound to or from one state, be obliged to enter, clear, or pay duties in another."

But it is almost laboring to prove a self-evident proposition, since the sense of mankind, the practice of the world, the contemporaneous assumption, and continued exercise of the power, and universal acquiescence, have so clearly established the right of Con- [231 gress over navigation, and the transportation of both men and their goods, as not only inci dental to, but actually of the essence of, the power to regulate commerce. As to the transportation of passengers, and passengers in a steamboat, I consider it as having been solemnly recognized by the State of New York, as a subject both of commercial regulations and of revenue. She has imposed a transit duty upon steamboat passengers arriving at Albany, and unless this be done in the exercise of her control over personal intercourse, as incident to internal commerce, I know not on what principle the individual has been subjected to this tax. The subsequent imposition upon the steamboat itself, appears to be but a commutation, and operates as an indirect instead of a direct tax upon the same subject. The passenger pays it at last.

It is impossible, with the views which I entertained of the principle on which the commercial privileges of the people of the United States, among themselves, rests, to concur in the view which this court takes of the effect of the coasting license in this cause. I do not regard it as the foundation of the right set up in behalf of the appellant. If there was any one object riding over every other in the adop tion of the constitution, it was to keep the commercial intercourse among the states free from all invidious and partial restraints. And I cannot overcome the conviction, that if the licensing act was repealed to-morrow, the rights of the appellant to a reversal of the decision complained of, would be as strong as [*232 it is under this license. One-half the doubts in life arise from the defects of language, and if this instrument had been called an exemption instead of a license, it would have given a bet ter idea of its character. Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that char acter, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing

with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legisla tion of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contradistinguished from foreign; and to preserve the government from fraud by for eigners, in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected. Many duties and formalities are necessarily imposed upon the American foreign commerce, which would be burdensome in the active coasting trade of the states, and can be dispensed with. A higher rate of tonnage also is imposed, and this license entitles the vessels that take it, to those exemptions, but to nothing 233] more. A common register, equally entitles vessels to carry on the coasting trade, although it does not exempt them from the forms of foreign commerce, or from compliance with the 16th and 17th sections of the enrolling act. And even a foreign vessel may be employed coastwise, upon complying with the requisitions of the 24th section. I consider the license, therefore, as nothing more than what it purports to be, according to the 1st section of this act, conferring on the licensed vessel certain privileges in that trade, not conferred on other vessels; but the abstract right of commercial intercourse, stripped of those privileges, is common to all.

their immediate superintendence. So far as relates to the commerce coastwise, the act under which this license is granted contains a full expression of Congress on this subject. Vessels, from five tons upwards, carrying on the coasting trade, are made the subjects of regula tion by that act. And this license proves that this vessel has complied with that act, and been regularly ingrafted into one class of the commercial marine of the country.

It remains to consider the objections to this opinion, as presented by the counsel for the appellee. On those which had relation to the particular character of this boat, whether as a steamboat or a ferry-boat, I have only to remark, that in both those characters, she is expressly recognized as an object of the provisions which relate to licenses.

The 12th section of the act of 1793 has these words: "That when the master of any ship or vessel, ferry-boats excepted, shall be changed," etc. And the act which exempts licensed steamboats *from the provisions against [*235 alien interests, show such boats to be both objects of the licensing act, and objects of that act, when employed exclusively within our bays and rivers.

But the principal objections to these opinions arise, 1st. From the unavoidable action of some of the municipal powers of the states, upon commercial subjects. 2d. From passages in

the constitution which are supposed to imply a concurrent power in the states in regulating commerce.

It is no objection to the existence of distinct, substantive powers, that, in their application, they bear upon the same subject. The same bale of goods, the same cask of provisions, or the same ship, that may be the subject of com

Yet there is one view in which the license may be allowed considerable influence in sus-mercial regulation, may also be the vehicle of taining the decision of this court.

