vessel should be withdrawn from the regulating power of that government which has been thought best fitted for the purpose generally. The provisions of the law respecting native seamen and respecting ownership are as applicable to vessels carrying men as to vessels carrying manufactures, and no reason is perceived why the power over the subject should not be placed in the same hands. The argument urged at the bar rests on the foundation that the power of congress does not extend to navigation as a branch of commerce, and can only be applied to that subject incidentally and occasionally. But if that foundation be removed, we must show some plain, intelligible distinction, supported by the constitution or by reason, for discriminating between the power of congress over vessels employed in navigating the same seas. We can perceive no such distinction. If we refer to the constitution, the inference to be drawn from it is rather against the distinction. The section which restrains congress from prohibiting the migration or importation of such persons as any of the states may think proper to admit until the year 1808 has always been considered as an exception from the power to regulate commerce, and certainly seems to class migration with importation. Migration applies as appropriately to voluntary, as importation does to involuntary, arrivals; and, so far as an exception from a power proves its existence, this section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily. If the power reside in congress as a portion of the general grant to regulate commerce, then acts applying that power to vessels generally must be construed as comprehending all vessels. If none appear to be excluded by the language of the act, none can be excluded by construction. Vessels have always been employed to a greater or less extent in the transportation of passengers, and have never been supposed to be, on that account, withdrawn from the control or protection of congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business. Yet it has never been suspected that the general laws of navigation did not apply to them.

The duty act-sections twenty-three and forty-six-contains provisions respecting passengers, and shows that vessels which transport them have the same rights, and must perform the same duties, with other vessel. They are governed by the general

laws of navigation. In the progress of things, this seems to have grown into a particular employment, and to have attracted the particular attention of government. Congress was no longer satisfied with comprehending vessels engaged specially in this business, within those provisions which were intended for vessels generally, and on the 2d of March, 1819, passed "An act regulating passenger ships and vessels." This wise and humane law provides for the safety and comfort of passengers, and for the communication of everything concerning them which may interest the government to the department of state, but makes no provision concerning the entry of the vessel, or her conduct in the waters of the United States. This, we think, shows conclusively the sense of congress (if, indeed, any evidence to that point could be required) that the pre-existing regulations comprehended passenger ships among others, and, in prescribing the same duties, the legislature must have considered them as possessing the same rights.

If, then, it were even true that the Bellona and the Stoudinger were employed exclusively in the conveyance of passengers between New York and New Jersey, it would not follow that this occupation did not constitute a part of the coasting trade of the United States, and was not protected by the license annexed to the answer. But we cannot perceive how the occupation of these vessels can be drawn into question in the case before the court. The laws of New York, which grant the exclusive privilege set up by the respondent, take no notice of the employment of vessels, and relate only to the principle by which they are propelled. Those laws do not inquire whether vessels are engaged in transporting men or merchandise, but whether they are moved by steam or wind. If by the former, the waters of New York are closed against them, though their cargoes be dutiable goods, which the laws of the United States permit them to enter and deliver in New York. If by the latter, those waters are free to them, though they should carry passengers only. In conformity with the law is the bill of the plaintiff in the state court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are moved by steam. This is the injury of which he complains, and is the sole injury against the continuance of which he asks relief. The bill does not even allege, specially, that those vessels were employed in the transportation of passengers, but says, generally, that they were employed “in the transportation of passengers, or otherwise." The answer

avers only that they were employed in the coasting trade, and insists on the right to carry on any trade authorized by the license. No testimony is taken, and the writ of injunction and decree restrain these licensed vessels, not from carrying passengers, but from being moved through the waters of New York by steam, for any purpose whatever.

The questions, then, whether the conveyance of passengers be a part of the coasting trade, and whether a vessel can be protected in that occupation by a coasting license, are not, and cannot be, raised in this case. The real and sole question seems to be whether a steam machine, in actual use, deprives the vessel of the privileges conferred by a license. In considering this question, the first idea which presents itself is that the laws of congress for the regulation of commerce do not look to the principle by which vessels are moved. That subject is left entirely to individual discretion; and in that vast and complex system of legislative enactment concerning it, which embraces everything that the legislature thought it necessary to notice, there is not, we believe, one word respecting the peculiar principle by which vessels are propelled through the water, except what may be found in a single act, granting a particular privilege to steamboats. With this exception, every act, either prescribing duties or granting privileges, applies to every vessel, whether navigated by the instrumentality of wind or fire, of sails or machinery. The whole weight of proof, then, is thrown upon him who would introduce a distinction to which the words of the law give no countenance.