disease. And the health laws that require It has been contended that the grants of them to be stopped and ventilated, are no more power to the United States over any subject, intended as regulations on commerce than the do not, necessarily, paralyze the arm of the laws which permit their importation are instates, or deprive them of the capacity to act tended to innoculate the community with dison the same subject. That this can be the ease. Their different purposes mark the diseffect only of prohibitory provisions in their tinction between the powers brought into acown constitutions, or in that of the general tion; and while frankly exercised, they can progovernment. The vis vitæ of power is still ex-duce no serious collision. As to laws affecting isting in the states, if not extinguished by the ferries, turnpike roads, and other subjects of the constitution of the United States. That, al- same class, so far from meriting the epithet of though as to all those grants of power which commercial regulations, they are, in fact, commay be called aboriginal, with relation to the mercial facilities, for which, by the consent of government, brought into existence by the con- mankind, a compensation is paid, upon the stitution, they, of course, are out of the reach same principle that the whole commercial world of state power; yet, as to all concessions of submit to pay light-money to the Danes. Inpowers which previously existed in the states, spection laws are of a more equivocal nature, it was otherwise. The practice of our govern- and it is obvious that the constitution [*236 234*] ment certainly has been, on many sub- has viewed that subject with much solicitude. jects, to occupy so much only of the field But so far from sustaining an inference in favor opened to them as they think the public in- of the power of the states over commerce, I terests require. Witness the jurisdiction of the cannot but think that the guarded provisions circuit courts, limited both as to cases and as to of the 10th section, on this subject, furnish a amount; and various other instances that might strong argument against that inference. It be cited. But the license furnishes a full was obvious that inspection laws must combine answer to this objection; for, although one municipal with commercial regulations; and, grant of power over commerce should not be while the power over the subject is yielded to deemed a total relinquishment of power over the states, for obvious reasons, an absolute conthe subject, but amounting only to a power to trol is given over state legislation on the subassume, still the power of the states must be at ject, as far as that legislation may be exercised, an end, so far as the United States have, by so as to affect the commerce of the country. their legislative act, taken the subject under! The inferences, to be correctly drawn, from this

whole article, appear to me to be altogether in favor of the exclusive grants to Congress of power over commerce, and the reverse of that which the appellee contends for.

of the United States. And these punishments may interfere, and one render it impossible to inflict the other, and yet the two governments would be acting under powers that have no claim to identity.

It would be in vain to deny the possibility of a clashing and collision between the measures of the two governments. The line cannot be drawn with sufficient distinctness between the municipal powers of the one and the commercial powers of the other. In some points they meet and blend so as scarcely to admit of separation. Hitherto the only remedy has been applied which the case admits of that of frank and candid co-operation for the general good. Witness the laws of Congress requiring its officers to respect the inspection laws of the that which surrenders to the states the superintendence of pilotage, and the many [*239 laws passed to permit a tonnage duty to be levied for the use of their ports. Other instances could be cited, abundantly to prove that collision must be sought to be produced; and when it does arise, the question must be decided how far the powers of Congress are adequate to put it down. Wherever the powers of the respective governments are frankly exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the same means, and yet the powers be kept perfectly distinct. A resort to the same means, therefore, is no argument to prove the identity of their respective powers.

This section contains the positive restrictions imposed by the constitution upon state power. The first clause of it specifies those powers which the states are precluded from exercising, even though the Congress were to permit them. The second, those which the states may exercise with the consent of Congress. And here the sedulous attention to the subject of state exclusion from commercial power is strongly marked. Not satisfied with the express grant to the United States of the power over commerce, this clause negatives the exercise of that power, to the states, as to the only two objects which could ever tempt them to assume the ex-states, and to aid in enforcing their health laws; ercise of that power, to wit, the collection of a revenue from imposts and duties on imports and exports; or from a tonnage duty. As 237] to imposts on imports or exports, such a revenue might have been aimed at directly, by express legislation, or indirectly, in the form of inspection laws; and it became necessary to guard against both. Hence, first, the consent of Congress to such imposts or duties is made necessary; and as to inspection laws, it is limited to the minimum of expenses. Then, the money so raised shall be paid into the treasury of the United States, or may be sued for, since it is declared to be for their use. And lastly, all such laws may be modified, or repealed, by an act of Congress. It is impossible for a right to be more guarded. As to a tonnage duty, that could be recovered in but one way; and a sum so raised, being obviously necessary for the execution of health laws, and other unavoidable port expenses, it was intended that it should go into the state treasuries; and nothing more was required, therefore, then the consent of Congress. But this whole clause, as to these two subjects, appears to have been introduced ex abundanti cautela, to remove every temptation to an attempt to interfere with the powers of Congress over commerce, and to show how far Congress might consent to permit the states to exercise that power. Beyond those limits, even by the consent of Congress, they could not exercise it. And thus we have the whole effect of the clause. The inference which counsel would deduce from it, is neither necessary nor consistent with the general purpose of the clause.

But instances have been insisted on, with much confidence, in argument, in which, by 238*] municipal laws, particular regulations respecting their cargoes have been imposed upon shipping in the ports of the United States; and one, in which forfeiture was made the penalty of disobedience.

Until such laws have been tested by exceptions to their constitutionality, the argument certainly wants much of the force attributed to it; but admitting their constitutionality, they present only the familiar case of punish ment inflicted by both governments upon the same individual. He who robs the mail, may also steal the horse that carries it, and would, unquestionably, be subject to punishment, at the same time, under the laws of the state in which the crime is committed, and under those

I have not touched upon the right of the states to grant patents for inventions or improvements, generally, because it does not necessarily arise in this cause. It is enough for all the purposes of this decision, if they cannot exercise it so as to restrain a free intercourse among the states.

Decree. This cause came on to be heard on the transcript of the record of the court for the Trial of Impeachments and Correction of Errors of the State of New York, and was argued by counsel. On consideration whereof, this court is of opinion that the several licenses to the steamboats, the Stoudinger and the Bellona, to carry on the coasting trade, which are set up by the appellant, Thomas Gibbons, in his answer to the bill of the respondent, Aaron Ogden, filed in the Court of Chancery for the State of New York, which were granted under an act of Congress, passed in pursuance of the constitution of the United States, gave full authority [*240 to those vessels to navigate the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the State of New York to the contrary notwithstanding; and that so much of the sev eral laws of the State of New York, as prohibits vessels, licensed according to the laws of the United States, from navigating the waters of the State of New York, by means of fire or steam, is repugnant to the said constitution, and void. This Court is therefore of opinion, that the decree of the Court of New York for the Trial of Impeachments and the correction of Errors, affirming the decree of the Chancellor of that state, which perpetually enjoins the said Thomas Gibbons, the appellant, from navigat

ing the waters of the State of New York with 1 Smith and Philip Heintz, on the west side of the steamboats the Stoudinger and the Bellona, by steam or fire, is erroneous, and ought to be reversed, and the same is hereby reversed and annulled. And this Court doth further direct, order and decree, that the bill of the said Aaron Ogden be dismissed and the same is hereby dismissed accordingly.

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SMITH, ex dem. PENN, Defendant in Error.

The act of Pennsylvania, of 1779, "for vesting the estates of the late proprietaries of Pennsyl vania, in this commonwealth," did not confiscate lands of the proprietaries which were within the lines of manors: nor were the same confiscated by the act of 1781, for establishing a land-office.

The statute of limitations of Pennsylvania, of 1705, is inapplicable to an action of ejectment. brought to enforce the unpaid purchase money, for lands of the proprietaries within the manors for which warrants had issued.

Nor is the statute of limitations of 1785, a bar to such an action.

the Susquehanna River, in the said county of Lancaster, for which he agrees to pay to our use the sum of fifteen pounds ten shillings, current money of this province, for each hundred acres; and the yearly quit-rent of one halfpenny sterling for every acre thereof.

"These are, therefore, to authorize and require you to survey, or cause to be surveyed, unto the said Bartholomew, at the place [*243 aforesaid, according to the method of townships appointed, the said quantity of two hundred acres, if not already surveyed or appropriated; and make return thereof into the secretary's office, in order for further confirmation; for which this shall be your sufficient warrant. Which survey, in case the said Bartholomew fulfill the above agreement within six months from the date hereof, shall be valid; otherwise void.

"Given under my hand and seal of the land office, by virtue of certain powers from the said proprietaries, at Philadel [L. S.] phia, this eighth day of January, Anno Domini one thousand seven hundred and forty-two. "George Thomas.

"To Wm. Parsons, Surveyor-General."