If a real difference could be admitted to exist between vessels carrying passengers and others, it has already been observed that there is no fact in this case which can bring up that question; and if the occupation of steamboats be a matter of such general notoriety that the court may be presumed to know it, although not specially informed by the record, then we deny that the transportation of passengers is their exclusive occupation. It is a matter of general history that, in our western waters, their principal employment is the transportation of merchandise; and all know that, in the waters of the Atlantic, they are frequently so employed. But all inquiry into this subject seems to the court to be put completely at rest by the act already mentioned, entitled, "An act for the enrolling and licensing of steamboats." This act authorizes a steamboat employed, or intended to be employed, only in a river or bay of the United States, owned wholly or in part by an alien, resident within the United States, to be

enrolled and licensed as if the same belonged to a citizen of the United States. This act demonstrates the opinion of congress that steamboats may be enrolled and licensed, in common with vessels using sails. They are, of course, entitled to the same privileges, and can no more be restrained from navigating waters and entering ports which are free to such vessels than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union; and the act of a state inhibiting the use of either to any vessel having a license under the act of congress comes, we think, in direct collision with that act. As this decides the cause, it is unnecessary to enter into an examination of that part of the constitution which empowers congress to promote the progress of science and the useful arts.

The court is aware that, in stating the train of reasoning by which we have been conducted to this result, much time has been consumed in the attempt to demonstrate propositions which may have been thought axioms. It is felt that the tediousness inseparable from the endeavor to prove that which is already clear is imputable to a considerable part of this opinion. But it was unavoidable. The conclusion to which we have come depends on a chain of principles which it was necessary to preserve unbroken; and, although some of them were thought nearly self-evident, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar demanded that we should assume nothing. Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them, may, by a course of well-digested, but refined and metaphysical, reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and. when sustained, to make them the tests of the arguments to be examined.

JUDICIAL OPINION IN THE CASE OF OGDEN AGAINST SAUNDERS, IN THE SUPREME COURT OF THE

UNITED STATES, 1824.

STATEMENT.

The constitutional doctrine with respect to the obligation of contracts which was brought into great prominence by the case of Dartmouth College v. Woodward soon came before the supreme court of the United States in various aspects. One of the most important of these was the validity of state bankruptcy laws. In Sturges v. Crowninshield,1 this subject was exhaustively considered, and such state laws were held to be valid, in the absence of federal legislation on the subject, provided such state laws do not impair the obligation of contracts by discharging the debtor. The case of Ogden v. Saunders involved another phase of this controversy. It was an action brought by Saunders, a citizen of Kentucky, against Ogden, a citizen of Louisiana, in the circuit court of Louisiana, on certain bills of exchange drawn in 1806 by one Jordan, at Lexington, Ky., upon the defendant Ogden, in the city of New York, where he then resided, which had been then accepted by him, but were afterwards protested for nonpayment. Among several pleas filed by the defendant was a certificate of discharge under the New York act of April 3, 1801, for the relief of insolvent debtors. On the special verdict returned by the jury the court rendered judgment for the plaintiff, whereupon the defendant carried the case to the supreme court by a writ of error. The question of the validity of the New York act, thus raised by the defendant's plea, was twice argued in the supreme court by distinguished counsel, among whom were Henry Clay, D. B. Ogden, William Wirt, E. Livingston, and Walter Jones for, and Daniel Webster and Henry Wheaton against, the constitutionality of the state law.

It was held by a majority of the court that the municipal law in force when a contract is made is part of the contract itself, and if such a law provides for the discharge of the contract upon prescribed conditions, its enforcement upon those conditions does not impair the obligation of the contract of which that law was part. Chief Justice Marshall, dissenting from the majority for the first time on a question of constitutional law, but supported in his view by Justices Story and Duvall, maintained that, however an existing law may act upon contracts when they come to be enforced, it does not enter into them as part of the original agreement, and that an insolvent law which released the debtor upon conditions not in effect agreed to by the parties themselves, whether operating upon past or future contracts, impaired their obligation. Nevertheless, it was also held by the majority, Chief Justice Marshall concurring, that the state law, if part of the contract, was such only as between citizens of that state, and, since the creditor in this case was a citizen of Louisiana, he was not bound by the New York involvent law, and the debtor was not discharged.2

14 Wheat. 122.

12 Wheat. 213.

Veeder-24.