In virtue of this warrant, a survey of the

ERROR to the Circuit Court of Pennsylvania. land claimed by Caleb Kirk, one of the plaintiffs

in error, was made on the 12th of October, 1747, This was an ejectment, brought by the de- in favor of Jacob Wagner, the then holder of fendant in error in the court below, to recover the warrant, by various mesne transfers. The the possession of certain lands in York county, title was regularly deduced by various conveyin the State of Pennsylvania. On the 4th of ances, from Wagner to Kirk, accompanied with March, 1861, Charles II. granted to William possession. No grant was ever issued for the Penn, the ancestor of the lessor of the plaintiff land. Ten pounds, a part of the consideration, below, that tract of country which now consti- were paid about the date of the warrant, and tutes the State of Pennsylvania. The grant there was no proof of the payment of the resicontains special powers to erect manors and to due. It appeared to have been the usage of alien the lands, with liberty to the alienees to the proprietaries, not to insist upon the terms hold immediately of the proprietor and his of the contract, by which the survey was deheirs, notwithstanding the statute of quia emp-clared to be void, unless the agreement was fultores. On the 11th of July, in the same year, filled within six months from the date of the William Penn, having interested many persons warrant, and large arrearages of purchase in his grant, agreed with "the adventurers money remained due after the surveys were 242*] and purchasers" in England, on "cer- made. *both within and without the [*244 tain conditions and concessions," which, being manors. The only distinction appears to have for their mutual advantage, were to be obliga- been, that the reserved lands were sold by tory in the future management of the property special contracts; and the lands not reserved and settlement of the province. The 9th of were sold at stated prices. these conditions is, that in every 100,000 acres, the Governor and proprietary, by lot, reserveth ten to himself, which shall lie but in one place." In the year 1762, a warrant was issued for the survey of the manor of Springetsbury. This warrant recites a former survey of the same land, in 1722, as a manor; states the general outlines of such former survey, and directs a resurvey. This resurveying was made, and returned into the land-office in 1768, where it has remained ever since. This resurvey included the lands claimed by the plaintiffs in error, which were held under warrants, of which the follow ing is a specimen:

"Pennsylvania, ss: By the proprietaries. "Whereas, Bartholomew Sesrang, of the county of Lancaster, hath requested that we would grant him to take up two hundred acres of land, situate between Codorus Creek and Little Conewaga Creek, adjoining the lands of Killian

At the commencement of the war of the American revolution, the proprietary went to Great Britain, where he remained; and in the year 1779, the legislature of Pennsylvania passed an act, entitled "An act for vesting the estates of the late proprietaries of Pennsylvania, in this commonwealth." The ejectment was brought in the year 1819, and on the trial of the cause, the question whether the land in controversy was included within the lines of the manor of Springetsbury, as surveyed under the warrant of 1762, was left to the jury, who found that it was included within those lines. The opinion of the court below was, that if the land was within those lines, the right of the plaintiff below was excepted out of the general operation of the act of 1779, and was not vested in the commonwealth. The court also instructed the jury, that the statute of limitations of 1705, commonly called the "seven years law," was inapplicable to the case. To these instructions,

the defendant's counsel excepted, and a verdict | tection in Pennsylvania. William Penn enacted and judgment for the plaintiff having been rendered in the court below, the cause was brought by writ of error to this court.

The cause was argued by Mr. Clay and Mr. Webster for the plaintiffs in error, and by the Attorney-General and Mr. Sergeant for the defendants in error.

245] On the part of the plaintiffs in error, it was contended, 1. That the rights derived to the plaintiffs below, were proprietary, and not manorial. Being in their origin proprietary, they were not, and could not be affected by the survey of a manor in 1768, subsequent to their commencement.

a law to that effect in England, the year after he obtained his charter; and again, in 1700, the same period is provided. And a short period of limitation to protect posses [*247 sions, is believed to have been the favorite policy of all the colonies. The act of 1705, to afford the protection which it intends to give, requires two circumstances: (1) That the entry should be under an equitable estate. (2) That there should have been seven years' quiet possession. The intention of the act was to protect the property. The vendor was at liberty to enforce payment of the consideration money, by all legal means. Even the land itself was not 2. That the rights, being proprietary, and withdrawn from the operation of a judgment. not manorial, vested in the commonwealth of After seven years, the title was complete, but it Pennsylvania, by the right of conquest, and the was still liable to execution. If the plaintiffs in act of confiscation of 1779. The 7th section ejectment can recover, it is because they have a confirms all persons, and consequently, the lien. Now if the lien were express, it would plaintiffs below, in their rights, derived from have been barred by the lapse of twenty years; the proprietaries. The act must be construed and no lien, created by operation of law, can be according to its intention, ascertained by a com- more durable than one created by express act parison of all its parts. The intention was to of the party. To support this right of recovconfiscate the proprietary rights, wherever situ-ery, would be to uphold a remedy after the right ated; and to reserve the private or manorial is gone, and to make the remedy immortal, rights, wherever located. If a proprietary whilst the right is temporary. right was situated within a manor, it was to be 4. That the payment of the purchase money confiscated. If it were part of the manor, that ought to have been presumed; and, consequent is, of the right springing out of the manor, itly, a perfect equitable title in the defendants, was reserved. There is no reservation to the proprietaries of the arrears of purchase money due within manors. There is only an exception from the operation of the abolition of quit-rents and arrears of purchase money, within manors; and this exception must be construed to mean the case of lands bought as part of the manor. It would be to contradict the whole scope and meaning of the act, to construe it as abolishing proprietary rights everywhere but in manors, and to leave them there in full vigor. According to this view of the act, we shall have a consistent and congruous interpretation. The 246*] public rights of the proprietaries, wherever situated, will have been confiscated; and the private rights, wherever situated, will have been preserved. The court will look to the nature of the thing, and not to the accident. If a proprietary right be situated within a manor, it will be abolished, because it is proprietary. Such is the construction which the local legis lature itself has put upon this statute, by the act of 1781, for establishing the land-office,' and by the act of 1784. These acts are cotem poraneous, and in pari materia. If, then, the rights of the proprietors were vested in the state, there remained nothing in them; the legal title passed to the commonwealth, and, consequently, they could not maintain this action of ejectment. But if any was reserved, it was only the arrears of the purchase money, and not the title, which they might sue for in any

manner.

3. That whatever might be the nature of the claim (manorial or proprietary), it was barred by the statute called the seven years law, passed in 1705, whether the consideration money is paid or not. This limitation of seven years appears to have been a favorite period of pro

1.-1 Laws of Penn. 529, preamble and sec. 5. 2.-2 Ib. 102.

8.-1 Ib. 18.

barring the action of ejectment. The length of time elapsed would have authorized a jury to presume a charter, patent or deed. The fact of actual payment being made out by presump tion, the courts of Pennsylvania adopt the chancery principle of considering that as done which ought to be done." When a party, [*248 entitled to a conveyance, does everything necessary to be done, in order to obtain a decree for a specific performance, he stands by the local law, in a situation to support or defend an action for the possession of the land."

5. That the plaintiffs below were barred by the statute of limitations of 1785." If we had entered by disseisin, our right would have been protected. We entered claiming the whole fee. Our title and our possession were, therefore, exclusive; that is to say, adverse to every other title or possession. It is said that it was not adversary, because we claim from them; but the mortgagee claims from the mortgageor, and, nevertheless, is barred after twenty years. The idea of an amicable possession is founded upon confounding the case with that of leases, reversions and remainders. If the vendee purchases the whole estate, his possession, from the mo ment of his entry, is adverse to that of the vendor." But, from the period of the survey of 1768, there was an adverse state of possession. The proprietaries set up their manorial or private right against their public or proprietary right, and from that epoch, inconsistent an opposing titles were brought into being. Fro that moment, the statute of limitations bega 4.-5 Ib. 416, art. 16.

5.-B. Franklin's Appen. 9, 10.

6. Ricard v. Williams, 7 Wheat. Rep. 119.
7. Id. 109; 1 Phill. Ev. 119, 120, 125.
8.-Moody v. Vandyke, 4 Binn. 41; Vincent
Huff, 4 Sergt. & Rawle, 301.

9.-Griffith v. Cochrane, 5 Binn. 105.
10.-2 Laws of Penn. 299.

11. Blight v. Rochester, 7 Wheat. Rep. 585.

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